Washington Court Hears Emotional Damage Claim in Privacy Case

Stanmore Cooper says he should be able to sue the government for emotional distress in a medical privacy case when agencies improperly shared his records. Government lawyers want his lawsuit thrown out.

The Supreme Court heard Wednesday from federal lawyers who said the government cannot be sued for such damages under the Privacy Act.

The San Francisco man, who is HIV-positive, disclosed that information to Social Security officials to receive medical benefits, but withheld it from the Federal Aviation Administration. During a criminal investigation involving pilots’ medical fitness to fly, the Social Security Administration gave the FAA the medical records of some 45,000 Northern California residents who applied for licenses.

The FAA was investigating whether pilots were using one set of doctors to certify their fitness to fly while applying to Social Security for disability payments using other doctors to support claims of illness and injury.

Cooper was identified in “Operation Safe Pilot” as an FAA licensee who also was receiving disability benefits. He admitted withholding his HIV condition from the FAA on applications filed between 1998 and 2004. Cooper pleaded guilty to a misdemeanor charge of making a false statement. He paid a $1,000 fine.

The FAA has since changed its policy, but HIV-positive applicants once were denied a pilot’s license.

Despite the conviction, he sued the federal government in 2007 for violating the Privacy Act after discovering that the Social Security Administration turned over his medical records to the FAA without his consent.

U.S. District Court Judge Vaughn Walker ruled he could only recover actual damages. Because Cooper only alleged emotional distress and no out-of-pocket expenses over disclosures of a disease he kept private, the judge tossed out the suit. But the 9th U.S. Circuit Court of Appeals overturned that, saying emotional distress caused by the disclosure of Cooper’s illness counts as actual damages. Other federal appeals courts have ruled differently.

Justice Department lawyer Eric J. Feigin said Congress never meant to allow emotional distress damages. “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,” he said.

But that reading of the law would make the Privacy Act protections “virtually irrelevant,” said Cooper’s lawyer, Raymond A. Cardozo. That “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,” he said.

The justices will rule sometime next year.

Justice Elena Kagan did not participate in this case because she worked on it while serving in the solicitor general’s office.