Show me the money: Wrongful disclosure of HIV status draws little sympathy from Supreme Court

by on November 30, 2011  •  In Supreme Court

The Supreme Court heard oral argument on Wednesday in Federal Aviation Administration v. Cooper, a case involving the holder of a private pilot's license who sued for mental and emotional distress after the Social Security Administration revealed to the Federal Aviation Administration that he was HIV positive, a disclosure that violated the federal Privacy Act. (Justice Kagan recused herself and did not participate.)

From Huff Post:

…The Privacy Act provides relief for those who suffer "actual damages" from violations of the statute. At the trial court level, U.S. District Judge Vaughn Walker — better known for striking down California's anti-gay marriage Proposition 8 as unconstitutional — found that the FAA had violated the Privacy Act. But Walker determined that the term "actual damages" did not include purely psychological injuries that result in no economic loss. In other words, there would be no relief for Cooper.

The U.S. Court of Appeals for the 9th Circuit disagreed with the trial judge and allowed Cooper's claim to go forward. At Wednesday's oral argument, however, only Justices Ruth Bader Ginsburg and Sonia Sotomayor unequivocally championed Cooper's cause as the rest of the Court seemed poised to side with Walker's original decision.

Assistant Solicitor General Eric Feigin, arguing on behalf of the federal agencies, said that the Court's doctrines obligated the justices to narrowly interpret an ambiguous term like "actual damages." Since the Privacy Act itself broadened the privacy rights of individual citizens, Feigin said, it was enough to provide relief for economic damages.

"Then Congress maybe shouldn't have passed this statute," Justice Ginsburg interrupted. The primary injuries caused by invasions of privacy, she said, are not economic. "So you could say that Congress was much more generous than the common law was, but the impact on the person who is suing is not going to be out-of-pocket business loss, pecuniary loss," Ginsburg continued. "It's going to be the embarrassment, the humiliation."

Justice Samuel Alito, on the other hand, was skeptical about Cooper's embarrassment and humiliation, which resulted from his concededly illegal withholding of his HIV status from the FAA. "Are you claiming all of the emotional damages that resulted from his criminal conviction?" Alito asked Cooper's lawyer, Raymond Cardozo.

Justice Antonin Scalia, moreover, found little in the government's unauthorized agency-to-agency disclosure to warrant the distress that Cooper claims to have suffered. The government "just failed, intentionally failed, to follow the very detailed and, as I say, picky, picky prescriptions contained in the Privacy Act," Scalia said. "To say that you get emotional distress for that, as opposed to genuine — what I would call genuine — privacy incursions" that make private information public, "is a different question."

Ultimately, the Court's decision will turn less on the source or scope of Cooper's emotional distress and more on how the justices parse the word "actual." Sotomayor, the only justice who once served as a trial judge, questioned Feigin's purely economic definition. "I'm not sleeping, I have a nervous stomach, I'm not eating," Sotomayor said, noting "the typical things that juries look at to determine whether you have proven emotional distress." She asked, "Why is that not actual injury?"

Because, Feigin answered, Congress assigned a commission "to make a recommendation about whether the act should later be expanded to include general damages," a term traditionally understood as non-economic injuries. And the law was not expanded.

In his conclusion, Cardozo responded that Feigin's argument relied on legalistic parsing that "renders this act virtually irrelevant." He urged the Court to "give actual damages its most common and ordinary meaning: proven, not presumed." But by the end of the hour, it was clear that most of the justices had not been convinced by the simplicity of that argument, leaving Cooper and others similarly injured with no remedy under this particular federal law.


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