FAA v. Cooper
566 U.S. ___ (2012)

Annotate this Case



No. 10–1024



on writ of certiorari to the united states court of appeals for the ninth circuit

[March 28, 2012]

     Justice Sotomayor, with whom Justice Ginsburg and Justice Breyer join, dissenting.

     Congress enacted the Privacy Act of 1974 for the stated purpose of safeguarding individual privacy against Government invasion. To that end, the Act provides a civil remedy entitling individuals adversely affected by certain agency misconduct to recover “actual damages” sustained as a result of the unlawful action.

     Today the Court holds that “actual damages” is limited to pecuniary loss. Consequently, individuals can no longer recover what our precedents and common sense understand to be the primary, and often only, damages sustained as a result of an invasion of privacy, namely mental or emotional distress. That result is at odds with the text, structure, and drafting history of the Act. And it cripples the Act’s core purpose of redressing and deterring violations of privacy interests. I respectfully dissent.


     The majority concludes that “actual damages” in the civil-remedies provision of the Privacy Act allows recovery for pecuniary loss alone. But it concedes that its interpretation is not compelled by the plain text of the statute or otherwise required by any other traditional tool of statu- tory interpretation. And it candidly acknowledges that a contrary reading is not “inconceivable.” Ante, at 14. Yet be- cause it considers its reading of “actual damages” to be “plausible,” the majority contends that the canon of sovereign immunity requires adoption of an interpretation most favorable to the Government. Ibid.

     The canon simply cannot bear the weight the majority ascribes it. “The sovereign immunity canon is just that—a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutory construction.” Richlin Security Service Co. v. Chertoff, 553 U. S. 571, 589 (2008) (opinion of Alito, J.). Here, traditional tools of statutory construction—the statute’s text, structure, drafting history, and purpose—provide a clear answer: The term “actual damages” permits recovery for all injuries established by competent evidence in the record, whether pecuniary or nonpecuniary, and so encompasses damages for mental and emotional distress. There is no need to seek refuge in a canon of construction, see id., at 589–590 (declining to rely on canon as there is “no ambiguity left for us to construe” after application of “traditional tools of statutory interpretation and considerations of stare decisis”), much less one that has been used so haphazardly in the Court’s history, see United States v. Nordic Village, Inc., 503 U. S. 30, 42 (1992) (Stevens, J., dissenting) (canon is “nothing but a judge-made rule that is sometimes favored and sometimes disfavored”) (collecting cases).

     It bears emphasis that we have said repeatedly that, while “we should not take it upon ourselves to extend the waiver [of sovereign immunity] beyond that which Congress intended,” “[n]either . . . should we assume the authority to narrow the waiver that Congress intended.” United States v. Kubrick, 444 U. S. 111 –118 (1979) (emphasis added). See also, e.g., Block v. Neal, 460 U. S. 289, 298 (1983) (“The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced” (internal quotation marks omitted)). In the Privacy Act, Congress expressly authorized recovery of “actual damages” for certain intentional or willful agency misconduct. The Court should not “as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.” Indian Towing Co. v. United States, 350 U. S. 61, 69 (1955) .



     “In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished.” Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 475 (1992) . The language of the civil-remedies provision of the Privacy Act is clear.

     At the time Congress drafted the Act, Black’s Law Dictionary defined “actual damages” as “[r]eal, substantial and just damages, or the amount awarded to a complainant in compensation for his actual and real loss or in- jury” and as “[s]ynonymous with ‘compensatory damages.’ ” Black’s Law Dictionary 467 (rev. 4th ed. 1968) (hereinafter Black’s). The majority claims this is a “general” and “notably circular” definition, ante, at 7, but it is unclear why. The definition is plain enough: “Actual damages” compensate for actual injury, and thus the term is synonymous with compensatory damages. See Black’s 467 (defining “compensatory damages” as damages that “will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury”). [ 1 ] There is nothing circular about that definition. [ 2 ] It is the definition this Court adopted more than a century ago when we recognized that “[c]ompensatory damages and actual damages mean the same thing; that is, that the damages shall be the result of the injury alleged and proved, and that the amount awarded shall be precisely commensurate with the injury suffered.” Birdsall v. Coolidge, 93 U. S. 64 (1876) . It is the definition embraced in current legal dictionaries. See Black’s 445 (9th ed. 2009) (defining “actual damages” as “[a]n amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual losses.—Also termed compensatory damages; tangible damages; real damages” (italics omitted)). And it is the definition that accords with the plain and ordinary meaning of the term. See Webster’s Third New International Dictionary 22, 571 (2002) (defining “actual” as “existing in fact or reality” and “damages” as “compensation or satisfaction imposed by law for a wrong or injury caused by a violation of a legal right”). Thus, both as a term of art and in its plain meaning, “actual damages” connotes compensation for proven injuries or losses. Nothing in the use of that phrase indicates proven injuries need be pecuniary in nature.

     The majority discards all this on the asserted ground that “the precise meaning of the term ‘changes with the specific statute in which it is found.’ ” Ante, at 7 (quoting 622 F. 3d 1016, 1029 (CA9 2010)). Context, of course, is relevant to statutory interpretation; it may provide clues that Congress did not employ a word or phrase in its ordinary meaning. That well-established interpretive rule cannot, however, render irrelevant—as the majority would have it—the ordinary meaning of “actual damages.”

     Moreover, the authority the majority cites for its claim that “actual damages” has no fixed meaning undermines—rather than supports—its holding. Each cited authority involves either a statute in which Congress expressly directed that compensation be measured in strictly economic terms, or else a statute (e.g., the Copyright Act of 1909) in which economic loss is the natural and probable consequence of a violation of the defined legal interest. [ 3 ] Neither factor is present here. Notably absent from the Privacy Act is any provision so much as hinting that “actual damages” should be limited to economic loss. And while “ ‘ “hurt feelings” over the nature of the [copyright] infringement’ ” may “have no place in the actual damages calculus” under the Copyright Act of 1909, ante, at 8 (quoting in parenthetical Mackie v. Rieser, 296 F. 3d 909, 917 (CA9 2002)), the majority provides no basis for concluding that “hurt feelings” are equally invalid in an Act concerned with safeguarding individual privacy. Thus, while context is no doubt relevant, the majority’s cited authority does little to help its cause in the stated context of this statute.


     Indeed, the relevant statutory context—the substantive provisions whose breach may trigger suit under the civil-remedies provision—only reinforces the ordinary meaning of “actual damages.”

     Congress established substantive duties in the Act that are expressly designed to prevent agency conduct resulting in intangible harms to the individual. The Act requires agencies to “establish appropriate administrative, technical, and physical safeguards” to ensure against security breaches that could result in “substantial harm, embarrassment, inconvenience, or unfairness to any individual.” 5 U. S. C. §552a(e)(10). It also requires agencies to “maintain all records” used in making a determination about an individual in a manner that is “reasonably necessary to assure fairness to the individual in the determination.” §552a(e)(5). Thus an agency violates the terms of the Act if it fails, e.g., to maintain safeguards protecting against “embarrassment”; there is no additional requirement that the pocketbook be implicated. An agency’s intentional or willful violation of those duties triggers liability for “actual damages” under §552a(g)(4) in the event of an adverse impact. §§552a(g)(1)(C)–(D), (g)(4).

     Adopting a reading of “actual damages” that permits recovery for pecuniary loss alone creates a disconnect between the Act’s substantive and remedial provisions. It allows a swath of Government violations to go unremedied: A federal agency could intentionally or willfully forgo establishing safeguards to protect against embarrassment and no successful private action could be taken against it for the harm Congress identified. Only an interpretation of “actual damages” that permits recovery for nonpecuniary harms harmonizes the Act’s substantive and remedial provisions. Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997) (statutory interpretation must consider “the broader context of the statute as a whole”). [ 4 ]

     The majority draws a different conclusion from the substantive provisions of the Privacy Act. It (correctly) in- fers from them that the Act “serves interests similar to those protected by defamation and privacy torts.” Ante, at 9. It then points to our observation in Doe v. Chao, 540 U. S. 614, 625 (2004) , that the Act’s civil-remedies provision “parallels” the remedial scheme for the common-law torts of defamation per quod, which permitted recovery of “general damages” (i.e., presumed damages) only if a plaintiff first establishes “special damages” (i.e., monetary loss). [ 5 ] Ante, at 10. That “parallel,” the majority concludes, “suggests the possibility that Congress intended the term ‘actual damages’ in the Act to mean special damages.” Ante, at 11.

     The majority reads too much into Doe. At issue in that case was the question whether the Act’s civil-suit provision authorized recovery of a guaranteed minimum award of $1,000 absent proof of some “actual damages.” The Court answered in the negative, and in the course of doing so replied to petitioner’s argument that there was “something peculiar in offering some guaranteed damages . . . only to those plaintiffs who can demonstrate actual damages.” 540 U. S., at 625. Although the Court cited the Act’s parallels to defamation per quod actions in noting that nothing was “peculiar” about the Act’s remedial scheme, Doe did not take the further step of deciding that “actual damages” means economic loss alone. Indeed, it expressly reserved that question. Id., at 627, n. 12.

     The majority, moreover, is wrong to conclude that the Act’s parallels with defamation per quod actions suggest Congress intended “actual damages” to mean “special damages.” Quite the opposite. The fact that Congress “would probably have known about” defamation per quod actions, id., at 625, makes it all the more significant that Congress did not write “special damages” in the civil-remedies provision. This Court is typically not in the business of substituting words we think Congress in- tended to use for words Congress in fact used. Yet that is precisely what the majority does when it rewrites “actual damages” to mean “special damages.” [ 6 ] In sum, the statutory context, and in particular the Act’s substantive provisions, confirms the ordinary meaning of “actual damages.” Although the Act shares parallels with common-law defamation torts, such analogies do not warrant a reading of the phrase that is at odds with the statute’s plain text. [ 7 ]


     An uncodified provision of the Act, tied to the Act’s drafting history, also reinforces the ordinary meaning of “actual damages.” As the majority notes, prior to reconciliation, the Senate and House bills contained civil-remedies provisions that were different in a critical respect: The Senate bill allowed for the recovery of “actual and general damages,” whereas the House bill allowed for the recovery of “actual damages” alone. [ 8 ] In the reconciliation process, the provision for “general damages” was dropped and an uncodified section of the Act was amended to require the newly established Privacy Protection Study Commission to consider, among its other jobs, “whether the Federal Government should be liable for general damages incurred by an individual as the result of a willful or intentional violation of the provisions of sections 552a(g)(1)(C) or (D).” §5(c)(2)(B)(iii), 88Stat. 1907; see also Doe, 540 U. S., at 622.

     As the Court explained in Doe, “[t]he deletion of ‘general damages’ from the bill is fairly seen . . . as a deliberate elimination of any possibility of imputing harm and awarding presumed damages.” Id., at 623; see also id., at 622, n. 5 (“Congress explicitly rejected the proposal to make presumed damages available for Privacy Act violations”). The elimination of presumed damages from the bill can only reasonably imply that what Congress left behind—“actual damages”—comprised damages that are not presumed, i.e., damages proven by competent evidence in the record. See Gertz v. Robert Welch, Inc., 418 U. S. 323 –350 (1974) (distinguishing in defamation context between presumed damages and damages for actual injuries sustained by competent evidence in the record, which include “impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering”); Carey v. Piphus, 435 U. S. 247 –264 (1978) (distinguishing between presumed damages and proven damages for mental and emotional distress).

     Rather than view the deletion of general damages (presumed damages) as leaving the converse (proven damages), the majority supposes that the deletion leaves only a subset of proven damages—those of an economic nature, i.e., “special damages.” Once again, however, the majority’s insistence that “Congress intended ‘actual damages’ in the Privacy Act to mean special damages for proven pecuniary loss,” ante, at 13, finds no basis in the statutory text, see supra, at 8. And its response to the conclusion that Congress retained recovery for proven damages when it eliminated presumed damages is singularly unsatisfying. The majority declares such a conclusion “flawed” because “general damages” “includes compensation for proven injuries as well,” so that “what distinguishes [general] damages, whether proved or not, from the only other category of compensatory damages available in the relevant common-law suits is the type of harm” the term encompasses—which the majority takes to be emotional harm alone. Ante, at 15–16. That assertion is defective on two scores. First, a plaintiff’s ability to present proof of injury in a defamation per se action (and to recover for such proven injury) does not alter the definition of “general damages,” which we already explained in Doe means “presumed damages.” 540 U. S., at 621; see also id., at 623; n. 5, supra. Second, “general damages” is not limited to a “type” of harm. The majority’s contrary assertion that the term permits recovery only for emotional “types” of harm overlooks the fact that “general damages are partly based on the belief that the plaintiff will suffer unprovable pecuniary losses.” Dobbs §7.2, at 514 (emphasis added). It thus was established at common law that in a defamation per se action, “the plaintiff is usually free to prove whatever actual pecuniary loss he can,” and “the jury may be permitted to view the actual pecuniary loss proven as the tip of the iceberg, assume that there is still more un-proven, and award damage accordingly.” Ibid.

     At its core, the majority opinion relies on the following syllogism: The common law employed two terms of art in defamation actions. Because Congress excluded recovery for “general damages,” it must have meant to retain recovery only for “special damages.” That syllogism, of course, ignores that there is another category of damages. It is the very category Congress used in the text of the Privacy Act: “Actual damages.” However much Congress may have drawn “parallels,” ante, at 10, between the Act and the common-law tort of defamation, the fact remains that Congress expressly choose not to use the words “special damages.” [ 9 ]


     I turn finally to the statute’s purpose, for “[a]s in all cases of statutory interpretation, our task is to interpret the words of th[e] statut[e] in light of the purposes Congress sought to serve.” Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 608 (1979) ; see also Dolan v. Postal Service, 546 U. S. 481, 486 (2006) (“Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis”). The purposes of the Privacy Act could not be more explicit, and they are consistent with interpreting “actual damages” according to its ordinary meaning.

     “The historical context of the Act is important to an understanding of its remedial purposes. In 1974, Congress was concerned with curbing the illegal surveillance and investigation of individuals by federal agencies that had been exposed during the Watergate scandal.” Dept. of Justice, Office of Privacy and Civil Liberties, Overview of the Privacy Act 4 (2010). In particular, Congress recognized that “the increasing use of computers and sophisticated information technology . . . has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information.” §2(a), 88Stat. 1896. Identifying the right to privacy as “a personal and fundamental right,” Congress found it “necessary and proper” to enact the Privacy Act “in order to protect the privacy of individuals identified in information systems maintained by Federal agencies.” Ibid.

     Congress explained that the “purpose of this Act is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to,” inter alia, “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.” §2(b)(6), ibid. (emphasis added). That statement is an explicit reference to suits brought under §552a(g)(4); no other provision speaks to a civil suit based on “willful or intentional” agency misconduct. It signals unmistakably congressional recognition that the civil-remedies provision is integral to realizing the Act’s purposes.

     Reading “actual damages” to permit recovery for any injury established by competent evidence in the record—pecuniary or not—best effectuates the statute’s basic purpose. Although some privacy invasions no doubt result in economic loss, we have recognized time and again that the primary form of injuries is nonpecuniary, and includes mental distress and personal humiliation. See Time, Inc. v. Hill, 385 U. S. 374, 385, n. 9 (1967) (“In the ‘right of privacy’ cases the primary damage is the mental distress”); see also Gertz, 418 U. S., at 350 (“[A]ctual injury” in defamatory falsehood cases “is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering”). Accord, 2 Dobbs §7.1.(1), at 259 (2d ed. 1993) (privacy is a dignitary interest, and “in a great many of the cases” in which the interest is invaded “the only harm is the affront to the plaintiff’s dignity as a human being, the damage to his self-image, and the resulting mental distress”). That accords with common sense.

     In interpreting the civil-remedies provision, we must not forget Congress enacted the Privacy Act to protect pri- vacy. The majority’s reading of “actual damages” renders the remedial provision impotent in the face of concededly unlawful agency action whenever the injury is solely nonpecuniary. That result is patently at odds with Congress’ stated purpose. The majority, however, does not grapple with the ramifications of its opinion. It acknowledges the suggestion that its holding leads to absurd results as it allows individuals suffering relatively minor pecuniary losses to recover $1,000 while others suffering severe mental anguish to recover nothing. But it concludes that “there is nothing absurd about a scheme that limits the Government’s Privacy Act liability to harm that can be substantiated by proof of tangible economic loss.” Ante, at 18. Perhaps; it is certainly within Congress’ prerogative to enact the statute the majority envisions, namely one that seeks to safeguard against invasions of privacy without remedying the primary harm that results from invasions of privacy. The problem for the majority is that one looks in vain for any indication in the text of the statute before us that Congress intended such a result. Nowhere in the Privacy Act does Congress so much as hint that it views a $5 hit to the pocketbook as more worthy of remedy than debilitating mental distress, and the majority’s contrary assumption discounts the gravity of emotional harm caused by an invasion of the personal integrity that privacy protects.

*  *  *

     After today, no matter how debilitating and substantial the resulting mental anguish, an individual harmed by a federal agency’s intentional or willful violation of the Privacy Act will be left without a remedy unless he or she is able to prove pecuniary harm. That is not the result Congress intended when it enacted an Act with the express purpose of safeguarding individual privacy against Government invasion. And it is not a result remotely suggested by anything in the text, structure, or history of the Act. For those reasons, I respectfully dissent.


1  Black’s Law Dictionary also defined “actual damages” as synonymous with “general damages.” Black’s 467. While “general damages” has a specialized meaning of presumed damages in libel and slander cases, see n. 4, infra, it more generally can mean damages that “did in fact result from the wrong, directly and proximately.” Black’s 468.
2  The majority declares the definition circular because “defining ‘actual’ damages by reference to ‘actual’ injury is hardly helpful when our task is to determine what Congress meant by ‘actual.’ ” Ante, at 9, n. 4. “Actual injury,” however, is far from an unhelpful reference. This Court already has recognized in the defamation context that “actual injury is not limited to out-of-pocket loss.” Gertz v. Robert Welch, Inc., . That accords with the definitions of the terms. See Black’s 53, 924 (defining “actual” as “[r]eal; substantial; existing presently in act, having a valid objective existence as opposed to that which is merely theoretical or possible,” and “injury” as “[a]ny wrong or damage done to another”).
3  See ; ; (2006 ed., Supp. IV); (1970 ed.); (2006 ed., Supp. IV).
4  It bears noting that the Privacy Act does not authorize injunctive relief when a suit is maintained under 5 U. S. C. §§552a(g)(1)(C) and (D). Rather, injunctive relief is available under the Act only for a limited category of suits: suits to amend a record and suits for access to a record. See §§552a(g)(2), (g)(3). Thus an individual who, like petitioner, brings suit under subparagraph (g)(1)(C) or (D) for an inten-tional or willful violation of the Act will be without a remedy underthe majority’s reading of “actual damages.”
5  As the majority notes, “general damages” at common law refers to damages “presumed” to accrue from the violation of the legally pro-tected right. No proof of actual injury was required. See D. Dobbs, Law of Remedies §7.2, p. 513 (1973) (hereinafter Dobbs); Doe, 540 U. S., at 621. “Special damages,” in contrast, “meant monetary loss.” Dobbs §7.2, at 512; Doe, 540 U. S., at 625. Common-law defamation actions falling within the rubric of defamation per se allowed successful plaintiffs to recover “general damages.” See Dobbs §7.2, at 513; Doe, 540 U. S., at 621. This stood in contrast to actions sounding in defamation per quod, which permitted recovery only if the plaintiff established “special damages.” See Dobbs, §7.2 at 512; Doe, 540 U. S., at 625. Even in defamation per quod cases, a plaintiff could recover nonpecuniary injuries upon establishing some pecuniary loss. See Dobbs §7.2, at 521; Doe, 540 U. S., at 625. See also ante, at 10.
6  The majority cites a collection of lower court opinions that have used “actual damages” in place of “special damages” to note that Congress would not have been alone in using the former term to refer to the latter. Ante, at 11–12. But that a handful of lower courts on occasion have been imprecise in their terminology provides no basis to assume the Legislature has been equally careless in the text of a statute.
7  There is yet another flaw in the majority’s reasoning. At common law a plaintiff who successfully established “special damages” in an action for defamation per quod could proceed to recover damages for emotional and mental distress. See ante, at 10; n. 5, supra. If “Congress intended the term ‘actual damages’ in the Act to mean special damages,” ante, at 11, then an individual who successfully establishes some pecuniary loss from a violation of the Act—presumably as trivial as the cost of a bottle of Tylenol—should be permitted to recover for emotional and mental distress. The majority, of course, does not accept that result, and its piecemeal embrace of the common law undermines its assertion that Congress intended “special damages” in place of “actual damages.”
8  See S. 3418, 93d Cong., 2d Sess., §303(c)(1) (1974); H. R. 16373, 93d Cong., 2d Sess., §3 (1974).
9  The majority cites the conclusions of the Privacy Protection Study Commission in support of its interpretation of “actual damages.” The majority rightfully does not claim this piece of postenactment, extratextual material is due any deference; nor do I find its unelaborated conclusions persuasive.

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