                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                                        JUL 26 2000
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 HORATIO CLARK FORD, III

             Plaintiff-Appellant and
             Counter-Defendant,

 v.                                                    No. 99-2368

 BANK OF AMERICA; SUSAN L.                   (D.C. No CIV-99-855-BB-RLP)
 GARCIA; KAREN L. POWERS,                              (D.N.M.)

             Defendant-Appellees,

 and

 FIRST FEDERAL BANK; VALLEY
 BANK OF COMMERCE in
 ROSWELL; FIRST SECURITY
 BANK; VALLEY BANK OF
 COMMERCE in DEXTER; TAMMEY
 BEAVER; JESSICA BRYANT; MAE
 ARNOLD; PAULA FRANCO, and
 VIOLA MARTINEZ,

             Defendants,
             Counter-Claimants and
             Appellees.


                          ORDER AND JUDGMENT           *




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before BALDOCK, HENRY , and LUCERO , Circuit Judges.



       The plaintiff, Horatio Clark Ford, III, appeals the district court’s grant of

the motion to dismiss for failure to state a claim filed by the defendants Bank of

America, Susan L. Garcia, Karen L. Powers, Valley Bank of Commerce in Dexter,

Valley Bank of Commerce in Roswell, First Federal Bank, Tammey Beaver,

Jessica Bryant, Mae Arnold, and Viola Martinez. Mr. Ford also appeals the

district court’s grant of the motion for summary judgment filed by the defendants

First Security Bank and Paula Franco. For the reasons set forth below, we affirm

the district court’s decisions. 1

       This case arises out of the refusal of the defendant banks and bank officials

to open a non-interest bearing checking account for Mr. Ford after he refused to

provide them with his social security number. In his complaint, Mr. Ford alleged

that the defendants’ refusal violated his rights under the Privacy Act, 5 U.S.C. §

552a, the Fourth Amendment, and Article II, section 10 of the New Mexico

Constitution. The district court granted the defendants’ motions to dismiss and

motions for summary judgment, reasoning that the Privacy Act did not apply to


       1
          After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.


                                           2
the defendant banks and that Mr. Ford’s complaint did not state a claim under the

federal or New Mexico constitutions. See Rec. vol. II at 21-22 (Transcript of

Dec. 3, 1999 Hr’g).

      On appeal, Mr. Ford argues that the district court erred in ruling on the

defendants’ motions before discovery could be conducted. He further argues that

the district judge should have recused from the case because, between 1972 and

1975, he worked for one of the law firms representing the defendants. Finally,

Mr. Ford challenges the district court’s ruling on the merits of his Privacy Act

and Fourth Amendment claims. 2

      Upon review of the record, we conclude that the district court did not err in

ruling on the defendants’ motions without waiting for the parties to conduct

discovery. The defendants’ motion to dismiss for failure to state a claim

addressed the legal sufficiency of Mr. Ford’s complaint. The defendants’ motion

for summary judgment also raised legal issues regarding Mr. Ford’s claims.

There is no indication that discovery would have revealed information relevant to

the rulings now challenged by Mr. Ford in this appeal. Moreover, in responding

to the defendants’ motions, Mr. Ford did not request that the court allow him

additional time for discovery before rendering its decision. See Fed. R. Civ. P.


      2
         In his appellate brief, Mr. Ford does not argue in support of his claim
under the New Mexico Constitution and we, therefore, do not consider that claim
in this appeal.

                                          3
56(f) (providing that “[s]hould it appear from the affidavits of a party opposing

the [summary judgment] motion that the party cannot for reasons stated present by

affidavit facts essential to justify the party's opposition, the court may . . . order a

continuance to permit [discovery]”); Ben Ezra, Weinstein, & Co. v. America

Online, Inc., 206 F.3d 980, 987 (10th Cir. 2000) (“A party may not invoke Fed. R.

Civ. P. 56(f) by merely asserting that discovery is incomplete or that specific facts

necessary to oppose summary judgment are unavailable. Rather, the party must

demonstrate precisely how additional discovery will lead to a genuine issue of

material fact.”) (citation omitted).

      We further conclude that the district judge’s prior employment with the law

firm representing several of the defendants does not warrant recusal. A judge is

required to recuse himself “in any proceeding in which his impartiality might

reasonably be questioned.” 28 U.S.C. § 455(a). Additionally, a judge must

recuse if “in private practice he served as lawyer in the matter in controversy, or a

lawyer with whom he previously practiced law served during such association as

lawyer concerning the matter.” 28 U.S.C. § 455(b)(2). Here, the district judge’s

association with the defendant’s law firm almost twenty-five years before the

filing of this case does not provide reasonable grounds to question his

impartiality. Moreover, there is no indication that the district judge or any of his

former law partners served as lawyers in this matter or indeed any other matter


                                            4
involving Mr. Ford. Cf. United States v. Walton, 56 F.3d 551, 556 (4th Cir.

1995) (concluding that representation of defendant in the 1970s by a law firm at

which judge had worked as a senior partner constituted “an attenuated

connection” between the judge and the defendant that did not warrant recusal

under § 455).

      On the merits, we agree with the defendants that the Privacy Act of 1974, 5

U.S.C.§ 552a, is inapplicable to the conduct at issue here. Mr. Ford relies on a

provision of the Privacy Act, 5 U.S.C. § 552a, which 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 a social security account number.” Privacy Act of

1974, Pub. L. No. 93-579, § 7, 88 Stat. 1897, 1909, reprinted in 5 U.S.C. § 552a,

note. As used in the Privacy Act, “the term ‘agency’ . . . includes any executive

department, military department, Government corporation, Government controlled

corporation, or other establishment in the executive branch of the Government

(including the Executive Office of the President), or any independent regulatory

agency.” 5 U.S.C. § 552(f); see id. § 552a(a)(1). Applying those definitions, this

circuit has concluded that the Privacy Act does not apply to national banks. See

United States v. Miller, 643 F.2d 713, 715 n.1 (10th Cir. 1981); see also Williams

v. City Bank, 566 F. Supp. 827, 830 (E.D. Mo. 1983) (concluding that plaintiff’s


                                         5
allegations that the defendant bank “is a member of the F.D.I.C., is federally

regulated, operates under color of the federal government and exists only by

virtue of federal authorization” were insufficient to raise an issue of fact as to

whether the bank was a federal agency under the Privacy Act). Thus, the district

court properly dismissed Mr. Ford’s Privacy Act claim against the defendants.

      Finally, with regard to his Fourth Amendment claim, Mr. Ford has failed to

allege the requisite search or seizure or invasion of his privacy rights. Accepting

Mr. Ford’s allegations as true and affording him the benefit of all favorable

factual inferences, the defendants merely refused to open an account for him.

They did not subject him to a search or seizure or disclose private information.

See Horton v. California, 496 U.S. 128, 133 (1990) (noting that “[a] search

compromises the individual interest in privacy; a seizure deprives the individual

of dominion over his or her person or property”).

      Accordingly, the district court’s decisions dismissing Mr. Ford’s claims




against the defendants are AFFIRMED.


                                           6
Entered for the Court,



Robert H. Henry
United States Circuit Judge




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