The Supreme Court is scheduled to hear oral arguments tomorrow, November 30, in a suit for damages under the Privacy Act stemming from a wrongful disclosure of confidential information. Federal Aviation Administration v. Cooper involves a plaintiff whose HIV information was wrongfully disclosed by federal agencies. The suit seeks to establish that mental or emotional injuries qualify as "actual damages" for purposes of the civil remedies provision of the Privacy Act, 5 U.S.C. § 552a(g)(4)(A). The Privacy Act regulations the collection, maintenance, use and disclosure of individuals' information collected by federal agencies.
A private aircraft pilot since 1964, the plaintiff, Stanmore Cooper, was diagnosed with HIV in 1985. Although required to disclose the illness and any medications being taken on his "airman medical certificate," a continuing certification requirement required by the FAA for any pilot to legally operate an aircraft, Cooper chose to let his certificate lapse because he would not be permitted to fly if he disclosed his illness. In 1994, he again submitted the application, choosing not disclose his HIV status. For ten years, he continued to renew the application, intentionally omitting his HIV status.
However, Cooper's information was exchanged between the Social Security Administration (SSA) and the FAA as a result of a collaboration between agencies that sought to uncover illicit efforts by pilots to obtain FAA licenses although medically "unfit." This exchange occurred without his authorization. Cooper had provided information regarding his HIV status to the SSA in his application for long-term disability benefits. Cooper was eventually indited on three counts of submitting false statements to the government and lost his pilot's license.
Cooper sued in 2007 alleging that the federal government had "willfully and intentionally" violated the Privacy Act and caused him “to suffer humiliation, embarrassment, mental anguish, fear of social ostracism, and other severe emotional distress.” The Southern District of California, where the plaintiff's case was originally brought, admitted that the federal government had violated the Privacy Act, but found that regardless, Cooper had not demonstrated the "actual damages" required by the Act. The Ninth Circuit on appeal reversed, finding mental or emotional distress was sufficient, "given the nature of the injuries that most frequently flow from privacy violations...."
The Supreme Court accepted the government's petition for certiorari in June of 2011. A key issue expected to be tackled by the Supreme Court, according to the prestigious ScotusBlog, is whether the Privacy Act was intended to broadly protect privacy rights against the government's more limited interpretation, an important step for understanding the nature of privacy injuries and privacy law generally.
If the Supreme Court sides with the government, this would not only limit damages to pecuniary ones, but potentially also deter whistleblowers as well as potentially have a negative impact on privacy law in general. A decision will not be made until spring of next year. For a more in-depth explanation of the issues involved and an overview of tomorrow's Oral Arguments, visit ScotusBlog, or generally, CNN.com.