Michael Tankersley v. James Almand

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-01668-RDB. [999927956]. [15-1081]

Appeal: 15-1081

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1081

MICHAEL EDWARD TANKERSLEY,
Plaintiff − Appellant,
v.
JAMES W. ALMAND, in his official capacity as Trustee of the
Client Protection Fund; DOUGLAS M. BREGMAN, in his official
capacity as Trustee of the Client Protection Fund; CHARLES
BAGLEY, IV, in his official capacity as Trustee of the
Client Protection Fund; JOSEPH B. CHAZEN, in his official
capacity as Trustee of the Client Protection Fund; CECELIA
ANN KELLER, in her official capacity as Trustee of the
Client Protection Fund; PATRICK A. ROBERSON, in his official
capacity as Trustee of the Client Protection Fund; LEONARD
H. SHAPIRO, in his official capacity as Trustee of the
Client Protection Fund; DONNA HILL STATEON, in her official
capacity as Trustee of the Client Protection Fund; DAVID
WEISS, in his official capacity as Trustee of the Client
Protection Fund; CLIENT PROTECTION FUND OF THE BAR OF
MARYLAND; HONORABLE MARY ELLEN BARBERA, Chief Judge, in her
official capacity; HONORABLE SALLY D. ADKINS, Judge, in her
official capacity; HONORABLE CLAYTON GREENE, JR., Judge, in
his official capacity; HONORABLE MICHELLE D. HOTTEN, in her
official capacity as Judge of the Maryland Court of Appeals;
HONORABLE ROBERT N. MCDONALD, Judge, in his official
capacity; HONORABLE SHIRLEY WATTS, Judge, in her official
capacity; BESSIE M. DECKER, in her official capacity as
Clerk of the Court of Appeals; MARYLAND COURT OF APPEALS,
Defendants − Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:14−cv−01668−RDB)

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Argued:

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May 12, 2016

Decided:

September 13, 2016

Before KING and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge King joined.
Senior Judge Davis wrote an opinion
concurring in part and dissenting in part.

ARGUED: Scott Matthew Michelman, PUBLIC CITIZEN LITIGATION
GROUP, Washington, D.C., for Appellant.
Michele J. McDonald,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees.
ON BRIEF: Julie A. Murray, PUBLIC CITIZEN
LITIGATION GROUP, Washington, D.C., for Appellant.
Brian E.
Frosh, Attorney General, Alexis Rohde, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellees.

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DIAZ, Circuit Judge:
All attorneys licensed in Maryland who are not permanently
retired must pay an annual fee to the Client Protection Fund of
the Bar of Maryland.

In addition to paying the fee, Maryland

attorneys must also disclose their social security numbers to
the Fund.
Maryland

Relying on federal law, the Court of Appeals of
enacted

this

particular

mandate

in

support

of

the

state’s efforts to collect back taxes and past-due child-support
payments from attorneys.
The

Court

of

Appeals

suspended

Michael

Tankersley’s

law

license after he refused to provide his social security number
to the Fund.

In response, Tankersley sued the trustees of the

Fund and the judges and the clerk of the Court of Appeals (the
“Defendants”),
injunctive

all

relief

in
based

their
on

official

his

claim

capacities,
that

his

seeking

suspension

violated the federal Privacy Act.
The
dismiss.

district

court

granted

the

Defendants’

motion

to

Because we find that federal law gives Maryland the

power (acting through its agents) to compel the disclosure of
social security numbers in this circumstance, we affirm.

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I.
A.
The Court of Appeals of Maryland has the statutory power to
“establish a Client Protection Fund of the Bar of Maryland,” in
order
paying

“to

maintain

money

lawyers.”

to

the

integrity

reimburse

of

losses

the

legal

caused

by

profession

by

defalcations

of

Md. Code Ann., Bus. Occ. & Prof. § 10-311.

As part

of this principal mission, the Fund is also required by statute
to “provide a list of lawyers who have paid an annual fee to the
Fund during the previous fiscal year to . . . the Comptroller,
to assist the Comptroller in determining whether each lawyer on
the list has paid all undisputed taxes.”

Id. § 10-313(a).

That

list must include “the federal tax identification number of the
person

or,

if

identification
person.”

the

person

number,

the

does
Social

not

have

Security

a

federal

number

of

tax
the

Id. § 10-313(b)(2)(ii).

In promulgating rules to enforce this statute, the Court of
Appeals referenced the power given to the state by 42 U.S.C.
§ 405(c)(2)(C)(i).

That provision was enacted as part of the

Tax Reform Act of 1976, and it allows states to collect social
security numbers for certain enumerated purposes, including the
administration of tax laws.
The Court of Appeals also uses the Fund to comply with the
Welfare Reform Act, 42 U.S.C. § 666, which Congress passed in
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1996

to

“increase

enforcement]
§ 666(a).
federal

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the

program
To

that

funding

effectiveness

which
end,

on

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the

the

states’

of

the

State

Welfare
having

[child

support

administers.”
Reform

in

Act

effect

Id.

conditions

“[p]rocedures

requiring that the social security number of . . . any applicant
for

a

professional

application.”

license . . .

be

recorded

on

the

Id. § 666(a)(13).

In 1997, the Maryland General Assembly passed a series of
statutes to comply with the Welfare Reform Act, including Family
Law

section 10-119.3(b)(1),

authority”

to

“(i)

require

which
each

compels

applicant

each
for

a

“licensing
license

to

disclose the Social Security number of the applicant; and (ii)
record

the

applicant’s

application.”

If

Social

Maryland’s

Security
Child

number

Support

on

the

Enforcement

Administration notifies the licensing authority that a licensee
is

in

arrears

on

a

child

support

order,

it

can

“request

a

licensing authority to suspend or deny an individual’s license.”
Md. Code Ann., Fam. Law § 10-119.3(e)(1).
of

Maryland

is

such

a

licensing

The Court of Appeals

authority.

Id.

§ 10-

119.3(a)(3)(ii)(15).
In 2009, then-Chief Judge Robert M. Bell of the Court of
Appeals notified all Maryland attorneys that they were required
to provide their social security numbers to comply with sections
10-119.3 and 10-313.

Most Maryland attorneys heeded the Chief
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Judge’s

notice,

General

Assembly

but

over

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nine

threatened

to

thousand

did

withhold

$1

not.

When

the

million

from

the

judiciary’s budget if it did not move more aggressively against
the recalcitrant attorneys, the Court of Appeals amended its
rules to provide for enforcement.
The resulting Rule 16-811.5 mandated that “each attorney
admitted

to

practice

before

the

Court

of

Appeals . . .

shall . . . provide to the treasurer of the Fund the attorney’s
Social Security number.”

Md. Rules, Rule 16-811.5(a)(1) (2014)

(current version at Md. Rules, Rule 19-605(a)(1) (2016)). 1

In

addition, Rule 16-811.6 provided that the Court could suspend
the license of any attorney who fails to comply with Rule 16811.5.

Md. Rules, Rule 16-811.6 (current version at Md. Rules,

Rule 19-606).
B.
Tankersley has been licensed to practice law in Maryland
since 1986 and in the District of Columbia since 1987.

He has

practiced primarily in the District of Columbia, while living in
either

the

District

or

Virginia.

Outside

of

the

suspension

underlying this case, he has never been disciplined.

1

The Court of Appeals has since reorganized the relevant
rules.
Though some parts of Rule 16-811.5 have changed,
subsection (a)(1) is identical except for updated crossreferences.
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Tankersley was notified in February 2013 that the Fund had
never received his social security number, as requested in 2009,
and that he had until March 22, 2013 to provide it.

Tankersley

responded that he generally does not share his social security
number unnecessarily because of concerns about identity theft.
Tankersley also noted that Maryland state agencies have suffered
cyberattacks, resulting in the exposure of individuals’ private
information.
Citing these concerns, Tankersley refused to provide his
social security number to the Fund, and questioned the legality
of Rule 16-811.5.

He was thereafter notified that his license

had been suspended because of his failure to comply with the
Court’s rule.
C.
Tankersley sued James Almand, the Chair of the Fund, the
other trustees of the Fund, and the judges and clerk of the
Court of Appeals, alleging that the suspension of his license to
practice violated section 7(a)(1) of the Privacy Act.

He sought

injunctive relief.
Tankersley moved for summary judgment, and the Defendants
moved to dismiss for failure to state a claim or for summary
judgment.

The

district

court,

7

relying

on

its

decision

in

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Greidinger v. Almand, 30 F. Supp. 3d 413 (D. Md. 2014), 2 granted
the Defendants’ motion to dismiss.
The court in Greidinger held that the word “applicant” in
§ 666 was not limited to “those who are applying or reapplying
for a license,” as “it is clear that under [the Welfare Act] the
federal government intended to implement a system which required
complete

disclosure

of

[social

security

numbers]

by

every

individual who is subject to a licensing authority,” and § 666
therefore superseded section 7(a)(1).
424.

30 F. Supp. 3d at 422,

The court also found that § 405 of the Tax Reform Act

superseded
although

section
“the

legislative
Finance

statutory

history

Committee

governments

7(a)(1)

of

language

provides
believed

trumped

the

Privacy
is

ample
the

administration] context.”

evidence

needs

individual

less

of

privacy

Act,

noting

than
that

clear,
the

State

and

in

[the

that
the

Senate
local
tax

Id. at 426.

Finding no basis for distinguishing the instant case from
its

holding

in

Greidinger,

Tankersley’s complaint.

the

district

court

dismissed

This appeal followed.

2

Like Tankersley, Greidinger is a licensed Maryland
attorney who declined to provide his social security number to
the Fund.
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II.
A.
Congress passed the Privacy Act of 1974, Pub. L. No. 93579, 88 Stat. 1896, in light of the government’s “increasing use
of

computers

and

sophisticated

information

technology,”

which

“greatly magnified the harm to individual privacy that can occur
from

any

collection,

personal information.”

maintenance,

use,

Id. § 2(a)(2).

or

dissemination

of

To protect against such

harms, section 7(a)(1) of the Act makes it “unlawful for any
federal,

state

individual
because

or

any

of

local

right,

such

government

benefit,

individual’s

security account number.”
7(a)(2),

which

disclosure

makes

which

is

or

agency

privilege

refusal

to

to

deny

to
by

provided

disclose

any
law

his

social

Important here, however, is section

section

7(a)(1)

required

by

inapplicable

federal

to

statute.”

“any
Id.

§ 7(a)(2)(A).
Both the Tax Reform Act, 42 U.S.C. § 405(c)(2)(C)(i), and
the Welfare Reform Act, 42 U.S.C. § 666(a)(13)(A), allow states
to

collect

individuals’

situations.

social

security

numbers

in

specific

This case turns on whether either provision applies

to Maryland’s annual collection of social security numbers from
attorneys

it

has

already

licensed

to

practice.

If

so,

Tankersley may not rely on the Privacy Act to shield his social
security number from the Fund.
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B.
We review de novo a district court’s dismissal of an action
under

Fed.

R.

Civ.

P.

12(b)(6).

Kensington

Volunteer

Fire

Dep’t, Inc. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir.
2012).

“[W]e may affirm on any grounds supported by the record,

notwithstanding the reasoning of the district court.”

Kerr v.

Marshall Univ. Bd. of Governors, 824 F.3d 62, 75 n.13 (4th Cir.
2016).
We
novo.
When

also

review

questions

of

statutory

interpretation

de

Broughman v. Carver, 624 F.3d 670, 674 (4th Cir. 2010).
interpreting

a

statute,

our

“objective . . .

is

‘to

ascertain and implement the intent of Congress,’ and Congress’s
intent ‘can most easily be seen in the text of the Acts it
promulgates.’”
Cir.

2011)

Aziz v. Alcolac, Inc., 658 F.3d 388, 392 (4th

(quoting

Broughman,

624

F.3d

at

674-75).

Where

Congress has not defined a term, we are “bound to give the word
its

ordinary

meaning

unless

the

context

suggests

otherwise.”

Id. at 392-93.
C.
We first address whether, as the district court determined,
the Welfare Reform Act requires Tankersley to provide his social
security number to the Fund.
The Welfare Reform Act compels states to have “[p]rocedures
requiring that the social security number of . . . any applicant
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a

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professional

application.”

42

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license . . .

U.S.C.

§ 666(a)(13)

be

recorded

(emphasis

on

the

added).

We

agree with Tankersley that “applicant” cannot properly be read
to include a Maryland attorney who must pay an annual fee to
maintain his license.
We are guided here by a fundamental principle of statutory
interpretation,

which

directs

that

we

“presume

that

a

legislature says in a statute what it means and means in a
statute what it says there.

When the words of a statute are

unambiguous, then, this first canon is also the last: judicial
inquiry is complete.”

Aziz, 658 F.3d at 392 (quoting Crespo v.

Holder, 631 F.3d 130, 136 (4th Cir. 2011)).

As Congress did not

define “applicant,” we give the word its ordinary meaning.

Id.

at 392-93.
An applicant is “someone who formally asks for something
(such as a job or admission to a college)” or “someone who
applies for something.”

Applicant, Merriam-Webster Dictionary,

http://www.merriam-webster.com/dictionary/applicant;
Applicant,

Webster’s

Dictionary

(2d

ed.

2001)

see

also

(defining

“applicant” as “a person who applies for or requests something;
a candidate”).

We think it plain that the ordinary meaning of

the word does not reach someone like Tankersley who has already
satisfied

the

requirements

for

a

license

to

practice

law

in

Maryland but must pay an annual fee to maintain that license.
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Tankersley

points

out,

one

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would

not

say

that

a

college

sophomore who must pay the next semester’s tuition before being
allowed

to

continue

his

studies

Appellant’s Reply Br. at 5-6.
Moreover,

the

form

the

is

an

“applicant.”

See

So too here.
Fund

uses

to

direct

Maryland

attorneys to provide their social security numbers underscores
how poorly the word “applicant” fits in this context.

It asks

simply for the attorney’s name, address, and social security
number.

See J.A. 30.

Such a bare-bones form can in no way be

described as an “application,” and, indeed, even the Fund does
not refer to the form as such.

See J.A. 29-30 (referring to the

document as the “attached form” and the “completed form”).
Relying

on

Abramski

v.

United

States,

134

S.

Ct.

2259

(2014), the Defendants say that our understanding of “applicant”
renders the provision absurd because it excludes the majority of
Maryland attorneys, “alone among covered professions,” from the
Welfare Act’s coverage.

Appellees’ Br. at 24.

Not so.

In

Abramski, the Supreme Court chose between two readings of an
ambiguous provision of the Gun Control Act of 1968.

The Court

rejected the reading that would have allowed a straw purchaser
of a firearm to present himself as the actual buyer, because it
“would

undermine—indeed,

for

all

important

purposes,

would

virtually repeal—the gun law’s core provisions,” including “an

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elaborate system to verify a would-be gun purchaser’s identity
and check on his background.”

134 S. Ct. at 2267.

We do not face a similar consequence here.

It is certainly

true that our reading of § 666 is under-inclusive in that the
Fund cannot compel disclosure of social security numbers from a
subset of Maryland attorneys who were licensed before a certain
date.

But

that

is

a

far

cry

from

saying

that

it

works

a

“virtual repeal” of the statute’s core provisions, given that
the

Fund’s

enforcement

power

nonetheless

extends

to

a

substantial portion of the Maryland Bar, and expands each year
as new attorneys are admitted to practice.

That the statute

exempts some lawyers from the Fund’s enforcement reach merely
reflects the reality that “[n]o legislation pursues its purposes
at all costs,” Mohamad v. Palestinian Auth., 132 S. Ct. 1702,
1710 (2012) (quoting Rodriguez v. United States, 480 U.S. 522,
525-26 (1987)), and the final result “often involves tradeoffs,
compromises, and imperfect solutions.”

Preseault v. ICC, 494

U.S. 1, 19 (1990).
We hold that the district court erred in relying on § 666
of the Welfare Reform Act to dismiss Tankersley’s complaint.
Accordingly,

we

turn

to

consider

whether

the

Tax

Reform

Act

provides the statutory hook necessary to support the district
court’s judgment.

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D.
Section 405(c)(2)(C)(i) of the Tax Reform Act allows “any
State (or political subdivision thereof)” to use social security
numbers “in the administration of any tax . . . law within its
jurisdiction, . . . and may require any individual who is or
appears to be [affected by the tax law] to furnish to such State
(or political subdivision thereof) or any agency thereof having
administrative responsibility for the law involved, [his] social
security account number.”

See also Schwier v. Cox, 340 F.3d

1284,

2003)

1290

(11th

§ 405(c)(2)(C)(i)]

Cir.

authorizes

(“The

States

to

final
use

version

[social

[of

security

numbers] only ‘in the administration of any tax, general public
assistance, driver’s license, or motor vehicle registration.’”).
Recall that Tankersley’s claim is premised on the view that
the

Fund

violated

his

right

under

disclose his social security number.

the

Privacy

Act

not

to

But as we noted earlier,

the Privacy Act does not help Tankersley if the disclosure is
required

by

federal

law—in

this

case,

say

the

Defendants,

§ 405(c)(2)(C)(i).
Tankersley

resists

this

conclusion

on

three

grounds.

First, he says that Maryland’s statutory requirement that the
Fund furnish the Department of Assessments and Taxation and the
Comptroller with a list of attorneys who paid the annual fee to
the Fund does not amount to the use of social security numbers
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“in the administration of any tax.”

Second, he posits that the

Fund is not an entity that has administrative responsibility for
taxes, as contemplated by § 405.
not

an

“individual

Maryland’s

tax

who

laws

is

or

because

he

Third, he argues that he is
appears

to

be”

neither

works

affected
nor

lives

by
in

Maryland, and he has never owed taxes there.
We address these contentions in turn.
1.
As was the case with the Welfare Reform Act, Congress did
not

define

ordinary

“administration”

meaning.

Aziz,

in

658

§ 405,

F.3d

at

thus

we

392-93.

give
The

it

its

ordinary

meaning of “administration” is the process of “manag[ing] the
operation

of”

something,

Administering,

or

putting

Merriam-Webster

Dictionary,

/administration

(defining

“into

Dictionary,

webster.com/dictionary/administering;
Merriam-Webster

something

see

also

effect.”

www.merriamAdministration,

www.merriam-webster.com/dictionary
“administration”

as

“the

act

or

process of administering”).
The breadth of the plain meaning of “administration” is
consistent with Congress’s treatment of the term as part of the
broader legislation that enacted § 405.

See Tax Reform Act of

1976, Pub. L. No. 94-455 §§ 1202, 1211, 90 Stat. 1520 (codified
as amended at 26 U.S.C. § 6103; 42 U.S.C. § 405).
provision

of

the

Act

expanding
15

the

Internal

There, in a

Revenue

Code’s

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regulation

Filed: 09/13/2016

of

information,

the

disclosure

Congress

defined

Pg: 16 of 41

of

tax

“tax

returns

and

tax

administration”

return

as

“the

administration, management, conduct, direction, and supervision
of

the

execution

“assessment,

and

collection,

application

of”

enforcement,

tax

laws,

litigation,

including

publication,

and statistical gathering functions under such laws.”
§ 6103(b)(4);

see

also

id.

§ 6103(h)(1)

(“Returns

26 U.S.C.
and

return

information shall . . . be open to inspection by or disclosure
to

officers

and

employees

of

the

Department

of

the

Treasury

whose official duties require such inspection or disclosure for
tax administration purposes.”).
The Tax Reform Act of 1976 is comprehensive in scope.
addition

to

making

changes

to

the

Internal

Revenue

In

Code,

Congress also amended, for example, the Social Security Act, the
Tariff Act of 1930, and the Commodity Exchange Act.
Act’s

definition

of

“tax

administration”

as

While the

applied

to

the

Internal Revenue Code does not speak directly to the definition
of “administration” in 42 U.S.C. § 405 (which was passed as part
of the changes Congress made to the Social Security Act), it
does

inform

our

analysis.

It

not

only

shows

that

the

same

Congress that enacted § 405 understood “administration” to be an
expansive term, but it does so in the context of a provision
balancing individual privacy—there, of tax return information—

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against

the

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government’s

need

Pg: 17 of 41

to

use

private

information

to

administer taxes, just as § 405 does.
Given this, we are satisfied that the ordinary meaning of
the term “administration” in § 405 is sufficiently expansive so
as to allow the state of Maryland to compel lawyers licensed in
Maryland

to

disclose

their

social

security

numbers.

The

practice “assist[s] the Department [of Assessments and Taxation]
in identifying new businesses within the State” and “assist[s]
the Comptroller in determining whether each lawyer on the list
has paid all undisputed taxes,” Md. Code Ann., Bus. Occ. & Prof.
§ 10-313(a), which are functions of collection, enforcement, and
statistical gathering required to enforce Maryland’s tax laws.
2.
We are also not persuaded by Tankersley’s contention that
the Fund “is not an entity to which [social security number]
disclosures may be required under § 405,” Appellant’s Br. at 26,
in that it is not the “State (or political subdivision thereof)
or [an] agency thereof having administrative responsibility for
the law involved,” 42 U.S.C. § 405(c)(2)(C)(i).
Tankersley

would

have

us

ignore

that

the

“[s]tate

[of

Maryland] ‘can act only through its officers and agents,’” and
thus

the

act

of

collecting

social

security

numbers

is

necessarily carried out by an officer or agent of the state.
Nevada v. Hicks, 533 U.S. 353, 365 (2001) (quoting Tennessee v.
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Davis, 100 U.S. 257, 263 (1879)).

Moreover, to allow only the

state agency directly responsible for administering the tax laws
to collect social security numbers would read the phrase “or
political subdivision thereof” out of the statute, because it
would

not

allow

the

state

of

Maryland,

acting

through

other

agents or political subdivisions, to collect the numbers.

See,

e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is ‘a
cardinal principle of statutory construction’ that ‘a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.’” (quoting Duncan v. Walker, 533 U.S.
167, 174 (2001))).
We

also

think

it

clear

that

the

Court

of

Appeals

of

Maryland (as a subdivision of the state) and the Fund are—at
least for these purposes—agents of the state.

“A State acts by

its legislative, its executive, or its judicial authorities.
can act in no other way.”
100

U.S.

339,

347

(1879)

It

Ex parte Commonwealth of Virginia,
(emphasis

added).

Maryland’s

constitution vests judicial authority in the Court of Appeals,
Md. Const., Art. IV, §1, and the Court of Appeals has understood
that power to include “the regulation of the practice of law,
the admittance of new members to the bar, and the discipline of
attorneys

who

fail

to

conform

to

the

established

standards

governing their professional conduct,” Attorney Gen. v. Waldron,
18

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426 A.2d 929, 934 (Md. 1981).

Pg: 19 of 41

The Court of Appeals of Maryland

is thus an agent of the state.
So too is the Fund, as an agent of the Court of Appeals.
The

Court,

through

the

rulemaking

authority

given

to

it

by

statute, see Md. Code Ann., Bus. Occ. & Prof. § 10-311(a) (“The
Court

of

Appeals

may

adopt

rules

that . . .

provide

for

the

operation of the Fund.”), has delegated to the Fund the power
“[t]o perform all . . . acts authorized by these Rules,” Md.
Rules, Rule 19-604(a)(15).

Of course, the Rules authorize the

Fund’s collection of social security numbers.

In this capacity,

the Fund acts as an agent of the Court of Appeals, which is in
turn an agent of the state.

The Fund is therefore an entity

under § 405 for purposes of requiring the disclosure of social
security numbers.
3.
Tankersley’s final salvo with respect to the reach of § 405
is that he is not a person who “is or appears to be” affected by
Maryland’s tax laws, because in the twenty-eight years that he
has been licensed to practice law in Maryland, he has never
lived in or owned property in Maryland, nor has he been required
to pay taxes or make unemployment insurance contributions to the
state.
We take Tankersley at his word when he says that he is
someone who has not been affected by Maryland’s tax laws.
19

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the statute reaches further to include individuals who “appear[]
to be” affected by tax laws.

Mindful of “our duty ‘to give

effect, if possible, to every clause and word of a statute,’”
United States v. Menasche, 348 U.S. 528, 538-39 (1955) (quoting
Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S. 147, 152
(1883)),

a

fair

reading

of

§ 405(c)(2)(C)(i)

extends

attorneys licensed to practice law in Maryland.

Why?

to

all

Because

even though lawyers who live and practice elsewhere are less
likely to owe taxes to Maryland than those who live and work in
the state, Tankersley’s ability to earn income in the state (by
virtue

of

his

license)

is

enough

to

make

him

someone

who

“appears to be” affected by Maryland tax laws for the purpose of
§ 405.

See Md. Code Ann., Tax-Gen. § 10-401 (providing for non-

resident allocation of income, losses, and adjustments for tax
purposes).
Accordingly,

§ 405

of

the

Tax

Reform

Act

applies

to

Tankersley, and the state of Maryland may lawfully compel him to
provide

his

social

security

number

suspension of his law license.

to

the

Fund

on

pain

of

The district court’s judgment

dismissing Tankersley’s complaint is therefore
AFFIRMED.

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DAVIS, Senior Circuit Judge, concurring in part and dissenting
in part:
Maryland Rules of Procedure 16-811.5 and 16-811.6, adopted
in 2014, require that each attorney admitted to practice as a
member of the Maryland bar disclose her social security number
(“SSN”) to the treasurer of the Client Protection Fund (“the
Fund”)

or

face

suspension

of

her

license

to

practice

law.

Michael Tankersley, an attorney who has long been admitted to
practice in Maryland but has apparently never actually lived,
worked, or practiced in the state, contends that, as applied to
him, these Maryland Rules violate the federal Privacy Act of
1974.

Section 7(a)(1) of the Privacy Act provides that “[i]t

shall be unlawful for any Federal, State or local government
agency

to

deny

to

any

individual

any

right,

benefit,

or

privilege provided by law because of such individual’s refusal
to disclose his social security account number.”

Pub. L. No.

93-579, § 7(a)(1), 88 Stat. 1896 (codified at 5 U.S.C. § 552a
note).
Upon suspension of his law license for refusing to provide
his SSN, Tankersley brought this suit against all Maryland Court
of Appeals judges, the Clerk of Court, and the trustees of the
Fund (together, “Appellees”) in their official capacities.

The

district court granted Appellees’ motion to dismiss based on its
determination in a previous case that both the Welfare Reform

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Act, 42 U.S.C. § 666, and the Tax Reform Act of 1976, 42 U.S.C.
§ 405, supersede the Privacy Act’s guarantee that an individual
may not be denied any legal right, benefit, or privilege for
failing to disclose her SSN.
on

the

ground

that

§ 405,

My friends in the majority affirm
but

not

§ 666,

supersedes

section

7(a)(1) of the Privacy Act as applied in this case.
While
supersede

I

agree

the

with

Privacy

the

Act

majority

as

it

that

pertains

§ 666
to

does

not

Tankersley,

I

respectfully dissent from its holding that § 405 does supersede
the

Privacy

Act.

I

would

also

hold

that

Tankersley

has

a

private right of action to enforce his Privacy Act rights under
42 U.S.C. § 1983.

Thus, in my view, Tankersley’s suspension

from practicing law for refusing to disclose his SSN violated
his

Privacy

Act

rights.

Accordingly,

I

would

reverse

the

district court’s judgment and remand with instructions to grant
summary judgment for Tankersley.
I.
This Court reviews de novo a dismissal for failure to state
a claim, Kenney v. Indep. Order of Foresters, 744 F.3d 901, 905
(4th Cir. 2014), and we likewise review de novo a denial of
summary judgment, Nourison Rug Corp. v. Parvizian, 535 F.3d 295,
299 (4th Cir. 2008).

Because I agree with the majority that

§ 666 does not supersede Tankersley’s Privacy Act rights, as
Tankersley is not an “applicant” for a professional license, I
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begin

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by

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considering

Pg: 23 of 41

whether

rights under the Privacy Act.

§ 405

supersedes

Tankersley’s

Unlike the majority, I conclude

that it does not.
II.
Under the Tax Reform Act,
any State (or political subdivision thereof) may, in
the
administration
of
any
tax,
general
public
assistance,
driver’s
license,
or
motor
vehicle
registration law within its jurisdiction, utilize the
social
security
account
numbers
issued
by
the
Commissioner of Social Security for the purpose of
establishing
the
identification
of
individuals
affected by such law, and may require any individual
who is or appears to be so affected to furnish to such
State (or political subdivision thereof) or any agency
thereof having administrative responsibility for the
law involved, the social security account number . . .
issued to him by the Commissioner of Social Security.
42 U.S.C. § 405(c)(2)(C)(i).

The Act also provides that, “[i]f

and to the extent that any provision of Federal law heretofore
enacted is inconsistent with the policy set forth in clause (i),
such provision shall . . . be null, void, and of no effect.”
Id.

§ 405(c)(2)(C)(v).

Appellees

argue,

and

the

majority

agrees, that § 405 supersedes Section 7(a)(1) of the Privacy Act
to the extent that it enables states to require individuals to
furnish their SSNs in the administration of any tax law.

See

Appellees’ Br. 26.
I would hold, however, that § 405 does not supersede the
Privacy Act in this case for three reasons:

First, the Fund’s

collection of SSNs is not an effort undertaken by the state “in
23

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the

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administration

of

any

Pg: 24 of 41

tax”

law.

See

§ 405(c)(2)(C)(i).

Second, the Fund is not an entity to which the state may require
individuals to furnish their SSNs, as it is not a direct agent
of

the

state

itself

or

a

state

“agency

administrative responsibility for” any tax law.

. . .

having

See id.

Third,

Tankersley is not an “individual who is or appears to be . . .
affected” by any Maryland tax law.
not

authorize

the

Maryland

See id.

Court

of

Thus, § 405 does

Appeals

to

penalize

Tankersley for refusing to disclose his SSN, and it does not
supersede section 7(a)(1) of the Privacy Act as applied here.
A.
The

language

of

§ 405

is

fairly

limiting.

The

statute

specifies (1) who may require the disclosure of SSNs (a “State
(or political subdivision thereof)”); (2) for what purpose (“in
the administration of any tax . . . law within [the State’s]
jurisdiction”); (3) to whom an individual may be required to
make the disclosure (“to such State (or political subdivision
thereof)

or

any

agency

thereof

having

administrative

responsibility for the law involved”); and, finally, (4) who may
be

required

appears

to

to
be

disclose
. . .

§ 405(c)(2)(C)(i).

her

SSN

affected
I

begin

(“any
[by

by

individual

the

State

examining

the

who

tax

is

or

law]”).

first

two

requirements: whether the mandatory disclosure of SSNs at issue

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Pg: 25 of 41

in this case is an effort undertaken by the state of Maryland
“in the administration of any tax” law.
Maryland

law

requires

that,

See id.

each

year,

the

Fund

must

“provide a list of lawyers who have paid an annual fee to the
Fund during the previous fiscal year” to the State Department of
Taxation “to assist the Department in identifying new businesses
within

the

State”

and

to

the

Comptroller

“to

assist

the

Comptroller in determining whether each lawyer on the list has
paid

all

undisputed

contributions.”

taxes

and

unemployment

insurance

Md. Code Ann., Bus. Occ. & Prof. § 10-313(a).

For each person listed, the Fund must provide “the federal tax
identification number of the person or, if the person does not
have a federal tax identification number, the Social Security
number of the person.”

Id. § 10-313(b)(2)(ii).

In an apparent

effort to comply with this state law, the Maryland Court of
Appeals adopted Maryland Rules of Procedure 16-811.5 and 16811.6 and amended the rules of admission to the Maryland bar,
see Md. Admis. R. 2(b), to require that applicants and members
of the bar supply their SSNs to the Fund.
The Fund’s stated purpose, however, is unrelated to the
state’s administration of any tax law:

“The purpose of the Fund

is to maintain the integrity of the legal profession by paying
money to reimburse losses caused by defalcations of lawyers.”
Md. Code Ann., Bus. Occ. & Prof. § 10-311(b).
25

It is therefore

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dubious

to

Filed: 09/13/2016

conclude

that

Pg: 26 of 41

Maryland

has

acted

“in

the

administration of any tax” law by requiring the Fund, an entity
that

does

not

itself

collect

taxes

and

that

exists

for

an

entirely distinct purpose, to collect SSNs and supply them to
the

Comptroller

for

the

Comptroller’s

use

in

monitoring

compliance with tax laws.
Relatedly, the Maryland Rules at issue in this case are not
the state laws requiring the Fund to provide SSNs to state tax
authorities; instead, the Rules under review are Maryland Rules
16-811.5 and 16-811.6, which the Court of Appeals promulgated to
require bar members to furnish their SSNs to the Fund.

The

suggestion that the state (through its Court of Appeals) acted
“in the administration of any tax” law in promulgating Rules
requiring that the Fund collect SSNs from bar members so that
the Fund can comply with a separate Maryland law that requires
it to provide SSNs to Maryland tax authorities so that those
authorities may check compliance with tax laws is thus all the
more attenuated. 1

Accordingly, it does not appear that § 405

authorizes the Maryland Rules at issue.

1

Tankersley characterizes the Fund’s duty to pass along
SSNs to state tax authorities as a “game of telephone across
state agencies,” Appellant’s Br. 31, that is part of a
“patchwork” scheme, id. at 32, involving a “hodgepodge of
statutes through which SSNs wend their way from the [Fund] to
state taxation authorities,” Reply Br. 13. While the statutory
scheme might not quite warrant this colorful description, the
(Continued)
26

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Pg: 27 of 41

B.
In any event, § 405 also specifies the type of entity to
which a state may require individuals to supply their SSNs: a
state may mandate SSN disclosure “to [a] State (or political
subdivision thereof) or any agency thereof having administrative
responsibility
Appellees

argue

for

the

that

the

law

involved.”

Fund,

in

§ 405(c)(2)(C)(i).

collecting

SSNs

under

the

Maryland Rules, is acting as an agent of the state, and since
§ 405

authorizes

responsible

for

“the

State”

administering

as
tax

Maryland Rules comply with § 405.

well
laws

to

as

state

collect

agencies
SSNs,

See Appellees’ Br. 30–35.

the
In

other words, Appellees contend that two groups may collect SSNs
under § 405—the state, including its direct agents, and state
agencies

the

law

involved”—and that the Fund belongs in the former group. 2

See

id. at 32.

with

“administrative

responsibility

for

The majority agrees.

The language of § 405 is not so expansive, however, as to
allow us to consider the Fund a direct agent of the state of

scheme is certainly complex, and the Maryland Rules’ connection
to the state’s administration of tax laws is tenuous at best.
2 Notably, Appellees expressly concede that the Fund does
not qualify for the latter group. That is, they do not suggest
that
the
Fund
is
a
state
agency
with
administrative
responsibility for any tax law.
See Appellees’ Br. 31 (“[F]or
purposes of § 405, the Fund is not itself a state ‘agency’ that
administers a tax, but rather an agent of the State housed in
the judicial branch.”).
27

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Maryland.
every

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Pg: 28 of 41

In interpreting a statute, we must “give effect to

provision

and

word

in

a

statute

and

avoid

any

interpretation that may render statutory terms meaningless or
superfluous.”
Cir. 2005).

Discover Bank v. Vaden, 396 F.3d 366, 369 (4th
If the phrase “the State (or political subdivision

thereof)” were to include any state agency, such as the Fund,
then the next phrase in § 405, authorizing SSN collection by
“any [state] agency . . . having administrative responsibility
for

the

law

involved,”

would

be

superfluous.

See

§ 405(c)(2)(C)(i).
Likewise, by expressly providing that “any [state] agency
. . . having administrative responsibility for the law involved”
may collect SSNs, Congress appears to have specifically excluded
from § 405’s purview state agencies, like the Fund, that are not
responsible for administering tax laws.

See id.

If it intended

otherwise, Congress could simply have established that a state
may require SSN disclosure to “any state agency” and left it at
that.

See Reyes v. Gaona v. N.C. Growers Ass’n, 250 F.3d 861,

865 (4th Cir. 2001) (“[T]he doctrine of expressio un[ius] est
exclusio alterius instructs that where a law expressly describes
a particular situation to which it shall apply, what was omitted
or excluded was intended to be omitted or excluded.”); cf. Dep’t
of Homeland Sec. v. MacLean, 135 S. Ct. 913, 919 (2015) (“Thus,
Congress’s choice to say ‘specifically prohibited by law’ rather
28

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than

Doc: 59

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‘specifically

suggests

that

prohibited

Pg: 29 of 41

Congress

by

law,

meant

rule,

to

or

regulation’

exclude

rules

and

regulations.”).
Appellees

argue,

on

the

other

hand,

and

the

majority

agrees, that the statutory canon requiring that we attempt to
“give effect to every provision and word in a statute,” Discover
Bank, 396 F.3d at 369, cuts the other direction.
Br. 32–33.

See Appellees’

They contend that the phrase “State (or political

subdivision thereof)” must include the state’s direct agents for
that term to have any meaning, as a state cannot act of its own
accord.

See id. at 32.

Yet that proposition does nothing to

demonstrate that the Fund in particular qualifies as a direct
agent of the state.
this

description,

Although the Court of Appeals might meet
see

Md.

Const.,

Art.

IV,

§ 1

(vesting

Maryland’s judicial power in the Court of Appeals), I see no
reason to conclude that the Fund, a subset of the Maryland Court
of Appeals, may serve as a proxy for the state itself.
That
state

Congress,

agency

to

in

enacting

qualify

as

a

§ 405,

did

stand-in

not

for

intend

the

for

“State

a

(or

political subdivision thereof)” is again exemplified by § 405’s
inclusion
state

of

a

agencies—a

subsequent

phrase

specifically

statutory

phrase

that

would

pertaining
more

to

naturally

describe the Fund, if only the Fund were a state agency with
administrative responsibility for any Maryland tax law.
29

See

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§ 405(c)(2)(C)(i).

Pg: 30 of 41

Accordingly,

the

majority’s

labored

analysis, reasoning that the Maryland Court of Appeals is an
agent of the state and the Fund is an agent of the Court of
Appeals and thus the Fund is an agent of the state, forgets that
the relevant question is whether the Fund is a direct agent of
the state—the personification of the state itself—as opposed to
a state agency organized and managed under the auspices of the
state.

Because the Fund is neither a direct state agent nor an

agency with administrative responsibility for any Maryland tax
law, § 405 does not authorize the Maryland Rules at issue here,
which require disclosure of SSNs to the Fund.
C.
Finally, even if § 405 does authorize the Fund’s collection
of SSNs in some circumstances, it does not allow Maryland to
require the collection of Tankersley’s SSN in particular, as
Tankersley

is

not

an

“individual

affected by any Maryland tax law.

who

is

or

appears

to

be”

See id.

Although Tankersley has been licensed to practice law in
Maryland

since

1986,

he

has

been

a

resident

of

Virginia

or

Washington, D.C., and has worked in Washington, D.C., for the
duration

of

that

time,

J.A.

114—indeed,

he

has

also

been

licensed to practice law in Washington, D.C., since 1987, J.A.
10.

For

the

nearly

three

decades

that

Tankersley

has

been

licensed in Maryland, he has not owned property in Maryland, and
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he has not owed Maryland any taxes or unemployment insurance
contributions.

J.A. 114.

Moreover, Tankersley has annually

reported his home and work addresses to the Fund, which uses
this

information

each

year,

along

with

information

regarding

Tankersley’s bar memberships outside of Maryland, to determine
whether he is subject to a mandatory assessment.
15;

Regs.

of

the

Client

Protection

Fund

of

See J.A. 114–

the

Bar

of

Md.

Currently Effective, § (i)(1)–(3), http://www.courts.state.md
.us/cpf/pdfs/regulations.pdf (last visited Aug. 25, 2016).
Thus,

not

only

does

Tankersley

not

owe

any

taxes

in

Maryland (nor has he for nearly thirty years), but he also does
not appear to owe any taxes in Maryland, as is clear from the
information that Tankersley provides the Fund on a yearly basis.
Someone who lives in Virginia and works in Washington, D.C.,
where he is licensed to practice law, does not “appear[] to be
affected”

by

Maryland

tax

laws

simply

because

he

is

also

licensed to practice law in Maryland, particularly when he has
not practiced law there and has no other apparent connection to
the state.
Appellees contend that a more individualized approach to
SSN

collection

administrative

would
mechanism

“require
to

an

determine

unworkable,
whether

basis for taxing the specific individual.”
Perhaps so.

burdensome,

there

was

some

Appellees’ Br. 29.

Yet, as mentioned above, the Fund already uses
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individual bar members’ information to determine whether each
attorney owes a mandatory assessment, so the requisite mechanism
already exists.

More to the point, § 405 is clear in specifying

who may be required to disclose her SSN: “any individual who is
or appears to be” affected by state tax law.

Appellees cannot

eschew this language due to policy concerns about inefficiency. 3
Given that we must, to the extent possible, attempt to construe
§ 405 so as to preserve the Privacy Act, see Morton v. Mancari,
417 U.S. 535, 551 (1974) (“[W]hen two statutes are capable of
co-existence, it is the duty of the courts, absent a clearly
expressed

congressional

each

effective.”),

as

intention

to

Appellees’

the

contrary,

argument

to

regard

concerning

the

relative ease and efficiency of a blanket mandatory collection
of all licensed attorneys’ SSNs is unpersuasive.
Lastly, it is ironic that, upon acknowledging that we must
be “mindful of our duty to give effect, if possible, to every
clause

and

word

of

a

statute,”

3

ante

at

20

(citations

and

Indeed, even if it were necessary to look beyond the
statutory text, the relevant legislative history demonstrates
that Congress intended for § 405 to be limited in scope.
When
advocating the passage of § 405, the Senate Committee on Finance
stated that it “believe[d] that State and local governments
should have the authority to use social security numbers for
identification purposes when they consider it necessary for
administrative purposes.”
S. Rep. No. 94-938, at 391 (1976)
(emphasis added). Maryland cannot in good faith consider a more
efficient system strictly necessary, especially when the state’s
current administrative system is already capable of the task at
hand.
32

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internal

quotation

precise

wording

marks
of

Pg: 33 of 41

omitted),

§ 405—which

the

majority

authorizes

ignores

the

the

mandatory

collection of an SSN only from an “individual who is or appears
to

be”

affected

by

Maryland

instead

declares

that

“a

tax

fair

laws,

reading

§ 405(c)(2)(C)(i)—and
of

§ 405(c)(2)(C)(i)

extends to all attorneys licensed to practice in Maryland,” ante
at 20.

Congress did not enact such an expansive statute, and we

should not transform § 405 into one, particularly where we are
obligated to give effect to every word in a statute and to
interpret § 405 in a manner that preserves the federal Privacy
Act (and the important protections it provides), to the extent
possible.
Accordingly, I would hold that § 405 does not authorize the
Fund to penalize Tankersley for failing to supply his SSN, as
Tankersley

is

not

an

individual

“who

is

or

appears

to

be

affected” by any Maryland tax law.
III.
Having concluded that neither § 666 nor § 405 supersedes
Tankersley’s rights under section 7(a)(1) of the Privacy Act,
the question remains whether Tankersley has a private right of
action to enforce his rights.

Tankersley argues that he may

pursue his claim for declaratory and injunctive relief under 42
U.S.C. § 1983.

See Appellant’s Br. 36–43.

33

I agree.

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Section 1983 “imposes liability on anyone who, under color
of state law or regulation, deprives a person ‘of any rights,
privileges,
laws.’”

or

immunities

secured

by

the

Constitution

and

Blessing v. Freestone, 520 U.S. 329, 340 (1997).

plaintiff

seeking

redress

under

§ 1983

“must

assert

A
the

violation of a federal right, not merely a violation of federal
law.”
493

Id. (citing Golden State Transit Corp. v. Los Angeles,

U.S.

103,

106

(1989)).

We

consider

three

factors

when

determining whether a particular statutory provision gives rise
to a federal right.
that

the

provision

Id.
in

“First, Congress must have intended

question

benefit

the

plaintiff.”

Id.

(citing Wright v. City of Roanoke Redevelopment & Hous. Auth.,
479 U.S. 418, 430 (1987)).
the

federal

right

must

The Supreme Court has clarified that
be

“unambiguously

conferred”;

it

is

insufficient that “the plaintiff falls within the general zone
of interest that the statute is intended to protect.”
Univ. v. Doe, 536 U.S. 273, 283 (2002).
must

demonstrate

that

the

right

Gonzaga

“Second, the plaintiff

assertedly

protected

by

the

statute is not ‘so vague and amorphous’ that its enforcement
would strain judicial competence.”

Blessing, 520 U.S. at 340–41

(quoting Wright, 479 U.S. at 431–32).

“Third, the statute must

unambiguously impose a binding obligation on the States.

In

other words, the provision giving rise to the asserted right

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must be couched in mandatory, rather than precatory, terms.”
Id. at 341 (citing cases).
However, “[e]ven if a plaintiff demonstrates that a federal
statute creates an individual right, there is only a rebuttable
presumption that the right is enforceable under § 1983.

Because

our inquiry focuses on congressional intent, dismissal is proper
if Congress ‘specifically foreclosed a remedy under § 1983.’”
Id. (quoting Smith v. Robinson, 468 U.S. 992, 1005 n.9 (1984)).
Congress may do so expressly or impliedly, such as by “creating
a

comprehensive

enforcement

scheme

that

individual enforcement under § 1983.”

is

incompatible

with

Id. (citing Livadas v.

Bradshaw, 512 U.S. 107, 133 (1994)).
A.
While

the

question

of

whether

section

7(a)(1)

of

the

Privacy Act confers an individual right enforceable under § 1983
is an issue of first impression in this Circuit, 4 the Eleventh
Circuit has

answered

this

question

in

the

affirmative.

Schwier v. Cox, 340 F.3d 1284, 1292 (11th Cir. 2003).

See

The Ninth

Circuit, the only other one of our sister circuits to resolve

4

Because the district court below concluded that § 666 and
§ 405 supersede Section 7(a)(1) of the Privacy Act, it did not
reach this issue.
See J.A. 123–24.
The district court in
Greidinger v. Almand, which served as the basis for the district
court’s decision in this case, noted that this is “an open
question in the Fourth Circuit,” but it also declined to resolve
the issue. 30 F. Supp. 3d 413, 426 (D. Md. 2014).
35

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the

Doc: 59

issue, 5

creates

Filed: 09/13/2016

agreed

an

that

individual

Pg: 36 of 41

section

7(a)(1)

right,

but

it

of

the

held

intentionally foreclosed § 1983 as a remedy.

Privacy

that

Act

Congress

See Dittman v.

California, 191 F.3d 1020, 1028–29 (9th Cir. 1999).
I

would

hold

that,

in

enacting

section

7(a)(1)

of

the

Privacy Act, Congress created an individual right enforceable
under § 1983.
“[i]t

shall

Section 7(a)(1) of the Privacy Act provides that
be

unlawful

for

any

Federal,

State

or

local

government agency to deny to any individual any right, benefit,
or

privilege

refusal

to

§ 7(a)(1).

provided
disclose

by
his

law

because

social

of

security

such

individual’s

account

number.”

Even though this provision proscribes the activity

of a “Federal, State or local government agency,” the statute is
unambiguously focused on the right of an individual to retain
her

legal

rights,

disclose her SSN.

benefits,

and

privileges

when

refusing

to

See Schwier, 340 F.3d at 1292 (“[T]he Privacy

Act clearly confers a legal right on individuals: the right to
refuse to disclose his or her ssn without suffering the loss ‘of
any right, benefit, or privilege provided by law.’”).

Moreover,

Congress explained that it enacted the Privacy Act “to provide

5

This issue has come before the Tenth Circuit as well, but
that court acknowledged the existing circuit split and dismissed
the plaintiff’s Privacy Act claims for other reasons.
See
Gonzalez v. Vill. of West Milwaukee, 671 F.3d 649, 662–63 (10th
Cir. 2012).
36

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certain

Filed: 09/13/2016

safeguards

for

an

Pg: 37 of 41

individual

against

an

invasion

of

personal privacy,” Pub. L. No. 93-579, § 2(b), 88 Stat. 1896,
expressing an intent to create and preserve individual rights.
Section 7(a)(1) of the Privacy Act differs in this way from
the Family Educational Rights and Privacy Act of 1974 (“FERPA”)
at issue in Gonzaga University v. Doe.
The

Supreme

Court

in

Gonzaga

See 536 U.S. at 276.

determined

that

FERPA,

which

provides that “[n]o funds shall be made available . . . to any
educational

agency

. . .

which

has

a

policy

or

practice

of

permitting the release of education records . . . of students
without

the

written

consent

of

their

parents,”

20

U.S.C.

§ 1232g(b)(1), did not contain the requisite “rights-creating”
language to allow for enforcement under § 1983.
U.S. at 287.

Gonzaga, 536

The Court explained that the statute’s focus on

funding for educational agencies “is two steps removed from the
interests of individual students and parents and clearly does
not

confer

the

sort

of

enforceable under § 1983.”

‘individual
Id.

entitlement’

that

is

Section 7(a)(1) of the Privacy

Act, by contrast, establishes that individuals are entitled to
decline

to

provide

their

SSNs

while

rights, benefits, and privileges.
plainly

confers

an

individual

and

requirement for enforcement under § 1983.

37

their

legal

In doing so, section 7(a)(1)

right

at 1292; Dittman, 191 F.3d at 1028.

retaining

satisfies

the

first

See Schwier, 340 F.3d

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Further, the individual right created by section 7(a)(1) is
not “‘so vague and amorphous’ that its enforcement would strain
judicial competence.”

Blessing, 520 U.S. at 340–41 (quoting

Wright, 479 U.S. at 431–32).

An individual’s right to retain

“any right, benefit, or privilege provided by law” is clearly
defined.

See

obligation

Dittman,

imposed

governmental

body

on
may

191

F.3d

at

governmental
not

deny

1028

(“[T]he

bodies

any

is

statutory

clear:

individual

any

A

right,

benefit, or privilege because she refuses to disclose her social
security

number,

unless

otherwise

permitted

by

law.”).

Moreover, the Act unambiguously imposes a binding and mandatory
obligation
unlawful.”
rebuttable

on

the

states

by

See § 7(a)(1).
presumption

of

using

the

phrase

“it

shall

be

Tankersley has thus established a
enforceability

of

his

Privacy

Act

rights under § 1983.
B.
Appellees
demonstrating

have
that

failed
Congress

to

counter

“specifically

this

presumption

foreclosed

a

by

remedy

under § 1983,” see Blessing, 520 U.S. at 341 (quoting Smith, 468
U.S. at 1005 n.9), as their argument rests primarily on their

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contention that the Privacy Act does not confer an individual
right, 6 see Appellees’ Br. 39–45.
As it happens, Congress has not foreclosed a remedy under
§ 1983.

In concluding otherwise, the Ninth Circuit reasoned

that, “[a]lthough the prohibitions of § 7(a)(1) apply to all
governmental entities, including state and local governments, by
limiting the scope of the Privacy Act’s civil remedy provision,
5

U.S.C.

private

§ 552a(g),

Congress
against

enforcement’

agencies.”

clearly
any

Dittman,

191

F.3d

intended

entity

other

1029.

The

at

to

‘foreclose

than

federal

civil

remedy

provision to which the Ninth Circuit referred, however, applies
only

to

section

maintenance

of

3

of

the

individuals’

regulates federal agencies.

Privacy
records

Act,
and

which

concerns

the

itself

only

which

See 5 U.S.C. § 552a.

The civil

remedy provision does not apply to section 7, the section at
issue in this case.

See Schwier, 340 F.3d at 1289 (“Dittman

6

Appellees also assert that Tankersley cannot pursue his
Privacy Act rights under § 1983 because “Congress lacked
authority to abrogate the Eleventh Amendment immunity of the
states in the Privacy Act.”
Appellees’ Br. 38.
The Supreme
Court has consistently recognized, however, that “officialcapacity actions for prospective relief are not treated as
actions against the state.”
Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 n.10 (1989) (quoting Kentucky v. Graham,
473 U.S. 159, 167 n.14 (1985)). Accordingly, because Tankersley
seeks injunctive relief, not damages, from state officials in
their official capacity, this case does not implicate any
Eleventh Amendment concerns.
See id. (“Of course a state
official in his or her official capacity, when sued for
injunctive relief, would be a person under § 1983 . . . .”).
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recognize

that

the

Pg: 40 of 41

remedial

scheme

of

section

3

applies only to section 3 and has no bearing on section 7.”).
Appellees acknowledge as much in their brief.

See Appellees’

Br. 38 (“The only private cause of action created under the
Privacy Act exists under Section 3 of that Act, and is limited
to

claims

against

federal

entities.”).

As

the

Privacy

Act

establishes “no enforcement scheme at all” with respect to the
individual

rights

that

section

7

confers,

Congress

foreclosed enforcement of these rights under § 1983. 7

has

not

Schwier,

340 F.3d at 1292.
IV.
Thus,

neither

42

U.S.C.

§ 666

nor

42

U.S.C.

§ 405

supersedes section 7(a)(1) of the Privacy Act and authorizes the
enforcement

of

Tankersley.
of

action

Maryland

Rules

16-811.5

and

16-811.6

against

Moreover, 42 U.S.C. § 1983 confers a private right
for

Tankersley

to

enforce

his

Privacy

Act

rights.

Because this case involves no genuine issue of material fact,
see Fed.

R.

Civ.

P.

56,

I

would

7

reverse

and

remand

to

the

Tankersley argues in the alternative that a federal court
may exercise its “inherent equitable power to enjoin violations
of federal law.”
Reply Br. 19.
Because I conclude that
Tankersley has a private right of action to enforce his section
7(a)(1) Privacy Act rights under § 1983, I do not address this
issue.
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district

court

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for

entry

of

Pg: 41 of 41

summary

judgment 8

in

favor

of

Tankersley.

8

The parties have sufficient notice that we may grant
summary judgment, as Tankersley filed a motion seeking this
relief and Appellees styled their dispositive motion as a
“Motion to Dismiss, or, in the Alternative, for Summary
Judgment.” See J.A. 116.
41