FAA v. Cooper – Oral Argument – November 30, 2011

Media for FAA v. Cooper

Audio Transcription for Opinion Announcement – March 28, 2012 in FAA v. Cooper


John G. Roberts, Jr.:

We will hear argument next in Case 10-1024, Federal Aviation Administration v. Cooper.

Mr. Feigin.

Eric J. 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.

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.

Eric J. 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.

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.

Eric J. 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.

Ruth Bader Ginsburg:

But that’s the — why — is it — is a harm to a dignitary interest, is that an actual injury?

Eric J. Feigin:

Well, Your Honor–

Ruth Bader Ginsburg:

You describe that injury.

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

Eric J. 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.

Ruth Bader Ginsburg:

Well, let’s take this case.

Did the plaintiff suffer an actual injury?

Eric J. Feigin:

He did not–

Ruth Bader Ginsburg:

St least, did he allege that he had suffered an actual injury?

Eric J. Feigin:

–He did not suffer actual damages within the meaning of the Privacy Act.

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?

Eric J. 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–

Ruth Bader Ginsburg:

You have to have an injury first before you can get damages, so my question is was there an injury.

Eric J. 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–

Ruth Bader Ginsburg:


Eric J. 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–

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.

Eric J. Feigin:

–Well, Your Honor–

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?

Eric J. 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–

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?

Eric J. 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.

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.

Eric J. 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.

Ruth Bader Ginsburg:

What does “actual damages” mean under the Fair Credit Reporting Act?

Eric J. 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.

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.

Eric J. 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.

Anthony M. Kennedy:


Ruth Bader Ginsburg:

We’re discussing what the term means, what the term “actual damages” means.

Eric J. 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–

Anthony M. 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?

Eric J. 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.

Sonia Sotomayor:

I’m sorry.

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

Eric J. Feigin:

The emotional distress component itself cannot be, but medical expenses to treat symptoms of emotional distress–

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?

Eric J. 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.

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.

Eric J. Feigin:

Well, Your Honor, in a common law suit for defamation for–

Sonia Sotomayor:

I thought that’s what your brief said, actually.

Eric J. 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.

Eric J. Feigin:

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–

Sonia Sotomayor:

But we’re not talking any differently.

That’s what I just said.

If you–

Eric J. 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.

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.

Eric J. Feigin:

Well, Your Honor–

Sonia Sotomayor:

And to use a term “actual damages”, which has a much broader meaning than “special damages”.

Eric J. 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–

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.

Eric J. 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.

Eric J. Feigin:

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.

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.

Eric J. 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.

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.

Eric J. 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.

Ruth Bader Ginsburg:

But does–

Eric J. 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.

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–

Eric J. 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.

Eric J. Feigin:

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.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Cardozo.

Raymond A. 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. “

Samuel A. Alito, Jr.:

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?

Raymond A. 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–

Samuel A. Alito, Jr.:

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?

Raymond A. Cardozo:


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.

Samuel A. Alito, Jr.:

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

Raymond A. 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.

Samuel A. Alito, Jr.:

“General damages”, that’s the term that they peeled off, right?

Raymond A. Cardozo:


Raymond A. Cardozo:

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

Samuel A. Alito, Jr.:

But general damages is a term from — from the remedies in defamation cases, right?

Raymond A. Cardozo:


Samuel A. Alito, Jr.:

And there are two types of damages in defamation cases, special damages and general damages and if you — is that correct?

Raymond A. Cardozo:


Samuel A. Alito, Jr.:

And you subtract general damages and what do you have left?

Raymond A. 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.

Samuel A. Alito, Jr.:

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.

Raymond A. 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.

Samuel A. Alito, Jr.:

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?

Raymond A. Cardozo:


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–

Anthony M. Kennedy:

But — but we–

Raymond A. Cardozo:

–but you can’t presume–

Anthony M. 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–

Raymond A. Cardozo:

–No, but this–

Anthony M. Kennedy:

–routinely tell juries, now you can come in with conjectural or speculative damages.

That’s not the way the jury are instructed.

Raymond A. 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.

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?

Raymond A. Cardozo:

Apart from the obvious that the post enactment report was–

Stephen G. Breyer:

No, I’m asking you–

Raymond A. Cardozo:

–But — but — on the underlying point–

Stephen G. Breyer:

–Thank you.

Raymond A. 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–

Stephen G. Breyer:


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?

Raymond A. 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.

Stephen G. Breyer:

And by pain and suffering they mean mental pain and suffering?

Raymond A. Cardozo:


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

Stephen G. Breyer:

Thank you.

Raymond A. Cardozo:


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.

Raymond A. 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.

Raymond A. Cardozo:

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

That aligns.

Mr. Cooper’s construction aligns.

The government creates disharmony in the statute.

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?

Raymond A. 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.

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?

Raymond A. Cardozo:

I don’t know that.

So, I’ll–

Stephen G. Breyer:


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.

Raymond A. 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.

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.

Raymond A. 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.

Raymond A. Cardozo:

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.

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?

Raymond A. 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–

Antonin Scalia:

You say in the Fifth Circuit or the Ninth Circuit for — for many years?

Raymond A. Cardozo:

–This case is — in — coming out of the Ninth Circuit, but the Fifth Circuit passed the rule.

Antonin Scalia:

–for a long time, yes.

Raymond A. Cardozo:

In the early ’80s it first recognized emotional distress.

Sonia Sotomayor:

Are you aware of any runaway verdicts based on awards of mental damage proof?

Raymond A. Cardozo:

The only case that I’m aware of–

Sonia Sotomayor:

I define runaway awards as those in — in six figures or above.

Raymond A. Cardozo:


Sonia Sotomayor:

Or even high five figures.

Raymond A. 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.

Anthony M. Kennedy:

In — in your argument do you have to avoid the concession that the term might be ambiguous?

Anthony M. Kennedy:

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?

Raymond A. 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–

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–

Raymond A. Cardozo:

–Actually we don’t, Your Honor.

Antonin Scalia:

–You don’t?

Raymond A. 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–

John G. Roberts, Jr.:

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.

Raymond A. 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.

Raymond A. Cardozo:

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.

Samuel A. Alito, Jr.:

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?

Raymond A. Cardozo:

His — his economic loss would be special damages.

Samuel A. Alito, Jr.:

Then let’s–

Raymond A. Cardozo:

The damages he could prove–

Samuel A. Alito, Jr.:

–You don’t claim any economic loss there.

Raymond A. Cardozo:


The damages he could prove would be actual damages.

Samuel A. Alito, Jr.:


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?

Raymond A. Cardozo:

Well, they could also use actual damages, because of course, in the Gertz case, the Court–

Samuel A. Alito, Jr.:


Gertz came after the common law.

Gertz was a modification of the common law.

What would it be at common law?

Raymond A. Cardozo:

–At — at common law, it would be general damages, but–

Samuel A. Alito, Jr.:

General damages here are excluded by Congress, right?

Raymond A. 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–

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?

Raymond A. 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.


Antonin Scalia:

You — you would say that actual emotional damages are not — are not general damages?

Raymond A. 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”.

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.

Raymond A. Cardozo:

That — that is exactly our position.

Antonin Scalia:


Raymond A. 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.

Raymond A. Cardozo:

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”.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Feigin, you have five minutes remaining.

Eric J. 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–

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?

Eric J. 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–

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?

Eric J. 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.

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?

Eric J. Feigin:

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

Stephen G. Breyer:

No matter how well proved.

No matter how clearly proved.

Eric J. Feigin:

No matter how they’re proved, did you say?

Stephen G. Breyer:

No matter how clearly they are proved.

Eric J. Feigin:

That’s correct, Your Honor.

They’re general damages.

Stephen G. Breyer:

And — and to verify that, I look at what definition where?

Eric J. 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.

John G. Roberts, Jr.:

Thank you, counsel.

John G. Roberts, Jr.:


The case is submitted.