Supreme Court: FAA vs. Cooper Damages

Will the U.S. Privacy Act of 1974 lose its effectiveness?

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?

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