Staying Legal: Illegal Witch Hunt

Witch hunt: A searching out for persecution, and deliberate harassment.
— Webster’s Dictionary

The law: The Privacy Act of 1974, 5 USC 552a et seq. prohibits federal agencies from disclosing “… any record which is contained in a system of records by any means of communication to any person, or to another agency without the consent of the individual to whom the record pertains …”
This federal law also allows the individual to sue the agencies concerned by creating a private cause of action for its willful or intentional violation that causes an adverse effect on an individual and allows for recovery of actual damages sustained by the individual as a result of such violation.

Operation Safe Pilot
You may have heard about this program ginned up in 2002 by the Office of Inspector General for the FAA, Department of Transportation (DOT), and the Social Security Administration (SSA). The DOT-FAA told the Social Security people that they only wanted the information on pilots to check names and check on what they were doing. SSA could only release the information for a very narrow purpose that was supposed to be to check for fraud in applying for benefits. FAA-DOT in fact lied to SSA about what they would do with the data.

The real purpose was to find pilots who were collecting Social Security benefits while at the same time flying with an approved FAA medical certificate and therefore might be medically unfit to fly. The theory was that if they were in any way disabled by injury and receiving support benefits why was this injury not reported to the FAA on their medical application (FAA Form 8500-8) and if so why not? (If you are a pilot you might notice that on your new medical application there is now a box asking if you receive disability payments … be careful how you answer this.) The whole Operation Safe Pilot scheme was illegal and contrary to the Privacy Act and the FAA and DOT admitted it! They said they would cease the conduct of such activities. Oh yes …

This operation was started back in 2002 by a couple of energetic investigators who wanted to make a name for themselves and they sure did. In November of 2003 the DOT office of Inspector General sent SSA information relating to 45,000 pilots in Northern California. This consisted of names, dates of birth, Social Security numbers, and genders. Social Security cross checked this information against what it had in its databases and in March 2004 it provided DOT with spreadsheets that showed pilots who were receiving SSA benefits and for what. This action was later decided by the District Court and the Appellate Court to be illegal and contrary to the law.

The case and appeal
Cooper, the plaintiff in the case {Stanmore Cooper vs. FAA, SSA, U.S. DOT, U.S. 9th Circuit Court of Appeals No. 17074, filed Feb. 22, 2010} was one of many pilots caught up in this illegal witch hunt. He was a private pilot who happened to have HIV. It did not affect his flying ability and in accord with what he understood, this was confidential medical data that he did not report on his medical application over a period of several renewals. Early in his HIV history he applied for and received SS disability payments for no more than six months.

However, this was enough to trigger an investigation, caused by the exchange of data with the SSA and by the FAA and DOT. They wanted to know why his HIV was not reported on his medical application.

After investigation, the FAA revoked his pilot and medical certificate on an emergency basis, (like they always do) for failing to report his HIV disease and therefore falsified his medical form. He did not contest this finding and handed in his pilot license and medical certificate.

Not content with this penalty, the U.S. Attorney (no doubt at the urging of the FAA) indicted Cooper (age 63) charging him with three felonies, for failing to disclose his HIV status three times on succeeding medical applications. How ridiculous and outrageous can this be? To make a long story short, he pleaded guilty to one misdemeanor charge, paid a fine of $1,000, and was placed on probation.

Later, Cooper applied for and was granted his private pilot license and medical certificate after taking the exams over again, and began flying.

Go figure …

In March 2007 Cooper filed his lawsuit in the U.S. District Court for the Northern District of California in San Francisco, against all the defendants noted above, alleging violation of the Privacy Act (noted above) of 1974, and violation of Article 1, section 1 of the California Constitution (Invasion of Privacy).

After presentation of evidence the judge in this District Court case stated: “the court finds that the DOT-OIG and the SSA-OIG improperly shared his information with each other in violation of the Privacy Act.”

The court further found that this was willful and intentional. However, the judge dismissed Cooper’s case and denied his summary judgment motion because he did not present evidence of pecuniary damages to satisfy the actual damage requirement of the statute. This was simply a technical defect to his lawsuit that could have been easily cured in the District Court case but it seems that the judge here wanted this case to be heard on appeal.

Cooper did appeal this decision to the 9th Circuit Court of Appeals, also in San Francisco. The Court of Appeals after a full review of the case sided with Cooper in that they found that he did indeed suffer actual damages and they need not only be pecuniary.

In other words he could be compensated not only for his out-of-pocket money damages, (for example if he lost income as a pilot because of his loss of license) but also for his non-pecuniary damages, such as emotional harm, including anxiety, humiliation, fear of social ostracism, and mental distress. It was the first time that an Appellate Court had stated that actual damages in the statute were meant to include non-pecuniary damages. This was a huge decision and will finally allow compensation to the aggrieved party as the statute proposed.

The case will now go back to the District Court for a hearing on the matter of damages to Cooper. He can now set forth what he suffered by way of both pecuniary and non-pecuniary damages and hopefully have them awarded by the court. The government may seek a further hearing in the 9th Circuit and or go forward with an appeal to the U.S. Supreme Court.

However, many believe this will be the end of the case with the parties probably reaching some kind of favorable settlement to Cooper. I would even urge punitive damages be awarded for such arbitrary and capricious conduct by the agencies concerned to help make sure it is not repeated. Of course, as usual, no government agents have been reprimanded or fired as a result of their outrageous conduct. It was clearly illegal from the outset and any judge would have told them so.

The facts of this case illustrate a major breech of trust by the government employees who are charged with protecting an individual’s personal data contained in their files, not releasing such information carte blanche to other government agencies for illegal purposes.

Any pilot who has been caught in this web of deceit (and there are many) should contact his counselor to explore what remedies might be available immediately to perhaps seek redress for the government’s action in view of this decision. Comments to aerolaw@att.net.

Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. Email: aerolaw@att.net

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