Published on: 4/4/2012
Tiffany Reese Clark, Ulmer & Berne LLP
In FAA v. Cooper, decided on March 28, 2012, the Supreme Court held that the federal Privacy Act does not authorize recovery of emotional distress damages. The Privacy Act was enacted in 1974 to provide safeguards against the disclosure of confidential records between government agencies. Recognizing that a government waiver of sovereign immunity must be unambiguous, the Supreme Court held the Act could not unambiguously be read to authorize non-pecuniary damages.
In the case, respondent Stanmore Cooper, a private airplane pilot, failed to disclose his HIV positive status to the Federal Aviation Administration (FAA) at a time when the FAA did not issue medical certificates to pilots with HIV. However, when he became ill, Mr. Cooper applied for social security disability. Pursuant to a joint criminal investigation known as “Operation Safe Pilot,” the Social Security Administration disclosed Mr. Cooper’s HIV status to the FAA. Mr. Cooper’s lawsuit sought recovery under the Privacy Act for noneconomic damages, including humiliation, embarrassment, and mental anguish incurred as a result of his prosecution and indictment for making false statements to the FAA.
Speaking for the five-justice majority, Justice Alito found the term “actual damages” used by the Act to have no “all-purpose definition.” However, drawing a parallel between the Act and common law torts of libel and slander, the majority held it was likely Congress intended to limit recovery to special proven pecuniary damages since the statutory scheme contemplates that a plaintiff who shows even minimal “actual” or pecuniary harm can recover the statutory minimum of $1,000 for unproven harm. The majority found their interpretation of the term “actual damages” bolstered by Congress’ refusal to authorize “general damages.”
As suspected during the oral argument of the case, justices Sotomayor and Ginsburg (joined by Justice Breyer) dissented. Writing for the dissent, Justice Sotomayor passionately disagreed with the majority holding, noting that even the majority realized that a contrary reading “was not inconceivable.” In Justice Sotomayor’s dissent, she wrote that the majority decision “cripples the Act’s one purpose of redressing and deterring violations of privacy interests.” However, from the defense perspective, the ruling strikes a balance by continuing to allow plaintiffs to recover for pecuniary harm incurred when one branch of the government inappropriately shares information with another, but does not permit a windfall recovery for intangible damages like humiliation and embarrassment.
Tiffany Reece Clark is an attorney at Ulmer & Berne LLP in Cincinnati.