On Wednesday, the Supreme Court heard oral argument in Federal Aviation Administration v. Cooper, a case that raises the question of whether a plaintiff who alleges only mental and emotional distress can establish “actual damages” within the meaning of the federal Privacy Act’s civil remedies provision. The question is crucial to determining the scope of relief afforded under one of the principal legal restraints on the federal government’s use and disclosure of the “records” it maintains about individuals.
The plaintiff-respondent in Cooper is a recreational pilot who was diagnosed with HIV in the 1980s. After his diagnosis, Cooper let his pilot’s medical certificate lapse, and when he applied in 1994, did not disclose the diagnosis. He also failed to do so in subsequent applications. In 2002, as part of a joint operation with the Social Security Administration called “Operation Safe Pilot,” the Department of Transportation (“DOT”) cross-referenced FAA-licensed pilots with recipients of Social Security benefits in an effort to determine whether any pilots had been misrepresenting their medical status. DOT discovered that Cooper had received Social Security disability benefits for a year in the mid-1990s, and eventually alleged that he had falsified his medical certificate applications by not disclosing his HIV status. Cooper pled guilty to a false statements charge, and was sentenced to two years of supervised release and fined $1,000.
Cooper then sued the FAA, SSA, and DOT, alleging that those agencies had “willfully or intentionally” violated the Privacy Act by sharing his personal records as part of Operation Safe Pilot without his consent. The Act only permits the sharing of personal records among federal agencies for a “civil or criminal law enforcement activity,” and Cooper argued that Operation Safe Pilot was not such an activity. The district court agreed with Cooper that the government had violated the Privacy Act—but granted summary judgment for the government because Cooper had failed to make out a claim for “actual damages.” The court held that the Privacy Act’s actual damages provision cannot not be satisfied where only emotional harm is alleged. The Ninth Circuit reversed in a ruling that discussed at the length the “right of privacy” and cited common law privacy and defamation doctrines (under which non-economic damages are recoverable in some jurisdictions) in holding that “[g]iven the nature of the injuries that most frequently flow from privacy violations, it is difficult to see how Congress’s stated goal of subjecting federal agencies to civil suit for . . . damages resulting from a willful or intentional violation of the Act could be fully realized unless the Act encompasses both pecuniary and nonpecuniary injuries.”
The Ninth Circuit was only the most recent court of appeals to weigh in on this issue; four others have split on the question of whether non-pecuniary losses are recoverable under the Act. The Supreme Court will thus resolve a closely contested question.
To be sure, even if the Supreme Court broadly construes “actual damages” to include emotional harm, plaintiffs still face the threshold hurdle of proving injury-in-fact sufficient for Article III standing—a hurdle they consistently have failed to overcome in other privacy cases. This has been the case even where the plaintiff has alleged emotional harm as a result of a putative violation, as we recently saw in the dismissal of the complaint in Low v. LinkedIn, in which we represented LinkedIn.