This week the U.S. Supreme Court held in Federal Aviation Administration v. Cooper that an individual harmed by a federal agency’s violation of the Privacy Act cannot recover damages unless he or she is able to prove an economic loss.  Under the Privacy Act, federal agencies are prohibited from disclosing “any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains,” unless one of twelve statutory exceptions applies.  An individual may sue an agency for “actual damages” if the agency intentionally or willfully violates the Act’s requirements. 

At issue in the case was whether mental and emotional distress could constitute “actual damages.”  The respondent, a pilot whose pilot certificate was revoked based on medical records that were wrongfully disclosed by the Social Security Administration (SSA) to another government agency, claimed that the SSA’s disclosure of his confidential medical information (including his HIV status) had caused him mental and emotional distress.  Acknowledging that the meaning of “actual damages” is ambiguous and varies depending on the context, Justice Alito, writing for a 5-3 majority (Justice Kagan did not participate in the case), interpreted the term narrowly in the government’s favor based on the concept of sovereign immunity, which limits a person’s ability to recover from sovereign governments.  Under this narrow interpretation, “actual damages” as used in the Privacy Act requires an economic loss and excludes recovery for mental and emotional distress.  Consequently, the respondent was left without recourse for the SSA’s unlawful disclosure of his medical information.     

Although the holding turned on the fact that the federal government — as opposed to, for example, a private entity — disclosed the information, the majority opinion drew parallels between the Privacy Act and common law defamation and privacy torts to differentiate between “general damages” and “special damages.”  Justice Alito equated “actual damages” with “special damages,” which he argued are limited to pecuniary losses.  In contrast, he argued that “general damages” cover nonpecuniary damages, including mental and emotional distress.