Schwier v. Cox

• Decision Date: 11 August 2003
• Docket Number: No. 02-13214.,02-13214.
• Citation: 340 F.3d 1284
• Parties: Deborah SCHWIER, Theodore Schwier, et al., Plaintiffs-Appellants, v. Cathy COX, in her official capacity as Secretary of State of Georgia, Defendant-Appellee, United States of America, Intervenor.
• Court: U.S. Court of Appeals — Eleventh Circuit

340 F.3d 1284

Deborah SCHWIER, Theodore Schwier, et al., Plaintiffs-Appellants, v. Cathy COX, in her official capacity as Secretary of State of Georgia, Defendant-Appellee United States of America, Intervenor.

No. 02-13214.

United States Court of Appeals, Eleventh Circuit.

DECIDED August 11, 2003.

Neil Bradley, ACLU, Atlanta, GA, for Plaintiffs-Appellants.

Kendall L. Kerew, Kathryn L. Allen, Georgia Dept. of Law, Atlanta, GA, for Defendant-Appellee.

Michael S. Raab, Catherine Y. Hancock, U.S. Dept. of Justice, Civ. Div., Appellate Staff, Washington, DC, for Intervenor.

Appeal from the United States District Court for the Northern District of Georgia.

Before DUBINA and BLACK, Circuit Judges, and RYSKAMP^*, District Judge.

DUBINA, Circuit Judge:

Deborah Schwier, Theodore Schwier, and Michael Craig (collectively, "Appellants") filed suit in federal district court against Cathy Cox ("Cox"), in her official capacity as Secretary of the State of Georgia, seeking declaratory and injunctive relief under 42 U.S.C. § 1983. The Appellants claimed that Georgia's voter registration procedure and Voter Registration Form violated section 7 of the Privacy Act of 1974, Pub.L. 93-579, 88 Stat. 1896, 2194, 5 U.S.C. 552a (note), and section 1971 of the Voting Rights Act of 1870, 42 U.S.C. § 1971(a)(2)(B). The district court found that Appellants could not bring a private right of action under § 1983 for violations of section 7 of the Privacy Act or section 1971 of the Voting Rights Act. For the reasons that follow, we reverse.

I. BACKGROUND

Prior to the general election of November, 2000, Deborah and Theodore Schwier ("the Schwiers") attempted to register to vote in Walton County, Georgia. The Schwiers submitted their registration applications without supplying their social security numbers ("ssns"). Subsequently, Walton County officials notified the Schwiers that, unless they supplied officials with their ssns, their voter registrations would be rejected. Michael Craig ("Craig") was unable to vote in Gwinnett County, Georgia because he also refused to supply officials with his ssn. The Schwiers¹ sought and won a preliminary injunction allowing them to vote in the election without providing their ssns in the customary manner.² Discovery focused primarily on how Georgia implemented its voter registration statute, O.C.G.A. § 21-2-219.

After discovery, Appellants and Cox filed cross motions for summary judgment. The district court granted Cox's motion for summary judgment on both the Privacy Act and Voting Rights Act claims. Appellants then perfected this appeal.

Appellants claim that Georgia's requirement that they provide their ssns in order to vote and Georgia's Voter Registration Form ("the Form") violate the Privacy Act. Appellants argue that section 7 of the Privacy Act contains no remedial scheme and that Appellants may sue Cox for violations of section 7 via § 1983.

Cox argues that the Appellants do not have a private right of action under the Privacy Act. Alternatively, Cox argues that Georgia's voting statute is protected from the prohibitions of the Privacy Act by the Act's "grandfather" provision. Cox further argues that if Appellants may sue state officials for violations of the Privacy Act via § 1983, then passage of the Privacy Act exceeded Congress's authority, and the Privacy Act is unconstitutional.

Because Cox argues that if section 7 of the Privacy Act is enforceable via a private right of action brought under § 1983, then section 7 of the Privacy Act is unconstitutional, the United States ("the Government") intervened as a matter of right pursuant to 28 U.S.C. § 2403(a) and Rule 44 of the Federal Rules of Appellate Procedure. The Government argues that the Privacy Act may be enforced under § 1983 and that Congress did not exceed its authority in passing the Privacy Act.

Appellants also contend that Georgia's requirement that voters supply their ssns in order to vote violates 42 U.S.C. § 1971(a)(2)(B) of the Voting Rights Act which prohibits states from disqualifying potential voters based on their failure to provide information not relevant to determining their eligibility to vote. Appellants argue that since its enactment in 1871, § 1983 has been available to private citizens to enforce the Voting Rights Act. They contend that when Congress gave the Attorney General the authority to enforce the Voting Rights Act through the enactment of the Civil Rights Act of 1957, Congress added a means of enforcing the Voting Rights Act but did not take away the previously existing remedy of private suits via § 1983.

Cox argues that section 1971 of the Voting Rights Act may be enforced only by the Attorney General. In the alternative, Cox argues that, even if § 1971 may be enforced by a private right of action under § 1983, Appellants' claim is moot because Georgia has modified its Voter Registration Form.

II. ISSUES

1. Whether the district court erred in holding that section 7 of the Privacy Act does not allow for enforcement by a private right of action against state agencies by a suit under § 1983.

2. If the Privacy Act allows for a private right of action, whether Congress exceeded its authority in enacting the Privacy Act, rendering the Privacy Act unconstitutional.

3. Whether Georgia qualifies for the "grandfather" exception of section 7(a)(2)(B) of the Privacy Act.

4. Whether Georgia's Voter Registration Form complies with the notice requirements of section 7(b) of the Privacy Act.

5. Whether the district court erred in holding that section 1971 of the Voting Rights Act may not be enforced by a private right of action under § 1983.

6. Whether the disclosure of a person's ssn is "material" in determining whether he or she is qualified to vote under Georgia law for purposes of section 1971 of the Voting Rights Act.

III. STANDARD OF REVIEW

This court reviews "the district court's grant of summary judgment de novo. Summary judgment is appropriate where there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir.1995) (internal quotations and citation omitted).

IV. DISCUSSION

A. Whether the district court erred in holding that section 7 of the Privacy Act does not allow for enforcement by a private right of action against state agencies by a suit under § 1983.

The Privacy Act of 1974 contains only two substantive sections, section 3 and section 7. See 88 Stat. at 2177-94. Section 3 of the Privacy Act applies only to federal agencies and, among other things, delineates an individual's right to records of federal agencies and right to be protected from disclosure of records by federal agencies. Section 3 contains a comprehensive remedial scheme which includes the right to bring a civil action against a federal agency; however, the remedial scheme of section 3 states that it applies only to section 3.

Section 7 of the Privacy Act bars federal, state, or local agencies from denying "any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number" to the agency.³ Section 7 of the Privacy Act does not contain its own remedial scheme and is explicitly excluded from the remedial scheme of section 3; thus, section 7 has no remedial scheme.

1. The district court's finding that section 7 of the Privacy Act is a "dead letter."

Within the Privacy Act itself, Congress stated that section 3 was an amendment to Title V, which governs federal administrative agencies. See 88 Stat. at 2178. Thus, section 3 added a new section to Title V and was codified as 5 U.S.C. § 552a. Id. at 2177. Because Congress made no such statement about section 7 of the Privacy Act, the revisor of the U.S.Code placed section 7 in an "Historical and Statutory" note following 5 U.S.C. § 552a. See 5 U.S.C. § 552a (note). The district court mistakenly placed great weight on this fact. The district court noted that, although section 7 was part of the Privacy Act that "was passed into law as Public Law 93-579," the fact that section 7 "was never codified, and appears only in the `Historical and Statutory Notes' section of the United States Code," made section 7 a mere "historical footnote to the Privacy Act of 1974 [which] Congress has never reflected any intention of [codifying]." The district court apparently believed that public laws have less "weight" as laws than laws which have been codified. The reverse is true: "the Code cannot prevail over the Statutes at Large when the two are inconsistent." United States v. Welden, 377 U.S. 95, 98 n. 4, 84 S.Ct. 1082, 1085 n. 4, 12 L.Ed.2d 152 (1964) (internal quotations omitted).

The district court also stated that section 7 was deleted from the Privacy Act by the Senate Government Operations Committee "before the law was codified into the official code." The district court quotes Senate Report 1183, but the quote demonstrates that the provision that was deleted from the Act pertained only to a business entity's refusal to enter into a "business transaction or commercial relationship with an individual because of [his] refusal to disclose or furnish [his social security] number." S.REP. No. 93-1183 (1974), reprinted in 1974 U.S.C.C.A.N. 6916, 6943. Thus, the court's conclusion that section 7 of the Privacy Act had been deleted was error. The best proof of this is section 7's presence in the Statutes at Large. See 88 Stat. at 2194; see also Welden, 377 U.S. at 98 n. 4, 84 S.Ct. at 1085 n. 4. We therefore conclude that the district court erred in finding that section 7 of the Privacy Act was "a dead letter."

2. The district court's finding that the remedial scheme of section 3 forecloses a private action for violations of section 7.

In finding that section 7 does not provide for a private right of action, the district court relied on the Ninth Circuit's holding in Dittman v. California, ...