FAA v. COOPER

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 10–1024

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FEDERAL AVIATION ADMINISTRATION, et al., PETITIONERS v. STANMORE CAWTHON COOPER

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 28, 2012]

Justice Alito delivered the opinion of the Court.

The Privacy Act of 1974, codified in part at 5 U. S. C. §552a, contains a comprehensive and detailed set of requirements for the management of confidential records held by Executive Branch agencies. If an agency fails to comply with those requirements “in such a way as to have an adverse effect on an individual,” the Act authorizes the individual to bring a civil action against the agency. §552a(g)(1)(D). For violations found to be “intentional or willful,” the United States is liable for “actual damages.” §552a(g)(4)(A). In this case, we must decide whether the term “actual damages,” as used in the Privacy Act, includes damages for mental or emotional distress. We hold that it does not.

I

The Federal Aviation Administration (FAA) requires pilots to obtain a pilot certificate and medical certificate as a precondition for operating an aircraft. 14 CFR §§61.3(a), (c) (2011). Pilots must periodically renew their medical certificates to ensure compliance with FAA medical standards. See §61.23(d). When applying for renewal, pilots must disclose any illnesses, disabilities, or surgeries they have had, and they must identify any medications they are taking. See 14 CFR pt. 67.

Respondent Stanmore Cooper has been a private pilot since 1964. In 1985, he was diagnosed with a human immunodeficiency virus (HIV) infection and began taking antiretroviral medication. At that time, the FAA did not issue medical certificates to persons with respondent’s condition. Knowing that he would not qualify for renewal of his medical certificate, respondent initially grounded himself and chose not to apply. In 1994, however, he applied for and received a medical certificate, but he did so without disclosing his HIV status or his medication. He renewed his certificate in 1998, 2000, 2002, and 2004, each time intentionally withholding information about his condition.

When respondent’s health deteriorated in 1995, he applied for long-term disability benefits under Title II of the Social Security Act, 42 U. S. C. §401 et seq. To substantiate his claim, he disclosed his HIV status to the Social Security Administration (SSA), which awarded him benefits for the year from August 1995 to August 1996.

In 2002, the Department of Transportation (DOT), the FAA’s parent agency, launched a joint criminal investigation with the SSA, known as “Operation Safe Pilot,” to identify medically unfit individuals who had obtained FAA certifications to fly. The DOT gave the SSA a list of names and other identifying information of 45,000 licensed pilots in northern California. The SSA then compared the list with its own records of benefit recipients and compiled a spreadsheet, which it gave to the DOT.

The spreadsheet revealed that respondent had a current medical certificate but had also received disability benefits. After reviewing respondent’s FAA medical file and his SSA disability file, FAA flight surgeons determined in 2005 that the FAA would not have issued a medical certificate to respondent had it known his true medical condition.

When investigators confronted respondent with what had been discovered, he admitted that he had intentionally withheld from the FAA information about his HIV status and other relevant medical information. Because of these fraudulent omissions, the FAA revoked respondent’s pilot certificate, and he was indicted on three counts of making false statements to a Government agency, in violation of 18 U. S. C. §1001. Respondent ultimately pleaded guilty to one count of making and delivering a false official writing, in violation of §1018. He was sentenced to two years of probation and fined $1,000. 1

Claiming that the FAA, DOT, and SSA (hereinafter Government) violated the Privacy Act by sharing his records with one another, respondent filed suit in the United States District Court for the Northern District of California. He alleged that the unlawful disclosure to the DOT of his confidential medical information, including his HIV status, had caused him “humiliation, embarrassment, mental anguish, fear of social ostracism, and other severe emotional distress.” App. to Pet. for Cert. 120a. Notably, he did not allege any pecuniary or economic loss.

The District Court granted summary judgment against respondent. 816 F. Supp. 2d 778, 781 (2008). The court concluded that the Government had violated the Privacy Act and that there was a triable issue of fact as to whether the violation was intentional or willful. 2 But the court held that respondent could not recover damages because he alleged only mental and emotional harm, not economic loss. Finding that the term “actual damages” is “facially ambiguous,” id., at 791, and relying on the sovereign immunity canon, which provides that waivers of sovereign immunity must be strictly construed in favor of the Government, the court concluded that the Act does not authorize the recovery of damages from the Government for nonpecuniary mental or emotional harm.

The United States Court of Appeals for the Ninth Circuit reversed and remanded. 622 F. 3d 1016, 1024 (2010). The court acknowledged that the term “actual damages” is a “ ‘chameleon’ ” in that “its meaning changes with the specific statute in which it is found.” Id., at 1029. But the court nevertheless held that, as used in the Privacy Act, the term includes damages for mental and emotional distress. Looking to what it described as “[i]ntrinsic” and “[e]xtrinsic” sources, id., at 1028, 1031, the court concluded that the meaning of “actual damages” in the Privacy Act is not ambiguous and that “a construction that limits recovery to pecuniary loss” is not “plausible,” id., at 1034.

The Government petitioned for rehearing or rehearing en banc, but a divided court denied the petition. Id., at 1019. The Government then petitioned for certiorari, and we granted review. 564 U. S. ___ (2011).

II

Because respondent seeks to recover monetary compensation from the Government for mental and emotional harm, we must decide whether the civil remedies provision of the Privacy Act waives the Government’s sovereign immunity with respect to such a recovery.

A

We have said on many occasions that a waiver of sovereign immunity must be “unequivocally expressed” in statutory text. See, e.g., Lane v. Peña, 518 U. S. 187, 192 (1996) ; United States v. Nordic Village, Inc., 503 U. S. 30, 33 (1992) ; Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95 (1990) . Legislative history cannot supply a waiver that is not clearly evident from the language of the statute. Lane, supra, at 192. Any ambiguities in the statutory language are to be construed in favor of immunity, United States v. Williams, 514 U. S. 527, 531 (1995) , so that the Government’s consent to be sued is never enlarged beyond what a fair reading of the text requires, Ruckelshaus v. Sierra Club, 463 U. S. 680 –686 (1983) (citing Eastern Transp. Co. v. United States, 272 U. S. 675, 686 (1927) ). Ambiguity exists if there is a plausible interpretation of the statute that would not authorize money damages against the Government. Nordic Village, supra, at 34, 37.

The question that confronts us here is not whether Congress has consented to be sued for damages under the Privacy Act. That much is clear from the statute, which expressly authorizes recovery from the Government for “actual damages.” Rather, the question at issue concerns the scope of that waiver. For the same reason that we refuse to enforce a waiver that is not unambiguously expressed in the statute, we also construe any ambiguities in the scope of a waiver in favor of the sovereign. Lane, supra, at 192.

Although this canon of interpretation requires an unmistakable statutory expression of congressional intent to waive the Government’s immunity, Congress need not state its intent in any particular way. We have never required that Congress use magic words. To the contrary, we have observed that the sovereign immunity canon “is a tool for interpreting the law” and that it does not “displac[e] the other traditional tools of statutory construction.” Richlin Security Service Co. v. Chertoff, 553 U. S. 571, 589 (2008) . What we thus require is that the scope of Congress’ waiver be clearly discernable from the statutory text in light of traditional interpretive tools. If it is not, then we take the interpretation most favorable to the Government.

B

The civil remedies provision of the Privacy Act provides that, for any “intentional or willful” refusal or failure to comply with the Act, the United States shall be liable for “actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000.” 5 U. S. C. §552a(g)(4)(A). Because Congress did not define “actual damages,” respondent urges us to rely on the ordinary meaning of the word “actual” as it is defined in standard general-purpose dictionaries. But as the Court of Appeals explained, “actual damages” is a legal term of art, 622 F. 3d, at 1028, and it is a “cardinal rule of statutory construction” that, when Congress employs a term of art, “ ‘it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken,’ ” Molzof v. United States, 502 U. S. 301, 307 (1992) (quoting Morissette v. United States, 342 U. S. 246, 263 (1952) ).

Even as a legal term, however, the meaning of “actual damages” is far from clear. The latest edition of Black’s Law Dictionary available when Congress enacted the Privacy Act defined “actual damages” as “[r]eal, substantial and just damages, or the amount awarded to a complainant in compensation for his actual and real loss or injury, as opposed on the one hand to ‘nominal’ damages, and on the other to ‘exemplary’ or ‘punitive’ damages.” Black’s Law Dictionary 467 (rev. 4th ed. 1968). But this general (and notably circular) definition is of little value here because, as the Court of Appeals accurately observed, the precise meaning of the term “changes with the specific statute in which it is found.” 622 F. 3d, at 1029.

The term is sometimes understood to include nonpecuniary harm. Take, for instance, some courts’ interpretations of the Fair Housing Act (FHA), 42 U. S. C. §3613(c), and the Fair Credit Reporting Act (FCRA), 15 U. S. C. §§1681n, 1681o. A number of courts have construed “actual” damages in the remedial provisions of both statutes to include compensation for mental and emotional distress. See, e.g., Seaton v. Sky Realty Co., 491 F. 2d 634, 636–638 (CA7 1974) (authorizing compensatory damages under the FHA, 42 U. S. C. §3612, the predecessor to §3613, for humiliation); Steele v. Title Realty Co., 478 F. 2d 380, 384 (CA10 1973) (stating that damages under the FHA “are not limited to out-of-pocket losses but may include an award for emotional distress and humiliation”); Thompson v. San Antonio Retail Merchants Assn., 682 F. 2d 509, 513–514 (CA5 1982) (per curiam) (explaining that, “[e]ven when there are no out-of-pocket expenses, humiliation and mental distress do constitute recoverable elements of damage” under the FCRA); Millstone v. O’Hanlon Reports, Inc., 528 F. 2d 829, 834–835 (CA8 1976) (approving an award of damages under the FCRA for “loss of sleep, nervousness, frustration and mental anguish”).

In other contexts, however, the term has been used or construed more narrowly to authorize damages for only pecuniary harm. In the wrongful-death provision of the Federal Tort Claims Act (FTCA), for example, Congress authorized “actual or compensatory damages, measured by the pecuniary injuries resulting from such death.” 28 U. S. C. §2674, ¶2. At least one court has defined “actual damages” in the Copyright Act of 1909, 17 U. S. C. §101(b) (1970 ed.), as “the extent to which the market value of a copyrighted work has been injured or destroyed by an infringement.” Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F. 2d 505, 512 (CA9 1985); see also Mackie v. Rieser, 296 F. 3d 909, 917 (CA9 2002) (holding that “ ‘hurt feelings’ over the nature of the infringement” have no place in the actual damages calculus). And some courts have construed “actual damages” in the Securities Exchange Act of 1934, 15 U. S. C. §78bb(a), to mean “some form of economic loss.” Ryan v. Foster & Marshall, Inc., 556 F. 2d 460, 464 (CA9 1977); see also Osofsky v. Zipf, 645 F. 2d 107, 111 (CA2 1981) (stating that the purpose of §78bb(a) “is to compensate civil plaintiffs for economic loss suffered as a result of wrongs committed in violation of the 1934 Act”); Herpich v. Wallace, 430 F. 2d 792, 810 (CA5 1970) (noting that the “gist” of an action for damages under the Act is “economic injury”). 3

Because the term “actual damages” has this chameleon-like quality, we cannot rely on any all-purpose definition but must consider the particular context in which the term appears. 4

C

The Privacy Act directs agencies to establish safeguards to protect individuals against the disclosure of confidential records “which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.” 5 U. S. C. §552a(e)(10); see also §2(b), 88Stat. 1896 (stating that the “purpose of this Act is to provide certain safeguards for an individual against an invasion of personal privacy”). Because the Act serves interests similar to those protected by defamation and privacy torts, there is good reason to infer that Congress relied upon those torts in drafting the Act.

In Doe v. Chao, 540 U. S. 614 (2004) , we held that the Privacy Act’s remedial provision authorizes plaintiffs to recover a guaranteed minimum award of $1,000 for violations of the Act, but only if they prove at least some “actual damages.” Id., at 620, 627; see §552a(g)(4)(A). Although we did not address the meaning of “actual damages,” id., at 622, n. 5, 627, n. 12, we observed that the provision “parallels” the remedial scheme for the common-law torts of libel per quod and slander, under which plaintiffs can recover “general damages,” but only if they prove “special harm” (also known as “special damages”), id., at 625; see also 3 Restatement of Torts §575, Comments a and b (1938) (hereinafter Restatement); D. Dobbs, Law of Remedies §7.2, pp. 511–513 (1973) (hereinafter Dobbs). 5 “Special damages” are limited to actual pecuniary loss, which must be specially pleaded and proved. 1 D. Haggard, Cooley on Torts §164, p. 580 (4th ed. 1932) (hereinafter Cooley). 6 “General damages,” on the other hand, cover “loss of reputation, shame, mortification, injury to the feelings and the like and need not be alleged in detail and require no proof.” Id., §164, at 579. 7

This parallel between the Privacy Act and the common-law torts of libel per quod and slander suggests the possibility that Congress intended the term “actual damages” in the Act to mean special damages. The basic idea is that Privacy Act victims, like victims of libel per quod or slander, are barred from any recovery unless they can first show actual—that is, pecuniary or material—harm. Upon showing some pecuniary harm, no matter how slight, they can recover the statutory minimum of $1,000, presumably for any unproven harm. That Congress would choose to use the term “actual damages” instead of “special damages” was not without precedent. The terms had occasionally been used interchangeably. See, e.g., Wetzel v. Gulf Oil Corp., 455 F. 2d 857, 862 (CA9 1972) (holding that plaintiff could not establish libel per quod because he “did not introduce any valid and sufficient evidence of actual damage”); Electric Furnace Corp. v. Deering Milliken Research Corp., 325 F. 2d 761, 765 (CA6 1963) (stating that “libel per quod standing alone without proof of actual damages . . . will not support a verdict for the plaintiff”); M & S Furniture Sales Co. v. Edward J. De Bartolo Corp., 249 Md. 540, 544, 241 A. 2d 126, 128 (1968) (“In the case of words or conduct actionable only per quod, the injurious effect must be established by allegations and proof of special damage and in such cases it is not only necessary to plead and show that the words or actions were defamatory, but it must also appear that such words or conduct caused actual damage”); Clementson v. Minnesota Tribune Co., 45 Minn. 303, 47 N. W. 781 (1891) (distinguishing “actual, or, as they are sometimes termed, ‘special,’ damages” from “general damages—that is, damages not pecuniary in their nature”). 8

Any doubt about the plausibility of construing “actual damages” in the Privacy Act synonymously with “special damages” is put to rest by Congress’ refusal to authorize “general damages.” In an uncodified section of the Act, Congress established the Privacy Protection Study Commission to consider, among other things, “whether the Federal Government should be liable for general damages.” §5(c)(2)(B)(iii), 88Stat. 1907, note following 5 U. S. C. §552a, p. 712. As we explained in Doe, “Congress left the question of general damages . . . for another day.” 540 U. S., at 622. Although the Commission later recommended that general damages be allowed, ibid., n. 4, Congress never amended the Act to include them. For that reason, we held that it was “beyond serious doubt” that general damages are not available for violations of the Privacy Act. Id., at 622.

By authorizing recovery for “actual” but not for “general” damages, Congress made clear that it viewed those terms as mutually exclusive. In actions for defamation and related dignitary torts, two categories of compensatory damages are recoverable: general damages and special damages. Cooley §164, at 579; see also 4 Restatement §867, Comment d (1939) (noting that damages for interference with privacy “can be awarded in the same way in which general damages are given for defamation”). 9 Because Congress declined to authorize “general damages,” we think it likely that Congress intended “actual damages” in the Privacy Act to mean special damages for proven pecuniary loss.

Not surprisingly, this interpretation was accepted by the Privacy Protection Study Commission, an expert body authorized by Congress and highly sensitive to the Act’s goals. The Commission understood “actual damages” in the Act to be “a synonym for special damages as that term is used in defamation cases.” Personal Privacy in an Information Society: The Report of the Privacy Protection Study Commission 530 (July 1977); see also ibid. (“The legislative history and language of the Act suggest that Congress meant to restrict recovery to specific pecuniary losses until the Commission could weigh the propriety of extending the standard of recovery”). Although we are not bound in any way by the Commission’s report, we think it confirms the reasonableness of interpreting “actual damages” in the unique context of the Privacy Act as the equivalent of special damages.

D

We do not claim that the contrary reading of the statute accepted by the Court of Appeals and advanced now by respondent is inconceivable. But because the Privacy Act waives the Federal Government’s sovereign immunity, the question we must answer is whether it is plausible to read the statute, as the Government does, to authorize only damages for economic loss. Nordic Village, 503 U. S., at 34, 37. When waiving the Government’s sovereign immunity, Congress must speak unequivocally. Lane, 518 U. S., at 192. Here, we conclude that it did not. As a consequence, we adopt an interpretation of “actual damages” limited to proven pecuniary or economic harm. To do otherwise would expand the scope of Congress’ sovereign immunity waiver beyond what the statutory text clearly requires.

III

None of respondent’s contrary arguments suffices to overcome the sovereign immunity canon.

A

Respondent notes that the term “actual damages” has often been defined broadly in common-law cases, and in our own, to include all compensatory damages. See Brief for Respondent 18–25. For example, in Birdsall v. Coolidge, 93 U. S. 64 (1876) , a patent infringement case, we observed that “[c]ompensatory damages and actual damages mean the same thing.” Ibid. And in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) , we wrote that actual injury in the defamation context “is not limited to out-of-pocket loss” and that it customarily includes “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering.” Id., at 350.

These cases and others cited by respondent stand for the unremarkable point that the term “actual damages” can include nonpecuniary loss. But this generic meaning does not establish with the requisite clarity that the Privacy Act, with its distinctive features, authorizes damages for mental and emotional distress. As we already explained, the term “actual damages” takes on different meanings in different contexts.

B

Respondent’s stronger argument is that the exclusion of “general damages” from the statute simply means that there can be no recovery for presumed damages. Privacy Act victims can still recover for mental and emotional distress, says respondent, so long as it is proved. See Brief for Respondent 54–56. 10

This argument is flawed because it suggests that proven mental and emotional distress does not count as general damages. The term “general damages” is not limited to compensation for unproven injuries; it includes compensation for proven injuries as well. See 3 Restatement §621, Comment a (noting that general damages compensate for “harm which . . . is proved, or, in the absence of proof, is assumed to have caused to [the plaintiff’s] reputation”). To be sure, specific proof of emotional harm is not required to recover general damages for dignitary torts. Dobbs §7.3, at 529. But it does not follow that general damages cannot be recovered for emotional harm that is actually proved.

Aside from the fact that general damages need not be proved, what distinguishes those damages, whether proved or not, from the only other category of compensatory damages available in the relevant common-law suits is the type of harm. In defamation and privacy cases, “the affront to the plaintiff’s dignity and the emotional harm done” are “called general damages, to distinguish them from proof of actual economic harm,” which is called “special damages.” Id., §3.2, at 139; see also supra, at 10, 12–13, and nn. 6, 7, 9. Therefore, the converse of general damages is special damages, not all proven damages, as respondent would have it. Because Congress removed “general damages” from the Act’s remedial provision, it is reasonable to infer that Congress foreclosed recovery for nonpecuniary harm, even if such harm can be proved, and instead waived the Government’s sovereign immunity only with respect to harm compensable as special damages.

C

Looking beyond the Privacy Act’s text, respondent points to the use of the term “actual” damages in the remedial provisions of the FHA, 42 U. S. C. §3613(c), and the FCRA, 15 U. S. C. §§1681n, 1681o. As previously mentioned, courts have held that “actual” damages within the meaning of these statutes include compensation for mental and emotional distress. Supra, at 7. Citing the rule of construction that Congress intends the same language in similar statutes to have the same meaning, see Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427, 428 (1973) (per curiam), respondent argues that the Privacy Act should also be interpreted as authorizing damages for mental and emotional distress. See Brief for Respondent 25–32.

Assuming for the sake of argument that these lower court decisions are correct, they provide only weak support for respondent’s argument here. Since the term “actual damages” can mean different things in different contexts, statutes other than the Privacy Act provide only limited interpretive aid, and that is especially true here. Neither the FHA nor the FCRA contains text that precisely mirrors the Privacy Act. 11 In neither of those statutes did Congress specifically decline to authorize recovery for general damages as it did in the Privacy Act. Supra, at 12–13. And most importantly, none of the lower court cases interpreting the statutes, which respondent has cited, see Brief for Respondent 29–31, involves the sovereign immunity canon.

Respondent also points to the FTCA, but the FTCA’s general liability provision does not even use the term “actual damages.” It instead provides that the “United States shall be liable” for certain tort claims “in the same manner and to the same extent as a private individual” under relevant state law. 28 U. S. C. §2674, ¶1. For that reason alone, the FTCA’s general liability provision is not a reliable source for interpreting the term “actual damages” in the Privacy Act. Nor does the FTCA’s wrongfuldeath provision—which authorizes “actual or compensatory damages, measured by the pecuniary injuries resulting from such death,” §2674, ¶2—prove that Congress understood the term “actual damages” in the Privacy Act to include nonpecuniary mental and emotional harm. To the contrary, it proves that actual damages can be understood to entail only pecuniary harm depending on the context. Because the FTCA, like the FHA and FCRA, does not share the same text or design as the Privacy Act, it is not a fitting analog for construing the Act.

D

Finally, respondent argues that excluding damages for mental and emotional harm would lead to absurd results. Persons suffering relatively minor pecuniary loss would be entitled to recover $1,000, while others suffering only severe and debilitating mental or emotional distress would get nothing. See Brief for Respondent 33–35.

Contrary to respondent’s suggestion, however, there is nothing absurd about a scheme that limits the Government’s Privacy Act liability to harm that can be substantiated by proof of tangible economic loss. Respondent insists that such a scheme would frustrate the Privacy Act’s remedial purpose, but that ignores the fact that, by deliberately refusing to authorize general damages, Congress intended to cabin relief, not to maximize it. 12

*  *  *

In sum, applying traditional rules of construction, we hold that the Privacy Act does not unequivocally authorize an award of damages for mental or emotional distress. Accordingly, the Act does not waive the Federal Government’s sovereign immunity from liability for such harms. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Kagan took no part in the consideration or decision of this case.

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1  Respondent eventually applied for recertification as a pilot. After reviewing respondent’s medical records, including information about his HIV diagnosis and treatment, the FAA reissued his pilot certificate and medical certificate. Brief for Respondent 5, n. 1.

2  With certain exceptions, it is unlawful for an agency to disclose a record to another agency without the written consent of the person to whom the record pertains. 5 U. S. C. §552a(b). One exception to this nondisclosure requirement applies when the head of an agency makes a written request for law enforcement purposes to the agency that maintains the record. See §552a(b)(7). The agencies in this case could easily have shared respondent’s medical records pursuant to the procedures prescribed by the Privacy Act, but the District Court concluded that they failed to do so.

3  This narrow usage is reflected in contemporaneous state-court decisions as well. See, e.g., Reist v. Manwiller, 231 Pa. Super. 444, 449, n. 4, 332 A. 2d 518, 520, n. 4 (1974) (explaining that recovery for intentional infliction of emotional distress is allowed “despite the total absence of physical injury and actual damages”); Nalder v. Crest Corp., 93 Idaho 744, 749, 472 P. 2d 310, 315 (1970) (noting that damages for “mental anguish” due to the wrongful execution of a judgment “are allowable only as an element of punitive but not of actual damages”). It is also reflected in post-Privacy Act statutes and judicial decisions. See, e.g., 17 U. S. C. §1009(d)(1)(A)(ii) (defining “actual damages” in the Audio Home Recording Act of 1992 as “the royalty payments that should have been paid”); 18 U. S. C. §2318(e)(3) (2006 ed., Supp. IV) (calculating “actual damages” for purposes of a counterfeit labeling statute in terms of financial loss); Guzman v. Western State Bank of Devils Lake, 540 F. 2d 948, 953 (CA8 1976) (stating that compensatory damages in a civil rights suit “can be awarded for emotional and mental distress even though no actual damages are proven”).

4  The dissent criticizes us for noting that the dictionary definition contains an element of circularity. The dissent says that the definition—“ ‘[a]ctual damages’ compensate for actual injury”—is “plain enough.” Post, at 3 (opinion of Sotomayor, J.). But defining “actual” damages by reference to “actual” injury is hardly helpful when our task is to determine what Congress meant by “actual.” The dissent’s reference to the current version of Black’s Law Dictionary, which provides that “actual damages” can mean “tangible damages,” only highlights the term’s ambiguity. See Black’s Law Dictionary 445 (9th ed. 2009). If “actual damages” can mean “tangible damages,” then it can be construed not to include intangible harm, like mental and emotional distress. Similarly unhelpful is the dissent’s citation to a general-purpose dictionary that defines “actual” as “existing in fact or reality” and “damages” as “compensation or satisfaction imposed by law for a wrong or injury.” Webster’s Third New International Dictionary 22, 571 (2002) (emphasis added). Combining these two lay definitions says nothing about whether compensation for mental and emotional distress is in fact imposed by law. The definitions merely beg the question we are trying to answer. It comes as little surprise, therefore, that “actual damages” has taken on different meanings in different statutes, as our examples amply illustrate.

5  Libel per quod and slander (as opposed to libel and slander per se) apply to a communication that is not defamatory on its face but that is defamatory when coupled with some other extrinsic fact. Dobbs §7.2, at 512–513.

6  See also 3 Restatement §575, Comment b (“Special harm . . . is harm of a material and generally of a pecuniary nature”); Dobbs §7.2, at 520 (“Special damages in defamation cases mean pecuniary damages, or at least ‘material loss’ ” (footnote omitted)). Special damages do not include mental or emotional distress. See 3 Restatement §575, Comment c (“The emotional distress caused to the person slandered by his knowledge that he has been defamed is not special harm and this is so although the distress results in a serious illness”); Dobbs §7.2, at 520 (“Even under the more modern approach, special damages in defamation cases must be economic in nature, and it is not enough that the plaintiff has suffered harm to reputation, mental anguish or other dignitary harm, unless he has also suffered the loss of something having economic value”).

7  See also id., §3.2, at 139 (explaining that noneconomic harms “are called general damages”); W. Prosser, Law of Torts §112, p. 761 (4th ed. 1971) (noting that “ ‘general’ damages may be recovered for the injury to the plaintiff’s reputation, his wounded feelings and humiliation, and resulting physical illness and pain, as well as estimated future dam-ages of the same kind” (footnotes omitted)); 3 Restatement §621, Com-ment a (stating that, in actions for defamation, a plaintiff may recover general damages for “impairment of his reputation or, through loss of reputation, to his other interests”).

8  The dissent disregards these precedents as the product of careless imprecision. Post, at 8, n. 6. But just as we assume that Congress did not act carelessly, we should not be so quick to assume that the courts did. The better explanation for these precedents is not that the courts were careless, but that the term “actual damages” has a varied meaning that, depending on the context, can be limited to compensation for only pecuniary harm.

9  See also Moriarty v. Lippe, 162 Conn. 371, 382–383, 294 A. 2d 326, 332–333 (1972) (“Having admittedly alleged or proven no special damages, the plaintiff here is limited to a recovery of general damages . . .”); Meyerle v. Pioneer Publishing Co., 45 N. D. 568, 574, 178 N. W. 792, 794 (1920) (per curiam) (“Generally speaking, there are recognized two classes of damages in libel cases, general damages and special damages”); Winans v. Chapman, 104 Kan. 664, 666, 180 P. 266, 267 (1919) (“Actual damages include both general and special damages”); Childers v. San Jose Mercury Printing & Publishing Co., 105 Cal. 284, 288–289, 38 P. 903, 904 (1894) (explaining that special damages, “asa branch of actual damages[,] may be recovered when actual pecuniary loss has been sustained” and that the “remaining branch of actual damages embraces recovery for loss of reputation, shame, mortification, injury to feelings, etc.”); see generally Dobbs §7.3, at 531 (“Though the dignitary torts often involve only general damages . . . , they sometimes produce actual pecuniary loss. When this happens, the plaintiff is usually entitled to recover any special damage he can prove . . . ”); 1 F. Harper & F. James, Law of Torts §5.30, p. 470 (1956) (“When liability for defamation is established, the defendant, in addition to such ‘general’ damages as may be assessed by the jury, is also liable for any special damage which he has sustained”).

10  The dissent advances the same argument. See post, at 9–11.

11  Compare 42 U. S. C. §3613(c)(1) (stating that “the court may award to the plaintiff actual and punitive damages”); 15 U. S. C. §1681n(a)(1) (authorizing “(A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000; or (B) . . . actual damages sustained by the consumer as a result of the failure or $1,000, whichever is greater”); §1681o(a)(1) (authorizing “any actual damages sustained by the consumer as a result of the failure”) with 5 U. S. C. §552a(g)(4)(A) (authorizing “actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000”).

12  Despite its rhetoric, the dissent does not dispute most of the steps in our analysis. For example, although the dissent belittles the sovereign immunity canon, the dissent does not call for its abandonment. See post, at 2–3. Nor does the dissent point out any error in our understanding of the canon’s meaning. See ibid. The dissent acknowledges that statutes and judicial opinions sometimes use the term “actual damages” to mean pecuniary harm, see post, at 5, and that determining its meaning in a particular statute requires consideration of context, see ibid. In addition, the dissent concedes—as it must in light of our reasoning in Doe v. Chao, 540 U. S. 614 (2004) —that the common law of defamation has relevance in construing the term “actual damages” in the Privacy Act. See post, at 7–9. The dissent’s argument thus boils down to this: The text and purpose of the Privacy Act make it clear beyond any reasonable dispute that the term “actual damages,” as used in the Act, means compensatory damages for all proven harm and not just damages for pecuniary harm. The dissent reasons that, because the Act seeks to prevent pecuniary and nonpecuniary harm, Congress must have intended to authorize the recovery of money damages from the Federal Government for both types of harm. This inference is plausible, but it surely is not unavoidable. The Act deters violations of its substantive provisions in other ways—for instance, by permitting recovery for economic injury; by imposing criminal sanctions for some violations, see 5 U. S. C. §552a(i); and possibly by allowing for injunctive relief under the Administrative Procedure Act (APA), 5 U. S. C. §§702, 706; see Doe, supra, at 619, n. 1 (noting that the absence of equitable relief in suits under §§552a(g)(1)(C) or (D) may be explained by the availability of such relief under the APA).

SUPREME COURT OF THE UNITED STATES

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No. 10–1024

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FEDERAL AVIATION ADMINISTRATION, et al., PETITIONERS v. STANMORE CAWTHON COOPER

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 28, 2012]

Justice Sotomayor, with whom Justice Ginsburg and Justice Breyer join, dissenting.

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 entitling individuals adversely affected by certain agency misconduct to recover “actual damages” sustained as a result of the unlawful action.

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 interests. I respectfully dissent.

I

The majority concludes that “actual damages” in the civil-remedies provision of the Privacy Act allows recovery for pecuniary loss alone. But it concedes that its interpretation is not compelled by the plain text of the statute or otherwise required by any other traditional tool of statutory interpretation. And it candidly acknowledges that a contrary reading is not “inconceivable.” Ante, at 14. Yet because it considers its reading of “actual damages” to be “plausible,” the majority contends that the canon of sovereign immunity requires adoption of an interpretation most favorable to the Government. Ibid.

The canon simply cannot bear the weight the majority ascribes it. “The sovereign immunity canon is just that—a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutory construction.” Richlin Security Service Co. v. Chertoff, 553 U. S. 571, 589 (2008) (opinion of Alito, J.). Here, traditional tools of statutory construction—the statute’s text, structure, drafting history, and purpose—provide a clear answer: The term “actual damages” permits recovery for all injuries established by competent evidence in the record, whether pecuniary or nonpecuniary, and so encompasses damages for mental and emotional distress. There is no need to seek refuge in a canon of construction, see id., at 589–590 (declining to rely on canon as there is “no ambiguity left for us to construe” after application of “traditional tools of statutory interpretation and considerations of stare decisis”), much less one that has been used so haphazardly in the Court’s history, see United States v. Nordic Village, Inc., 503 U. S. 30, 42 (1992) (Stevens, J., dissenting) (canon is “nothing but a judge-made rule that is sometimes favored and sometimes disfavored”) (collecting cases).

It bears emphasis that we have said repeatedly that, while “we should not take it upon ourselves to extend the waiver [of sovereign immunity] beyond that which Congress intended,” “[n]either . . . should we assume the authority to narrow the waiver that Congress intended.” United States v. Kubrick, 444 U. S. 111 –118 (1979) (emphasis added). See also, e.g., Block v. Neal, 460 U. S. 289, 298 (1983) (“The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced” (internal quotation marks omitted)). In the Privacy Act, Congress expressly authorized recovery of “actual damages” for certain intentional or willful agency misconduct. The Court should not “as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.” Indian Towing Co. v. United States, 350 U. S. 61, 69 (1955) .

II A

“In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished.” Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 475 (1992) . The language of the civil-remedies provision of the Privacy Act is clear.

At the time Congress drafted the Act, Black’s Law Dictionary defined “actual damages” as “[r]eal, substantial and just damages, or the amount awarded to a complainant in compensation for his actual and real loss or injury” and as “[s]ynonymous with ‘compensatory damages.’ ” Black’s Law Dictionary 467 (rev. 4th ed. 1968) (hereinafter Black’s). The majority claims this is a “general” and “notably circular” definition, ante, at 7, but it is unclear why. The definition is plain enough: “Actual damages” compensate for actual injury, and thus the term is synonymous with compensatory damages. See Black’s 467 (defining “compensatory damages” as damages that “will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury”). 1 There is nothing circular about that definition. 2 It is the definition this Court adopted more than a century ago when we recognized that “[c]ompensatory damages and actual damages mean the same thing; that is, that the damages shall be the result of the injury alleged and proved, and that the amount awarded shall be precisely commensurate with the injury suffered.” Birdsall v. Coolidge, 93 U. S. 64 (1876) . It is the definition embraced in current legal dictionaries. See Black’s 445 (9th ed. 2009) (defining “actual damages” as “[a]n amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual losses.—Also termed compensatory damages; tangible damages; real damages” (italics omitted)). And it is the definition that accords with the plain and ordinary meaning of the term. See Webster’s Third New International Dictionary 22, 571 (2002) (defining “actual” as “existing in fact or reality” and “damages” as “compensation or satisfaction imposed by law for a wrong or injury caused by a violation of a legal right”). Thus, both as a term of art and in its plain meaning, “actual damages” connotes compensation for proven injuries or losses. Nothing in the use of that phrase indicates proven injuries need be pecuniary in nature.

The majority discards all this on the asserted ground that “the precise meaning of the term ‘changes with the specific statute in which it is found.’ ” Ante, at 7 (quoting 622 F. 3d 1016, 1029 (CA9 2010)). Context, of course, is relevant to statutory interpretation; it may provide clues that Congress did not employ a word or phrase in its ordinary meaning. That well-established interpretive rule cannot, however, render irrelevant—as the majority would have it—the ordinary meaning of “actual damages.”

Moreover, the authority the majority cites for its claim that “actual damages” has no fixed meaning undermines—rather than supports—its holding. Each cited authority involves either a statute in which Congress expressly directed that compensation be measured in strictly economic terms, or else a statute (e.g., the Copyright Act of 1909) in which economic loss is the natural and probable consequence of a violation of the defined legal interest. 3 Neither factor is present here. Notably absent from the Privacy Act is any provision so much as hinting that “actual damages” should be limited to economic loss. And while “ ‘ “hurt feelings” over the nature of the [copyright] infringement’ ” may “have no place in the actual damages calculus” under the Copyright Act of 1909, ante, at 8 (quoting in parenthetical Mackie v. Rieser, 296 F. 3d 909, 917 (CA9 2002)), the majority provides no basis for concluding that “hurt feelings” are equally invalid in an Act concerned with safeguarding individual privacy. Thus, while context is no doubt relevant, the majority’s cited authority does little to help its cause in the stated context of this statute.

B

Indeed, the relevant statutory context—the substantive provisions whose breach may trigger suit under the civil-remedies provision—only reinforces the ordinary meaning of “actual damages.”

Congress established substantive duties in the Act that are expressly designed to prevent agency conduct resulting in intangible harms to the individual. The Act requires agencies to “establish appropriate administrative, technical, and physical safeguards” to ensure against security breaches that could result in “substantial harm, embarrassment, inconvenience, or unfairness to any individual.” 5 U. S. C. §552a(e)(10). It also requires agencies to “maintain all records” used in making a determination about an individual in a manner that is “reasonably necessary to assure fairness to the individual in the determination.” §552a(e)(5). Thus an agency violates the terms of the Act if it fails, e.g., to maintain safeguards protecting against “embarrassment”; there is no additional requirement that the pocketbook be implicated. An agency’s intentional or willful violation of those duties triggers liability for “actual damages” under §552a(g)(4) in the event of an adverse impact. §§552a(g)(1)(C)–(D), (g)(4).

Adopting a reading of “actual damages” that permits recovery for pecuniary loss alone creates a disconnect between the Act’s substantive and remedial provisions. It allows a swath of Government violations to go unremedied: A federal agency could intentionally or willfully forgo establishing safeguards to protect against embarrassment and no successful private action could be taken against it for the harm Congress identified. Only an interpretation of “actual damages” that permits recovery for nonpecuniary harms harmonizes the Act’s substantive and remedial provisions. Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997) (statutory interpretation must consider “the broader context of the statute as a whole”). 4

The majority draws a different conclusion from the substantive provisions of the Privacy Act. It (correctly) infers from them that the Act “serves interests similar to those protected by defamation and privacy torts.” Ante, at 9. It then points to our observation in Doe v. Chao, 540 U. S. 614, 625 (2004) , that the Act’s civil-remedies provision “parallels” the remedial scheme for the common-law torts of defamation per quod, which permitted recovery of “general damages” (i.e., presumed damages) only if a plaintiff first establishes “special damages” (i.e., monetary loss). 5 Ante, at 10. That “parallel,” the majority concludes, “suggests the possibility that Congress intended the term ‘actual damages’ in the Act to mean special damages.” Ante, at 11.

The majority reads too much into Doe. At issue in that case was the question whether the Act’s civil-suit provision authorized recovery of a guaranteed minimum award of $1,000 absent proof of some “actual damages.” The Court answered in the negative, and in the course of doing so replied to petitioner’s argument that there was “something peculiar in offering some guaranteed damages . . . only to those plaintiffs who can demonstrate actual damages.” 540 U. S., at 625. Although the Court cited the Act’s parallels to defamation per quod actions in noting that nothing was “peculiar” about the Act’s remedial scheme, Doe did not take the further step of deciding that “actual damages” means economic loss alone. Indeed, it expressly reserved that question. Id., at 627, n. 12.

The majority, moreover, is wrong to conclude that the Act’s parallels with defamation per quod actions suggest Congress intended “actual damages” to mean “special damages.” Quite the opposite. The fact that Congress “would probably have known about” defamation per quod actions, id., at 625, makes it all the more significant that Congress did not write “special damages” in the civil-remedies provision. This Court is typically not in the business of substituting words we think Congress intended to use for words Congress in fact used. Yet that is precisely what the majority does when it rewrites “actual damages” to mean “special damages.” 6 In sum, the statutory context, and in particular the Act’s substantive provisions, confirms the ordinary meaning of “actual damages.” Although the Act shares parallels with common-law defamation torts, such analogies do not warrant a reading of the phrase that is at odds with the statute’s plain text. 7

C

An uncodified provision of the Act, tied to the Act’s drafting history, also reinforces the ordinary meaning of “actual damages.” As the majority notes, prior to reconciliation, the Senate and House bills contained civil-remedies provisions that were different in a critical respect: The Senate bill allowed for the recovery of “actual and general damages,” whereas the House bill allowed for the recovery of “actual damages” alone. 8 In the reconciliation process, the provision for “general damages” was dropped and an uncodified section of the Act was amended to require the newly established Privacy Protection Study Commission to consider, among its other jobs, “whether the Federal Government should be liable for general damages incurred by an individual as the result of a willful or intentional violation of the provisions of sections 552a(g)(1)(C) or (D).” §5(c)(2)(B)(iii), 88Stat. 1907; see also Doe, 540 U. S., at 622.

As the Court explained in Doe, “[t]he deletion of ‘general damages’ from the bill is fairly seen . . . as a deliberate elimination of any possibility of imputing harm and awarding presumed damages.” Id., at 623; see also id., at 622, n. 5 (“Congress explicitly rejected the proposal to make presumed damages available for Privacy Act violations”). The elimination of presumed damages from the bill can only reasonably imply that what Congress left behind—“actual damages”—comprised damages that are not presumed, i.e., damages proven by competent evidence in the record. See Gertz v. Robert Welch, Inc., 418 U. S. 323 –350 (1974) (distinguishing in defamation context between presumed damages and damages for actual injuries sustained by competent evidence in the record, which include “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering”); Carey v. Piphus, 435 U. S. 247 –264 (1978) (distinguishing between presumed damages and proven damages for mental and emotional distress).

Rather than view the deletion of general damages (presumed damages) as leaving the converse (proven damages), the majority supposes that the deletion leaves only a subset of proven damages—those of an economic nature, i.e., “special damages.” Once again, however, the majority’s insistence that “Congress intended ‘actual damages’ in the Privacy Act to mean special damages for proven pecuniary loss,” ante, at 13, finds no basis in the statutory text, see supra, at 8. And its response to the conclusion that Congress retained recovery for proven damages when it eliminated presumed damages is singularly unsatisfying. The majority declares such a conclusion “flawed” because “general damages” “includes compensation for proven injuries as well,” so that “what distinguishes [general] damages, whether proved or not, from the only other category of compensatory damages available in the relevant common-law suits is the type of harm” the term encompasses—which the majority takes to be emotional harm alone. Ante, at 15–16. That assertion is defective on two scores. First, a plaintiff’s ability to present proof of injury in a defamation per se action (and to recover for such proven injury) does not alter the definition of “general damages,” which we already explained in Doe means “presumed damages.” 540 U. S., at 621; see also id., at 623; n. 5, supra. Second, “general damages” is not limited to a “type” of harm. The majority’s contrary assertion that the term permits recovery only for emotional “types” of harm overlooks the fact that “general damages are partly based on the belief that the plaintiff will suffer unprovable pecuniary losses.” Dobbs §7.2, at 514 (emphasis added). It thus was established at common law that in a defamation per se action, “the plaintiff is usually free to prove whatever actual pecuniary loss he can,” and “the jury may be permitted to view the actual pecuniary loss proven as the tip of the iceberg, assume that there is still more un-proven, and award damage accordingly.” Ibid.

At its core, the majority opinion relies on the following syllogism: The common law employed two terms of art in defamation actions. Because Congress excluded recovery for “general damages,” it must have meant to retain recovery only for “special damages.” That syllogism, of course, ignores that there is another category of damages. It is the very category Congress used in the text of the Privacy Act: “Actual damages.” However much Congress may have drawn “parallels,” ante, at 10, between the Act and the common-law tort of defamation, the fact remains that Congress expressly choose not to use the words “special damages.” 9

D

I turn finally to the statute’s purpose, for “[a]s in all cases of statutory interpretation, our task is to interpret the words of th[e] statut[e] in light of the purposes Congress sought to serve.” Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 608 (1979) ; see also Dolan v. Postal Service, 546 U. S. 481, 486 (2006) (“Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis”). The purposes of the Privacy Act could not be more explicit, and they are consistent with interpreting “actual damages” according to its ordinary meaning.

“The historical context of the Act is important to an understanding of its remedial purposes. In 1974, Congress was concerned with curbing the illegal surveillance and investigation of individuals by federal agencies that had been exposed during the Watergate scandal.” Dept. of Justice, Office of Privacy and Civil Liberties, Overview of the Privacy Act 4 (2010). In particular, Congress recognized that “the increasing use of computers and sophisticated information technology . . . has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information.” §2(a), 88Stat. 1896. Identifying the right to privacy as “a personal and fundamental right,” Congress found it “necessary and proper” to enact the Privacy Act “in order to protect the privacy of individuals identified in information systems maintained by Federal agencies.” Ibid.

Congress explained that the “purpose of this Act is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to,” inter alia, “be subject to civil suit for any damages which occur as a result of willful or intentional action which violates any individual’s rights under this Act.” §2(b)(6), ibid. (emphasis added). That statement is an explicit reference to suits brought under §552a(g)(4); no other provision speaks to a civil suit based on “willful or intentional” agency misconduct. It signals unmistakably congressional recognition that the civil-remedies provision is integral to realizing the Act’s purposes.

Reading “actual damages” to permit recovery for any injury established by competent evidence in the record—pecuniary or not—best effectuates the statute’s basic purpose. Although some privacy invasions no doubt result in economic loss, we have recognized time and again that the primary form of injuries is nonpecuniary, and includes mental distress and personal humiliation. See Time, Inc. v. Hill, 385 U. S. 374, 385, n. 9 (1967) (“In the ‘right of privacy’ cases the primary damage is the mental distress”); see also Gertz, 418 U. S., at 350 (“[A]ctual injury” in defamatory falsehood cases “is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering”). Accord, 2 Dobbs §7.1.(1), at 259 (2d ed. 1993) (privacy is a dignitary interest, and “in a great many of the cases” in which the interest is invaded “the only harm is the affront to the plaintiff’s dignity as a human being, the damage to his self-image, and the resulting mental distress”). That accords with common sense.

In interpreting the civil-remedies provision, we must not forget Congress enacted the Privacy Act to protect privacy. The majority’s reading of “actual damages” renders the remedial provision impotent in the face of concededly unlawful agency action whenever the injury is solely nonpecuniary. That result is patently at odds with Congress’ stated purpose. The majority, however, does not grapple with the ramifications of its opinion. It acknowledges the suggestion that its holding leads to absurd results as it allows individuals suffering relatively minor pecuniary losses to recover $1,000 while others suffering severe mental anguish to recover nothing. But it concludes that “there is nothing absurd about a scheme that limits the Government’s Privacy Act liability to harm that can be substantiated by proof of tangible economic loss.” Ante, at 18. Perhaps; it is certainly within Congress’ prerogative to enact the statute the majority envisions, namely one that seeks to safeguard against invasions of privacy without remedying the primary harm that results from invasions of privacy. The problem for the majority is that one looks in vain for any indication in the text of the statute before us that Congress intended such a result. Nowhere in the Privacy Act does Congress so much as hint that it views a $5 hit to the pocketbook as more worthy of remedy than debilitating mental distress, and the majority’s contrary assumption discounts the gravity of emotional harm caused by an invasion of the personal integrity that privacy protects.

*  *  *

After today, no matter how debilitating and substantial the resulting mental anguish, an individual harmed by a federal agency’s intentional or willful violation of the Privacy Act will be left without a remedy unless he or she is able to prove pecuniary harm. That is not the result Congress intended when it enacted an Act with the express purpose of safeguarding individual privacy against Government invasion. And it is not a result remotely suggested by anything in the text, structure, or history of the Act. For those reasons, I respectfully dissent.

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1  Black’s Law Dictionary also defined “actual damages” as synonymous with “general damages.” Black’s 467. While “general damages” has a specialized meaning of presumed damages in libel and slander cases, see n. 4, infra, it more generally can mean damages that “did in fact result from the wrong, directly and proximately.” Black’s 468.

2  The majority declares the definition circular because “defining ‘actual’ damages by reference to ‘actual’ injury is hardly helpful when our task is to determine what Congress meant by ‘actual.’ ” Ante, at 9, n. 4. “Actual injury,” however, is far from an unhelpful reference. This Court already has recognized in the defamation context that “actual injury is not limited to out-of-pocket loss.” Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974) . That accords with the definitions of the terms. See Black’s 53, 924 (defining “actual” as “[r]eal; substantial; existing presently in act, having a valid objective existence as opposed to that which is merely theoretical or possible,” and “injury” as “[a]ny wrong or damage done to another”).

3  See 28 U. S. C. §2674; 17 U. S. C. §1009(d)(1); 18 U. S. C. §2318(e)(3) (2006 ed., Supp. IV); 17 U. S. C. §101(b) (1970 ed.); 15 U. S. C. §78bb(a) (2006 ed., Supp. IV).

4  It bears noting that the Privacy Act does not authorize injunctive relief when a suit is maintained under 5 U. S. C. §§552a(g)(1)(C) and (D). Rather, injunctive relief is available under the Act only for a limited category of suits: suits to amend a record and suits for access to a record. See §§552a(g)(2), (g)(3). Thus an individual who, like petitioner, brings suit under subparagraph (g)(1)(C) or (D) for an inten-tional or willful violation of the Act will be without a remedy underthe majority’s reading of “actual damages.”

5  As the majority notes, “general damages” at common law refers to damages “presumed” to accrue from the violation of the legally pro-tected right. No proof of actual injury was required. See D. Dobbs, Law of Remedies §7.2, p. 513 (1973) (hereinafter Dobbs); Doe, 540 U. S., at 621. “Special damages,” in contrast, “meant monetary loss.” Dobbs §7.2, at 512; Doe, 540 U. S., at 625. Common-law defamation actions falling within the rubric of defamation per se allowed successful plaintiffs to recover “general damages.” See Dobbs §7.2, at 513; Doe, 540 U. S., at 621. This stood in contrast to actions sounding in defamation per quod, which permitted recovery only if the plaintiff established “special damages.” See Dobbs, §7.2 at 512; Doe, 540 U. S., at 625. Even in defamation per quod cases, a plaintiff could recover nonpecuniary injuries upon establishing some pecuniary loss. See Dobbs §7.2, at 521; Doe, 540 U. S., at 625. See also ante, at 10.

6  The majority cites a collection of lower court opinions that have used “actual damages” in place of “special damages” to note that Congress would not have been alone in using the former term to refer to the latter. Ante, at 11–12. But that a handful of lower courts on occasion have been imprecise in their terminology provides no basis to assume the Legislature has been equally careless in the text of a statute.

7  There is yet another flaw in the majority’s reasoning. At common law a plaintiff who successfully established “special damages” in an action for defamation per quod could proceed to recover damages for emotional and mental distress. See ante, at 10; n. 5, supra. If “Congress intended the term ‘actual damages’ in the Act to mean special damages,” ante, at 11, then an individual who successfully establishes some pecuniary loss from a violation of the Act—presumably as trivial as the cost of a bottle of Tylenol—should be permitted to recover for emotional and mental distress. The majority, of course, does not accept that result, and its piecemeal embrace of the common law undermines its assertion that Congress intended “special damages” in place of “actual damages.”

8  See S. 3418, 93d Cong., 2d Sess., §303(c)(1) (1974); H. R. 16373, 93d Cong., 2d Sess., §3 (1974).

9  The majority cites the conclusions of the Privacy Protection Study Commission in support of its interpretation of “actual damages.” The majority rightfully does not claim this piece of postenactment, extratextual material is due any deference; nor do I find its unelaborated conclusions persuasive.

Print this transcript Transcript: 

ORAL ARGUMENT OF ERIC J. FEIGIN ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We will hear argument next in Case 10-1024, Federal Aviation Administration v. Cooper.

Mr. Feigin.

Mr. Feigin: Mr. Chief Justice, and may it please the Court:

If Congress had intended to waive the sovereign immunity of the United States to allow uncapped emotional distress claims under the Privacy Act, it would have and was required to state that waiver clearly and unambiguously in the statutory text.

The substantive requirements of the act sweep far beyond any pre-existing common law protection of privacy to impose a detailed set of new and pervasive requirements on the collection, maintenance, use and dissemination of millions of Federal agency records.

The act, for example, forbids agencies from keeping too much information about an individual, compels agencies to collect information about an individual, when practicable, from the individual himself and not from other sources, and can require agencies to safeguard information about an individual even when that information is otherwise already publicly available.

Congress would not have taken lightly the question of whether to expose the United States to expansive damages for intentional or willful violations of these novel recordkeeping requirements.

Indeed, the way in which the district court believes that the Social Security Administration violated the Privacy Act in this case is something that never would have been actionable at common law and never would have resulted in emotional distress recovery.

Justice Ruth Bader Ginsburg: Then maybe Congress shouldn't have passed this statute.

But the injury, the invasion of privacy, that's not something where pecuniary damages are -- are prime if they exist at all.

I mean, this is -- the -- the tort that this is comparable to is intentional infliction of emotional distress.

The -- the person who is subject to this, to this embarrassment, this humiliation, doesn't have out-of-pocket costs, but is terribly distressed, nervous, anxious, and all the rest.

The -- the act that the Congress is reaching, the impact of it is of that nature, not -- I mean pecuniary damages, you know, ordinarily attend conduct that embarrasses, humiliates you, causes mental distress.

Mr. Feigin: Well, first of all, Justice Ginsburg, I would like to respectfully disagree with the premise of the question that the Privacy Act is comparable to common law invasion of privacy.

All the requirements I just described that are under the Privacy Act would not have existed at common law invasion of privacy even though common law invasion of privacy was, as you say, compensable with emotional distress awards.

In fact, even if we focus just on the disclosure-related provision of the Privacy Act, it itself is much broader than common law invasion of privacy.

Justice Ruth Bader Ginsburg: Even if it is -- even if it is, the damages are -- the damages are not of a pecuniary kind.

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; it's going to be the embarrassment, the humiliation.

So it's -- it's -- if Congress wanted to do something about the impact on the person it has given a right, it's not going to do something that has to do with pecuniary damages it's not likely the person in -- in this plaintiff's situation is not likely to suffer.

Mr. Feigin: Well, first of all, Your Honor, there sometimes are, as there were at common law, pecuniary damages resulting from either violation of the Privacy Act or invasions of privacy; and the government sometimes pays out very large pecuniary judgments.

But to get to the core of your question about why Congress might not in the Privacy Act have provided an emotional distress award, I think the text of the act demonstrates that Congress thought about the possibility of providing an emotional distress award, but decided not to do that in the initial version of the act that it passed in 1974.

Instead, that version of the act in section 5(c)(2)(B)(iii) assigned to the Privacy Protection Study Commission the task of making a recommendation as to whether the act should later be expanded to provide for general damages.

The commission understood its mission to -- was to determine whether the act ought to be expanded to provide for dignitary and reputational harms, such as compensation for emotional distress.

And the Privacy Commission further understood that the act as it had been enacted provided only for actual damages, which it interpreted as synonymous with special damages.

Justice Ruth Bader Ginsburg: But that's the -- why -- is it -- is a harm to a dignitary interest, is that an actual injury?

Mr. Feigin: Well, Your Honor--

Justice Ruth Bader Ginsburg: You describe that injury.

I mean there is an injury, the emotional distress, humiliation; is that an actual injury?

Mr. Feigin: --Your Honor, the term "actual injury" and the term "actual damages", those are ambiguous terms.

Sometimes they might include emotional distress and sometimes they might not.

Justice Ruth Bader Ginsburg: Well, let's take this case.

Did the plaintiff suffer an actual injury?

Mr. Feigin: He did not--

Justice Ruth Bader Ginsburg: St least, did he allege that he had suffered an actual injury?

Mr. Feigin: --He did not suffer actual damages within the meaning of the Privacy Act.

Justice Ruth Bader Ginsburg: I didn't -- I didn't ask you that.

I asked you did he suffer an actual injury, as opposed to someone who is complaining about something -- an abstract right or an abstract theory?

Is there an actual injury here?

Mr. Feigin: Well, Your Honor, I think my difficulty with the question is that I don't think the term "actual injury" has some plain meaning out of context.

And the term that the Privacy Act uses is actual damages.

I think in the context of the Privacy Act, as well as in other contexts--

Justice Ruth Bader Ginsburg: You have to have an injury first before you can get damages, so my question is was there an injury.

Mr. Feigin: --Well, if Your Honor's question is whether he suffered an adverse effect within the meaning of section (g)(1)(B) of the act--

Justice Ruth Bader Ginsburg: Yes.

Mr. Feigin: --yes, we believe he did suffer an adverse effect sufficient to confer standing.

But this court in Doe described the adverse effect requirement as simply codifying the Article III standing requirements and made very clear that simply because a plaintiff may have suffered an adverse effect that doesn't mean that the plaintiff suffered actual damages.

But Justice Ginsburg--

Justice Sonia Sotomayor: I'm a little bit confused by that, because in your brief, the Solicitor General's brief in Doe, it described the earlier version of general damages in the following way -- and I'm quoting from your brief there:

"The general damages provision in the Senate bill likely derived from the common law of tort of invasion of privacy where general damages may be awarded as. "

--quote --

""presumed damages", without proof of harm. "

So I think there in Doe you argued that general damages presumed injury.

But that's very different than, I think, the question Justice Ginsburg was asking you.

It's -- and I read your brief and your arguments as sort of an -- an assumption that if you suffer nonpecuniary harm, you haven't been injured.

Mr. Feigin: --Well, Your Honor--

Justice Sonia Sotomayor: There is a big difference between presumed damages and proven injury.

In Gertz we reference the common law tort as requiring actual proof of injury for emotional distress.

Most State laws say you have to prove the emotional distress.

We are not presuming the injury.

So, I guess what I'm saying to you, aren't you the one confusing what injury is from presumed damage?

Mr. Feigin: --I hope not, Your Honor.

But the -- the -- I think to get at your question, what we said in the Doe brief is that general damages are a type of presumed damages, and that's correct under the common law, but that isn't all that general damages encompasses.

General damages, as the Court recognized in Doe, are always presumed, in the sense that they are always assumed -- this is the common law definition of general damages -- are always presumed in the sense that they are always assumed to have taken place and an award of general damages can be made even without proof of specific harm.

But in cases where a -- at common law, in cases where a plaintiff did introduce evidence of the extent of, for example, the emotional distress that he had suffered.

So if he wanted to say I am not happy with the presumed damages that you would give to just anybody who had suffered this invasion of privacy, I have a particularly sterling reputation or I am particularly sensitive to this sort of thing, I suffered a -- an increased amount of harm from what you might presume the average person would suffer, The award that that person would receive is--

Justice Sonia Sotomayor: So why is that different from actual injury?

I have -- I'm not sleeping, I have a nervous stomach, I'm not eating.

The typical things that juries look at to determine whether you have proven emotional distress.

Why is that not actual injury?

Mr. Feigin: --Well, Your Honor, the award that person would receive for the additional proof of emotional distress would be classified as general damages.

Now, to get to your question as to why that is not actual damages.

Sometimes the terms "actual damages" or "actual injury" can be used to include proven emotional distress, but the term is ambiguous.

We cite cases in footnotes 1 and 2 of our reply brief in which the term "actual damages" or "actual damage" is used to mean exclusively pecuniary harm.

Justice Sonia Sotomayor: I have looked at those cases and in all of them except for two, where the reference wasn't really precise, it was because the use of "actual damages" in the particular statute were limited to pecuniary harms or the nature of the harms at issue were pecuniary by nature.

Mr. Feigin: Well, most of those cases are cases out of the common law and sometimes they used "actual damages" in the same sentence with a reference to emotional harm, making clear that they think that the two types of harms are separate.

But, Your Honor, maybe I can try to explain it this way.

I think actually Respondent implicitly agrees with our definition of general damages as including proven harm.

If you look at footnote 2 on page 20 of the red brief and then again at page 22 of the red brief, the definition of "actual damages" that Respondent is offering, he divides into two subcategories: Special damages and general damages.

Everybody agrees that special damages are limited to pecuniary harm, and Respondent makes no claim, nor could he, that the type of damages he is seeking are special damages.

So to the extent he thinks that he is entitled to recovery under the act, it's because he thinks that the emotional distress harm that he wants to prove are general damages.

And if there's one thing we know about the definition of "actual damages" in the act, it's that it doesn't include general damages, because again Congress separately in the text of the Privacy Act assigned the Privacy Protection Study Commission to make a recommendation about whether the act should later be expanded to include general damages.

Justice Ruth Bader Ginsburg: What does "actual damages" mean under the Fair Credit Reporting Act?

Mr. Feigin: Your Honor, we don't have a position on that at this point.

I can describe to you how we think that the inquiry would work.

We think that in some statutes actual damages might in context include emotional distress awards.

But the term "actual damages" by itself in a waiver of sovereign immunity is not a clear and unambiguous waiver of the United States' sovereign immunity for claims of emotional distress.

And as for statutes which do not allow claims against the United States, it would be a question of context and legislative history.

And we would have to do the same kind of workup of the Fair Credit Reporting Act that we have done of the Privacy Act in this case.

Justice Ruth Bader Ginsburg: But it can mean, and I think it has been held to mean, damages to a dignitary interest.

Mental distress has been held to, the term has been held to mean that under the Fair Credit Reporting Act.

Mr. Feigin: Yes, Your Honor.

Multiple courts of appeals have held that, and we are not questioning that conclusion for purposes of this case with the caveat that we don't think the United States is subject to suit under the Fair Credit Reporting Act.

If the United States were subject to suit under the Fair Credit Reporting Act, then because there is ambiguity about the meaning of actual damages, we think that the narrower interpretation as limited to pecuniary harm would control.

One other distinction between the Fair Credit Reporting Act and the Privacy Act is again, as I said, the Privacy Act specifically carves out general damages as a type of damages that aren't going to be awarded and the Fair Credit Reporting Act does not.

The Fair Credit Reporting Act also has a much more permissive remedial scheme, allowing in certain cases for statutory damages and also allowing for punitive damages.

I don't think the Fair Credit Reporting Act, for the various reasons I have just mentioned, is a particularly good analog for the Privacy Act.

Justice Anthony Kennedy: I--

Justice Ruth Bader Ginsburg: We're discussing what the term means, what the term "actual damages" means.

Mr. Feigin: Well, Your Honor, again, as we have demonstrated in our brief -- I think again, I'd refer the Court to footnotes 1 and 2 for how this term was used in the common law -- the term "actual damages" can mean both things.

So the fact that in the Privacy Act it does -- it may include emotional distress awards doesn't mean that that's the sense in which Congress used it in the Privacy Act -- I'm sorry; I may have said that wrong.

The fact that in the context of the Fair Credit Reporting Act it may include emotional distress doesn't mean that that's the way in which Congress used it in the Privacy Act.

And I think--

Justice Anthony Kennedy: --Are there instances where, if there is an invasion of privacy and there is a documented trauma from psychosomatic illness with medical expenses and lost wages, is that special?

Is that actual damage?

Mr. Feigin: --Yes, Your Honor.

If there are documented medical expenses that were out-of-pocket expenses, then we think, even if they arise from emotional distress, they would be pecuniary harm and could be compensated under the Privacy Act.

Justice Sonia Sotomayor: I'm sorry.

Are you arguing that the emotional distress component can't be?

Mr. Feigin: The emotional distress component itself cannot be, but medical expenses to treat symptoms of emotional distress--

Justice Sonia Sotomayor: So you're -- as I understand the definition of "special damages" in common law, if you proved any pecuniary harm you were also entitled to the mental distress damages as well.

So you want half of the common law award -- award?

Mr. Feigin: --I don't think that's quite correct about the definition of "special damages", Your Honor.

I don't think there is any dispute on this.

"Special damages", the term in this context is always limited to pecuniary harm.

Justice Sonia Sotomayor: We may have a difference of history there.

Because, yes, special damages require pecuniary harm, but once you prove that, it also permitted recovery of nonpecuniary losses as well.

Mr. Feigin: Well, Your Honor, in a common law suit for defamation for--

Justice Sonia Sotomayor: I thought that's what your brief said, actually.

Mr. Feigin: --Well, no, Your Honor.

What we said in our brief is in a common lawsuit for defamation per quod there are two types of damages that could be recovered, special damages and general damages.

And once a -- special damages were limited to pecuniary harm.

Unless a plaintiff could prove at least some special damages, they wouldn't be entitled to any recovery at all.

If a plaintiff could prove some special damages, they could recover not only special damages, in other words pecuniary harm, but could also recover general damages, that is damages for emotional distress or other dignitary--

Justice Sonia Sotomayor: But we're not talking any differently.

That's what I just said.

If you--

Mr. Feigin: --Yes, Your Honor.

I think to the extent I was perhaps disagreeing with you is I was understanding you to say that the definition of "special damages", the term sometimes includes emotional distress awards.

The term "special damages" is limited to pecuniary harm.

Justice Sonia Sotomayor: --Sort of odd for Congress to borrow from the defamation context and with a defined term of art, "special damages", and not use it in the Privacy Act if that's what it intended.

Mr. Feigin: Well, Your Honor--

Justice Sonia Sotomayor: And to use a term "actual damages", which has a much broader meaning than "special damages".

Mr. Feigin: --Well, Your Honor, as the Court recognized in Doe, there is a structural similarity between the civil remedies provision of the Privacy Act and the remedial scheme for defamation per quod at common law.

And I think one reason there might be that structural similarity is that defamation per quod at common law solves the problem that Congress faced when it was crafting the Privacy Act, which is trying to figure out when a plaintiff's injuries are sufficiently serious and concrete as to justify an award of damages.

I think it makes sense if, as the Court supposed in Doe, Congress were aware of how defamation per quod had solved that problem, that Congress would have adopted the same limitation, in other words the requirement of showing of pecuniary harm, as the threshold requirement under the Privacy Act.

Now, Congress had very good reason to be cautious about extending the scope of liability under the Privacy Act.

As I said, the Privacy Act regulates a great deal of conduct that wouldn't have been compensable at all in common law, let alone resulted in any sort of emotional distress award.

Now, Congress recognized, I think, some of the concerns that Justice Ginsburg and Justice Sotomayor have raised about why plaintiffs might in some instances deserve recovery for emotional distress.

But it recognized that there are arguments on both sides, on both sides on that issue.

And what it decided to do in the Privacy Act was to defer that issue for later and assign the Privacy Protection Study Commission to make a recommendation about whether the scope of liability under the act--

Justice Ruth Bader Ginsburg: Well, the -- the Privacy Study Commission coming after can't say what the statute means.

I mean, that would be post-legislative history.

I mean, the statute exists and then we have a Study Commission to see what amendments might be made.

But the Study Commission can't decide what the act means.

Mr. Feigin: --Well, two points on that, Your Honor.

First of all, the reference of the general damages issue to the Privacy Protection Study Commission is in the text of the act that Congress enacted in 1974, so the exclusion of general damages doesn't depend at all on anything the Privacy Protection Study Commission said.

As to the weight we think the Privacy Protection Study Commission report should receive, first of all we think it's very telling evidence that there is at the very least ambiguity about what the term "actual damages" could mean.

The Privacy Protection Study Commission interpreted the term "actual damages" in precisely the same way that we do in our brief.

That is, as special damages, as that term was understood in defamation torts at common law, which the Privacy Protection Commission Study report makes very clear at page 530 is limited to pecuniary harm.

I think, if for no other reason than that that's a reasonable reading, I think the sort of judicial restraint that is embodied in the canon that requires courts to construe waivers of sovereign immunity narrowly requires this Court to adopt that narrower reading, because it shows that the narrower reading is at the very least a reasonable one or, as the Court said in Nordic Village, is a plausible one.

I -- I think it would have been very unusual for Congress silently or ambiguously to have decided to open the door to emotional distress awards under the Privacy Act.

As I've said, the Privacy Act is quite a broad, substantive act that would have exposed the government to damages in -- in very new ways.

And I think this case illustrates -- illustrates that.

The district court here concluded that the law enforcement-related disclosure of Respondent's medical information by the Social Security Administration was in fact authorized under the Privacy Act by a routine use published in the Federal Register.

But it concluded that Respondent could nevertheless bring suit against the Federal Government under the Privacy Act because the forms he filled out in seeking Social Security disability benefits didn't adequately disclose to him that his information might be released to other government agencies for law enforcement purposes.

I don't think there's any reason why Congress would necessarily think that an omission on a government form should give rise to a claim for emotional distress damages.

There certainly wouldn't have been any analogue for it at common law.

Justice Ruth Bader Ginsburg: But that's just saying that he didn't have a good claim for relief.

But let's take the worst case, where -- where a government official spreads all kinds of false information, or even true but terribly embarrassing information about a person, does it deliberately.

Let's take that case, because your rule covers all of them.

Mr. Feigin: Well, in that case, Your Honor, the plaintiff might have a claim under the Federal Tort Claims Act based on a violation of some State law statutory or common law privacy protection.

So the category of cases that would have constituted invasion of privacy prior to the Privacy Act might still be available to a plaintiff, who might then recover emotional distress damages against the government.

Justice Ruth Bader Ginsburg: But wasn't that the very thing that Congress -- why did they pass this in the first place?

I mean, Congress was thinking of emotional distress injuries.

Mr. Feigin: Well, they passed it, Your Honor, because they wanted, in the wake of Watergate, to impose a set of detailed substantive requirements about Federal recordkeeping.

I think the -- you know, looking through the act, which takes up maybe 30 pages of the petition appendix, it clearly isn't simply a codification of common law invasion of privacy against the Federal Government.

It does much, much more than that.

Justice Ruth Bader Ginsburg: But does--

Mr. Feigin: Your Honor, even if we look just at the disclosure-related provision, it's broader than common law invasion of privacy in two very important ways.

So for common law invasion of privacy, a plaintiff would have to prove disclosure of very personal and private information to the public at large.

Under the Privacy Act, however, a disclosure even to a single person would constitute a violation of the act, and the information doesn't even have to be private.

Let me give a concrete example.

So if the government has a record that contains information that someone has a criminal conviction, it might be a violation of the Privacy Act for the contents of that record to be disclosed, even though someone could obtain the same information by going to the court records or potentially looking them up on the Internet.

And particularly since violations of Federal law are typically -- typically, the only type of relief a plaintiff can seek for violation of Federal law is equitable relief under the Administrative Procedure Act.

I don't think there's any reason to assume that Congress ambiguously, or I think really silently, decided that it was going to ratchet things up to a serious degree and expose the United States to uncapped emotional distress damages under the Privacy Act.

Justice Ruth Bader Ginsburg: --It did set a pretty high bar for the plaintiff to meet, because the plaintiff would have to prove intentional or willful conduct, not negligence, but--

Mr. Feigin: Well, three points on that, Your Honor.

First of all, I think if Congress had thought that the limitation to intentional or willful conduct was itself a sufficient limitation on the liability of the United States, it wouldn't have been so reluctant to provide for general damages, or perhaps even for punitive damages.

Second, the courts of appeals now generally interpret the intentional or willful requirement to require only something slightly less than recklessness or slightly more than gross negligence, which in practice provides district courts and courts of appeals with a great deal of flexibility to find intentional or willful violations in cases where the Federal Government doesn't believe it should be liable.

Third, to the extent the intentional or willful requirement does impose a limitation on a plaintiff's recovery, what actually winds up happening in practice is that plaintiffs or courts will look to all the various technical provisions of the Privacy Act to try to find some violation that can be classified as intentional or willful.

So for example, if a plaintiff about whom information has been disclosed can't show the disclosure is intentional or willful, he may try to prove that a violation of the -- of (e)(10), which requires the government to safeguard information, was intentional or willful.

With the Court's permission, I would like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Cardozo.

ORAL ARGUMENT OF RAYMOND A. CARDOZO ON BEHALF OF THE RESPONDENT

Mr. Cardozo: Mr. Chief Justice, and may it please the Court:

Embracing the government's view of "actual damages" would mean that the very individuals Congress sought to protect in this act would have no remedy at all for the primary form of harm that was well recognized at common law when this act was passed.

To carry out the act's protective purposes, this Court need only give the words "actual damages" their common and ordinary meaning that appears in Black's Law Dictionary:

"proven, not presumed, liquidated, punitive, or other forms of damages that are not tied to proof of harm. "

Justice Samuel Alito: Could I ask you this question about the damages that your client is seeking in this case: if -- if we affirm the Ninth Circuit, would -- are you claiming all of the damages that -- all of the emotional damages that resulted from his criminal conviction, or are you claiming only the emotional damages that would have been suffered by anybody else whose records were turned over to the FAA under the Operation Safe Pilot program?

Mr. Cardozo: If you affirm, there will be a proximate causation question that arises on remand.

The act requires the damages to be the result of the violation.

So he cannot recover for the emotional distress that followed from the prosecution.

But as Justice Ginsburg pointed out, we're talking today not just about Mr. Cooper; we're talking about every single person to whom this act applies: the whistleblower who the government chooses to silence by embarrassing and humiliating them--

Justice Samuel Alito: But you allege that -- that Mr. Cooper suffered a severe emotional distress when he was confronted with the fact that his records had been turned over.

So you're -- you're saying that the court -- that on remand, there would have to be a separation of the degree of distress that he suffered as a result of simply knowing that somebody in the FAA had access to his Social Security records, but disregard the distress that somebody in that situation would naturally feel when confronted with the fact that a criminal violation that he had committed had been exposed?

Mr. Cardozo: --Yes.

And that's the kind of thing judges routinely have to sort through.

For example, someone suffers emotional distress and then they lose their job thereafter, and the injury that produces the emotional distress, the job -- the job loss wasn't the proximate cause.

Judges -- in fact, we ask juries to do that.

In this case, it would be a judge sifting through that and making that determination.

As happened in Petitioner Doe's case, the judge could find that the emotional distress claim wasn't sufficient and reject it altogether, but that's the nature of an emotional distress remedy.

One thing you didn't hear in that argument almost at all was any discussion of the text of this act, which tells you in at least four separate ways that "actual damages" simply means proven, not presumed, damages.

Beginning with the words themselves, that's of course the most common meaning of actual damages, is the one that appears in Black's Law Dictionary.

As Justice Sotomayor pointed out, the term of art for economic loss in this arena is "special damages".

If that's what Congress meant, presumably it would have used that term, it's the more common way to express one category of damages only that's economic.

Justice Samuel Alito: But you agree that the act does not allow recovery for what would have been regarded at common law as general damages?

Mr. Cardozo: What would have been regarded at common law as presumed -- the presumed damages, this act doesn't allow.

That was peeled off for further study.

Justice Samuel Alito: "General damages", that's the term that they peeled off, right?

Mr. Cardozo: Right.

But by keeping actual, the juxtaposition between actual and general--

Justice Samuel Alito: But general damages is a term from -- from the remedies in defamation cases, right?

Mr. Cardozo: --Yes.

Justice Samuel Alito: And there are two types of damages in defamation cases, special damages and general damages and if you -- is that correct?

Mr. Cardozo: Correct.

Justice Samuel Alito: And you subtract general damages and what do you have left?

Mr. Cardozo: But the interesting thing in this case is they didn't take what you have left, special damages, and they used a different term, Congress did, "actual", a term that suggests we are going to require proof of the damages.

We are not going to presume them, we are not going to allow speculative damages.

Justice Samuel Alito: But the problem is that -- that your definition of actual damages and the general definition of actual damages includes some things that fell within the rubric of general damages.

Mr. Cardozo: That's true.

But several other things in the text of the Act tell you, again, that actual means simply proven, not presumed.

If you look at Section 2, where Congress recites findings and the statement of purposes for the Act, the right that's being described here is an individual and personal right to privacy, well understood, well settled at the time to be a right that was primarily nonpecuniary in nature.

Justice Samuel Alito: Let me just try this one more time.

You -- you say that there is a right to recover actual damages but no right to recover general damages.

So what you think is recoverable is actual damages minus general damages?

Mr. Cardozo: No.

Our position is what is recoverable is actual damages, damages you prove, substantiate, a judge can reject it if they find it unsubstantiated as happened in Petitioner Doe's case--

Justice Anthony Kennedy: But -- but we--

Mr. Cardozo: --but you can't presume--

Justice Anthony Kennedy: --Courts don't -- courts allow recovery for conjectural or speculative damages.

That's just -- that's just or am I wrong?

Do Federal courts--

Mr. Cardozo: --No, but this--

Justice Anthony Kennedy: --routinely tell juries, now you can come in with conjectural or speculative damages.

That's not the way the jury are instructed.

Mr. Cardozo: --But you can in this arena at common law presume damages from the nature of the violation.

That is what was carved out, the ability to presume it, rather than present evidence and subject it to proof.

Justice Stephen G. Breyer: Can you tell me what your response is to the government's argument that the Privacy Commission which was set up understood the word "actual damages" at the time the way they understand it?

What is your response to that?

Are they right about that in your opinion?

Mr. Cardozo: Apart from the obvious that the post enactment report was--

Justice Stephen G. Breyer: No, I'm asking you--

Mr. Cardozo: --But -- but -- on the underlying point--

Justice Stephen G. Breyer: --Thank you.

Mr. Cardozo: --several things.

The Commission -- this is a -- two paragraphs in a 620-page report that doesn't run through the text of the Act, it's purpose, all of the things that one normally does in statutory construction.

So where they draw this conclusion is entirely--

Justice Stephen G. Breyer: Okay.

So am I right in saying your -- you would agree with them that that is how the Privacy Commission understood the Act, but in your opinion, the Privacy Commission was wrong?

Mr. Cardozo: --Yes, with one other -- with one other proviso I would add.

There is a little bit of ambiguity.

You see the Privacy Commission in this two pages was trying to sell Congress on the notion of expanding the remedy, so it wrote on pages 530 of its reports:

"If the rights and interests established of the Privacy Act are worthy of protection, then recovery from intangible injuries such as pain and suffering, loss of reputation, or the chilling effect on constitutional rights is a part of that protection. "

"There is evidence for this proposition in common law privacy cases. "

Surely, Congress knew that very thing.

Justice Stephen G. Breyer: And by pain and suffering they mean mental pain and suffering?

Mr. Cardozo: Right.

Surely, Congress knew that same thing, so when it enacted this Act, it did not mean to cut out the primary form of harm.

Justice Stephen G. Breyer: Thank you.

Mr. Cardozo: Another--

Justice Antonin Scalia: What -- what the government would say is -- is that -- and they have their own dictionary definitions, I don't -- I don't think it's accurate to say that Black's Law Dictionary defines actual damages the way you would have it defined.

As I recall, their briefing gives some other definitions from an earlier version of Black's or whatever.

But what they say about the Commission understanding, which you acknowledge to be contrary to your understanding of actual damages, what they say is that at least shows that it isn't clear what actual damages means.

And -- and in their estimation, once you -- once you establish that it isn't clear, then you trigger the -- the -- the rule that waivers of sovereign immunity will not be considered to have any scope except that scope which is clear.

Mr. Cardozo: --Well, that's why it's critical to understand the analysis, because you can't say there is a genuine ambiguity unless you understand how they arrived at that conclusion.

The meaning of actual damages can vary with the context, but it's usually crystal clear in each context what you are talking about.

In this privacy context, it's fairly clear, we have a provision at page 66A of the appendix, Section 2B, where Congress recites of purpose of this remedies provision, and it states:

"The purpose is to hold the United States liable for any damages which occur as a result of. "

The notable thing about that statement of purpose, which occur as a result of, lines up precisely with proven, not presumed damages.

But any damages which occur as a result of, conflicts directly with the notion of only one category of damages as being authorized.

That's Congress' statement of purpose for this very provision.

That aligns.

Mr. Cooper's construction aligns.

The government creates disharmony in the statute.

Justice Stephen G. Breyer: This would save you some time, possibly, but my guess is you may know that every State or many States have statutes or tort laws or something against invasion of privacy.

Now, you may know how many.

And -- and if you know how many, that's helpful.

And of those, if you know how many, how many of them, and perhaps all, provide damages for mental suffering caused by a violation of that particular tort-like provision?

Do you know anything about those statistics?

Mr. Cardozo: Justice Breyer, you have given me a little bit too much credit, I can't give you a number of States, but I can tell you that I am not aware of any State that disallows.

It is by far the general rule and I think it's universal that recovery of mental and emotional distress for invasion of the privacy.

Justice Stephen G. Breyer: Do you know enough to know if they have done so through the use of a term like "actual damages" that run analogous thereto, or whether they had to have some special form of words?

Mr. Cardozo: I don't know that.

So, I'll--

Justice Stephen G. Breyer: Okay.

Justice Antonin Scalia: Of course you are talking about statutes that require that the material have been made public, not that say establish a violation if one agency provides the information to another agency?

I mean, as the government points out, this statute goes far beyond any -- any State statutory or common law protections of privacy.

It's really very picky, picky.

And -- and to say that, you know, whatever emotional harm comes from that is -- is quite different from saying that under State privacy laws emotional distress is compensable.

Mr. Cardozo: --Yes, but we are here today only talking about the narrow category of cases in which there is an intentional and willful violation.

So they knew the law prevented them from doing what they did.

Justice Antonin Scalia: Well, that's right.

But all you have to know is that you shouldn't give it to the other agency, because you are not making it public.

You are not doing the kind of thing that constitutes an invasion of privacy under State law.

You just failed, intentionally failed, to follow the very detailed and as I say picky, picky prescriptions contained in the Privacy Act.

To say that you get emotional distress for that as opposed to genuine -- what I would call genuine privacy incursions, which State law covers is a different question.

Mr. Cardozo: But -- but this provision is covering the range of intentional and willful violations covered in the act.

The example of the whistleblower who you want to silence, so you leak the most embarrassing details to the press, shaming and humiliating them in front of friends and family -- don't leave the house for a month, but you haven't lost your job, and you are not out of pocket -- zero remedy, zero.

That's the government's construction.

And look at section 2, how Congress described this act.

They didn't say we're imposing some picayune technical requirements.

They are saying we're doing this to safeguard individual rights of privacy.

They use the very lingo; they analogize it unmistakably and explicitly to the common law kind of invasion of privacy for which emotional distress is routinely recoverable.

Justice Sonia Sotomayor: Do you have any statistics on the percentage of actions brought under the Privacy Act in which the plaintiff was able to establish pecuniary harm?

Mr. Cardozo: I don't have any statistics on that.

The one thing I can tell you is that this has been the law in the Fifth Circuit for well over 30 years, and as the government -- and prior to Doe v. Chao the rule was, in most circuits, you didn't have to show any damages.

And yet at that point, a good 37 years after the act had come into existence, the government sat up here and admitted that far broader construction of the act than we are talking about today had no meaningful effect on the public--

Justice Antonin Scalia: You say in the Fifth Circuit or the Ninth Circuit for -- for many years?

Mr. Cardozo: --This case is -- in -- coming out of the Ninth Circuit, but the Fifth Circuit passed the rule.

Justice Antonin Scalia: --for a long time, yes.

Mr. Cardozo: In the early '80s it first recognized emotional distress.

Justice Sonia Sotomayor: Are you aware of any runaway verdicts based on awards of mental damage proof?

Mr. Cardozo: The only case that I'm aware of--

Justice Sonia Sotomayor: I define runaway awards as those in -- in six figures or above.

Mr. Cardozo: --No.

Justice Sonia Sotomayor: Or even high five figures.

Mr. Cardozo: The highest I can think of in the moment was a case out of the Fifth Circuit called Jacobs in which a Federal agency revealed -- leaked to the press information falsely suggesting a bank president was a money launderer.

He got 100,000 in emotional distress, but that's a pretty extreme situation.

The vast majority, it's going to be modest.

And I would say he should get $100,000 in emotional distress.

He's an upstanding member of the community and he's being called a common criminal; he may not have suffered any pecuniary loss, but he has suffered actual damages.

One other thing about the text that tells you -- again, all of these points, points aligned with Mr. Cooper's construction and produce disharmony to the other side.

Look at the breadth of the language that Congress used to waive sovereign immunity in subsection (g) of the act.

Recall that the government's construction is only one small category of plaintiffs, who are the victims of intentional and willful violations, can recover.

Yet the text says in any suit in which a court determines that there's been intentional and willful violation, the United States shall be liable for actual damages.

If what we mean is only one small category, economic damages, is serving as a substantial reduction in the category of cases that could be brought, you would expect to see that limitation appear after the intentional and willful in any suit in which the Court determines there has been willful, intentional violation and the plaintiff has suffered economic loss; because it is a substantially narrowing term.

However, if actual damages simply means proven, not presumed, this wording is perfectly natural and flows exactly.

Again, every place you look in the text of the act, proven not presumed -- aligns.

"Economic only" is a square peg in a round hole in the text of this act.

Justice Anthony Kennedy: In -- in your argument do you have to avoid the concession that the term might be ambiguous?

I know your position is that liability for damages is expressly waived, but then you stop there, and you -- and you say that, you resist the idea that the definition of actual damages has to be unambiguous.

Is that a fair characterization of your argument?

Mr. Cardozo: I would modify it slightly.

What the government is talking about is an ambiguity in the abstract.

They are lifting the two words out of the context of the act.

Like any phrase, actual damages can mean different things in different contexts.

But in this statute, when you run through the tools of construction, it's not ambiguous; and that's -- that's--

Justice Antonin Scalia: That -- that's a different point.

And the question went to whether you acknowledge the name to be unambiguous.

Now what the government says is, of course, the -- the waiver of sovereign immunity, you would acknowledge must be unambiguous, but the government says further, moreover, the scope of the waiver of -- of sovereign immunity must be unambiguous.

Whether you have waived it only with respect to pecuniary damages or also with respect to emotional harm, that also must be unambiguous; and -- and you deny that second step, don't you?

You think--

Mr. Cardozo: --Actually we don't, Your Honor.

Justice Antonin Scalia: --You don't?

Mr. Cardozo: And this is how I would clarify it.

What the doctrine of sovereign immunity requires is that the waiver be expressed in text and the court can't read it in, it can't add words to the text.

If you -- if your intent is to separate out presumed liquidated, punitive, other forms of damages that do not -- are not tethered to proof of harm, actual damages is a phrase that does that precisely because that's what actual means; it means real.

There is no ordinary definition of actual where it means pecuniary only, that is -- you get when you use it in certain contexts.

So this Court doesn't need to add, expand or read anything into these words "actual damages".

It simply needs to give them the meaning that they have in ordinary English definitions, in Black's Law definition.

This definition this Court gave to actual damages in the Birdsall case over 100 years ago is the same thing: presumed -- proven damages, not presumed.

So the waiver of sovereign immunity is here expressed; it doesn't arise by implication.

But the one -- but there's another side to the sovereign immunity point that the government never mentions.

The court's obligation is dual here.

When there has been a waiver, the court can't expand that waiver, but neither can it contract it.

You have here the government spinning out theoretical -- theoretical possibilities that actual damages was -- was used in this more peculiar sense; what it really meant was special damages -- to produce a deconstruction of the statute that eviscerates it, leaves most of the people who suffer intentional, willful violation without any remedy at all.

And those who have it, to have an economic loss, do not get compensation for the primary form of harm from a privacy--

Chief Justice John G. Roberts: The argument you have made, and I certainly understand it, that this is the Privacy Act, and so it's precisely these types of damages that you would be concerned about, really cuts both ways.

I mean, what you are saying is this is a really big chunk of damages, because this is what the whole act was about; and it seems to me that that argument suggests that there is some weight to the government's point that well, if you are going to get into that, you really do need a clearer waiver of sovereign immunity.

Mr. Cardozo: --Absolutely, but -- but that circles back to my point that if you're going to -- if your intent is to say presumed, not proven, actual fits exactly.

Special is the term that wasn't used here.

So to -- to fault Congress for picking a term that means precisely "proven, not presumed", and say you weren't clear enough, that's asking too much, particularly when they also said, in their statement of purpose, they spoke to the remedies provision and said

"any damages which occur as a result of. "

They used a sweepingly broad language.

They did multiple things to say -- reveal no doubt about its intent.

And recall the rule from the Morisette and Molzof case, case when Congress is legislating against a common law background.

The rule is if Congress's silence is taken as an indication that Congress intends to follow established norms, not depart from them, when Congress says actual damages in a privacy context, it's fair to -- it's going to assume that people are going to understand that at common law, actual damages included emotional distress for privacy violations.

So rather than assuming that it departed from the common law, we typically require the contrary direction, under Morisette and Molzof, and we don't have that contrary direction here.

And you get the same answer as you roll through.

You don't need to look -- go past the text, but you get the same answer as you roll through all of the tools of construction: the common law background and the Morisette Molzof Rule points you to the same place.

The legislative history.

This act, the act that emerged, was a compromise between a far broader remedial scheme that authorized punitive damages, did not have the intentional and willful requirement, had a negligence standard, and a more measured version.

The government's construction of this act throws that compromise out of the window and rewrites the act as a one-sided in the government's favor when what clearly happened in the legislature was that a balance was struck.

Another thing about the legislative history.

Both the House and Senate bills originally had the term "actual damages" in there from the start, and they both had "actual damages" simply as a counterpart to punitive damages.

Again, another confirmation.

Actual damages.

Justice Samuel Alito: Well, suppose this were a common lawsuit for slander per quod, and what was said was that Mr. Cooper received Social Security disability benefits.

Now, he would -- and he claims that causes him great distress because of the extrinsic fact that he was known to be a pilot, and therefore, people who -- who knew that he was flying around an airplane even though he was so severely disabled that he was entitled to get Social Security disability benefits, that would damage his reputation.

Now, the damages that you're seeking, the emotional distress that he allegedly incurred, what would that be?

Which -- under what category of damages would that fall?

Mr. Cardozo: His -- his economic loss would be special damages.

Justice Samuel Alito: Then let's--

Mr. Cardozo: The damages he could prove--

Justice Samuel Alito: --You don't claim any economic loss there.

Mr. Cardozo: --Right.

The damages he could prove would be actual damages.

Justice Samuel Alito: No.

Under the -- would that be the term that a court -- a common law court would use: actual damages?

Wouldn't they ask whether the damages to his reputation and the emotional distress that he suffered therefrom were either -- wouldn't they ask whether that was special or general?

Mr. Cardozo: Well, they could also use actual damages, because of course, in the Gertz case, the Court--

Justice Samuel Alito: No.

Gertz came after the common law.

Gertz was a modification of the common law.

What would it be at common law?

Mr. Cardozo: --At -- at common law, it would be general damages, but--

Justice Samuel Alito: General damages here are excluded by Congress, right?

Mr. Cardozo: --They were referred for further study, but what was authorized in the text, the substantive provision, is actual damages, not special damages.

If Congress had wanted to peel off the whole piece and require only economic loss, the more common and routine term of art that is used is special damages, which circles back to another important point--

Justice Antonin Scalia: But -- but -- but elsewhere in the statute, it's made very clear that Congress did not think it was authorizing general damages, right?

Because it set up this commission to recommend whether general damages should be included.

Now, what would be the purpose of that commission if indeed actual damages already included general damages?

Mr. Cardozo: --It doesn't include general damages.

They were called presumed damages.

Presumed damages.

A substantial portion of the compensation ordinarily available would be peeled off under our construction.

And this was a distinction that actually appeared in the Gertz case -- where it placed First Amendment limitations on recovery, the Court distinguished between actual damages and presumed damages.

So--

Justice Antonin Scalia: You -- you would say that actual emotional damages are not -- are not general damages?

Mr. Cardozo: --I wouldn't say -- I would say you could call them general damages.

In the context of this act, what Congress does not choose special damages as the term of what it's authorizing, and instead chooses the broader term, "actual damages".

Justice Antonin Scalia: No, but it -- it does use the term "general damages", and makes very clear that it doesn't think this statute covers general damages.

So I think -- I think you have to argue that the term "general damages" includes only "presumed" emotional harm and not "proven" emotional harm.

Mr. Cardozo: That -- that is exactly our position.

Justice Antonin Scalia: Okay.

Mr. Cardozo: And the thing I would add to that is general damages -- actual damages was in the statute long before general damages surfaced.

It appeared at the 11th hour, and Congress just said let's send that off to the commission.

That's important to keep in mind, because it creates a huge question about what Congress meant to peel off.

There is no explanation of general damages.

It isn't defined.

And it arose at the 11th hour.

But the important thing is the term it kept in the statute was not "special damages".

The term of art that has a pecuniary limitation.

It kept the broader term "actual damages", and the term it kept aligns with its statement of purpose, the breadth of the waiver of sovereign immunity and a nonpecuniary expression -- a desire to protect nonpecuniary interests that's throughout the act.

Let me wrap up with a couple of observations here.

Congress passed this act to restore the citizens' faith in their government, and it made a solemn promise to the American citizens that in cases of intentional and willful violation, the United States shall be liable for actual damages.

Today, the government is proposing that "actual damages" be read in a way that renders this act virtually irrelevant.

That makes a mockery of that solemn promise.

To preserve the vitality of this act, this Court need only give actual damages its most common and ordinary meaning: "proven, not presumed".

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Feigin, you have five minutes remaining.

REBUTTAL ARGUMENT OF ERIC J. FEIGIN ON BEHALF OF THE PETITIONERS

Mr. Feigin: Thank you, Mr. Chief Justice.

I just have a few points.

First of all, Respondent would like the Court look -- would like the Court to look to, quote, "the common and ordinary meaning" of actual damages, and asserts that the term "actual damages" fits exactly here.

But no court to consider this issue has ever thought that the meaning of actual damages was plain.

You have to look at the context.

And the context here includes the exclusion of general damages, which I think Respondent conceded when Justice Alito asked him this question -- includes--

Justice Sonia Sotomayor: Counsel, you seem to be arguing throughout that general damages meant actual damages, when general damages, in my understanding, meant two things: presumed and actual.

So why is it illogical for Congress to look at what general damages meant, and pick the meaning that included proven damages, actual?

Mr. Feigin: --Well, Your Honor, I think if you look at the sources cited in our brief, as well as the sources cited in his brief -- in particular, I'd refer you to the block quote on page 22, "general damages", that term, most typically refers to a class or a type of damages that could be presumed but could also be proven.

And when they are proven -- and I think Respondent effectively conceded this -- they remain general damages.

And because Congress decided to think about general damages later, because that would have been such a great expansion of the waiver of sovereign immunity, I don't think the act should be construed to allow those type of emotional distress damages.

Now, Respondent would like to--

Justice Sonia Sotomayor: I'm still confused.

General damages meant presumed or actual.

Congress says we don't want general damages because it includes presumed.

So we are going to use the word "actual".

How do you get from that that Congress meant "only pecuniary"?

I mean, that has its -- why didn't they just use that?

Instead of "actual damages", why didn't they just say "pecuniary damages", if that's what they intended?

Mr. Feigin: --Your Honor, I think that's essentially Respondent's argument.

He wants to fault Congress for not using the specific term "special damages".

But I think that flips the canon of interpreting waivers of sovereign immunity on its head, and requires Congress to unambiguously not waive its sovereign immunity, when in fact, what I think the Court does is precisely the opposite.

I also think, Justice Breyer, addressing the Privacy Protection Study Commission, the commission included two of the Congressmen who sponsored the Privacy Act.

It agreed with our reading, the reading that we are offering here, of what both actual damages mean and what general damages mean.

And -- and not only do they agree with that, but there is a statement in the legislative history that adopts our definition, too, that's discussed in our brief.

Now, I think what Respondent essentially wants the Court to do here is to adopt the recommendation of the Privacy Protection Study Commission that the act be expanded to allow both special and general damages, in which case, emotional distress awards would be allowed.

Now, there may be some good policy arguments for that, as the Privacy Protection Study Commission said, but the judicial restraint that is embodied in the sovereign immunity canon I think compels the Court not to get out ahead of Congress on this issue.

Congress didn't provide emotional distress awards when it passed the act in 1974, it never amended the act to include them, and the act does not provide for them.

Justice Stephen G. Breyer: At common law, if you have a minute.

Suppose a plaintiff proved that this particular violation of privacy was so terrible he was in bed for a week, he couldn't go to his family's wedding.

I mean, the absolute -- the clearest possible proof.

Now, would that have been considered general damages or not?

It wasn't presumed.

It wasn't speculative.

It wasn't anything.

It's absolute -- tied up.

Would that have been considered general damages, or would it have been considered special damages?

Mr. Feigin: Emotional distress, even physical symptoms of emotional distress, are general damages.

Justice Stephen G. Breyer: No matter how well proved.

No matter how clearly proved.

Mr. Feigin: No matter how they're proved, did you say?

Justice Stephen G. Breyer: No matter how clearly they are proved.

Mr. Feigin: That's correct, Your Honor.

They're general damages.

Justice Stephen G. Breyer: And -- and to verify that, I look at what definition where?

Mr. Feigin: First of all, Your Honor, you can look at page 139 of the Dobbs treatise, which is cited in our brief, which very clearly defines general damages in that fashion.

Also, if you look at the second restatement, section 621 and 623, they define general -- they define general damages and emotional distress damages in this context only by reference to proven damages.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: Justice Alito has our opinion this morning in case 10-1024, FAA versus Cooper.

Justice Samuel Alito: The question in this case is whether a plaintiff, who sues the Federal Government under the Privacy Act, may recover damages for nonpecuniary injuries.

Respondent is a pilot who intentionally withheld from the Federal Aviation Administration information about his HIV diagnosis in order to procure a medical certificate at a time when the agency did not issue medial certificates to pilots with HIV.

Respondent's failure to report his condition was discovered in the course a joint criminal investigation by the Department of Transportation, which is the FAA's current agency, and the Social Security Administration.

When the investigation revealed that respondent had obtained Social Security disability benefits, but had nevertheless renewed his medical certificate, he admitted that he had deliberately failed to disclose information about his condition to the FAA.

He eventually pleaded guilty to making and delivering a false official writing.

He then brought this suit against the agencies involved in the investigation.

He claims that the disclosure of his confidential medical information to the Department of Transportation violated the Privacy Act, causing him mental and emotional distress.

The Privacy Act authorizes aggrieved individuals to recover "actual damages" from the Government for intentional or willful violation, but the Acts does not define actual damages.

Relying on the sovereign immunity canon which holds that the scope of sovereign immunity waivers must be restrictly construed in the Government's favor, the District Court held that the term "actual damages" is facially ambiguous and that as a result, respondent could not recover for his alleged nonpecuniary harm.

The Ninth Circuit reversed, however, holding that in the context of the Privacy Act the meaning of "actual damages" is clear and that it includes mental and emotional distress.

For reasons stated in our opinion, we hold that the Privacy Act does not unmistakably authorize damages for mental and emotional distress.

We are most persuaded by what Congress did not authorize to be recovered for Privacy Act violations.

Congress deliberately excluded general damages from the Act.

In common law defamation and privacy cases, general damages compensate for nonpecuniary harm, including mental and emotional distress and need not be proved.

The only other category of compensatory damages in those common law torts is special damages which are limited to actual pecuniary loss and must be proved.

Because Congress refused to authorize general damages, we believe that it is reasonable to infer that Congress intended the term "actual damages" under the Privacy Act to mean special damages.

Respondent's contrary reading of the Act is not unreasonable, but because Congress did not speak unequivocally, the sovereign immunity can and dictates that we adopt an interpretation of actual damages limited to proven pecuniary loss.

The judgment of the Court of Appeals for the Ninth Circuit is therefore reversed and the case is remanded.

Justice Sotomayor has filed a dissenting opinion in which Justice Ginsburg and Justice Breyer have joined.

Justice Kagan took no part in the consideration or decision in this case.