At recent oral arguments, the justices of the U.S. Supreme Court tried to determine whether emotional distress constitutes “actual damages” under the federal Privacy Act. Their decision on the issue will determine whether a pilot can sue government agencies for disclosing his HIV status.

The case of FAA v. Cooper involves Stanmore C. Cooper, a pilot who had been licensed by the Federal Aviation Administration since 1964. Cooper was diagnosed with HIV in 1985.

Although the FAA requires pilots to periodically submit certificates disclosing their medical conditions and prescription medications, Cooper failed to disclose his HIV status or antiretroviral medications to the agency in his certificates.

In 1995, Cooper sought long-term disability benefits from the Social Security Administration due to worsening HIV-related symptoms. The SSA ultimately disclosed the medical records Cooper submitted to the FAA, and the FAA revoked his license for failing to disclose his HIV-status.

He was also charged with submitting false reports to a federal agency and sentenced to probation.

Cooper sued the agencies for unauthorized disclosures under the Privacy Act, 5 U.S.C. 552a(g)(4)(A), seeking damages for emotional distress.

A U.S. District Court granted summary judgment for the agencies, finding that the pilot could not establish the act’s required “actual damages” because he alleged emotional distress damages only.

But the 9th Circuit reversed, holding that the act allows recovery for non-economic injuries such as humiliation, mental anguish and emotional distress.

The Supreme Court granted certiorari.

‘Distressed, nervous, anxious’

Eric J. Feigin, assistant to the solicitor general, argued that the federal government only intended to waive its sovereign immunity protection under the act for claims involving quantifiable damages.

“If Congress had intended to waive the sovereign immunity [to] allow uncapped emotional distress claims under the Privacy Act, it would have [stated so] clearly and unambiguously,” Feigin said.

Justice Ruth Bader Ginsburg noted that, under common law, invasion of privacy claims rarely involve monetary damages.

“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,” Ginsburg said.

“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,” Feigin replied.

“But why is that different from an ‘action injury?’” Justice Sonia Sotomayor asked. “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?”

Feigin said that while the term “actual damages” is admittedly “ambiguous,” emotional distress damages have traditionally been referred to as “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,’” he said.

Unclean hands?

Raymond A. Cardozo, a partner at Reed Smith in San Francisco, argued for the pilot that individuals who have private information disclosed naturally suffer emotional distress.

“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,” Cardozo said.

But Justice Samuel A. Alito Jr. wondered whether the plaintiff had clean hands, suggesting that “all of the emotional damages [stem] from his criminal conviction” for filing false reports to a federal agency.

“He cannot recover for the emotional distress that followed from the prosecution,” Cardozo acknowledged.” But [we’re] talking today not just about Mr. Cooper. We’re talking about every single person to whom this act applies, [including] the whistleblower who the government chooses to silence by embarrassing and humiliating them.”

Alito wondered how one measures such damages, and whether one can separate “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.”

“”That’s the kind of thing judges routinely have to sort through,” Cardozo replied.

“Courts don’t allow recovery for conjectural or speculative damages,” Justice Anthony M. Kennedy said.

“But you can, in this arena at common law, presume damages from the nature of the violation,” Cardozo said.

A decision from the court is expected later this term.