When Congress put together the Privacy Act of 1974, Public Law No. 93-579, it included specific language providing for damages to be paid by the government when some agency violates the Act when dealing with the personal privacy of a citizen. The federal law allows an individual to sue the agencies concerned by creating a private cause of action for its willful and or intentional violation.
Congress clearly sought to provide safeguards for citizens against breach of their personal privacy for any misappropriation or mismanagement of personal information that might be in government records. The only way to enforce it was to include a provision for damages to be paid to the aggrieved citizens.
The specific language of the statute protects against threats and hazards that might result in “… substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.” This of course includes just about every citizen.
In order to maintain such confidentiality, the Act controls the disclosure of any information from one agency to another and to third parties. Before any information is exchanged between agencies prior written consent of the person concerned is required by the law.
Stanmore Cooper vs. FAA
Let’s review for a moment … Stanmore Cooper vs. FAA et al. was a case that evolved from an FAA program called Operation Safe Pilot that was developed during 2002. It was devised with the cooperation of the Office of Inspector General of the FAA, the Department of Transportation (DOT), and the Social Security Administration (SSA). The whole program was designed to double check on what medical information pilots (and other airmen) put down on their regular medical exam forms (Form 8500-8). They wanted to know if the people were telling the truth about their medical conditions.
So, the FAA asked the SSA to provide information on any recipients of Social Security aid because of medical problems that were compensable through Social Security disability payments. By cross checking they could determine if any airmen were fibbing regarding any of their disabilities. (Incidentally, the question of disabilities payments is now included on the medical exam form.)
The operation was devised by some energetic inspectors who wanted to make a name for themselves. The FAA requested information for some 45,000 airmen in the San Francisco area. The information consisted of names, Social Security number, dates of birth, and genders. Social Security provided data which showed airmen who were receiving disability payments and for what. This action was found to be contrary to the law!
Cooper was only one of many airmen who were caught up in what I have previously described as an illegal witch hunt. However, Stanmore Cooper was only a private pilot, who also happened to be HIV positive.
As we all know, HIV is a virus that damages the immune system and can lead to AIDS. Cooper had applied for and received disability payments for a brief period of time, six months. This was clearly confidential medical data that Cooper believed he did not have to report to anybody, much less the FAA. So that is how it all started.
He later had his medical and pilot certificates revoked and was forced to plead guilty to providing false information to the FAA. Needless to say he appealed to the 9th Circuit Court of Appeals. He won his case based on a violation of the Privacy Act. His certificates were returned and his conviction was reversed by the court.
Now, according to current FAA guidelines, if you are HIV seropositive, (without an AIDS manifestation) and on an FAA approved antiviral medicine, you can obtain a Medical Certificate under Special Issuance rules. However, this was was changed after Cooper’s case.
Typically, any injured party can recover, under the Privacy Act. The statute says, damages, for willful and or intentional violations of the Privacy Act, are recoverable. The question is do damages in this law include those for emotional harm? In Cooper’s case, the 9th Circuit said that such harm could be included … indeed other circuit courts have said that it did include such damages and awarded accordingly. However, there is a split among the appeal courts. Some say yes, some say maybe, and others say no. The Supreme Court was asked to decide.
My previous article on Cooper dealt with his case in the U.S. District Court in San Francisco and the following appeal in the 9th Circuit Court of Appeals. Cooper prevailed in these cases. The court found that the government violated the Privacy Act and it now boils down to what Cooper’s damages will be … all or nothing.
“An order of a superior court to call up the records of an inferior court for review.” Before the case could come back to the District Court, where damages are routinely decided by a judge or a jury, the defendants in the case, the DOT, the FAA, and the SSA, all petitioned the U.S. Supreme Court to review the case and decide the matter of what damages, if any, Cooper could recover.
The conduct of these agencies was reprehensible to say the least and could almost be considered criminal and yet they now say in effect, “Oh well, we were found to have been guilty of violating the law, and Cooper won his case but he is not entitled to any damages because he did not lose any income or suffer any other pecuniary loss.”
We all recall that Cooper was not an airline pilot using his license to make a living. He did not earn any income from the use of his pilot’s license. But that’s not what the law says … quite the contrary, damages generally are defined as also including mental and emotional distress, among other nonpecuniary damages for the agencies’ violation of the Act.
Cooper certainly suffered. Many would suggest that the government’s willful and intentional conduct should provide for substantial punitive damages as well! Needless to say, there is no information on whether or not the investigative personnel were sanctioned in any way for their unlawful conduct.
Petition for certiorari to the 9th Circuit Court of Appeals
The three defendants, DOT, FAA, and SSA, fearing the worst, did not want this case to go back to the trial court for a decision on damages. A jury or a judge would lower the boom on them for their seriously egregious conduct. So, they elected to ask the Circuit Court to present the case to the U.S. Supreme Court, which they did do.
The U.S. Supreme Court accepted the case for further decision on damages in late June. Interestingly, the notice of their acceptance of the case was published at the same time that the decision in the Walmart case in favor of Walmart and against the class action lawyers on behalf of thousands of female employees for discrimination, was decided. The Cooper case was buried in the notoriety of the more popular Walmart case.
The granting of “certiorari” in the Cooper case, however, is a much more significant case than the Walmart case and will affect privacy law for years to come. The result will not be seen for some time, perhaps more than a year in the Supreme Court’s next term.
The Privacy Act has a huge audience of potential plaintiffs: every U.S. citizen and perhaps other non-citizens as well. It is a pervasive piece of legislation and applies to the whole of the U.S. government not only the FAA, which is only the vehicle used to bring the issue up in the court. This is why this case is significant and important to everybody.
So now the Supreme Court has agreed to review the case on the matter of damages and decide whether or not Cooper will recover his nonpecuniary damages and in the process, no doubt, examine the statute in detail. Perhaps, in an effort to protect the assets of the government, it will come up with some disjointed logic to deny Cooper damages for his pain and suffering in his long-fought battle.
The Supreme Court may come up with an expansive or a narrow decision. We don’t know. But it has limited damages awarded in one Privacy Act case in the past and it might do so again. If this should occur it will remove the last remaining penalties to the government and essentially makes the Privacy Act of little practical use to the average citizen. Who wants to win his or her case and then have no damages awarded for the trouble and pain of a lawsuit against the government?
The formal question:
The formal question presented to the Supreme Court will be: “Whether a plaintiff can establish actual damages under the Privacy Act’s civil remedies provision, 5 USC ss552a(g)(1)©-(D) and (g)(4), through competent evidence of real and appreciable mental and emotional distress caused by a federal agency’s intentional or willful violation of the Act.” We shall find out next year.