Dittman v. State

• Decision Date: 11 August 1999
• Docket Number: No. 98-16385,98-16385
• Citation: 191 F.3d 1020
• Parties: (9th Cir. 1999) ROY RICHARD DITTMAN, Plaintiff-Appellant, v. STATE OF CALIFORNIA; STATE AND CONSUMER AFFAIRS AGENCY; MEDICAL BOARD OF CALIFORNIA; ACUPUNCTURE COMMITTEE; and MARILYN NIELSEN, Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1020

191 F.3d 1020 (9th Cir. 1999)

ROY RICHARD DITTMAN, Plaintiff-Appellant, v. STATE OF CALIFORNIA; STATE AND CONSUMER AFFAIRS AGENCY; MEDICAL BOARD OF CALIFORNIA; ACUPUNCTURE COMMITTEE; and MARILYN NIELSEN, Defendants-Appellees.

No. 98-16385

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 11, 1999--San Francisco, California

Filed September 14, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Thomas George Key, Bartholomew, Henry & Key, Tustin, California; Jim Turner, Swankin & Turner, Washington, D.C.; and J. Lee Boothby, Vista, California, for the plaintiff appellant.

Jill Buttram, Deputy Attorney General, Sacramento, California, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California. Lawrence K. Karlton, District Judge, Presiding, D.C. No. CV-97-02047-LKK-GGH.

Before: John T. Noonan, David R. Thompson, and Susan P. Graber, Circuit Judges.

GRABER, Circuit Judge:

Plaintiff, Roy Dittman, appeals from the district court's grant of summary judgment in favor of defendants the State of California Acupuncture Committee (Committee) and Marilyn Nielsen, whom Plaintiff sued in her individual capacity and in her official capacity as Executive Officer of the Committee. Plaintiff alleged that Defendants' refusal to renew his license to practice acupuncture unless he first disclosed his social security number, as required by California law, violated both his right to due process under the Fourteenth Amendment and S 7(a)(1) of the Privacy Act (uncodified), 5 U.S.C.A. S 552a (note), Pub. L. No. 93-579, 88 Stat. 1896, et seq. We affirm.

BACKGROUND

The facts of this case are undisputed. From 1983 to 1995, Plaintiff was a licensed acupuncturist in the State of California. On September 21, 1995, Plaintiff received a form letter from the Committee notifying him that, under revisedS 30 of the California Business and Professions Code,¹ the disclosure of his social security number was a necessary condition to the renewal of his license. The letter warned that,"[i]f you fail to disclose your social security number . . . , your application for initial or renewal license will not be processed. " Plaintiff, whose license expired on October 31, 1995, objected to the disclosure requirement.

On July 17, 1996, Plaintiff received a second letter from the Committee, signed by defendant Nielsen. That letter stated that the Committee had received Plaintiff's complaint and that "[a] response will be forthcoming." After hearing nothing for three months, Plaintiff wrote to the Committee on October 4, 1996, demanding immediate issuance of his license. Plaintiff received no response until April 7, 1997, when the Committee informed him that "[t]he Acupuncture Committee is unable to process your request for renewal of your license to practice acupuncture. The requirements for renewal of your license have been explained to you, in detail, on several occasions."

On October 30, 1997, Plaintiff filed this action pursuant to 42 U.S.C. S 1983, alleging that Defendants' refusal to renew his license violated the due process clause of the Fourteenth Amendment. Plaintiff also alleged that requiring disclosure of his social security number as a condition to licensure violated S 7(a)(1) of the Privacy Act. Plaintiff sought both damages and prospective injunctive relief, i.e., the issuance of his license. The district court granted summary judgment in favor of Defendants as to all claims.

Plaintiff brought this timely appeal.

STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment. See San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998). We likewise review de novo the constitutionality of a statute. See California Democratic Party v. Jones, 169 F.3d 646, 647 (9th Cir. 1999). "A district court's determinations on questions of law and on mixed questions of law and fact that implicate constitutional rights are also reviewed de novo." Id.

DISCUSSION

I. MOOTNESS

At oral argument, Defendants conceded that they had obtained Plaintiff's social security number through the use of an electronic database. Although Defendants did not assert that their possession of the social security number rendered this case moot, we have an independent obligation to address sua sponte whether this court has subject-matter jurisdiction. See Queen of Angels/Hollywood Presbyterian Med. Ctr. v. Shalala, 65 F.3d 1472, 1481 (9th Cir. 1995). We conclude that we do.

"Mootness can be characterized as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 986, 989 (9th Cir. 1999) (citations and internal quotation marks omitted)."If there is no longer a possibility that an appellant can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction." Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999).

Plaintiff's claims for relief continue to present a live controversy for two reasons. First, as we read S 30, even if Defendants have obtained Plaintiff's social security number through independent means, Defendants do not have the authority to issue a license to him. The statute provides that "a licensing board may not process any application for an original license or for renewal of a license unless the applicant or licensee provides [his or her] . . . social security number where requested on the application." Cal. Bus. & Prof. Code S 30(c) (emphasis added). As is plain,S 30 mandates that an applicant must disclose his or her own social security number before the licensing authority may process the request for an application. The social security number must come from the applicant, perhaps to avoid the possibility of mistaken identity. Section 30 does not authorize the licensing authority to act if it acquires the applicant's social security number only from an independent source. Thus, in this case, Defendants may not process Plaintiff's request for renewal using a social security number obtained from an independent source. Were Defendants to do so, they would exceed the scope of their statutory authority.

Moreover, even if Defendants theoretically could have exceeded the scope of their authority by issuing Plaintiff a license, they have not done so. Defendants steadfastly maintain that, unless Plaintiff himself discloses his social security number, he cannot obtain a license under S 30. As discussed above, Defendants' position is consistent with the text of the statute.

In summary, because Defendants, consistent with S 30, continue to deny Plaintiff a license to practice acupuncture, Plaintiff's claims have not been rendered moot by Defendants' acquisition of Plaintiff's social security number.

II. CLAIMS AGAINST THE COMMITTEE

Plaintiff asserted claims against the Committee under both S 1983 and the Privacy Act. Neither claim is viable.

A. Due Process Claim Under S 1983

Plaintiff's S 1983 claim against the Committee for allegedly violating the due process clause is barred by the Eleventh Amendment. In the absence of a waiver by the state or a valid congressional override, "[u]nder the eleventh amendment, agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court." Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1989). The State of California has not waived its Eleventh Amendment immunity with respect to claims brought under S 1983 in federal court, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (holding that the California Constitution does not waive immunity from federal court jurisdiction), and the Supreme Court has held that "S 1983 was not intended to abrogate a State's Eleventh Amendment immunity," Kentucky v. Graham , 473 U.S. 159, 169 n.17 (1985).

Indeed, Plaintiff does not contest that the Committee is a governmental agency of the State of California entitled to Eleventh Amendment immunity. Accordingly, the district court properly dismissed Plaintiff's S 1983 claim against the Committee.

B. The Privacy Act

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." 5 U.S.C.A. S 552a (note). Although the protection afforded by the Privacy Act is broad, its civil remedy provision is far less expansive. This court has held that the private right of civil action created by the Privacy Act, see 5 U.S.C.S 552a(g)(1) (providing that a private individual "may bring a civil action against the agency"), "is specifically limited to actions against agencies of the United States Government. The civil remedy provisions of the statute do not apply against private individuals, state agencies, private entities, or state and local officials," Unt v. Aerospace Corp., 765 F.2d 1440, 1447 (9th Cir. 1985) (citations omitted) (emphasis added); see also St. Michael's Convalescent Hosp. v. California, 643 F.2d 1369, 1373 (9th Cir. 1981) (holding that the Privacy Act provides no private right of action against "state agencies or bodies"). Accordingly, the Privacy Act provides Plaintiff with no private cause of action against the Committee.

Plaintiff counters that, even if the Privacy Act itself provides no remedy against the Committee, S 1983 may serve as a vehicle to redress violations of that statute. See Legal Servs. v. Arnett, 114 F.3d 135, 138 (9th Cir. 1997) ("It is well established that S 1983 provides a private right of action for violations of federal statutes in some instances."). Even if we assume, without deciding, that Plaintiff's argument is correct,...