UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LOUIS A. MARKS, JR.; BRENDA J.
MARKS; JEREMY S. THOMPSON,
Plaintiffs-Appellants,

v.

UNITED STATES SOCIAL SECURITY
ADMINISTRATION; JOHN GROOVER;
COMMONWEALTH OF VIRGINIA,
Department of Rehabilitative
Services; CAROLINA LONGA, MD;
LUC VINH, MD; U.S. DEPARTMENT OF
VETERANS AFFAIRS; BANK OF
AMERICA NT&SA, successor by
                                                         No. 96-1055
merger to Security Pacific National
Bank, not in its individual capacity
but solely as Trustee for American
Housing Trust VI; BOATMAN'S
NATIONAL MORTGAGE COMPANY,
formerly known as National
Mortgage Company; SHAPIRO &
BURSON; CHRISTINE S. PATTERSON;
LORI-DON MACNAMEE; DANA
POWERS; LONG AND FOSTER REALTY;
LYNN THERELL; BILL PFEIFFER;
A. PAUL BURTON,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Raymond A. Jackson, District Judge.
(CA-95-50-4)

Submitted: July 2, 1996
Decided: August 6, 1996

Before HALL, WILKINS, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

Louis A. Marks, Jr., Brenda J. Marks, Jeremy S. Thompson, Appel-
lants Pro Se. Susan Lynn Watt, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia; LaDale Kenneth George, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Vir-
ginia; Donna Joyce Hall, MAYS & VALENTINE, Norfolk, Virginia;
Mary Christine Maggard, SHAPIRO & BURSON, Virginia Beach,
Virginia; Thomas Scott Carnes, SYKES, CARNES, BOURDON,
AHERN & SHAPIRO, Virginia Beach, Virginia; Alan Brody Rash-
kind, FURNISS, DAVIS, RASHKIND & SAUNDERS, Norfolk, Vir-
ginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants appeal from the dismissal of their complaint pursuant
to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction. We affirm the dis-
missal of all claims except the claims against Drs. Carolina Longa and
Luc Vinh, employees of the Virginia Department of Rehabilitative
Services (the "Department"). Those claims we remand to the district

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court for further consideration in light of Biggs v. Meadows, 66 F.3d
56 (4th Cir. 1995).

In 1992, Appellant Brenda J. Marks filed an application for disabil-
ity benefits. The Social Security Administration ("SSA") denied her
application and affirmed its decision on reconsideration. In 1994,
before a hearing was held by an Administrative Law Judge, the
Department reversed the denial. Since then, Ms. Marks has received
retroactive benefits and regular monthly disability payments. Thirteen
months passed between Ms. Marks's application for benefits and the
SSA's granting those benefits.

Over a year after Ms. Marks received retroactive disability bene-
fits, Ms. Marks, her husband Louis Marks, and Ms. Marks's son, Jer-
emy Thompson, filed an action raising the following claims against
the following defendants:

          (1) Against the SSA; John Groover, manager of the
          Hampton Administration office; the Department; and
          two employees of the Department, Dr. Longa and Dr.
          Vinh. Appellants claim that these defendants improp-
          erly disposed of Brenda Marks's medical records,
          which allegedly included an erroneous diagnosis and
          were improperly sealed, thereby delaying her disability
          determination. Appellants assert that this delay led to
          foreclosure on their home and emotional distress;

          (2) Against the Department of Veteran's Affairs (the
          "VA"). Appellants claim that the VA failed in its statu-
          tory duty to provide assistance to Appellants to prevent
          the foreclosure;

          (3) Against the VA; Bank of America; Boatman's
          National Mortgage Company ("National Mortgage");
          Shapiro and Burson, a law firm; three lawyers who
          work for Shapiro and Burson, Christine Patterson,
          Lori-Don MacNamee, and Dana Powers; Long and
          Foster Realty; two employees of Long and Foster,
          Lynn Therell and Bill Pfeiffer; and A. Paul Burton,
          City Attorney for the City of Hampton. Appellants

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          claim that these defendants conspired to compromise
          Appellants' rights to regain title to their property, caus-
          ing them financial and emotional harm.

          (4) Against Shapiro and Burson, Lori-Don MacNamee,
          Christine Patterson, Dana Powers, Long and Foster,
          Lynn Therell, Bill Pfeiffer, Bank of America; the VA;
          and National Mortgage. Appellants contend that these
          defendants misrepresented items to court officials,
          altered legal documents, and authorized unnecessary
          work and expenses in relation to the foreclosure.

Defendants, who are represented by various counsel, each moved
to dismiss the action. The district court granted the motion pursuant
to Rule 12(b)(1), finding first that federal jurisdiction hinged on
Claim (1) as the remaining allegations stated only state tort claims.
The court then found that it did not have jurisdiction over Claim (1)
under 42 U.S.C.A. § 405(g), 1983 (West 1994 & Supp. 1996) or 28
U.S.C. § 1331 (1988), and it could discern no other statutory basis for
a claim. Appellants appeal.

We affirm the dismissal of Claim (1) against all defendants except
Drs. Longa and Vinh on the reasoning of the district court. Marks v.
Social Sec. Admin., No. 95-CV-50 (E.D. Va. Nov. 2, 1995). With
regard to Drs. Longa and Vinh, the district court summarily assumed
that these employees of the Department were sued only in their offi-
cial capacities. However, the district court did not address this court's
recent decision in Biggs v. Meadows, 66 F.3d 56 (4th Cir. 1995),
holding that a plaintiff need not plead expressly the capacity in which
he is suing a defendant in order to state a cause of action under
§ 1983. Instead, the court must examine the nature of the plaintiff's
claims, the relief sought, and the course of proceedings to determine
whether a state official is being sued in a personal capacity. Id. at 60-
61.

Biggs was decided on September 18, 1995, and the district court
entered its final order on November 2. However, all of the motions
to dismiss predated Biggs, and therefore, no briefing of the impact of
Biggs was before the court when it issued its decision.

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A determination of whether Drs. Longa and Vinh were sued in
their individual capacities impacts heavily on the remainder of the
issues in this case. First, if they were sued individually, they are not
entitled to Eleventh Amendment immunity in a suit pursuant to
§ 1331. See Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1974),
overruled on other grounds, Davis v. Sherer , 468 U.S. 183 (1984).
Likewise, in a suit pursuant to § 1983, the question of capacity may
be determinative. Section 1983 allows suits for violations of civil
rights only if the violator acts under color of state law. It is unclear
whether the Department, and by extension its employees, acted under
color of federal or state law, and the circuits are split on this issue.
Compare Schoolcraft v. Sullivan, 971 F.2d 81, 88 (8th Cir. 1992)
(holding that the state disability determination agency operates pursu-
ant to state statutory authority), cert. denied , ___ U.S. ___, 62
U.S.L.W. 3470 (U.S. Jan. 18, 1994) (No. 92-1392), and Laird v.
Ramirez, 884 F. Supp. 1265, 1281-82 (N.D. Iowa. 1995), and
Sorenson v. Concannon, 893 F. Supp. 1469, 1484 (D. Or. 1994), with
Ellis v. Blum, 643 F.2d 68, 76 (2d Cir. 1981) (holding that state defen-
dants acted as mere agents of the SSA), and Ostroff, 554 F. Supp. at
353 (state agency and official acted under color of federal law). In
addition, if the district court finds that these Defendants were sued in
their individual capacities, they may be protected from suit by quali-
fied immunity.

Finally, with regard to the remaining claims in the complaint, we
agree with the district court that they state no federal claim and there-
fore, do not confer federal jurisdiction. Furthermore, we find that it
would be inappropriate for the district court to exercise supplemental
jurisdiction over these claims should the claims against Drs. Longa
and Vinh survive. A district court may exercise supplemental jurisdic-
tion over claims "that are so related to claims in the action within such
original jurisdiction that they form part of the same case or contro-
versy." 28 U.S.C. § 1367(a) (1988). Appellants' claims regarding
their foreclosure are entirely separate from their claims against the
employees of the Department for negligent handling of Ms. Marks's
disability claim. None of the Defendants are the same, and the proof
required for each claim would not overlap.

Based on the foregoing reasoning, we remand for the limited pur-
pose of addressing whether Appellants state a claim against Drs.

                    5
Longa and Vinh in their individual capacities. We affirm the dis-
missal of all remaining defendants and claims. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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