You probably recall my previous articles about Cooper and his travails on the way to the Supreme Court. He lost in the District Court and won on appeal to the Ninth Circuit Court of Appeals in San Francisco. The FAA appealed to the Supreme Court … Cooper, however, lost his case in the Supreme Court.
We should all be concerned about the result in this case because it clearly seems to go against the spirit and intent of the Privacy Act of 1974 which protects all citizens from unlawful conduct by the government. In some ways, many would suggest that it is even more important than the coming result in the Obamacare Case, now pending before the court. The Cooper case should be of particular interest to technicians who are also pilots and take medical exams to renew their fitness for flight.
Cooper sued the FAA and the Social Security Administration and others, alleging that they all had violated the Privacy Act of 1974 by unlawfully disclosing his private and confidential medical information, (without his permission) causing him great mental and emotional damages. The Ninth Circuit Court of Appeals decision in his favor was recently reversed by the Supremes.
The Privacy Act
We should keep in mind, that you cannot sue the government for just any alleged unlawful action … the government only allows itself to be sued in very few instances and then only when it says so, as in the Privacy Act and other statutes, such as the Federal Tort Claims Act.
The Privacy Act, 5 USC 552a, allows recovery against the government for actual damages and does not specifically authorize an award of money damages for mental or emotional distress. For intentional or willful violations of the Act, the government is liable for actual damages.
Justice Alito delivered the majority opinion.
The court concluded, after much discussion, that, the Act does not waive the federal government’s sovereign immunity from liability for such injuries that are described as mental or emotional.
Justice Sotomayor wrote the dissent concurred in by Justices Ginsburg and Breyer: “Congress enacted the Privacy Act of 1974 for the stated purpose of safeguarding individual privacy against government invasion. To that end, the Act provides a civil remedy (lawsuit) entitling individuals adversely affected by certain agency misconduct to recover “actual” damages sustained as a result of the unlawful action (of the government agencies), ...”
The strong dissent continued …”Today the Court holds that actual damages is limited to pecuniary loss. Consequently, individuals can no longer recover what our precedents and common sense understand to be the primary, and often only, damages sustained as a result of an invasion of privacy, namely mental or emotional distress. That result is at odds with the text, structure, and drafting history of the Act. And it cripples the Act’s core purpose of redressing and deterring violations of privacy interest.”
The gist of the Privacy Act is simply a requirement that the government agency get the permission of the party concerned and disclose to him or her what they intend to do … before they disclose anything that might hurt the person. In this case, they failed miserably to comply with this requirement.
Some history, investigation of 45,000 pilots
In 2002 the Department of Transportation (FAA) started a joint criminal investigation called “Operation Safe Pilot” with the Social Security Administration (SSA). It was designed to identify medically unfit pilots who had obtained FAA approved medical certificates indicating they were fit to fly. The FAA gave the SSA a list of the names of some 45,000 pilots located in the general Bay Area of San Francisco and northern California. SSA compared the list with its records to see if any of the pilots were receiving benefits for any disabilities. SSA’s records turned up the name of Cooper … among others, and it revealed that he had a current FAA medical certificate but had also received disability benefits for HIV and other relevant medical infirmities. FAA medical examiners revealed that they would not have issued the medical certificates (there were five in all) had they known his true condition.
Will the U.S. Privacy Act of 1974 lose its effectiveness?
Operation Safe Pilot: Fraud and deceit by the FAA-DOT and SSA
Mechanics’ Privacy At Risk? Privacy on the Web By Stephen P. Prentice February 2001 Most of us, no doubt, are aware of the continuing legal wrangle between the big airline...
of random alcohol and drug testing.