Abuhouran v. Social Security Administration , 291 F. App'x 469 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-4-2008
Abuhouran v. Social Security Admn
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3551
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3551
___________
ADMA JIRIES ABUHOURAN,
Appellant
v.
SOCIAL SECURITY ADMINISTRATION; LINDA S. MCMAHON; MR. THAYER
AND MS. RODRIGUES; NEW JERSEY MOTOR VEHICLE COMMISSION AND
THE STATE OF NEW JERSEY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 06-cv-02809)
District Judge: Honorable Faith S. Hochberg
_
Submitted Under Third Circuit LAR 34.1(a)
August 1, 2008
Before: SLOVITER, BARRY and NYGAARD, Circuit Judges
(Opinion filed: August 4, 2008)
_________
OPINION
_________
PER CURIAM
Adma Jiries Abuhouran appeals orders of the District Court dismissing her
complaint as to the state defendants and granting summary judgment to the remaining
defendants. We will affirm.
Abuhouran filed a complaint in the United States District Court for the District of
New Jersey against the Social Security Administration (“SSA”), certain of its employees,
the New Jersey Department of Motor Vehicle Services (“NJDMV”) and the State of New
Jersey. NJDMV and the State of New Jersey (“the state defendants”) moved to dismiss
for lack of jurisdiction and failure to state a claim under Fed. R. Civ. P. 12(b)(6). The
SSA and its employees moved to dismiss or in the alternative, for summary judgment.
The District Court granted the motions, and Abuhouran timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. We review a District Court’s
dismissal under Fed. R. Civ. P. 12(b)(6) de novo. Merle v. U.S., 351 F.3d 92, 94 (3d Cir.
2003). We review an order granting summary judgment de novo, and we apply the same
standard that the District Court should have applied. MBIA Ins. Corp. v. Royal Indem.
Co., 426 F.3d 204, 209 (3d Cir. 2005).
Abuhouran alleges that she is a naturalized citizen residing in New Jersey. On
January 12, 2006, she allegedly went to NJDMV to renew her driver’s license, which had
expired eight years earlier. NJDMV refused to renew her license because the information
it contained allegedly did not match the information provided by SSA. Abuhouran says
that she then visited the SSA office in Jersey City, New Jersey, and requested that her
records be corrected and a new card issued. Abuhouran attempted to prove her identity
using her certificate of naturalization, an expired driver’s license and an expired passport.
SSA sent Abuhouran a letter confirming her request for a new Social Security card
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reflecting the correct information; however, Linda McMahon, Deputy Commissioner of
SSA, sent an another letter shortly thereafter stating that SSA could not issue a Social
Security card because the identity and age information that Abuhouran provided did not
match the data maintained by “the [unspecified] agency” that maintains those records. On
June 6, 2006, Abuhouran received her renewed passport and subsequently submitted it to
SSA in an effort to prove her identity. SSA officials allegedly referred to her as “you
people,” a veiled reference to all Arabs, telling her “you know what you’ve done,” in
reference to the tragedy of September 11, 2001, and then calling a security guard to escort
her out. Am. Compl. ¶ 42. A supervisor allegedly advised Abuhouran that she would
receive a new Social Security card reflecting the correct information, but apparently no
action was taken until Abuhouran filed this lawsuit. Abuhouran states that she then
sought to have her driver’s license renewed, but NJDMV again informed her that her
identification information did not match the data provided by SSA. In September 2006,
SSA met with Abuhouran and corrected her information in a matter of minutes.
Abuhouran alleges that defendants’ failure to correct her identifying information led to
the denial of her driver’s license, denial of employment, denial of medical treatment and
denial of the right to travel or attend events requiring “proper” identification, and that
defendants discriminated against her based on her Jordanian ethnicity. Abuhouran asserts
claims under the Privacy Act, the Federal Tort Claims Act (“FTCA”), and Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
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We first address the District Court’s decision to grant the federal defendants’
motion for summary judgment. The federal defendants presented undisputed evidence
that Abuhouran or an individual with her same social security number had applied for
numerous social security cards over the past few decades, and that these applications
contained different birth dates and inconsistent gender identifications. See Dist. Ct. Op.,
at 5 n.3.
The Privacy Act creates a civil remedy for a federal agency’s failure
to maintain any record concerning any individual with such accuracy,
relevance, timeliness, and completeness as is necessary to assure fairness in
any determination relating to the qualifications, character, rights, or
opportunities of, or benefits to the individual that may be made on the basis
of such record . . . .
5 U.S.C. § 552a. A plaintiff seeking damages must demonstrate that the agency’s actions
were “intentional or willful.” 5 U.S.C. § 552a(g)(4). The District Court determined that
SSA had issued Abuhouran a new Social Security card, which rendered moot her claim
for injunctive relief under the Privacy Act. Abuhouran also seeks damages; therefore, she
must adduce facts sufficient to show that the defendants intentionally or willfully refused
to correct her identification data. “An agency acts in an intentional or willful manner
‘either by committing the act without grounds for believing it to be lawful, or by
flagrantly disregarding others’ rights under the Act.’” Deters v. U.S. Parole Comm’n, 85
F.3d 655, 660 (D.C. Cir. 1996) (citation omitted). Although Abuhouran alleges that
unspecified SSA employees referred to her as “you people” and told her, “you know what
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you’ve done,” she fails to allege who made those remarks, which precludes an analysis of
any defendant’s intent. Abuhouran also has failed to rebut the record evidence that SSA
acted in accordance with SSA policy, especially in light of the numerous applications for
social security cards by her or a person with her social security number, containing
inconsistent information. Abuhouran failed to proffer evidence – in the form of affidavits
or otherwise -- that SSA employees intentionally or willfully refused to correct her
information and issue a new card. Therefore, summary judgment was proper on the
Privacy Act claim. See Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995) (“[A]
plaintiff cannot resist a properly supported motion for summary judgment by merely
restating the allegations of his complaint . . . .”); Reinbold v. Evers, 187 F.3d 348, 362
(4th Cir. 1999) (summary judgment proper on Privacy Act claim where plaintiff failed to
“bring forward any evidence that the [agency] acted in a manner which was ‘intentional
or willful.’”).
The District Court also properly granted summary judgment on Abuhouran’s
Bivens claim. Bivens provides a cause of action against federal officials who have
committed constitutional violations. The District Court correctly concluded that a Bivens
action is improper when the claims asserted are “encompassed within the remedial
scheme of the Privacy Act.” See Chung v. U.S. Dep’t Justice, 333 F.3d 273, 274 (D.C.
Cir. 2003). Because the Privacy Act provides a remedy, Abuhouran’s Bivens claim must
fail.
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Abuhouran’s final claim against the federal defendants was brought under the
FTCA. The FTCA provides a cause of action against the United States for
“nonconstitutional torts based on the ‘negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment.’
28 U.S.C. § 2679(b)(1).” Couden v. Duffy, 446 F.3d 483, 498 n.10 (3d Cir. 2006). The
United States is the only proper defendant in an action brought under the FTCA. Woods
v. United States, 720 F.2d 1451, 1452 n.1 (9th Cir. 1983); 28 U.S.C. § 1346(b)(1).
District Courts lack subject matter jurisdiction, however, over claims based on the
performance of a discretionary function. 28 U.S.C. § 2680. This so-called “discretionary
function exception” shields the United States from liability based on government
officials’ conduct involving judgment or choice, so long as the judgment “is the kind that
the discretionary function exception was designed to shield.” Berkovitz v. United States,
486 U.S. 531, 536 (1988).
The District Court correctly determined that Abuhouran could not sue the SSA or
federal officials under the FTCA, and that she had failed to name the United States. It
further denied Abuhouran leave to amend her complaint to name the United States.
We review a District Court’s denial of leave to amend for abuse of discretion.
Winer Family Trust v. Queen, 503 F.3d 319, 331 (3d Cir. 2007). Although leave to
amend should be “freely given when justice so requires,” Fed. R. Civ. P. 15(a), a District
Court may deny leave to amend where it would cause undue delay or prejudice, or where
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amendment would be futile. Winer Family Trust, 503 F.3d at 330-331.
The District Court ruled that Abuhouran’s belated effort to add the United States
as a defendant in a second amended complaint would be futile because the conduct that
she challenged is a “discretionary function,” and, therefore, the District Court would lack
jurisdiction over such a claim against the United States. We exercise plenary review
over the applicability of the discretionary function exception. Gotha v. U.S., 115 F.3d
176, 179 (3d Cir. 1997). The District Court was correct in ruling that the challenged
conduct satisfied the first prong of the discretionary function exception test, namely,
whether the challenged conduct involves federal officials’ judgment or choice. SSA’s
Program Operations Manual System (“POMS”) requires SSA employees to be certain that
the person applying for a social security card is the person he or she claims to be, and
SSA employees may require additional evidence if they doubt the identity of the
applicant. POMS RM 00203.200(A), (E)(1); POMS RM 00203.020(1). In light of the
checkered history associated with Abuhouran’s social security number, SSA employees
were entitled to require additional proof of identity from Abuhouran if they so chose.
Accordingly, the District Court correctly concluded that the challenged conduct involved
federal employees’ judgment or choice.
The discretionary function exception, however, does not apply to every
discretionary decision made by a federal employee. Gotha, 115 F.3d at 179. The
exception applies only to those judgments that involve social, economic or political policy
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decisions that Congress meant to shield from judicial “second-guessing” through tort
actions. Berkovitz, 486 F.3d at 536-537. Although the District Court failed to consider
the second prong of the discretionary function exception, the error does not affect its
conclusion that amendment would be futile. The decision to accept or reject certain
evidence of identity lies squarely within SSA officials’ policy judgment regarding the
standards required to verify identity in this country. These are the kind of judgments
involving public policy decisions that Congress sought to shield. Compare Gotha, 115
F.3d at 181 (Navy’s failure to provide a proper stairway, railing and lighting at a Navy
facility was not subject to the discretionary function exception because it involved a
“mundane, administrative, garden-variety, housekeeping problem” far removed from the
Navy’s mission) with Sea-Land Serv., Inc. v. U.S.A., 919 F.2d 888, 892 (3d Cir. 1990)
(government’s decision to use war ships containing asbestos fell within discretionary
function exception because it involved questions of resource allocation and effective
utilization of the nation’s naval fleet). Therefore, the discretionary function exception
applies, amendment would have been futile, and the District Court did not abuse its
discretion in denying Abuhouran leave to amend.
The District Court also properly granted the state defendants’ motion to dismiss.
State actors cannot be sued under the Privacy Act, Bivens, or the FTCA. See 5 U.S.C. §
551; Bivens, 403 U.S. 391 n.4; 28 U.S.C. § 1346(b)(1). As Abuhouran’s allegations do
not state a claim for a violation of due process or of equal protection, it would have been
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futile for the District Court to grant her leave to amend to state a claim under 42 U.S.C. §
1983. Abuhouran does not allege the denial of a protected liberty or property interest, nor
does the denial of a driver’s license implicate the right to interstate travel. Cf. Miller v.
Reed, 176 F.3d 1202, 1206 (9th Cir. 1999) (right to drive not a fundamental right that
implicates the right to interstate travel). Nor does she allege any racial discrimination by
the state defendants.1
In sum, the District Court properly dismissed the claims against the state
defendants, granted summary judgment to SSA and its employees on Abuhouran’s claims
under the Privacy Act, Bivens, and the FTCA, and denied Abuhouran leave to amend.
Accordingly, we will affirm the orders of the District Court.
Appellant’s motion for appointment of counsel and her motion to amend are
denied.2 Appellees’ motion to file briefs and supplemental appendix under seal is
granted.
1
Abuhouran alleges that the defendants who violated her right to equal protection
were “federal employees.” Am. Compl., ¶ 61.
2
To the extent that appellant asserts that the District Court abused its discretion in
failing to construe a letter as a motion for appointment of counsel, we note that the
District Court docket does not show receipt of such a letter. In any event, appointment of
counsel would not have been warranted under Tabron v. Grace, 6 F.3d 147, 155-56 (3d
Cir. 1993).
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