Daniel A. SCHMITT, Plaintiff-Appellant, v. The CITY OF DETROIT, a Michigan municipal corporation; Loretta Neal, Former Income Tax Director of the City of Detroit; Mark Vann, Former Assistant Income Tax Director of the City of Detroit; James Florkowski, Manager I of the City of Dеtroit; Bryant Jenkins, Principal Accountant of the City of Detroit; and T.W. Graphics, Defendants-Appellees.
No. 03-1884
United States Court of Appeals, Sixth Circuit
Decided and Filed: Jan. 14, 2005
Argued: Nov. 30, 2004
395 F.3d 327
For the foregoing reasons, the denial of plaintiff‘s motion to remand is REVERSED, the entry of summary judgment is VACATED, and the case is REMANDED with instructions to REMAND the entire action to the Shiawassee County Circuit Court for the State of Michigan for further proceedings.
Before: NORRIS and COOK, Circuit Judges; BECKWITH, Chief District Judge.*
OPINION
ALAN E. NORRIS, Circuit Judge.
Plaintiff Daniel Schmitt received a mailing from the City of Detroit concerning his 2001 income tax obligation. The vendor hired by the City to print thesе mailings included the recipient‘s social security number on the envelope. Plaintiff filed suit against the City under § 7(b) of Privacy Act of 1974 (“the Privacy Act“),
As do the federal government and the State of Michigan, the City relies on a person‘s social security number for tax identification purposes, as permitted by the Internal Revenue Code,
Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.
Throughout this litigation, plaintiff has relied upon this provision for the proposition that local governmental entities, such as the income tax division of the City, are subjeсt to the Privacy Act. However, the language of § 7(b) suggesting that state and local agencies fall within its ambit is at odds with another crucial definition of the Privacy Act, as codified at
The district court looked to these statutory definitions and held that “[t]he City is not an agency under any statutory definition” and therefore is “not properly subject to the requirements of § 7(b) of the Privacy Act.” Schmitt v. City of Detroit, 267 F.Supp.2d 718, 722 (E.D.Mich. 2003). Other courts have likewise concluded that the Act applies only to federal agencies. See Polchowski v. Gorris, 714 F.2d 749, 752 (7th Cir.1983) (“the bill, as originally introduсed, contained a remedy for improper disclosures by state authorities; these provisions were deleted, however, because of the uncertain effect of such a provision and because Congress felt that it lacked the necessary information for devising a remedial scheme in this context“) (citing 1974 U.S.Code Cong. & Adm. News at 6933-34) (footnote omitted); Stoianoff v. Comm‘r of Motor Vehicles, 107 F.Supp.2d 439, 442 (S.D.N.Y.2000) (observing that § 7(b) was “never codified“); see also J.M. Zittler, Annotation, What is Agency Subject to Privacy Act Provisions, 150 A.L.R. Fed. 521, 530 (1998) (“The statutory definition of ‘agency’ would appear to be referring to federal agencies only“) (collecting cases); but see Greater Cleveland Welfare Rights Org. v. Bauer, 462 F.Supp. 1313, 1319-20 (N.D.Ohio 1978) (inferring a right of action for prospective relief under § 7(b) against a county welfare department).
Despite the importance of this issue to the resolution of the appeal, in their briefs to this court, neither party focused upon the interplay between § 7(b) of
Given that Title 5 has the force of positive law, the viability of § 7(b) is premised upon whether it was codified. It was, albeit as a note to
When faced with statutory sections that are inherently inconsistent, our first duty is to reconcile the competing provisions so that they can both remain in effect. See Daniel v. Cantrell, 375 F.3d 377, 383 (6th Cir.2004); cert. denied U.S. —, 125 S.Ct. 874, L.Ed.2d (Jan. 10, 2004) (No. 04-6822); Anderson v. Yungkau, 153 F.2d 685, 688 (6th Cir.1946) (dissent); see generally Singer, Norman, J. Statutes and Statutory Construction § 28:12 (West Group 6th ed.2002). In this case, howevеr, such a reconciliation is impossible. The statutory definition of an agency found at § 552a(a)(1) contains no language to indicate that it does not apply to the Privacy Act as a whole. Were we to hold that § 7(b) applies to state аnd local agencies, we would effectively say that an unambiguous definition of a core term, which itself was promulgated by Congress,
While we are hesitant to rely upon legislative history,2 in this instance it overwhelmingly supports the view that the Privacy Act applies exclusively to federal agencies. Not only was § 7(b) of
COVERAGE: PRIVATE, STATE AND LOCAL
As reported, the bill applies to Federal personal information systems, whether automated or manual, and to those of State, local and private organizations whiсh are specifically created or substantially altered through grant, contract or agreement with Federal agencies, where the agency causes provisions of the act to be applied to such systems or files or relevаnt portions.
As introduced, S. 3418 applied to all governmental and private organizations which maintained a personal information system, under supervision of a strong regulatory body, with provision for delegating power to State instrumentalities.
The Committee has cut back on the bill‘s original coverage and ordered the Privacy Commission to make a study of State, local and private data banks and recommend precise application of the Act where needed.
1974 U.S.C.C.A.N. 6916, *6932-6933. At least one court has cited Senate Report 93-1183 in holding that the Privacy Act applies only to federal agencies. Polchowski, 714 F.2d at 752. If nothing else, the report indicates that Congress considered a broader application of the statute but held off рending further study. Finally, plaintiff cites us to nothing in the legislative history of the statute that would indicate that Congress viewed the dissemination of social security numbers differently than it did other records. See 1974 U.S.C.C.A.N. 6916, 6943-46 (discussing privacy concerns related to use of sociаl security numbers but recognizing legitimate uses by entities other than the federal government and recommending further study by the Privacy Commission).
The fact that the Privacy Act contains a section that defines the term “agency” as including only those agencies thаt fall under control the federal government, coupled with a legislative history that supports such a reading of its scope, forces us to conclude that—notwithstanding the codification of § 7(b)—the Privacy Act applies exclusively to fedеral agencies. Because plaintiff cannot state a cause of action against the City, we hold that his suit was properly dismissed pursuant to
The judgment of the district court memorialized by its Order Granting Declаratory Relief is reversed to the extent that it grants declaratory relief under the Privacy Act and affirmed in all other respects. The cause is remanded to the district court with instructions to dismiss the complaint for failure to state a claim.
ALAN E. NORRIS
UNITED STATES CIRCUIT JUDGE