Faa v. Cooper. Bombarding the Privacy Act With the "canon of Sovereign Immunity"

• Jurisdiction: United States,Federal
• Publication year: 2013
• Citation: Vol. 64 No. 3

FAA v. Cooper. Bombarding the Privacy Act with the "Canon of Sovereign Immunity"

S. Jacob Carroll

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FAA v. Cooper: Bombarding the Privacy Act with the "Canon of Sovereign Immunity"

I. Introduction

Privacy is a word we hear frequently in today's technologically advanced society. From Google Maps documenting every street in the nation to smartphones sharing locations automatically, privacy concerns abound. In fact, a recent Consumer Reports study found that over seventy percent of respondents said they were very concerned about the sharing of their personal information.¹ Nevertheless, these worries seem to have fallen on deaf ears as displayed by the United States Supreme Court's recent decision, Federal Aviation Administration v. Cooper.² The Court in Cooper ruled that although sharing confidential records without a citizen's permission violated the Privacy Act of 1974 (Privacy Act),³ it did not result in pecuniary loss and therefore was not

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recoverable.⁴ This decision, combined with the Court's most recent interpretation of the Privacy Act's civil remedies provision in Doe v. Chao,⁵ leaves the Privacy Act powerless to stop government agencies from sharing personal and sensitive information without recourse or consequence.

II. Factual Background

Stanmore Cooper had been licensed with the Federal Aviation Administration (FAA) as a private pilot since 1964.⁶ In order to fly legally, Cooper, along with all other pilots, was required to have a pilot certificate and medical certificate issued by the FAA.⁷ Cooper complied with the requirement until 1985, when he was diagnosed with a human immunodeficiency virus (HIV) infection and started taking antiretroviral medications. Cooper realized that the FAA would not allow him to renew his medical license if he disclosed his HIV-positive status, so he chose not to reapply that year. In 1994, Cooper decided to reapply for his medical certificate without mentioning his HIV-positive status.⁸ One year later when his health deteriorated, Cooper applied for disability benefits⁹ under the Social Security Act (SSA).¹⁰ He supported his application for disability by disclosing his HIV-positive status. Cooper was approved for benefits and collected until 1996 when the antiretroviral medications eased his symptoms. Meanwhile, he continued to renew his medical certificate every two years for the next ten years, still omitting HIV-positive status.¹¹

In 2002, the Department of Transportation (DOT), the FAA's parent department, launched a criminal joint investigation entitled "Operation Safe Pilot" in which it cross-referenced a list of pilots in northern California with the SSA's list of individuals receiving benefits.¹² The purpose of this investigation was to identify pilots who may have omitted information, specifically those "claiming a debilitating condition

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with the SSA and claim[ing] good health to obtain a FAA medical certificate," just as Cooper had done.¹³ Based on the report, the FAA determined that it would not have issued a medical certificate to Cooper had the agency known of his condition. The DOT indicted him on three counts of making false statements to a government agency. Cooper pled guilty to one count of making and delivering a false official writing and was sentenced to two years of probation. He also paid a fine of $1,000.¹⁴

After receiving his sentence, Cooper filed a civil suit in the United States District Court for the Northern District of California, alleging that the FAA, DOT, and SSA violated his rights under § 552a(b) of the Privacy Act by sharing records with one another.¹⁵ He claimed that he suffered from severe emotional distress when the DOT revealed his HIV status.¹⁶ Cooper, notably, did not offer any evidence of pecuniary loss from the invasion of privacy.¹⁷

The district court granted summary judgment against the government, concluding that the agencies had violated the Privacy Act.¹⁸ On the other hand, the court held that Cooper could not recover damages because he suffered no economic harm.¹⁹ The court recognized the government had violated the Privacy Act; however, it was unsure whether or not the government's violation was intentional or willful.²⁰ The court also said that the language in the Act, particularly the term "actual damages," was vague and ambiguous.²¹ The district court cited a narrow interpretation of the sovereign immunity waiver to support its rationale.²²

The United States Court of Appeals for the Ninth Circuit applied the United States Supreme Court's underlying doctrine of sovereign immunity in Richlin Security Service Co. v. Chertoff²³ and reversed and

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remanded the decision.²⁴ The court of appeals determined that the term "actual damages" changes meaning "with the specific statute in which it is found."²⁵ The Ninth Circuit considered the "text, purpose, and structure of the Act, as well as how actual damages [have] been construed in other closely analogous federal statutes."²⁶ Subsequently, it found actual damages to include mental and emotional damages, as other alternatives did not seem "plausibl[e]."²⁷ The Supreme Court granted certiorari.²⁸

III. Legal Background

A. The Right to Privacy Before the Privacy Act

When Congress passed the Privacy Act of 1974, the right to privacy had been recognized in America for nearly a century. The recognition of the right to privacy by Justice Warren and Justice Brandeis in their Harvard Law Review article in 1890 was a reaction to the use of new technology (specifically the camera) in the media.²⁹ The article was written in response to a decision by the Court of Appeals of New York to deny a remedy when someone's picture was used without his consent.³⁰ Slowly, over the next forty years, state courts and legislatures around the country began to recognize the invasion of privacy as a tort.³¹ Finally, by 1934, the right to privacy was generally recognized in the First Restatement of Torts.³²

The United States Supreme Court has also addressed the right to privacy but within the protections of the Constitution. It first addressed the right to privacy when determining whether a state could prohibit the use of birth control.³³ In Griswold v. Connecticut,³⁴ Justice Douglas,

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authoring the majority opinion, held that although the right to privacy for married couples' use of contraception was not explicitly stated in the bill of rights, it was a protected zone within the penumbras of the First, Third, Fourth, Fifth, and Ninth Amendments.³⁵

The Court continued to expand the right to privacy in 1971 with its opinion in Eisenstadt v. Baird.³⁶ Eisenstadt dealt with a statute similar to the one in Griswold and prevented single individuals from purchasing birth control.³⁷ Strongly affirming the reasoning in Griswold, Justice Brennan stated that all individuals, married or single, had a right to be free from "unwarranted governmental intrusion," and limiting the purchase of birth control was a violation of privacy by the government.³⁸ Then in 1973 the Court decided the controversial case, Roev. Wade,³⁹ where it recognized that an anti-abortion statute intruded upon a woman's right to privacy.⁴⁰

The Court also addressed privacy rights under the Fourth Amendment in Katz v. United States.⁴¹ In Katz, the Supreme Court evaluated the constitutional implications of law enforcement's use of electronic equipment to eavesdrop on a citizen's conversations inside a public telephone booth ⁴² Justice Stewart, writing for the majority, ruled that such data collection violated privacy rights protected by the Fourth Amendment's unreasonable search and seizure clause.⁴³ His opinion

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explicitly overruled an earlier decision by the Court which held that tapping a phone line did not constitute a search or seizure under the Fourth Amendment.⁴⁴

B. The Privacy Act and Doe v. Chao: The Rise and Fall of the Civil Remedies Provision

The Supreme Court was not the only branch of government concerned with protecting the right to privacy. During the 1970s, both American citizens and Congress were worried about the growing ability of computers to collect information.⁴⁵ Watergate and the scandal that surrounded it only fueled this fear.⁴⁶ Many Americans worried that the federal government would use computers and other technology to collect private information.⁴⁷ This fear led several congressmen to speak out about privacy rights and how such rights should be protected.⁴⁸ In light of these concerns, Congress passed the Privacy Act of 1974 as a way to prevent the government from unwanted intrusions into citizens' personal lives.

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The purpose of the Privacy Act of 1974 is "to provide certain safeguards for an individual against an invasion of personal privacy by requiring federal agencies . . . to . . . be subject to civil suit for any damages which occur as a result of willful or intentional action which violates any individual's rights under this Act."⁴⁹ To prevent agencies from revealing information about individuals without their consent, the Privacy Act provides that an agency cannot disclose information without the individuals' consent except within limited exceptions.⁵⁰ To further strengthen the Act, Congress specifically waived sovereign immunity from civil damages after laying out four categories of misconduct.⁵¹

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The civil remedies provision—the specific provision contested in Cooper—allows a complainant to recover from the United States "actual damages sustained by the individual."⁵²

The debate about the meaning of actual damages, specifically whether they are limited to financial loss or incorporate broader losses, is not novel. Courts across the country have addressed the question since 1983, when the United States Court of Appeals for the Fifth Circuit interpreted the provision to include damages for mental suffering.⁵³ However, this decision was abrogated by the Court's most recent interpretation of the Privacy Act preceding C...