Nov 302011
 November 30, 2011  Posted by  Breaches, Court, Featured News

The Supreme Court heard oral argument today in a privacy case that hasn’t gotten nearly as much attention as United States v. Jones. In Federal Aviation Administration v. Cooper, the Court considers whether under the Privacy Act of 1974, an individual can sue the government for emotional distress caused by a privacy breach if there is no other “injury.” The transcript of the argument is available on SCOTUS’s web site.

Reading the transcript, it appears that counsel for the government, Eric Feigin, didn’t get far into his argument that Congress intended to limit compensation to “actual damages” before Justice Ginsburg jumped in and challenged him as to whether emotional distress was an actual injury:

MR. FEIGIN: Your Honor, the term “actual injury” and the term “actual damages,” those are ambiguous terms. Sometimes they might include emotional distress and sometimes they might not.
JUSTICE GINSBURG: Well, let’s take this case. Did the plaintiff suffer an actual injury?
MR. FEIGIN: He did not -­
JUSTICE GINSBURG: At least, did he allege that he had suffered an actual injury?
MR. FEIGIN: He did not suffer actual damages within the meaning of the Privacy Act.
JUSTICE GINSBURG: I didn’t — I didn’t ask you that. I asked you did he suffer an actual injury, as opposed to someone who is complaining about something — an abstract right or an abstract theory?
Is there an actual injury here?

Feigin acknowledged that Cooper had suffered an adverse effect which gave him standing, but noted that suffering an adverse effect doesn’t mean he suffered actual damages. That’s when Justice Sotomayor chimed in and questioned him about “general damages” vs. “actual damages.” Feigin argued that emotional distress would fall under “general damages,” and Congress had not provided a remedy for that in the Privacy Act.

Justice Kennedy helped clarify the issue:

JUSTICE KENNEDY: Are there instances where, if there is an invasion of privacy and there is a documented trauma from psychosomatic illness with medical expenses and lost wages, is that special? Is that actual damage?
MR. FEIGIN: Yes, Your Honor. If there are documented medical expenses that were out-of-pocket expenses, then we think, even if they arise from emotional distress, they would be pecuniary harm and
could be compensated under the Privacy Act.

Other than the one interjection by Justice Kennedy, only Justices Ginsburg and Sotomayor questioned Mr. Feigin (Justice Kagan having recused herself from this case).

When counsel for Cooper, Raymond Cardozo, got up to argue, Justice Alito immediately jumped in, followed by Justices Kennedy, Breyer, Scalia, and Chief Justice Roberts. Justice Scalia seemed to view the government’s violation of the Privacy Act as a “picky, picky” one:

You are not doing the kind of thing that constitutes an invasion of privacy under State law. You just failed, intentionally failed, to follow the very detailed and as I say picky, picky prescriptions contained in the Privacy Act. To say that you get emotional distress for that as opposed to genuine — what I would call genuine privacy incursions, which State law covers is a different question.

Overall, the debate seems to be about what Congress intended with respect to emotional distress as a harm in the Privacy Act, and whether such harm falls under “special damages” or “general damages.” Complicating the issue greatly is that Congress had referred a question for post-legislation consideration and had used its own idiosyncratic term, “actual damages” which makes relating its language to common law more difficult. As Justice Sotomayor asked Mr. Feigin during his rebuttal:

Counsel, you seem to be arguing throughout that general damages meant actual damages, when general damages, in my understanding, meant two things: presumed and actual. So why is it illogical for Congress to look at what general damages meant, and pick the meaning that included proven damages, actual?

Finally, in his closing minute of rebuttal, Feigin summarizes the government’s argument succinctly:

Congress didn’t provide emotional distress awards when it passed the act in 1974, it never amended the act to include them, and the act does not provide for them.

Did Congress intend to provide a remedy for those who have (only) been emotionally harmed by a willful breach by a federal agency? Mr. Cardozo convinced me, but we’ll have to wait to learn if he convinced the justices.

For background on Federal Aviation Administration v. Cooper, see SCOTUSblog.

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