Doe v. Chao – Oral Argument – December 03, 2003

Media for Doe v. Chao

Audio Transcription for Opinion Announcement – February 24, 2004 in Doe v. Chao

del

William H. Rehnquist:

We’ll hear argument next in No. 02-1377, Buck Doe v. Elaine Chao.

Mr. Campbell.

Jack William Campbell IV:

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

In this case, it is undisputed that petitioner Buck Doe suffered an adverse effect, the emotional distress typical of a privacy invasion caused by the Department of Labor’s intentional and willful violation of the Privacy Act.

The only question is whether under these circumstances, petitioner is entitled to recover the Privacy Act’s modest $1,000 statutory damages remedy.

David H. Souter:

Before we go further, could you help me out on one thing?

You spoke of the modest $1,000 recovery.

The argument is made on the other side that, in fact, it would be $1,000 for every publication in this case, for example, for every caption of a… of… of an order that went out, to everyone to whom that order was sent, so that it would not be $1,000, it would be many, many thousands.

Is that the proper construction of the statute?

Jack William Campbell IV:

The answer to that is no, Justice Souter, and let me answer that in at least two ways.

First of all, the District of Columbia Circuit has already held that the number of… that the $1,000 is key to each individual and not to the number of disclosures.

For example, in the Tomasello case in the D.C. Circuit, there was a simultaneous disclosure of information about a single individual to some 4,000 recipients.

That court held–

David H. Souter:

Okay.

Jack William Campbell IV:

–and I think correctly, that that would be considered one disclosure under the act and, thus, the individual would be entitled to only a single $1,000 recovery.

David H. Souter:

What if… what if there had been an initial disclosure and he had protested it?

He said, you’re violating the statute when you do this and they did it again.

Would that be a separate offense?

Jack William Campbell IV:

That’s a closer question… it… because then you… you’ve got the… the temporal separation that did not exist in the Tomasello case.

David H. Souter:

Yeah, but you’d have temporal separation if there were 10 pleadings over a period of 10 months.

Jack William Campbell IV:

But–

David H. Souter:

And I take it in that case you’re saying, no, there would still just be a… a… a one violation and… and the maximum recovery, at least under this provision, would be 1,000.

Jack William Campbell IV:

–I… I… I think that’s right, Justice Souter, and I want to make clear too that for each of those disclosures you’re describing, there would have to be an adverse effect described and… and a causation element met in each of those in any case before you even got to the question.

Stephen G. Breyer:

But suppose the IRS–

Sandra Day O’Connor:

–But that’s so easy to establish, as shown here.

I mean, it bothers me that somebody else knows my Social Security number.

You don’t think that’s a realistic reason for not assuming application of the statute, do you?

Jack William Campbell IV:

I… if I understand your question, Justice O’Connor, the answer is, yes, there is a real harm suffered here, and adverse effect is not a meaningless standard.

And in this case, you don’t just have a situation in which Buck Doe… it’s obviously a pseudonym… just alleges, I was harmed.

This is a case in which he submitted an affidavit, and more importantly, testified in open court as to the severity and veracity of his emotional–

Sandra Day O’Connor:

Well, but wouldn’t–

Jack William Campbell IV:

–and was cross-examined.

Sandra Day O’Connor:

–wouldn’t every person who wanted to make such a claim make similar allegations?

Is a class action a reasonable possibility in a case like this?

Jack William Campbell IV:

Let me answer both parts of your question.

As to the first part, I… I don’t think we can presume that plaintiffs are going to make up an adverse effect.

They are certainly under the obligations to testify truthfully, and in this case, the Government had every opportunity that… to… and did cross-examine Mr. Doe as to the veracity of his adverse effect.

The magistrate found as a matter of fact he did suffer an adverse effect, the district court adopted it and the Government never appealed that finding, so whatever arguments they have at this point are gone.

Second part of your question, class actions.

That’s certainly the parade of horribles that the Government is trotting out here, and I think perhaps, Justice Souter, may go more… more directly to your question as well.

The answer is no.

Even if an individual who has suffered an adverse effect caused by an intentional or willful violation of the act is entitled to a statutory damages award without being required to quantify actual damages.

There are still at least two individualized issues that will exist in every case.

One is the pleading and proof of the adverse effect, which necessarily may vary among different plaintiffs.

Second is the causation, and particularly in the causation question, Justice O’Connor, this is not a… a standard that… that plaintiffs lightly leap over.

In fact, there are a number of cases, one of which is the Oroquoia decision of the First Circuit, which was handed down while this petition was pending, noted that in cases where the… the adverse effect alleged is a… an emotional distress-type problem, you may well run into causation problems.

There could be any number of other stressors in this person’s life.

Antonin Scalia:

Let’s assume that somebody wrongfully and intentionally releases Social Security numbers, you know, just… just a whole bunch of Social Security numbers of their… their entire list.

They sell their… their list to somebody.

Why wouldn’t that be a perfectly valid class action?

Every one of them has had the adverse effect of having his Social Security number out there, and every one of them has this same adverse effect, which is the, I don’t know, the trauma of knowing that… that your… your Social Security number is floating out there where anybody can use it.

Why wouldn’t that be a perfectly good class action?

Jack William Campbell IV:

Well, I… I think that the example you give, the problem remains, particularly one of causation.

Some folks may not have an adverse effect, they may not be concerned, I think, particularly if you’re describing a case in which it’s only the number that’s released but the number’s not linked to a name.

I think in those cases you might have difficulty.

Antonin Scalia:

Those numbers are… are linked to names.

Jack William Campbell IV:

I’d still go back to the… there’s a causation problem.

If… if you’re going to talk… that is an individualized issue.

Now, I–

Ruth Bader Ginsburg:

May I ask, with respect to that, you brought this case.

Ruth Bader Ginsburg:

I mean, you tried to get it certified as a class action and you were unsuccessful.

So I… I hear you telling this Court, we were way off-base in attempting to bring this as a class action because the adverse effect is different for each person.

So you’re giving up on your first loss.

I mean, there are other circuits that might say, yeah, why not class action?

Jack William Campbell IV:

–I don’t… I don’t… I don’t contend that there aren’t arguments to be made.

What I am stating here is that there are some very strong–

Ruth Bader Ginsburg:

But you say you lost fair and square, and now you’ve seen the error of your ways?

Jack William Campbell IV:

–Well, we lost fair and square and I… and I want to point out too, I want to give another example of a case, and it’s one of the cases that the Government cites in its brief as the example of… of this… this problem, and that’s the Schmidt case that is pending in the Western District of Wisconsin, which involves a putative class action against the Veterans Administration.

In that case, the Western District of Wisconsin held, and this has been since cert was granted in this case, held that, if you prove an adverse effect caused by an intentional, willful violation of the act, you are entitled to statutory damages of $1,000.

Nonetheless, that district court refused to certify a class on precisely the grounds that I am describing to you today.

So is it conceivable there could be a class action in a case?

Yes, it’s conceivable, and I do–

Stephen G. Breyer:

But even if they’re not class actions, I have, I think, the same problem people have expressed.

In Massachusetts, we put our Social Security number on our driver’s license.

I have it right in my pocket.

I show it 10 million times a day, or however many.

So suppose that, you know, the IRS releases… California wants to do the same thing.

They have 35 million drivers, and the IRS sends them a list so they can check it out, or the Social Security Administration does that and, my God, there’s 35 million lawsuits, $1,000 each, that’s only 35 billion.

Suppose they do it nationwide.

There’s 200 billion, and that’s only Social Security numbers.

All you have to do is read through these 14 pages of fine print of the requirements of the Privacy Act, certain days have to be met, certain deadlines, and it’s very easy to imagine bankruptcy in the Federal Treasury.

So, I mean, you know, trillions, it’s easy to see that.

I can make up hypotheticals, which I’ll spare you, but you see where I’m going, because what I want is that is the horrible.

And when I read the horrible, I think, my God, they’re right.

All right.

Now, you tell me why they’re not.

Jack William Campbell IV:

–In the hypothetical that you’re proposing, Justice Breyer, I think there are several answers.

Stephen G. Breyer:

And just make up, you know, it’s easy for both of us to make up a lot.

Jack William Campbell IV:

Sure.

Stephen G. Breyer:

I want to know what are the protections if you win against generating millions and millions of lawsuits with billions of dollars.

Jack William Campbell IV:

In… in the hypotheticals that you’ve described, if I could take those on their terms first.

It’s very likely that one of the exceptions to the Privacy Act disclosure is going to apply usual… if it’s the case that… that this is a working relationship between the Federal Government and various state governments and the like, that may well fall within the usual use.

There are a number of these exceptions listed, so certainly you have to look to those first.

Have to go… go back to… this would have to be intentionally wrongful conduct by the Government–

Stephen G. Breyer:

Well, yeah, I can’t imagine any government agency that takes place that isn’t intentional.

You always have people intending to do what they do in the Government.

Jack William Campbell IV:

–Certainly, well–

Stephen G. Breyer:

Nobody released these… nobody… nobody puts anything on a piece of paper, releases it, isn’t intentional.

Jack William Campbell IV:

–Certainly the… the intent to release the… the information would be correct, but that’s not the same as to say there was an intent to violate the Privacy Act.

Stephen G. Breyer:

Ah, in other words, in order to recover… now, that’s an important point to me… in order to recover, the plaintiff has to show that the government individuals or the agency not only intended to do what did violate the act, but they intended that what they did would violate the Act.

They knew about the… that’s willful, it’s like they knew about the legal obligation and they intentionally violated it.

Jack William Campbell IV:

That’s correct, Justice–

Stephen G. Breyer:

Well, then, how did you ever win this one?

William H. Rehnquist:

That’s… that’s… that’s a very strong–

–Yeah, very strong.

–instruction.

Ordinary… ignorance of the law is… is no defense, and there are all sorts of statutes that use the word willful, which simply means that you intended to do the act that you did, not that you knew it violated the law.

Jack William Campbell IV:

–Well, in… in this case… I… the consistent constructions of… of the Privacy Act is it’s… it’s greater than gross negligence.

It… it necessarily encompasses more than just I intended to do something.

It’s that I… I willfully blind to my obligations in the–

Sandra Day O’Connor:

Well, how about this case?

How… how was that shown in this case?

Jack William Campbell IV:

–In pages… if I could point the Court to pages… bear with me for one moment… pages 90… 96–

Sandra Day O’Connor:

This was a… this was a distribution by administrative law judges–

Jack William Campbell IV:

–That’s correct.

Sandra Day O’Connor:

–of hearing notices and decisions?

Jack William Campbell IV:

That… among other things.

The answer is yes, Justice O’Connor.

On pages 96A to 97A of the petitioner’s appendix, there is the description of the magistrate judge’s finding that there was a willful violation of the Privacy Act here and that there was a… there was no attempt even… no even attempt to comply with the act’s requirements, and I… I would point–

William H. Rehnquist:

But to say there’s no intent to comply isn’t the same thing as saying that you knew you were violating the act when you acted.

Jack William Campbell IV:

–Well, let me amend my answer in this way, Mr. Chief Justice.

A willful ignorance… a willful ignoring of the act’s requirements would qualify as a willful… and I… I want to–

William H. Rehnquist:

Well, how can you… how can you willfully ignore an act’s requirements?

Jack William Campbell IV:

–Well, the Department of Labor was well aware of what the Privacy Act’s requirements were and made no attempt to get the administrative law judges to comply, and… and I want to go back here this… to one of the answers I gave with respect to your adverse effect questions.

This issue was decided by the magistrate judge, adopted by the district court, and this was never appealed by the Federal Government.

Stephen G. Breyer:

Well, but our concern–

William H. Rehnquist:

–We’re concerned here, Justice Breyer and I guess… what is going to happen if we rule in your favor?

That will probably not result in any benefit for the Government on this ground, but are we just opening a can of worms or is… by ruling in your favor?

Jack William Campbell IV:

The answer is no, and… and certainly I acknowledge, Mr. Chief Justice, and Justice Souter and Justice Breyer, that in future cases there might well be a lot more time spent litigating the issues of whether there was an adverse… truly an adverse effect and whether… and… and whether the… the violation was truly intentional and willful.

But I want to–

David H. Souter:

Okay, but can… can we just go back to that for a second?

Jack William Campbell IV:

–Sure.

David H. Souter:

Because we’ve been concentrating on willful, and you say, well, willful requires a very high standard.

As… as you just indicated in your answers, the statute doesn’t require willful.

It requires intentional or willful.

Jack William Campbell IV:

Or willful.

David H. Souter:

And it would be even more remarkable to construe the… the term intentional as requiring conscious disregard of… of a known statutory obligation.

Jack William Campbell IV:

Let… let me answer this way in response, and maybe it will… will help ease the concerns.

For 22 years, the interpretation of the Privacy Act that petitioner offers today has been the law of the land, and in that–

David H. Souter:

Do you have a case that says intentional standing alone must be construed to include this conscious disregard of a… of a known legal provision?

Jack William Campbell IV:

–I can’t cite a specific case for that proposition, Justice Souter, but I again go back to we were talking about intentional or willful, it’s a high burden under any concept of what intentional or willful will be, and for years, for 22 years, from 1975 to, at the earliest 1997, when the Sixth Circuit decided the Reno case, the interpretation that I am offering this Court is the one that the courts of appeals had unanimously adopted, and never in those 22 years had the kind of parade of horribles that the Government posits in this case materialize.

Indeed, if anything, if you look… there is a… a reporter that lists every single case decided under the Privacy Act since 1975.

John Paul Stevens:

But have any of those cases involved disclosure of Social Security numbers?

Jack William Campbell IV:

None that I recall.

That seems to be a relatively new–

John Paul Stevens:

See, this seems to me a particular kind of disclosure that might happen over and over again in a very casual way.

Jack William Campbell IV:

–I… I submit, Justice Stevens, if it happens in a casual way, that’s not going to provide anyone with a cause of action.

John Paul Stevens:

Well, pursuant to a policy such as they had here of that’s the way they use to identify… driver’s license they use it on, the Holiday Inn uses it for their social… all sorts of people use Social Security number for another purpose.

Jack William Campbell IV:

That’s true.

It’s certainly true that Social Security numbers are used for other purposes.

Jack William Campbell IV:

But what is clear from this statute is that Congress was specifically focused on concerns about Social Security numbers being disclosed and the adverse effects that can result from that.

Stephen G. Breyer:

That… that may be true.

What’s bothering me, which may be the same thing, as Justice Stevens says, is that I might have thought that a Labor Department official could reasonably think, I have a list of 50,000 people here, several are named John Smith, I want to be sure we get the right ones so I’ll put the Social Security number as identifier.

That doesn’t on its… on its face seem like such an unreasonable thing to think, even if it’s wrong.

And… and yet we have here a finding that not only is it wrong, but that it’s intentional and willful, and that’s what brings up the problem you come to argue, and I don’t know how to deal with it, because I think, well, if this statute, intentional, willful really means the tough thing that you say, well, then it’ll work, then you’re right, there won’t be a horrible.

But then I see this case, which seems to me to stand for the proposition that that tough standard isn’t being applied.

And then I think, my goodness, you’re opening the door to the horribles and… and I don’t know how to do it because the other part isn’t being argued.

That’s my honest dilemma.

I put it to you.

Jack William Campbell IV:

I… I… I under… I well understand your dilemma, Justice Breyer, and I again go back to, I don’t doubt if this… if the statute is given its natural reading, that the $1,000 statutory damages is available to those to whom the United States shall be liable, there will be an awful lot more traction, a lot more fighting over the adverse effect and the particular circumstances that would rise to the level of an intentional or willful violation in the future.

Antonin Scalia:

Mr. Campbell–

Jack William Campbell IV:

That’s simply not an issue here.

Antonin Scalia:

–Really what… what Justice Breyer is saying is… is that this issue of willfulness or not is not in the case and we wish it were, because the answer to that is important.

Could we talk a little bit about what is in the case?

Jack William Campbell IV:

Yes, yes, Justice Scalia, thank you.

Antonin Scalia:

Can… can you tell me what… I… I really have trouble understanding how there can be an adverse effect without actual damage.

That’s a very strange line.

I mean, in… in the Administrative Procedure Act, you talk about any person adversely affected or aggrieved, and that’s a person who suffered damage.

It seems very strange for Congress to use language that… that sets up two different categories, adverse effect on the one hand, and actual damage on the other.

When… when is there an adverse effect without actual damage?

Jack William Campbell IV:

I think there frequently can be an… an emotional harm that is not quantifiable in dollar terms–

Antonin Scalia:

Well–

Jack William Campbell IV:

–and that’s very common in the law.

Antonin Scalia:

–That doesn’t mean that it’s not actual.

It just means that it’s hard to quantify, but you’ve had the emotional harm.

Why isn’t that an… why isn’t that actual… actual harm?

Jack William Campbell IV:

I… I want… I… I agree with you that that is an actual harm, and I think that’s one of the things that the Government is… is trying to cloud the issue a bit in this case, and that is to equate actual damages and actual harm.

I submit they are different, that the… in… in interpreting the statute, the deliberate use of a term adverse effect and the deliberate use of a term actual damages, those must be given different meanings.

Anthony M. Kennedy:

Well, do you agree that, or do you contend that adverse effect include… includes emotional distress and that you have to show something like emotional distress before there is an adverse effect?

Jack William Campbell IV:

Yes, yes indeed, Justice Kennedy, and that is indeed the unanimous position of the Federal courts on that question.

David H. Souter:

What… what do you say about the position of the… which I understood the circuit to be taking that, on the assumption that there… there was some emotional damage, at least in the sense that the… the man said, I was very upset when I heard that the number was out.

Assuming that, I thought the Fourth Circuit was saying, there is a category of harm that is generally non-compensable in the law, and we assume it ought to be non-compensable here, and that category is emotional damage, which has no physical manifestation.

And the general policy behind that is, we don’t allow generally, tort law doesn’t allow recovery there because it’s too easy to fake.

And the Fourth Circuit, I thought, was saying, you know, whether you’re talking about damage or whether you’re talking about effect, this is an effect that the law simply doesn’t generally recognize and it shouldn’t be recognized here.

That’s a different issue from whether it can be quantified or not.

What the circuit was saying is, you don’t even get to the point of proving quantification.

What… what is your response to that?

Jack William Campbell IV:

If that is indeed what the Fourth Circuit’s position is, it’s squarely wrong.

At common law and intentional torts generally, and in privacy torts specifically, this type of harm is compensable in some at least minimal way, even if it cannot be quantified, and I think that’s why–

David H. Souter:

What about… even if there is no physical manifestation?

Jack William Campbell IV:

–Even if there is no physical manifestation.

Indeed, I submit, Justice Souter, it’s… there’s nothing surprising about the overall remedial scheme here, because it does track what happened at common law and intentional torts and with respect to intentional privacy torts.

In fact, the Privacy Act is more strict even than what was required at common law.

At common law, even no damage at all, no… I’m sorry… I don’t… I don’t want to get back into the confusion over the terms.

Even if there was no harm at all, there would be still be some at least minimal award, recognizing the invasion.

David H. Souter:

Sure, because privacy–

Jack William Campbell IV:

Here you have to put–

David H. Souter:

–I mean, in your… I understand your privacy argument, but that’s because the invasion of privacy or the infringement of privacy is regarded simply as… as injury per se, and… and I thought the circuit was saying, that’s not what we’re dealing with here.

But you’re saying, what, privacy is privacy and… and–

Jack William Campbell IV:

–Well, I… I want to–

David H. Souter:

–But it’s… but if that is so, then let me just get to my question.

If that is so, why did the statute go into speaking of actual damage at all?

Why didn’t the statute simply say, if they invade the privacy by publishing something they shouldn’t publish, you get at least $1,000 regardless.

But that’s not what it said.

It’s keyed it to actual damage, and it said, if there’s actual damage, the person entitled to recovery for actual damage gets at least 1,000, which is something quite different.

It does not take the position that it’s a per se compensable harm.

Jack William Campbell IV:

–Well, I… I, of course, disagree with your characterization of what subsection (A) in fact says, but let me go back to first part of the answer.

We are talking about an adverse effect, so we are talking about having to prove a harm.

We’re not just talking about the ability to vindicate a privacy interest in the abstract.

You can certainly do that at common law, and Congress could have written a statute that allowed you to do that under the Privacy Act.

Jack William Campbell IV:

It didn’t.

It did at least require that you demonstrate an adverse effect and real harm.

Anthony M. Kennedy:

And what… can… can you… and this goes back to Justice Scalia’s initial question, what is the difference in adverse effect and actual damage?

Jack William Campbell IV:

The difference is the ability to quantify the harm in some dollar amount.

John Paul Stevens:

Yes, but if that’s… if that’s the case, I don’t see why the risk of being subjected to identity theft would be increased by the disclosure of your Social Security number, and if that’s true, and I think some people could prove the risk is increased, that would be true of every release of every Social Security number.

Jack William Campbell IV:

I… I… I would certainly agree that there is a real risk of identity theft any time there’s a disclosure of a Social Security number, particularly as here when it’s linked directly with the name.

John Paul Stevens:

So does it not necessarily follow that every one of those releases causes an adverse effect?

Jack William Campbell IV:

I don’t think it is.

There could be… there could be people who aren’t bothered by that or who don’t share that fear.

John Paul Stevens:

Whether they’re bothered about it or not, they’re… they have an increased risk, just if you increase your risk of death, maybe they’re not aware of it, but it’s still an adverse effect.

Jack William Campbell IV:

Well, I do not contend that the Privacy Act is a statute that… that compensates in some way for merely increased risk.

I think that does go back to the adverse effect here.

You do have to have some sort of harm that actualizes, and here it did actualize in his real emotional distress about the disclosure.

Antonin Scalia:

Well, I mean, that doesn’t answer it.

The harm does actualize, as you say it, once the Social Security number is released, the harm actualizes.

You’re at greater risk than you were before.

That’s… that’s actual as can be.

Jack William Campbell IV:

I can’t support that interpretation of the act, although candidly, it… it probably would be a better one for plaintiffs in the… in the run-of-the-mine case.

And the reason is this: If the… if the disclosure itself is the adverse effect, what happens is that the causation language in subsection (g)(1)(D) becomes superfluous, and I am being careful to the… the text here–

John Paul Stevens:

Well, it’s superfluous with respect to Social Security numbers, but the statute covers a whole range of activities other than this particular case.

Jack William Campbell IV:

–Absolutely, Justice Stevens, and I… I… but I’m not sure… I… I don’t think the answer is that it would be just superfluous with respect to Social Security numbers.

In every case, if the release of any information, let’s say it’s a medical record, not a Social Security number.

If the release itself is the adverse effect, the problem is that does not… that does not hew to the… the causation language contained in subsection (g)(1)(D).

John Paul Stevens:

Well, the release of medical information doesn’t necessarily increase the risk of any particular harm.

But this particular information does increase the risk of an identity theft for everybody.

Jack William Campbell IV:

It does increase that… it does increase the risk–

John Paul Stevens:

It is not true if you say, well, you’re taking aspirin three times a day or something like that.

So what?

But this is not a so-what situation.

Jack William Campbell IV:

–No, it’s a… I agree, Justice Stevens.

Jack William Campbell IV:

It does increase the risk, but… but for some people, that increased risk may not cause them an adverse effect, the personal adverse effect.

I would like to reserve the remainder of my time for rebuttal, if I may.

William H. Rehnquist:

Very well, Mr. Campbell.

Mr. Stewart, we’ll hear from you.

Malcolm L. Stewart:

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

I’d like to begin by discussing the distinction as we see it between the terms adverse effect and actual damages.

And as one of Justice Scalia’s questions indicate, the term adverse effect is not one that originated in the Privacy Act.

It’s… it’s a term of art.

The general judicial review provision of the Administrative Procedure Act grants a right of action to persons adversely affected or aggrieved, and I don’t think it’s the case that a plaintiff under the APA needs to show that he has suffered the type of harm that would ordinarily be compensable in damages.

Because the APA excludes money damages as an available item of relief, the typical inquiry in… under the APA in determining whether a plaintiff has standing is whether he is likely to suffer harm in the future, not whether he has been harmed in the past.

And if we had a hypothetical APA suit, for instance, challenging an ongoing or imminent program by which the Government intended to release Social Security numbers, and a particular plaintiff could show there is a likelihood that my own Social Security number will be released in the near future, I think that would be sufficient in and of itself to establish that that person was adversely affected or aggrieved within the meaning of the act.

He would be suffering a… a violation of his legal right to have information about him maintained within the Government’s files and he would also suffer at least an increased risk of identity theft.

That would be enough to get him into the… into court to seek prospective, injunctive, or declaratory relief.

But those certainly wouldn’t be the types of harms that would ordinarily be compensable in damages.

Antonin Scalia:

Well, but that… but that’s not the question.

It… it… the point is it’s… it’s not only enough to get him into court, which is what it is said adverse effect does here, it is enough under the APA to give him judgment.

He wins.

Malcolm L. Stewart:

He wins–

Antonin Scalia:

It… it is enough to give… to make his claim a valid… a valid claim.

Malcolm L. Stewart:

–He… he wins but–

Antonin Scalia:

And the reason he can’t get money damages has nothing to do with the magic words, adversely affected.

It has to do with simply the fact that money damages are not available under the APA.

Malcolm L. Stewart:

–But–

Antonin Scalia:

But he wins under the APA.

Malcolm L. Stewart:

–But the fact that a plaintiff can win under the APA and, in our view, can’t win under the damages provision of the Privacy Act simply reflects what is implicit in the APA’s exclusion of money damages as an available item of relief, namely the view that agency action should ordinarily be reviewable in court, and plaintiffs who can show that they would be injured by unlawful government conduct in the future should ordinarily be able to get a judicial order decreeing that that not take place.

But plaintiffs are not ordinarily entitled to receive money damages from the Government for wrongs committed against them.

David H. Souter:

And I take it you’re… you’re saying here… and they’re not here because there’s a further requirement of actual damage before they get money.

Malcolm L. Stewart:

That… that’s right.

David H. Souter:

Yeah.

Malcolm L. Stewart:

That the damages provisions restricts the availability of monetary relief to a person entitled to recovery, and the phrase, person entitled to recovery, is most naturally construed to mean someone who has not only established a violation of law, but who has established the prerequisites to an award of compensatory relief.

David H. Souter:

Why… why did they put that phrase, entitled to recovery, in there in addition to actual damages?

I’ll be candid with you that I… I was thinking that maybe they put it in there because they anticipated this… this category of cases like emotional damage without physical manifestations is non-compensable, and that… and that they were trying to leave open that kind fo a condition.

Malcolm L. Stewart:

One… one hypothesis as to why the phrase may appear as it does.

The phrase originated in the Senate version of the legislation, and the Senate version said that a plaintiff who establishes a will… an intentional or willful violation can collect actual or general damages, but a person entitled to recovery shall receive no less than $1,000.

And so, in the context of that provision, the phrase, person entitled to recovery, could be a shorthand for person entitled to recover either actual or general damages.

Stephen G. Breyer:

Well, he is entitled to recover actual damages if he has any.

Yeah.

Malcolm L. Stewart:

But that–

Stephen G. Breyer:

And he’s entitled to recover it if he doesn’t have any.

He’s entitled to recover it, whether he has some or whether he doesn’t have some.

So I will… I don’t understand, you say the most natural meaning of a person entitled to recovery is a person entitled to recovery who actually has actual damages.

That isn’t how I’d normally read it.

I’d… I’d read it somebody who’s… who’s entitled to get it if he has it.

Sandra Day O’Connor:

Well, I guess that’s the issue.

Stephen G. Breyer:

Yeah, that is the issue.

So I just want you to explain a little bit more–

[Laughter]

Malcolm L. Stewart:

–I mean, I think… I think–

Stephen G. Breyer:

–about why that’s the most natural reading.

Malcolm L. Stewart:

–I mean, the more… I think the more natural reading is that a person entitled to recovery is someone who not only has established some of the prerequisites to an actual recovery, namely a compensatory award, but who has established all of them.

And if the only compensatory relief available is actual damages, then a person who hasn’t established actual damages is not entitled to recovery.

But even if a plausible argument could be made the other way, then the canon of construction that waivers of sovereign immunity are to be construed narrowly would compel the Court to read it in… in the narrow way.

Antonin Scalia:

Well, plus… plus the canon that… that you don’t give words a meaning that renders them totally superfluous.

Malcolm L. Stewart:

That… that’s–

Antonin Scalia:

And if it means what Justice Breyer suggests, you can just leave out the words, a person entitled to recovery.

Malcolm L. Stewart:

–Or… or–

Antonin Scalia:

Just read it, but in no case shall he receive less than the sum of 10,000, of $1,000.

Malcolm L. Stewart:

–That’s correct.

If… if Congress had intended that any plaintiff who established an adverse effect from a willful or intentional violation would automatically receive at least $1,000, it could have used the word person or individual or complainant, which was… which were the words that Congress used elsewhere in the Privacy Act to describe the individual whose rights had arguably been violated.

Stephen G. Breyer:

Or just… just drop entitled to recovery.

Malcolm L. Stewart:

Exactly.

Antonin Scalia:

Shall a person receive less than the sum of–

Malcolm L. Stewart:

And the other point I would… we would make in following up on one of Justice–

Ruth Bader Ginsburg:

–Mr. Stewart, if… and before going to the words of the statute, this… there are any number of statutes that have actual damages and it can say, or the statutory damages, and some of them have this formula, actual damages and person entitled to recover, and then there’s shades in between.

Do you… do you really think that Congress, by using those different formulas, meant a different result in what would seem to be cases that don’t… are not sensibly distinguished?

Malcolm L. Stewart:

–I mean, I think… I think we have to infer that Congress or presume that Congress meant something by the choice of words that it used.

And the phrase entitled to recovery is–

Antonin Scalia:

A benign fiction, right?

Malcolm L. Stewart:

–A benign fiction, that’s right.

And I think it is also the cause that the phrase, person entitled to recovery, is used very rarely in the United States Code.

There are a number of provisions along the lines of actual damages or $1,000, whichever is greater, references to statutory damages or liquidated damages.

But the phrase, person entitled to recovery, is very rare and we would presume that Congress intended something specific–

Stephen G. Breyer:

All right.

I… I would… rather than do the presumption of what they intended deduced from canons, et cetera.

You assume that it is ambiguous.

You certainly got me there.

I’m… I see it’s ambiguous.

And I also believe that Congress did not want to bankrupt the Treasury, destroying Medicare, Social Security, and every other programs we give $1 trillion in damages to people who have the social… I… I… you’ve got me there.

Now, how do… what they… what your opponents say is that is a made-up problem.

It doesn’t… it isn’t going to happen, and the reason it isn’t going to happen is because these words, intentional or willful, are not used, the word intentional, as it normally is.

It’s used in a very special way so that they have to almost… well, you’ve… now, you’ve… I’m cross-referencing our earlier argument and I’m at a dilemma here because it’s not argued, I don’t know how to deal with it, but it seems relevant to the underlying question that is moving me about what Congress intended.

Malcolm L. Stewart:

–The petitioner is correct that the phrase intentional or willful has been construed by the lower courts essentially as a term of art, and the prevailing test in the lower courts is whether the agency exhibited flagrant disregard for–

Stephen G. Breyer:

Oh, I’m sorry.

The lower court thing that we’ve looked up uses an or about that, and one of the parts of the or is without grounds for believing the action to be lawful, which means that part of the test, that if we have an ALJ, or we have people in the agency, just never think about it, as they might not in this case, that that cover… is covered by intentional or lawful.

And that’s one of the problems I’m having, because it makes me think that that word intentional is a pretty complicated issue, which isn’t argued.

It seems to be very important, and I don’t know what to do.

Malcolm L. Stewart:

–I… I think, with respect to the… the language from the court of appeals’ opinion that you quoted, the without grounds to believe that–

Stephen G. Breyer:

I have three of them like that.

Malcolm L. Stewart:

–Right.

I… I think what the courts are getting at is something at least akin to the standard that would prevail in a Bivens action, where an individual Federal officer was sued, where the question would be, could a reasonable officer in this person’s position have believed that what he was doing was legal?

Malcolm L. Stewart:

Probably the courts have applied it in a… in a manner that’s slightly more deferential to the Government.

In… in… it doesn’t mean, however, that the Government has to have been shown either to have intentionally violated the law or to have intentionally sought to bring about harm to the plaintiff.

Antonin Scalia:

Do we have to decide that in this case?

Malcolm L. Stewart:

No, no, I don’t think you need to decide that.

Antonin Scalia:

I’d like a lot more argument on it before I decide that question.

Malcolm L. Stewart:

That… that’s correct.

Sandra Day O’Connor:

Why–

Antonin Scalia:

–And some briefing on it.

Malcolm L. Stewart:

As the case comes to this Court, both parties are in agreement, or neither party contests the proposition that an intentional or willful violation was established.

Sandra Day O’Connor:

Mr. Stewart, what has happened in the 28-some years that this has been in effect concerning the amount of recoveries against the Government?

Malcolm L. Stewart:

I… I would candidly acknowledge we have not had a problem with enormous recoveries against the Government up to this point.

Sandra Day O’Connor:

What happened in the 1990 lawsuit you refer to on mailing of IRS farm… form 1040s, that had a Social Security number and the name.

Malcolm L. Stewart:

That… that was–

Sandra Day O’Connor:

What happened to that case?

Malcolm L. Stewart:

–That was ultimately dismissed on the ground that the Social Security numbers were not records, which is contrary to the general course of the law, which is that Social Security numbers would be… be records.

I… I want to be careful about this because we are not arguing that exorbitant liability would inevitably follow from a loss in this case.

What we are saying is, if we lose this issue and if the word adverse effect is given the same meaning in the Privacy Act that it has in the APA, the Government would be subject to enormous potential liability.

To take an example, following up on one of Justice Breyer’s questions, as… as you pointed out, the Privacy Act is not limited to a prohibition on unlawful disclosures.

It contains a range of other provisions that could be best be described as technical or even bureaucratic.

One, for instance, is that when the Government collects information from private individuals, it has to identify, among other things, the source of authority, either a U.S. Code provision or an executive order that authorizes the information to be collected.

And if an agency circulated 100,000 forms and left off the U.S. Code cite, I think, under ordinary APA standards, any person who returned information on that form would be… would suffer an adverse effect, because he would have been deprived of–

Stephen G. Breyer:

Yeah, but that won’t hurt you if… if, in fact, to show liability here, you have to show that the agency officials who made up that form knew… let’s make it really tough… knew that leaving it off was command… putting it on was commanded by the act and they say, ha ha ha, I know it’s commanded by the act, but I’m not going to do it.

Malcolm L. Stewart:

–I mean–

Stephen G. Breyer:

Now, that’ll be pretty rare and the–

Malcolm L. Stewart:

–It would be rare.

Stephen G. Breyer:

–So the–

Malcolm L. Stewart:

Well, you could… you could imagine a situation, and we wouldn’t condone this… this conduct, but you can imagine a situation in which an agency official gets back the 100,000 forms from the printer and says, oh my gosh, the U.S. Code cite was left off, but then decides, I know we’re supposed to do this, but I’m not going to reprint 100,000 forms for something like that, let’s circulate them.

We don’t condone that behavior.

It would be a violation of law, but it’s hard to imagine that Congress would have intended that everybody who fills out information on those forms would then be entitled to $1,000.

Antonin Scalia:

–Just to try to get this issue out of the case, are you content to have us decide this case on… on the assumption, just for the sake of argument but without ruling, that… that the act requires willfulness in the… in the most extreme sense that Justice Breyer describes?

Antonin Scalia:

Are you willing to have us decide the case on that assumption?

Malcolm L. Stewart:

Yes.

Ruth Bader Ginsburg:

You’re willing to have us decide what was not… what it was over, that there is an adverse effect?

In fact, the… the Government didn’t dispute that, didn’t dispute adverse effect, did it?

Malcolm L. Stewart:

Not… not as to Buck Doe.

The… the magistrate judge held that each of the plaintiffs had established an adverse effect simply by release of the Social Security numbers, and the district court didn’t expressly endorse that view, but didn’t reject it either.

Anthony M. Kennedy:

Is it your… is it your argument… and I’m glad we’re back to the statute… that in order to determine in this case, in this case, whether there was a cause of action, you had to read beyond the adverse effect clause and go down to for… or before… and decide also whether there was actual damages, before there was a cause of action?

Malcolm L. Stewart:

You… you wouldn’t have to decide whether there was proof of actual damages, but yes, I think if it was apparent on the complaint that there was an adverse effect but no possibility of proving actual damages, then the suit shouldn’t be… shouldn’t go forward, but–

Anthony M. Kennedy:

That… that’s an… that’s an unusual way to write the statute.

It’s unusual to… to write the statute in a way where I don’t know if I have a cause of action until I get down to where the damages are defined.

Malcolm L. Stewart:

–I… I agree, but I think it would be–

Anthony M. Kennedy:

Usually I would say that any person injured is the way we would expect this statute to have been written.

Malcolm L. Stewart:

–I agree, and it may be that to… Congress anticipated that questions concerning damages would be resolved at the end of the day, and there would obviously be a lot of cases in which a plaintiff would allege damages at the outset, and therefore, would have a cause of action, but if he failed to prove damages in the… the course of the trial, he wouldn’t be entitled to the $1,000, even if he proved that he suffered an adverse effect from a willful or intentional violation.

David H. Souter:

But Mr. Stewart, I… I take it that even… even if there was no indication of actual damage, the… by… by pleading the violation of the statute, he would at least have pleaded enough to entitle him to… to ask for a… to ask for equitable relief.

Malcolm L. Stewart:

We would say that equitable relief is not, in this context, is not specifically authorized by the Privacy Act.

But we would say that equitable relief would be available under the APA, and the allegation would be that the–

David H. Souter:

Okay.

Malcolm L. Stewart:

–agency’s action was not in accordance with law–

David H. Souter:

I… I see.

Malcolm L. Stewart:

–because it violated the Privacy Act.

David H. Souter:

May–

Malcolm L. Stewart:

So… so… and indeed, this suit at the outset included a request for injunctive relief against further disclosures, and the Government settled that part of the case with lightning speed.

There was… the… the plaintiff did obtain a judicial order directing the Government not to continue with its practice.

Antonin Scalia:

–So indeed there’s… there… there’s nothing bizarre about letting him get into court just on the basis of… of an adverse effect, because he can win in court on the basis of an adverse effect, not by reason of this act alone, but by reason of the obligations under this Act plus the APA.

Malcolm L. Stewart:

That’s correct.

David H. Souter:

Right.

May I… may I go to another issue?

I mean, one of things that’s bothering us is several issues that seem crucial, which we’re just having to make assumptions about here, and depending on the assumptions, the scope of liability may… may be enormous.

Here’s the one that is bothering me.

The… the Government is not contesting here that in fact there… there was some kind of actual damage, even though it was not quantified.

Malcolm L. Stewart:

No, I think we are contesting that.

David H. Souter:

Well, I… but… but you’re not contesting the fact… let me put it… I… I misspoke… you’re not contesting the fact that if he showed emotional damage and emotional damage alone, no physical effects, that that would be enough for recovery if… if a fact-finder said, well, I think the emotional damage is worth $250–

Malcolm L. Stewart:

No, no.

We… we are contesting that and–

David H. Souter:

–You are contesting that?

Malcolm L. Stewart:

–It hasn’t really been–

David H. Souter:

Are… may… may I ask you just a further question, then you can tell me which… whatever you want.

Are you contesting as a matter of law the sufficiency of this plaintiff’s testimony to at least get to the fact-finder on whether there was actual damage?

He testified… I forget his exact words… but he testified, you know, I was so upset when I heard that they had released my Social Security number, I just didn’t know what to do or what to say, something like that.

Are you contesting the sufficiency of that evidence to put an issue of actual damage to the fact-finder?

Malcolm L. Stewart:

–Yes, and let me backtrack for a second to say that the Fourth Circuit decided that Mr. Doe had not proved actual damages, and the petitioner did not seek this Court’s review of that holding, so–

David H. Souter:

But they said he didn’t prove actual damages because there was no physical effect.

Malcolm L. Stewart:

–That… that’s right.

There was–

David H. Souter:

They didn’t say that, as a matter of law, if you don’t have the emotional physical effect rule, he wouldn’t have had enough to… to get to the fact-finder an actual damage.

Malcolm L. Stewart:

–That… that’s correct.

My… my only point was, the reason we haven’t briefed the question of whether there were in fact actual damages is that our understanding is that, because petitioner didn’t seek this Court’s review of that aspect of the… the court of appeals’ holding, as the case comes to the Court, we’re assuming that there were no actual damages.

David H. Souter:

And you didn’t… you didn’t cross?

Malcolm L. Stewart:

But… but to answer your… your question about what the Government’s position on the law is, our… our first argument is that in the context of this specific statute, the phrase actual damages refers only to pecuniary harm, and we’ve cited in a footnote a conflict among the circuits with respect to that question, and that… that isn’t presented by this case.

David H. Souter:

Okay.

Malcolm L. Stewart:

But we would–

Ruth Bader Ginsburg:

Mr. Stewart, may I ask you a question with respect to that?

Suppose this Doe said, I’m very concerned about the impact of this on my credit rating, so I’m going to spend $10 to a credit… credit reporting company to find out whether there’s been any theft of my identity, $10.

Would there then be a claim under this statute for actual damages?

Malcolm L. Stewart:

–I mean, there… there would be a question of whether that was… whether there was causation, whether that was a reasonable response to the threat, but in theory, an expense like that could qualify as pecuniary harm and, thus, is actual damages.

Ruth Bader Ginsburg:

But it made… it made me think that if there’s ambiguity in this statute, that wouldn’t have made much sense for Congress to write a statute like this where, to meet the actual damage requirement, all you have to do is make a $10 expense.

Malcolm L. Stewart:

I mean, I agree that it’s a somewhat anomalous result that the availability of the thousand can turn on a relatively small pecuniary loss.

It’s… it’s somewhat analogous at least to the common law rule that punitive damages are available only to a plaintiff who’s shown some level of compensatory damages, and there also a plaintiff might be able to contrive a small loss that is compensable, and thereby make himself eligible for punitive damages that far exceed the amount of–

Ruth Bader Ginsburg:

But it’s not just not contrived, because now it’s a formula for… for all the people who have this kind of complaint, so I think if that’s what… what the line is, then Mr. Doe, is it, all the future Mr. Does will ask to have their credit checked.

Malcolm L. Stewart:

–I mean, we would still want to… we would still have to know whether that was in fact a reasonable response to what the Government had did… done… and what the… the threat that it posed to the… the plaintiff.

Malcolm L. Stewart:

And even if that kind of machination might be possible in in one category of cases, it would still not be possible in a lot of other categories of potential… of Privacy Act violations.

To continue with my answer to Justice Souter’s question, the… the second thing we would say about the emotional injury is that, even if some emotional harms were compensable as actual damages under the statute, we don’t think that the particular emotional harm alleged here would be, because a Social Security number, unlike, for instance, intimate details about a person’s family life, is not inherently private or secret or confidential.

It’s not the sort of information that would cause a person to say, I would be horrified to think that somebody else knew that even if I could be sure that that person wasn’t going to misuse it against me.

The… the reason that people are worried about release of Social Security numbers is that that release may lead to some further, more tangible harm, identify theft or–

David H. Souter:

So you’re saying as a matter of law, this is just what he testified to is simply too de minimis to be considered evidence–

Malcolm L. Stewart:

–That–

David H. Souter:

–sufficient evidence.

Malcolm L. Stewart:

–That’s correct.

And we’ve cited the Metro-North case in our brief, and I think that the harm… the emotional harm that he’s alleged is really… really very similar to the fear of cancer as a result of asbestos exposure that was held not to be compensable in the absence of some current physical impairment.

So to… to… follow up on this and make our position absolutely clear, we are saying that if the term adverse effect is given its usual meaning, and every plaintiff who establishes an adverse effect from a willful or intentional violation is entitled to $1,000, that the potential financial consequences would be enormous.

Now, I would say in all candor that if we lose this case, it’s quite possible that the Government would argue in the lower courts that to protect the public fisc, the… the phrase adverse effect should be given a narrower construction under this statute than under the APA.

But our basic point is–

John Paul Stevens:

May I ask, with respect to the parade of horribles that we’re confronted with, is I… it’s my understanding that there are several other statutes under entirely different statutes, they have the similar provision but they’re clearly worded in a way that says, if you get anything, you’ll get the minimum, and… but it’s the position that your opponent contends is the proper reading of that statute.

There are several such statutes, am I–

Malcolm L. Stewart:

–There are a lot of statutes with wording, for instance, to the effect of a plaintiff who establishes a violation will receive actual damages or $1,000, whichever is greater.

Most of those don’t apply to suits against the United States–

John Paul Stevens:

–And… and–

Malcolm L. Stewart:

–but there are many such laws.

John Paul Stevens:

–And most of those would not require proof of actual damages?

Malcolm L. Stewart:

That’s correct.

Under the plain terms of the statute, the plaintiff would get the 1,000–

John Paul Stevens:

Why in your view did Congress come up with a different formula in this case than it has in that… in the pattern of statutes that those represent?

Malcolm L. Stewart:

–I’m… part of it may be that most of those statutes are not dealing with suits against the United States, and Congress may be more protective of the public fisc, and part of it is the… the legislative debates reveal that Congress considered a variety of potential damages provisions, some of which were more generous than the one that was ultimately enacted, some of them less generous.

For instance, the more generous provisions–

John Paul Stevens:

But this statute is unique, is it not?

Malcolm L. Stewart:

–It’s not quite unique.

I believe there are a couple of other provisions that use the phrase, person entitled to recovery, and that phrase has not been authoritatively construed by this Court, so those… interpretation of those statutes would raise the same question this one does.

Ruth Bader Ginsburg:

But there’s a number of them that start out with actual damages.

Malcolm L. Stewart:

And… and sometimes, again, the words are to the effect of actual damages or $1,000, whichever is greater.

And because the availability of the $1,000 is not limited to a, quote, person entitled to recovery, unquote, the plain language of many of those statutes compels the conclusion that $1,000 will be awardable regardless of actual damages.

Ruth Bader Ginsburg:

Now, there was an interpretation… Congress told OMB to do interpretive guides, and it did, and it… and it gave it the meaning that this plaintiff gives it.

It’s… it read the statute… didn’t… wasn’t that what OMB said?

Wasn’t that their contemporaneous–

Malcolm L. Stewart:

I mean, I think the more… I think you’re right that the more natural reading… the OMB guideline didn’t address in terms the situation where a plaintiff shows no actual damages but nevertheless claims the thousand, but the OMB guideline did say, a person who suffers an adverse effect from a willful or an intention violation shall receive a 1,000… actual damages or $1,000, whichever is greater.

Ruth Bader Ginsburg:

–It said actual damages or 1,000.

As I understood the… that original interpretation, it was the reading that the plaintiff is putting forward here and your response to it in your brief seemed to be that was a wrong interpretation because it didn’t take account of sovereign immunity or saving the sovereign fisc and an official at OMB said it was wrong and it’s not… no longer effective.

Malcolm L. Stewart:

I mean, I think if… if plaintiffs are using the OMB interpretation to establish the point that intelligent people can read the statute the way that they did, I… I think it’s validly used for that purpose.

But the OMB guideline is not entitled to deference, as the Court held in Adams Fruit, a statutory provision that is to administered solely by the courts is not one as to which the Court will defer to administrative interpretations.

The… the OMB–

Ruth Bader Ginsburg:

But didn’t… didn’t Congress designate OMB to… to these guides?

Malcolm L. Stewart:

–Congress designated OMB, but it’s… the particular provision that is at… specifically at issue is reprinted at page 13a to the appendix to the Government’s brief.

And it says, the director of the Office of Management and Budget shall develop and, after notice and opportunity for public comment, prescribe guidelines and regulations for the use of agencies in implementing the provisions of this section.

So the only specific directive that OMB had was to instruct or direct agencies as to their substantive obligations under the act.

Now, in the course of doing that, it was entirely appropriate for OMB to go further and offer its view to the agencies as to what consequences would follow if they breached their substantive obligations, but that wasn’t a task that was specifically entrusted to OMB by statute, so I don’t think there’s any basis for inferring that Congress–

Antonin Scalia:

I see.

You’re… you’re saying that… that it… it was meant just to tell the agencies what you have to do to comply with the act.

Malcolm L. Stewart:

–Exactly.

Antonin Scalia:

Yeah, that… that’s probably the best reading of it.

Malcolm L. Stewart:

Exactly.

Antonin Scalia:

Yeah.

Malcolm L. Stewart:

So the… the last… the last point I wanted to make is, it might be possible, if… if we lost this case, it might be possible to mitigate the financial consequences to the Government by giving the term adverse effect a narrow construction, but our… our view is, if the consequence of adopting plaintiff’s reading of the phrase person entitled to recovery is that an established term of art like adverse effect has to be construed in other than its normal manner in order to make the statute make sense, there’s something wrong with plaintiff’s reading.

Stephen G. Breyer:

But why… why do you say that?

Because, see, the adverse effect part governs people who don’t even want damages.

I mean, it… it’s to get into court, it’s just to get into court, bring the suit, isn’t it?

Malcolm L. Stewart:

Right.

Stephen G. Breyer:

So… so I would have thought that your… your reaction… I just want you to clarify this… would be, if they win this case, then the reaction would be to go back and say, all right, if we’re going to give $1,000 to people who really are just feeling bad about what happened, we’ve got to give them all $1,000, well, it’s only in circumstances where the agency really did something quite wrong.

And so you’ll read that intentional or willful requirement toughly, not… not the adverse effect part tough.

I mean, why… why wouldn’t that be the reaction?

Malcolm L. Stewart:

I mean, I guess if… if this… if this Court held that the phrase intentional or willful was limited to situations–

Stephen G. Breyer:

I don’t see… yeah?

Malcolm L. Stewart:

–If it… if it was limited to situations in which the Government set out to violate an individual’s rights under the Privacy Act, that… that would be another way at least of–

Stephen G. Breyer:

Yeah, yeah, and then you’d say, well, we should assume that’s what happened here, though.

It certainly didn’t–

Malcolm L. Stewart:

–I… I mean–

Stephen G. Breyer:

–but we should assume that.

Now, suppose I assume that, and then I decide that they’re right on the basis of that assumption, and then in the next case it turns out my assumption happened to be quite wrong because Congress had a broad intent there.

Now what happens?

Malcolm L. Stewart:

–I mean, even under the narrowest possible interpretation of what intentional or willful means, you could have hypotheticals like the one with the form that left off the U.S.C. cite, and again, we… we hope those things would happen very rarely, but it seems highly unlikely that Congress would have wanted each of the hundred thousand people who put on… information on the form to get $1,000.

Thank you.

William H. Rehnquist:

Thank you, Mr. Stewart.

Mr. Campbell, you have five minutes remaining.

Jack William Campbell IV:

Thank you, Mr. Chief Justice.

Justice Kennedy, I’d like to address my first point to you, because I… I think you put your finger on one of the number of… of absurd results, or difficult-to-swallow results that flow from accepting the Government’s interpretation.

The Government’s essential contention here is that quantification of actual damages is an essential element of a Privacy Act claim, but boy, what a strange way to write the statute if that’s what Congress intended.

The… the relative language is reproduced at pages 3 and 4 of petitioner’s brief, and it says that whenever an agency fails to comply with any other provision of this section, and I’m going to ellipsis, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and I’m putting another ellipsis there.

You then go to subsection (g)(4), which states that if that adverse effect was the result of an intentional or willful violation, then the Government, the United States shall be liable, in the sum… in an amount equal to the sum of.

Liability is established once those three prerequisites are met.

All that is left at that point is an exercise of arithmetic.

It would be a very strange statute that says the United States shall be liable in the sum of the following amounts you are to add up, and that amount would be zero.

And, in fact, that would never be the case.

Costs are always available to a Privacy Act plaintiff who establishes an adverse effect caused by an intentional or willful violation of the act.

So there are certainly going to be at least some recovery.

There’s no qualification of the costs award with reasonableness of precondition of actual damages.

So some… there is going to be a recovery in those cases.

Now, if that’s the only recovery that’s available, it’s a very… it’s, one, a very strange statute, and number two, a statute that arguably is unconstitutional.

But you don’t need to read it that way, because the natural reading is, as was pointed out in the argument, that, yes, Congress did anticipate precisely this issue, that privacy invasions very typically result in emotional harms that inherently are not quantifiable, and Congress didn’t intend, I can’t imagine, to… to make the line of recovery turn on whether you can prove that you put 37… a 37-cent stamp on an… on an envelope to get your credit report or pay the $10 fee.

That’s a very arbitrary line.

Why would Congress be solicitous of people who suffer the same harm… be solicitous of the one who put a stamp on an envelope?

That’s a nonsensical.

Moreover, it reduces any efficiency savings that are realized under the act as Congress intended by saying, look, we’re not going to get into those sorts of proof issues.

Jack William Campbell IV:

If you have an emotional distress and it’s typical, it’s caused by the intentional violation, we don’t go through that.

You get your damages of $1,000 and let’s not go through the proof.

That’s a very natural reading of the act.

But the Government… the Government is asking you to adopt a… an interpretation that has a number of additional problems.

It renders the adverse effect requirement superfluous.

Proof of actual damages will necessarily in every case require proof of an actual harm and causation.

So even the attempt by the Government to place a… a meaning on the adverse effect requirement must fail.

Again, it turns the shall language into may, or at best, renders shall illusory, because the sum would be zero in most cases.

Antonin Scalia:

As to your point about the… the costs.

You don’t get costs unless, it says the court may assess reasonable attorneys’ fees and other litigation costs reasonably incurred in any case in which the complainant has substantially prevailed.

And I assume that when later on they… they say the costs of the action together with reasonable attorneys’ fees as determined by the court, they’re referring back to the court has allowed those… those costs and fees, because he has substantially prevailed?

Malcolm L. Stewart:

I’m sorry, Justice Scalia.

I… are you referring to the language that’s in (g)(2) and (g)(3) of the statute?

Antonin Scalia:

Yes, I am.

Malcolm L. Stewart:

(g)(2) and (g)(3) are entirely different causes of actions.

Those deal with requests for injunctive relief, and this is the only type of injunctive relief under the Privacy Act, injunctive relief for access to files or correction of files.

Those are separate causes of action.

In fact, I submit, Justice Scalia–

Antonin Scalia:

I see.

I see what you’re saying.

Malcolm L. Stewart:

–that the contrast in the language between (g)(2) and (g)(3)–

Antonin Scalia:

I see what you’re saying.

Malcolm L. Stewart:

–and (g)(4) proves my point.

Here, Congress anticipated that there is a substantial… substantially prevailing party.

That party–

Stephen G. Breyer:

Well, what assumption would you like us to make–

Antonin Scalia:

–Right, right.

Stephen G. Breyer:

–in respect to the meaning of intentional or willful?

Malcolm L. Stewart:

–I… I submit that a perfectly proper interpretation of intentional or willful can include conscious disregard of… of the… of the legal obligations.

That’s a well-established standard.

Malcolm L. Stewart:

Thank you.

William H. Rehnquist:

Thank you, Mr. Campbell.

The case is submitted.

The honorable court is now adjourned until Monday next at 10 o’clock.