U.S. Supreme Court Justices take up pilot's HIV privacy case

By Kimberly Atkins

The Daily Record Newswire

At oral arguments recently, the justices of the U.S. Supreme Court tried to determine whether emotional distress constitutes "actual damages" under the federal Privacy Act - a decision that will determine whether a pilot can sue government agencies for disclosing his HIV status.

The case of FAA v. Cooper involves Stanmore Cawthon Cooper, a pilot who had been licensed by the Federal Aviation Administration since 1964. In 1985 Cooper was diagnosed with HIV.

Although the FAA requires pilots to periodically submit certificates disclosing their medical conditions and prescription medications, Cooper failed to disclose his HIV status or antiretroviral medications to the agency in his certificates.

In 1995 Cooper sought long-term disability benefits from the Social Security Administration due to worsening HIV-related symptoms.

The SAA ultimately disclosed the medical records Cooper submitted to the FAA, and the FAA revoked his license for failing to disclose his HIV-status. He was also charged with submitted false reports to a federal agency and sentenced to probation.

Cooper sued the agencies for unauthorized disclosures under the Privacy Act, 5 U.S.C. 552a(g)(4)(A), seeking damages for emotional distress.

A U.S. District Court granted summary judgment for the agencies, finding that the pilot could not establish the Act's required "actual damages" because he alleged emotional distress damages only.

But the 9th Circuit reversed, holding that the Act allows recovery for non-economic injuries such as humiliation, mental anguish and emotional distress.

The Supreme Court granted certiorari.

Eric J. Feigin, assistant to the solicitor general, argued that the federal government only intended to waive its sovereign immunity protection under the Act for claims involving quantifiable damages.

"If Congress had intended to waive the sovereign immunity [to] allow uncapped emotional distress claims under the Privacy Act, it would have [stated so] clearly and unambiguously," Feigin said.

Justice Ruth Bader Ginsburg noted that, under common law, invasion of privacy claims rarely involved monetary damages.

"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," Ginsburg said.

"I think the text of the act demonstrates that Congress thought about the possibility of providing an emotional distress award, but decided not to do that," Feigin replied.

"But why is that different from an 'action injury?'" Justice Sonia Sotomayor asked. "I'm not sleeping, I have a nervous stomach, I'm not eating - the typical things that juries look at to determine whether you have proven emotional distress. Why is that not actual injury?"

Feigin said that while the term "actual damages" was admittedly "ambiguous," emotional distress damages have traditionally been referred to as "general damages."

"And if there's one thing we know about the definition of 'actual damages' in the Act, it's that it doesn't include 'general damages,'" he said.

Raymond Cardozo, a partner in the San Francisco office of Reed Smith, argued that individuals who have private information disclosed naturally suffer emotional distress.

"Embracing the government's view of 'actual damages' would mean that the very individuals Congress sought to protect in this act would have no remedy," Cardozo said.

But Justice Samuel Alito wondered whether the plaintiff in this case had clean hands, suggesting that "all of the emotional damages [stem] from his criminal conviction" for filing false reports to a federal agency.

"He cannot recover for the emotional distress that followed from the prosecution," Cardozo acknowledged.

"But [we're] talking today not just about Mr. Cooper. We're talking about every single person to whom this act applies, [including] the whistleblower who the government chooses to silence by embarrassing and humiliating them."

Alito wondered how you measure such damages, and whether you can separate "distress that somebody in that situation would naturally feel when confronted with the fact that a criminal violations that he had committed had been exposed."

"That's the kind of thing judges routinely have to sort through," Cardozo replied.

"Courts don't allow recovery for conjectural or speculative damages," said Justice Anthony Kennedy.

"But you can, in this arena at common law, presume damages from the nature of the violation," Cardozo said.

Published: Thu, Dec 8, 2011