A Washington Post article and Paul's response
Justices weigh whether Privacy Act violations allow for distress damages
By Robert Barnes,
Stanmore Cooper and the federal government each did something wrong. Cooper pleaded guilty for his actions and paid a $1,000 fine. Now he wants the government to pay.An attorney for Cooper, a pilot who is HIV-positive, conceded to the Supreme Court on Wednesday that Cooper lied on official forms from 1994 until 2005 about his medical condition and the medication he was taking.
But San Francisco lawyer Raymond A. Cardozo said the way federal officials discovered Cooper’s omission — two federal agencies shared records — violated the provisions of the 1974 Privacy Act, a post-Watergate reform meant to “restore the citizens’ faith in their government .”
He said Cooper should be allowed to sue for the emotional distress he experienced from learning of the government’s actions. If not, he said, the government would be free to “silence” whistle-blowers and others by threatening to reveal private information about them.
Despite the dramatic subject matter, Wednesday’s hearing before the court was a subdued affair that more resembled a law school seminar.
The Privacy Act allows those who think their rights were violated to sue the government for “actual damages.” The justices must decide whether that means only proven out-of-pocket financial losses, or compensation for mental and emotional distress.
Assistant Solicitor General Eric J. Feigin said “actual damages” refers to financial loss. If Congress had intended to waive the sovereign immunity of the United States and allow unlimited emotional-distress claims, he said, “it would have and was required to state that waiver clearly and unambiguously.”
He was challenged by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Ginsburg said an invasion of privacy is not normally associated with financial costs, but emotional ones.
“The person who is subject to this, to this embarrassment, this humiliation, doesn’t have out-of-pocket costs, but is terribly distressed, nervous, anxious and all the rest,” she said.
Even if the government argued that Cooper did not have a strong case, she said, its rule that emotional distress is not covered would also apply “in the worst case.”
That would be “where a government official spreads all kinds of false information, or even true but terribly embarrassing information about a person, does it deliberately,” Ginsburg said. “Let’s take that case, because your rule covers all of them.”
Feigin said that person might have a claim under other laws, but not the Privacy Act, which he said was passed to “impose a set of detailed substantive requirements about federal record-keeping.”
Cooper, a pilot since 1964, needed a license from the Federal Aviation Administration and an airman medical certificate to fly. His HIV was diagnosed in 1985, but he did not acknowledge the disease or the antiretroviral medications he was taking, which at the time would have disqualified him.
His condition was dire enough in 1995 that he applied for and received disability benefits from the Social Security Administration.
Around 2002, because of a case involving another pilot, the Department of Transportation started an investigation called Operation Safe Pilot and used disability payments to find pilots who had not acknowledged medical conditions.
Cooper was one of them, and he pleaded guilty to one count of making a false official statement. Then he sued the government, saying Operation Safe Pilot violated the Privacy Act’s prohibition against agencies sharing records without the person’s consent.
A judge in San Francisco said that the collaboration might have violated the act, but that Cooper had suffered no financial loss. The U.S. Court of Appeals for the 9th Circuit reversed, saying that “actual damages” included emotional distress, and creating a conflict with other circuits.
When it was Cardozo’s turn, it was Justices Samuel A. Alito Jr. and Antonin Scalia who were most skeptical.
Alito said he was unclear exactly what emotional distress Cooper suffered. Under Alito’s questioning, Cardozo acknowledged that the distress would have to be a direct result of the Privacy Act violation, and not the embarrassment he may have felt because of the criminal charges.
Alito seemed unsure how humiliating it would be for Cooper “simply knowing that somebody in the FAA had access to his Social Security records.”
Scalia agreed that disclosing the information to the public would be different from sharing it with another agency, which he called “picky, picky prescriptions contained in the Privacy Act.”
The case is FAA v. Cooper . Justice Elena Kagan recused herself, apparently because she had worked on the case as President Obama’s solicitor general.
ww.washingtonpost.com/politics/justices-weigh-whether-privacy-act-violations-allow-for-distress-damages/2011/11/30/gIQA91cMEO_story.html
PAUL'S COMMENT:
The case actually rest more on the Governments use of: "the doctrine of sovereign immunity, which bars lawsuits for money against the government without its consent. " as claimed Eric J. Feigin, a lawyer for the government. "Such consent must be specific," he said, "and ambiguous consent is not consent." He continued: "If Congress had intended to … allow uncapped emotional distress claims, it would have stated it clearly," he told the justices. Feigin said, Congress "would not have taken lightly the possibility that the federal government would be exposed to more expansive damages for violating privacy interests."
One of the reason's the Supreme Court took up this case is because it has further reaching implications then just this instance- as Justices Ginsburg said: "Even if the government argued that Cooper did not have a strong case," she said, "its rule that emotional distress is not covered would also apply `in the worst case'.”
Feigin, might have sighted that the US military stands as an example of how a concept such as "actual damages" can be unambiguously addressed, even when dealing with the issue of emotional distress (as they do with such issues as PTSD and sexual trauma).
As a side note to that point- in November's Men's Health, there was very moving article that discussed, among other things, how the military compensates for specific injuries (sight = $50K each eye for example). The article states that "each war has it's signature wound." then it states that in the Afghanistan war - the wound is more personal. "In 2010 the number of US troops in Afghanistan who lost at least one limb was double that of either 2008-2009..moreover the number of genital wounds tripled. As of the writing of that article (November 2011) the US Government did not see a need to compensate a soldier for the loss of their genitalia.
Of course they don't want to `exposed the government to more expansive financial burdens brought on by wars'. And since the Government does not consent to compensate our soldiers for the loss of the genitalia (it is not covered), therefore under the `doctrine of sovereign immunity' (which is really on trial here) these soldiers have no recourse. Or do they?
Justices Ginsburg is implying that one of the basic functions of the US court system is to deal with ambiguous laws and policies. Ambiguous laws and policies benefit only the politicians - not the people.
I urge you, if you read this far, to read The Men's Health article- Titled: "Torn To Shreds" - and contact your congressperson and ask them to help take care of our military and deal with genitalia injuries.
=Paul Grant (follower of Basho)
