Cooper v. Federal Aviation Administration

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STANMORE CAWTHON COOPER,  No. 08-17074

Plaintiff-Appellant,

D.C. No.

v.

3:07-cv-01383-

FEDERAL AVIATION ADMINISTRATION;  VRW

SOCIAL SECURITY ADMINISTRATION;

ORDER AND

UNITED STATES DEPARTMENT OF

AMENDED

TRANSPORTATION,

OPINION

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Vaughn R. Walker, Chief District Judge, Presiding

Argued and Submitted

January 13, 2010—San Francisco, California

Filed February 22, 2010

Amended September 16, 2010

Before: Myron H. Bright,* Michael Daly Hawkins, and

Milan D. Smith, Jr., Circuit Judges.

Order;

Concurrence to Order by Judge M. Smith;

Dissent to Order by Judge O’Scannlain;

Opinion by Judge Milan D. Smith, Jr.

*The Honorable Myron H. Bright, Senior United States Circuit Judge

for the Eighth Circuit, sitting by designation.

14239

COOPER v. FAA 14243

COUNSEL

Raymond A. Cardozo, Tiffany Renee Thomas, James M.

Wood, and David J. Bird, Reed Smith LLP, for plaintiff-

appellant Stanmore Cawthon Cooper.

Michael F. Hertz, Joseph P. Russoniello, Mark B. Stern, and

Samantha Chaifetz, for defendants-appellees, Federal Avia-

tion Administration, Social Security Administration, and

United States Department of Transportation.

ORDER

The opinion filed February 22, 2010, and published at 596

F.3d 538, is hereby amended by deleting footnote 2 (and

renumbering succeeding footnotes) on pages 2825-26 of the

slip opinion (also found at 596 F.3d 538, 543-44).

With this amendment, the panel votes to deny the petition

for panel rehearing. Judge M. Smith votes to deny the petition

for rehearing en banc, and Judges Bright and Hawkins so rec-

ommend.

14244 COOPER v. FAA

The full court was advised of the petition for rehearing en

banc. After a request for a vote by an active judge, a vote was

taken, and a majority of the active judges of the court failed

to vote for a rehearing en banc. Fed. R. App. P. 35(f).

The petitions for panel rehearing and rehearing en banc are

DENIED. Further petitions for rehearing and rehearing en

banc shall not be entertained.

M. SMITH, Circuit Judge, concurring in the order denying

rehearing en banc:

I write to respond briefly to the dissent filed with this order.

The Privacy Act (Act) unequivocally waives sovereign

immunity. Under the Act, if a “court determines that [an]

agency acted in a manner which was intentional or willful, the

United States shall be liable to the individual in an amount

equal to the sum of . . . actual damages sustained by the indi-

vidual as a result of the refusal or failure” to comply with the

Privacy Act. 5 U.S.C. § 552a(g)(4) (emphases added). In light

of that unconditional waiver, we appropriately followed Jus-

tice Cardozo’s admonition: “ ‘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 con-

struction, where consent has been announced.’ ” United States

v. Aetna Surety Co., 338 U.S. 366, 383 (1949) (quoting

Anderson v. Hayes Constr. Co., 153 N.E. 28, 29-30 (N.Y.

1926)).

Our dissenting colleague mistakenly asserts that our opin-

ion waives the sovereign immunity of the United States. In

fact, Congress did so. Thus, the issue in this case is not the

existence of a waiver, but rather the scope of that express

waiver, as contemplated in the Act. To that end, we correctly

COOPER v. FAA 14245

construed the waiver to allow the recovery of nonpecuniary

damages, based upon clear congressional intent.

I

The sovereign immunity canon requires that governmental

waivers of sovereign immunity be “unequivocally expressed.”

United States v. Nordic Village, Inc., 503 U.S. 30, 33-34

(1992) (internal quotation marks omitted). The canon has

clearly been satisfied in this case. The Act categorically

waives the federal government’s immunity from suit and

indisputably authorizes the recovery of “actual damages.” The

government’s surrender to liability for damages is in the plain

text of the Act itself, leaving us only to construe the scope of

that surrender.

To construe the scope of this waiver, the panel followed

controlling precedent directing the panel to look to the poli-

cies or objectives underlying the Act. See, e.g., Irwin v. Dep’t

of Veterans Affairs, 498 U.S. 89, 95 (1990) (construing the

scope of a wavier of sovereign immunity that reflects “a real-

istic assessment of legislative intent”); Franchise Tax Bd. of

Cal. v. Postal Serv., 467 U.S. 512, 514-16, 521 (1984) (reject-

ing the government’s narrow construction of the scope of the

waiver of sovereign immunity under 39 U.S.C. § 401 and

holding that “the scope of such a waiver can only be ascer-

tained by reference to underlying congressional policy”);

Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 921-22 (9th Cir.

1995) (holding that a narrow construction of sovereign immu-

nity under the Navajo-Hopi Settlement Act was improper in

light of “the overriding congressional purpose behind the Set-

tlement Act”); United States v. Oregon, 44 F.3d 758, 766 (9th

Cir. 1994) (“The Supreme Court has repeatedly looked to

indicia of Congressional intent in order to construe the scope

of the unequivocally expressed waiver of immunity in the

McCarran Amendment.”); In re Town & Country Home Nurs-

ing Servs., Inc., 963 F.2d 1146, 1151 (9th Cir. 1991) (“It is

well established that when the federal government waives its

14246 COOPER v. FAA

immunity, the scope of the waiver is construed to achieve its

remedial purpose.”).

II

The dissent wrongly concludes that the court’s observation

that the term “actual damages,” standing alone, is ambiguous

necessarily means that the Act does not waive sovereign

immunity for nonpecuniary damages. Our jurisprudence has

clarified that “[r]ather than focusing just on the word or

phrase at issue, this court looks to the entire statute to deter-

mine Congressional intent.” Sanchez v. Pac. Powder Co., 147

F.3d 1097, 1099 (9th Cir. 1998). “Thus, the structure and pur-

pose of a statute may also provide guidance in determining

the plain meaning of its provisions.” The Wilderness Soc’y v.

U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.

2003) (en banc).

Accordingly, we looked to several sources manifesting the

Act’s overall objective. We noted the Act’s preambular state-

ment of purpose, wherein Congress stated that “[t]he purpose

of this act 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.” Pub. L. No.

93-579, § 2(b)(6) (emphasis added). We highlighted the Act’s

requirement that agencies maintain records “to protect against

any anticipated threats or hazards . . . which could result in

. . . embarrassment.” 5 U.S.C. § 552a(e)(10). We also

observed the Act provides a remedy for an agency’s violation

that inhibits a fair determination relating to one’s “character.”

§ 552a(g)(1)(C). Such sources provided helpful guidance in

discerning Congress’s remedial aim in enacting the Act.

Understanding that “statutory language cannot be construed

in a vacuum,” Davis v. Michigan Dep’t of Treasury, 489 U.S.

803, 809 (1989), the panel construed the term “actual dam-

COOPER v. FAA 14247

ages” in its proper context, see id., to conclude that it

unequivocally encompasses nonpecuniary damages. When a

statute is ambiguous, the doctrine of sovereign immunity is

useful as “a tool for interpreting the law.” Richlin Sec. Serv.

Co. v. Chertoff, 128 S. Ct. 2007, 2019 (2008). When a statute

is not ambiguous, however, “[t]here is no need for us to resort

to the sovereign immunity canon.” Id. Because “there [was]

no ambiguity left for us to construe,” id., the application of

the sovereign immunity canon was unnecessary in this case.

Further, “[t]he 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.” Id.; see also Clark v. Martinez, 543

U.S. 371, 382 (2005) (“The canon is thus a means of giving

effect to congressional intent, not of subverting it.”); Chicka-

saw Nation v. United States, 534 U.S. 84, 94 (2001) (noting

that “canons are not mandatory rules” but guides “designed to

help judges determine the Legislature’s intent,” and that

“other circumstances evidencing congressional intent can

overcome their force”). Based upon the clear congressional

intent as to the scope of “actual damages” under the Privacy

Act, this court properly concluded that the government could

not “carry the day by invoking general maxims of judicial

policy.” Town & Country, 963 F.2d at 1152.

III

The dissent misconstrues the relationship between the

requirement of showing an “adverse effect” and that of “ac-

tual damages.” In Doe v. Chao, the Court held that “an indi-

vidual subjected to an adverse effect has injury enough to

open the courthouse door.” 540 U.S. 614, 524-25 (2004). A

majority of the circuits in this country, including our own, has

held that mental distress or emotional harm is sufficient to

constitute an adverse effect. See, e.g., Englerius v. Veterans

Admin., 837 F.2d 895, 897 (9th Cir. 1988).

14248 COOPER v. FAA

Under the dissent’s view, a plaintiff is entitled to establish

standing for an injury under the Act that results in a nonpecu-

niary harm, but is not entitled to seek actual damages for such

a nonpecuniary injury. Such a construction of the Act would

clearly frustrate the intent of Congress. In contrast, our opin-

ion is true to the overall objective of the Act, allowing a plain-

tiff who demonstrates a nonpecuniary adverse effect to have

the opportunity to recover nonpecuniary damages, to the

extent the plaintiff can proffer the requisite degree of compe-

tent evidence that there is a real and tangible nonpecuniary

injury. Our opinion is also consistent with the familiar rule of

statutory construction that remedial legislation should be con-

strued broadly to effectuate its purposes. See, e.g., Clark v.

Capital Credit & Collection Servs, Inc., 460 F.3d 1162, 1176

(9th Cir. 2006) (concluding the remedial nature of the Fair

Debt Collection Practices Act required a liberal construction);

Stewart Title Guar. Co. v. Park, 250 F.3d 124, 1252 (9th Cir.

2001) (“The purpose of the statute is remedial, and, therefore,

should be given a liberal construction[.]”); see also Wilson v.

Libby, 535 F.3d 697, 703 (D.C. Cir. 2008) (characterizing the

Privacy Act as “a comprehensive remedial scheme”).

IV

Controlling precedent in cases such as Franchise Tax

Board, Hopi Tribe, and Town & Country, requires us to con-

strue the scope of the Act’s unequivocal waiver of sovereign

immunity in light of the underlying congressional policy, and

with the purpose of achieving the remedial goal of that

waiver. The multiple sources the panel consulted reveal a

clear and focused intent on the part of Congress to grant com-

plete relief to those injured by willful violations of the Act.

Given that intent, Congress’s provision that the federal gov-

ernment be liable for “actual damages” constitutes an

unequivocal expression of the federal government’s waiver of

its own sovereign immunity for nonpecuniary injuries. The

panel concluded there was no other plausible explanation for

this unqualified language.

COOPER v. FAA 14249

In conclusion, our dissenting colleague reminds us that

“[o]nly Congress has the keys to unlock our country’s Trea-

sury.” Dissent at 14253-54. But Congress used its keys and

opened that door for plaintiffs injured by willful violations of

the Act when it expressly gave plaintiffs the right to sue the

government for actual damages. A court must not act “as a

self-constituted guardian of the Treasury [to] import immu-

nity back into a statute designed to limit it.” Indian Towing

Co. v. United States, 350 U.S. 61, 69 (1955).1

V

The panel’s decision is compelled by the precedents of the

Supreme Court and this court for construing the scope of a

waiver of sovereign immunity, and the court properly denied

rehearing this case en banc.

O’SCANNLAIN, Circuit Judge, dissenting from the order

denying rehearing en banc, joined by KOZINSKI, Chief

Judge, and GOULD, TALLMAN, BYBEE, CALLAHAN,

BEA, and N.R. SMITH, Circuit Judges:

The Supreme Court has consistently held that the sovereign

immunity of the United States may be waived only by an

unequivocal expression in statutory text. Lane v. Pena, 518

U.S. 187, 192 (1996). Today, our court neglects this principle

by leaving in place a decision that the term “actual damages”

in the Privacy Act, 5 U.S.C. § 552a(g)(4)(A), is sufficient to

deem sovereign immunity waived for nonpecuniary damages,

1

Our opinion will not “saddle the Government with disproportionate lia-

bility,” Doe, 540 U.S. at 637 (Ginsburg, J., dissenting), as the dissent sug-

gests. Our opinion does not relieve the plaintiff of his burden of producing

evidence sufficient for a jury to find that the emotional harm he claims to

have suffered was tangible and severe enough to give rise to actual dam-

ages. It simply gives the plaintiff his day in court so he can present compe-

tent evidence of his injury.

14250 COOPER v. FAA

even though the opinion itself admits that the term is not

defined in the statute, has no plain meaning, has no fixed legal

meaning, and indeed, is a “chameleon.” Cooper v. FAA, 596

F.3d 538, 544-45 (9th Cir. 2010). Even more troubling, the

opinion relies on abstract legislative intent and an interpreta-

tion of the Privacy Act that the Supreme Court recently

rejected in Doe v. Chao, 540 U.S. 614 (2004). The effect of

today’s order is to open wide the United States Treasury to a

whole new class of claims without warrant. In so doing, we

exacerbate a circuit split that had been healing under the

strong medicine of recent sovereign immunity jurisprudence.1

Hence, it is most unfortunate that we did not rehear this case

en banc.

I

“A waiver of the Federal Government’s sovereign immu-

nity must be unequivocally expressed in statutory text, and

will not be implied. Moreover, a waiver of the Government’s

sovereign immunity will be strictly construed, in terms of its

scope, in favor of the sovereign.” Lane, 518 U.S. at 192

(emphasis added) (internal citations omitted).2 “[T]he

‘unequivocal expression’ of elimination of sovereign immu-

nity that we insist upon is an expression in statutory text.”

1

Compare Hudson v. Reno, 130 F.3d 1193, 1207 & n.11 (6th Cir. 1997)

(holding Privacy Act does not waive sovereign immunity for nonpecuni-

ary damages), and Fanin v. Dep’t of Veterans Affairs, 572 F.3d 868,

872-75 (11th Cir. 2009) (following Fitzpatrick v. IRS, 665 F.2d 327,

329-31 (11th Cir. 1982)) (same), with Johnson v. IRS, 700 F.2d 971,

974-86 (5th Cir. 1983) (holding Privacy Act waives sovereign immunity

for nonpecuniary damages), and Jacobs v. Nat’l Drug Intelligence Ctr.,

548 F.3d 375, 378 (5th Cir. 2008) (reluctantly following Johnson despite

subsequent sovereign immunity jurisprudence).

2

My colleague’s concurrence in the denial of rehearing en banc agrees

that the relevant issue is not the existence of a waiver, but the scope of the

waiver. See Concurrence at 14244. However, since the meaning of the

term “actual damages” is ambiguous, the court should have construed the

waiver narrowly in “favor of the sovereign.” Lane, 518 U.S. at 192.

COOPER v. FAA 14251

United States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992).

“A statute’s legislative history cannot supply a waiver that

does not appear clearly in any statutory text . . . .” Lane, 518

U.S. at 192.

A

Here, the court all but admits that the statutory term “actual

damages” does not unequivocally express a waiver for nonpe-

cuniary damages. According to our court’s opinion, “there is

no ordinary or plain meaning of the term actual damages.”

Cooper, 596 F.3d at 544 (emphasis added). Indeed, defini-

tional analysis “sheds little light on the type of injury or loss

Congress intended plaintiffs to be able to prove.” Id. (empha-

sis added). In addition, the court concedes that two other cir-

cuits “agree[ ] that the meaning of the term actual damages is

ambiguous.” Id. at 545 (emphasis added). It also states that

“we have recognized the shifting sense we have attributed to

the term.” Id. (emphasis added). The term, the court con-

cludes, is a “ ‘chameleon,’ as its meaning changes with the

specific statute.” Id. (emphasis added). Our court’s own ratio-

nale, therefore, indicates that the statute does not waive sover-

eign immunity for nonpecuniary damages.

B

Notwithstanding such textual infirmities, the opinion

resorts to the “clear purpose behind the [Privacy] Act” pur-

portedly embodied in the Act’s preamble, the way that Con-

gress “signaled its intent” in the Act’s recordkeeping

provision, and the “presumption” that Congress intended the

Act to mirror the Fair Credit Reporting Act. Id. at 545-48. But

the proper conclusion to draw from the sources on which the

court relies, if any can be drawn at all, is precisely the oppo-

site of that drawn by the court. Assuming that recourse to a

preamble is appropriate in the circumstances of this case, the

Act’s preamble uses the term “any damages,” not the nar-

rower term “actual damages.” Privacy Act of 1974, Pub. L.

14252 COOPER v. FAA

No. 93-579, § 2(b)(6), 88 Stat. 1896. That the preamble dif-

fers from the operative provision indicates a difference in

meaning, not, as the court concludes, an equivalence in mean-

ing. Russello v. United States, 464 U.S. 16, 23 (1983). In

addition, the recordkeeping provision requires agencies to

prevent “embarrassment” but, notably, does not state that such

harm is compensable. 5 U.S.C. § 552a(e)(10). Finally, the

court’s intuiting of congressional intent from our interpreta-

tion of the term “actual damages” in the Fair Credit Reporting

Act, Cooper, 596 F.3d at 547-48, conflicts with the statement

mere pages earlier that the meaning of the term “actual dam-

ages” varies from statute to statute. Id. at 545.

Although my colleague’s concurrence insists that the

majority opinion “correctly construed the waiver to allow the

recovery of nonpecuniary damages,” Concurrence at

14244-45, the opinion itself concedes that if the term “actual

damages is susceptible of two plausible interpretations, then

the sovereign immunity canon requires the court to construe

the term narrowly in favor of the Government [and] hold[ ]

that nonpecuniary damages are not covered.” Id. at 549-50

(emphasis added). The language used in the preamble and

recordkeeping provision, and the various ways the term is

used in other statutes, make evident that it is indeed suscepti-

ble to an alternative plausible interpretation. By its own logic,

the court should have construed the term narrowly.

C

But it is the court’s recourse to the Privacy Act’s standing

provision that is the most troubling, because it conflicts with

the Supreme Court’s interpretation of the very provision of

the Privacy Act at issue in this case. In Doe v. Chao, 540 U.S.

614 (2004), the Court distinguished standing to sue under the

Privacy Act (which extends to all who suffer an “adverse

effect”) from the right to damages. The Court stated that the

term “adverse effect” has the “limited but specific function”

of “identifying a potential plaintiff who satisfies the injury-in-

COOPER v. FAA 14253

fact and causation requirements of Article III standing.” Id. at

624. “That is, an individual subjected to an adverse effect has

injury enough to open the courthouse door, but without more

has no cause of action for damages under the Privacy Act.”

Id. at 624-25. Here, the court jumbles the two concepts, inter-

preting the term “actual damages” broadly with respect to the

type of damages available simply because the term “adverse

effect” is interpreted broadly with respect to standing. Coo-

per, 596 F.3d at 546-47. Not appropriate, said the Supreme

Court quite clearly in Doe. 540 U.S. at 624-25.

II

It is apparent that this case involves an important question

of federal law. “It is inherent in the nature of sovereignty not

to be amenable to the suit of an individual without its con-

sent.” The Federalist No. 81, at 548 (Alexander Hamilton)

(Jacob E. Cooke ed., 1961). Sovereign immunity allows for

majoritarian democracy, preventing the discouragement by

courts of government action. See Harold J. Krent, Reconcep-

tualizing Sovereign Immunity, 45 Vand. L. Rev. 1529, 1540

(1992). We ignore at our peril the well-established clear state-

ment rule for waivers of sovereign immunity, which puts

Congress, not the courts, in charge.

Concern over the impact of a waiver of sovereign immunity

is particularly appropriate in this case. Even the dissent in

Doe, which sought to expand damages under the Privacy Act,

admitted that by its enactment “Congress did not want to sad-

dle the Government with disproportionate liability.” Doe, 540

U.S. at 637 (Ginsburg, J., dissenting). Congress was prescient.

Because more and more government records are accessible

online through the Internet, they are easier to share. The pro-

liferation of electronic records raises the stakes of a broader

waiver of sovereign immunity, increasing the fiscal exposure

of the United States to the tune of a $1000 minimum statutory

award per claim. 5 U.S.C. § 552a(g)(4)(A). Only Congress

14254 COOPER v. FAA

has the keys to unlock our country’s Treasury. The role of the

courts is to ensure that Congress has used them in each case.

III

For these reasons, I must respectfully dissent from the order

denying rehearing en banc.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

The Privacy Act of 1974, 5 U.S.C. § 552a et seq. (the Act),

prohibits federal agencies from disclosing “any record which

is contained in a system of records by any means of commu-

nication to any person, or to another agency” without the con-

sent of “the individual to whom the record pertains,” unless

the disclosure falls within one or more enumerated exceptions

to the Act. Id. § 552a(b). The Act also creates a private cause

of action against an agency for its wilful or intentional viola-

tion of the Act that has “an adverse effect on an individual,”

and allows for the recovery of “actual damages” sustained as

a result of such a violation. Id. § § 552a(g)(1)(D), (g)(4)(A).

Plaintiff Stanmore Cawthon Cooper claims to have sus-

tained actual damages as the result of an interagency

exchange of information performed as part of a joint criminal

investigation by Defendants Federal Aviation Administration

(FAA), Social Security Administration (SSA), and Depart-

ment of Transportation (DOT) (collectively, the Government).

Cooper seeks actual damages for nonpecuniary injuries, such

as humiliation, mental anguish, and emotional distress, as a

result of the unauthorized interagency disclosure of his medi-

cal information; he does not claim any pecuniary or out-of-

pocket losses.

COOPER v. FAA 14255

Because Cooper seeks damages only for nonpecuniary inju-

ries, the district court granted summary judgment to the Gov-

ernment, after holding that the Act allows recovery only for

pecuniary damages. We hold that actual damages under the

Act encompasses both pecuniary and nonpecuniary damages.

We reverse and remand to the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Medical Certificates and Disability Benefits

Cooper first obtained a private pilot certificate in 1964 and

has been flying airplanes intermittently ever since. To operate

an aircraft lawfully, one must be issued a pilot certificate and

a valid airman medical certificate. 14 C.F.R. § 61.3(a), (c).

The FAA requires that a pilot periodically renew his or her

medical certificate to ensure that the pilot satisfies current

FAA medical requirements. Id. § 61.23. The medical certifi-

cate renewal application requires an applicant to disclose any

illnesses, disabilities, or surgeries the applicant has had during

his or her lifetime, and to identify any medications being

taken at the time of application.

Cooper was diagnosed with HIV in 1985. He knew he

would not qualify for a renewal of his medical certificate if

he disclosed his medical condition because, at that time, the

FAA did not issue medical certificates to individuals with

HIV who were taking antiretroviral medications. Accordingly,

Cooper grounded himself and chose not to renew his medical

certificate.

In 1994, however, Cooper applied for and received a medi-

cal certificate from the FAA, but without disclosing that he

had HIV or was taking antiretroviral medication. Cooper

renewed his medical certificate again in 1998, 2000, 2002,

and 2004, each time knowingly withholding required informa-

tion about his medical condition. Cooper explains that he

chose to withhold that information because of the “social stig-

14256 COOPER v. FAA

ma” associated with HIV and his sexual orientation. Cooper

feared that knowledge of his status as a gay man with HIV

would result in discrimination against him in employment,

housing, and public accommodation. As a result, he disclosed

his sexual orientation and medical condition only to close

friends and family.

In August 1995, after his symptoms worsened, Cooper

applied to the SSA for long-term disability benefits under

Title II of the Social Security Act, 42 U.S.C. § 401 et seq.

Cooper disclosed his HIV status to the SSA, comfortable in

his understanding that the medical information disclosed in

his application would be held confidential and would only be

used by the SSA for its determination of Cooper’s eligibility

for disability benefits. Cooper qualified for the benefits,

which he received from August 1995 to August 1996.

B. Operation Safe Pilot

In 2002, the Office of the Inspector General (OIG) for the

DOT and the OIG for the SSA, who are charged with investi-

gating crimes related to their respective agencies, see 49

U.S.C. § 354(a) and 42 U.S.C. § 902(e), collaborated to inves-

tigate a California pilot who had consulted two different sets

of doctors in a scheme to obtain simultaneously medical certi-

fications to fly from the FAA and disability benefits from the

SSA. From this investigation grew “Operation Safe Pilot,” a

joint criminal investigation conducted by the DOT-OIG and

SSA-OIG that sought to uncover efforts by medically unfit

individuals to obtain FAA certifications to fly. Operation Safe

Pilot was initially proposed as a nationwide endeavor, but was

ultimately approved as a regional project, limited to Northern

California.

In July 2002, the FAA, which is part of the DOT, provided

the DOT-OIG with the names and other identifying informa-

tion for active certified pilots. In November 2003, the DOT-

OIG sent the SSA-OIG information relating to approximately

COOPER v. FAA 14257

45,000 pilots in Northern California, consisting of the pilots’

names, dates of birth, social security numbers, and genders.

The SSA-OIG cross-checked the DOT-OIG’s information

against the information in the SSA-OIG’s databases, and in

March or April 2004, the SSA-OIG provided the DOT-OIG

with three separate spreadsheets summarizing its analysis: (1)

a spreadsheet listing the names and social security numbers

for the 45,000 pilots; (2) a spreadsheet listing pilots who had

received Title II benefits; and (3) a spreadsheet listing pilots

who had received Title XVI benefits. SSA-OIG and DOT-

OIG agents then examined the spreadsheets to identify entries

suggesting fraud.

C. The Investigation and Prosecution of Cooper

Upon review of the spreadsheets, the agents identified Coo-

per as a person of interest because the agencies’ compiled

data revealed that Cooper was certified to fly by the FAA, yet

had received disability benefits from the SSA. Acting on that

information, the agents acquired Cooper’s medical file from

the FAA, which revealed that Cooper had never disclosed his

HIV to the FAA, and his disability file from the SSA, which

contained information relating to Cooper’s HIV.

In January 2005, the agents conducted a series of meetings

with FAA Flight Surgeons to obtain their views as to whether

the pilots identified by the investigation, including Cooper,

had falsified their medical certificate applications and if so,

whether that falsified information was material to the FAA’s

decision to certify the pilots. After reviewing Cooper’s FAA

medical file and SSA disability file, the FAA Flight Surgeons

concluded that the FAA would not have issued Cooper an

unrestricted medical certificate had it known of his HIV.

At that point, the agents arranged an interview with Cooper

to ask him about his medical certificate applications. In March

2005, the agents met with Cooper, at which time he confessed

to having intentionally withheld his medical condition from

14258 COOPER v. FAA

the FAA. That same month, the FAA issued an emergency

order revoking Cooper’s pilot certificate due to his misrepre-

sentations to the FAA.

In August 2005, Cooper was indicted on three counts of

making false statements to a government agency under 18

U.S.C. § 1001. In 2006, he pleaded guilty to one count of

making and delivering a false official writing, a misdemeanor

under 18 U.S.C. § 1018. He was sentenced to two years of

probation and fined $1,000.

D. The District Court’s Decision

In March 2007, Cooper filed a lawsuit in the Northern Dis-

trict of California against the Government. Cooper alleged

that the FAA, DOT, and SSA willfully or intentionally vio-

lated the Act by conducting their interagency exchange of his

records. He claims that this unlawful disclosure caused him

“to suffer humiliation, embarrassment, mental anguish, fear of

social ostracism, and other severe emotional distress.”

In spring 2008, both parties moved for summary judgment.

The district court concluded there was no genuine issue of

material fact that the Government had failed to uphold its

record-keeping obligations under the Act, but that there was

a triable issue of fact as to whether the Government’s viola-

tion was intentional or willful. However, because the district

court found the term “actual damages” to be ambiguous, and

construed the waiver of sovereign immunity strictly in favor

of the Government, it ruled against Cooper, holding that due

to the strictly nonpecuniary nature of his damages, there was

no genuine issue of material fact as to his having suffered

actual damages under the Act. The district court never

reached the issue of whether the Government’s failure to

comply with the Act proximately caused an adverse effect on

Cooper.1

1

Because the district court did not rule on whether Cooper had created

a genuine issue of material fact on the proximate causation element of his

claim, it has discretion to decide that issue on remand.

COOPER v. FAA 14259

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review a district court’s grant of summary judgment de novo.

Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir.

2003). Viewing the evidence in the light most favorable to

Cooper, we determine “whether there are any genuine issues

of material fact and whether the district court correctly

applied the substantive law.” Olsen v. Idaho State Bd. of

Med., 363 F.3d 916, 922 (9th Cir. 2004).

III. DISCUSSION

The Act forbids federal agencies from disclosing an indi-

vidual’s records without that individual’s written consent,

unless the disclosure falls within one of the Act’s narrow

exceptions. 5 U.S.C. § 552a(b). Congress passed the Act “ ‘to

protect the privacy of individuals identified in information

systems maintained by Federal agencies’ ” by regulating

“ ‘the collection, maintenance, use, and dissemination of

information by such agencies.’ ” Doe v. Chao, 540 U.S. 614,

618 (2004) (quoting Privacy Act of 1974, Pub. L. No. 93-579,

§ 2(a)(5), 88 Stat. 1896). To that end, the Act furnishes fed-

eral agencies with “detailed instructions for managing their

records and provides for various sorts of civil relief to individ-

uals aggrieved by failures on the Government’s part to com-

ply with the [Act’s] requirements.” Id.

[1] If a federal agency fails to comply with the Act’s

record-keeping requirements, an individual may file a civil

action against the agency in district court if the unauthorized

disclosure has “an adverse effect” on the individual.

§ 552a(g)(1)(D). If the individual demonstrates “that the

agency acted in a manner which was intentional or willful,”

the individual can recover “actual damages sustained by the

individual as a result of the” agency’s violation of the Act,

“but in no case shall a person entitled to recovery receive less

than the sum of $1,000.” § 552a(g)(4)(A). Thus, to prevail on

14260 COOPER v. FAA

a claim under the Act, a plaintiff must prove that: (1) the gov-

ernment agency failed to uphold its record-keeping obliga-

tion; (2) the agency acted intentionally or willfully in failing

to execute its responsibility; (3) the failure proximately

caused an adverse effect on the plaintiff; and (4) the plaintiff

sustained actual damages. Rose v. United States, 905 F.2d

1257, 1259 (9th Cir. 1990).

In light of the ruling of the district court, the sole issue

before us on appeal is the meaning of “actual damages” as

used in the Act. The Supreme Court has not expressly

addressed the issue. In Doe v. Chao, the Court held that the

Act requires proof of “some actual damages” to recover the

Act’s minimum statutory damages of $1,000. 540 U.S. at 627.

But the Court did not address “the precise definition of actual

damages,” though it recognized the disparate views of Courts

of Appeals on the question. Id. at 627 n.12.

In Fitzpatrick v. IRS, the Eleventh Circuit held that actual

damages “permits recovery only for proven pecuniary losses

and not for generalized mental injuries, loss of reputation,

embarrassment or other non-quantifiable injuries.” 665 F.2d

327, 331 (11th Cir. 1982), abrogated on other grounds by

Doe, 540 U.S. at 618; see also Hudson v. Reno, 130 F.3d

1193, 1207 (6th Cir. 1997) (adopting the Eleventh Circuit’s

position), abrogated on other grounds by Pollard v. E.I. du

Pont de Nemours & Co., 532 U.S. 843, 848 (2001). In John-

son v. IRS, the Fifth Circuit reached the opposite conclusion,

holding that “the term ‘actual damages’ under the Act does

indeed include damages for physical and mental injury for

which there is competent evidence in the record.” 700 F.2d

971, 972 (5th Cir. 1983), abrogated on other grounds by Doe,

540 U.S. at 618.

[2] Unlike the Fifth, Sixth, and Eleventh Circuits, we have

not previously decided the meaning of actual damages under

the Act. See Rouse v. U.S. Dep’t. of State, 567 F.3d 408, 418

n.8 (9th Cir. 2009).

COOPER v. FAA 14261

A. Intrinsic Sources

Declaring the meaning of actual damages is a matter of

statutory interpretation. “The purpose of statutory construc-

tion is to discern the intent of Congress in enacting a particu-

lar statute.” United States v. Daas, 198 F.3d 1167, 1174 (9th

Cir. 1999).

Our search for Congress’s intent begins with “the plain

meaning of the language in question.” United States v.

144,774 pounds of Blue King Crab, 410 F.3d 1131, 1134 (9th

Cir. 2005). If the relevant language is plain and unambiguous,

our task is complete. See United States v. Carter, 421 F.3d

909, 911 (9th Cir. 2005). To discern the text’s plain meaning,

“words will be interpreted as taking their ordinary, contempo-

rary, common meaning.” Id. (internal quotation marks omit-

ted).

[3] Unfortunately, there is no ordinary or plain meaning of

the term actual damages because it is a legal term of art. As

a result, ordinary dictionaries are of no assistance in clarifying

the plain meaning of the term. See Johnson v. Aljian, 490 F.3d

778, 780 (9th Cir. 2007) (“[W]e follow the common practice

of consulting dictionary definitions to clarify their ordinary

meaning[ ] and look to how the terms were defined at the time

[the statute] was adopted.” (internal quotation marks omitted)

(alterations in original)). Neither the American Heritage Dic-

tionary of English Language nor Webster’s Third New Inter-

national Dictionary contains an entry for actual damages. See

generally American Heritage Dictionary of the English Lan-

guage (4th ed. 2000); Webster’s Third New International Dic-

tionary (2002).

Black’s Law Dictionary defines “actual damages” as “[a]n

amount awarded to a complainant to compensate for a proven

injury or loss; damages that repay actual losses.” Black’s Law

Dictionary 445 (9th ed. 2009). Unfortunately, that definition

sheds little light on the type of injury or loss Congress

14262 COOPER v. FAA

intended plaintiffs to be able to prove under the Act. Simply

because a statute authorizes the recovery of damages to com-

pensate for injuries does not mean that the statute authorizes

the recovery of damages for any type of loss. See, e.g., Naton

v. Bank of Cal., 649 F.2d 691, 699 (9th Cir. 1981) (holding

that pain and suffering damages are not allowed under the

Age Discrimination in Employment Act, 29 U.S.C. § 621 et

seq.); Ryan v. Foster & Marshall, Inc., 556 F.2d 460, 464 (9th

Cir. 1977) (holding that actual damages for federal claims

under the Securities Exchange Act of 1934, 15 U.S.C. § 78a

et seq., are limited to economic loss).

[4] The Eleventh and Fifth Circuits, in Fitzpatrick and

Johnson, agreed that the meaning of the term actual damages

is ambiguous. In Fitzpatrick, the Eleventh Circuit concluded

there is “no consistent legal interpretation” of actual damages,

and observed that “courts have used ‘actual damages’ in a

variety of circumstances, with the interpretation varying with

the context of use.” 665 F.2d at 329. In Johnson, the Fifth Cir-

cuit concluded that “the term ‘actual damages’ has no plain

meaning or consistent legal interpretation.” 700 F.2d at 974.

Similarly, we have recognized the shifting sense we have

attributed to the term. In re Dawson, 390 F.3d 1139, 1146 n.3

(9th Cir. 2004). The term is “chameleon,” as its meaning

changes with the specific statute in which it is found. See

Kucana v. Holder, ___ S.Ct. ___, 2010 WL 173368, at *7

(Jan. 20, 2010).

[5] Since there is no plain meaning to the term actual dam-

ages, as used in the Act, we next consult the term in its statu-

tory context, looking to the language of the entire statute, its

structure, and purpose. See Nadarajah v. Gonzales, 443 F.3d

1069, 1076 (9th Cir. 2006) (“[I]n ascertaining the plain mean-

ing of the statute, the court must look to the particular statu-

tory language at issue, as well as the language and design of

the statute as a whole.” (internal quotation marks omitted));

see also Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)

(“A word in a statute may or may not extend to the outer lim-

COOPER v. FAA 14263

its of its definitional possibilities. Interpretation of a word or

phrase depends upon reading the whole statutory text, consid-

ering the purpose and context of the statute, and consulting

any precedents or authorities that inform the analysis.”).

[6] Congress articulated a clear purpose behind the Act,

stating that “the right to privacy is a personal and fundamental

right protected by the Constitution of the United States.” Pub.

L. No. 93-579, § 2(a)(4), 88 Stat. 1896. To protect that right,

Congress passed the Act “to provide certain safeguards for an

individual against an invasion of personal privacy by requir-

ing 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.”

Id. § 2(b)(6) (emphasis added).

[7] Congress’s intent that the Act offer relief in the form

of “any damages” resulting from a violation of one’s right of

privacy begs the question of what types of injuries typically

result from the violation of such a right. The Supreme Court

has observed that “[i]n the ‘right of privacy’ cases the primary

damage is the mental distress from having been exposed to

public view.” Time, Inc. v. Hill, 385 U.S. 374, 386 n.9 (1967);

see also Restatement (Second) of Torts § 652H(b) (1977)

(“One who has established a cause of action for invasion of

his privacy is entitled to recover damages for . . . his mental

distress proved to have been suffered if it is of a kind that nor-

mally results from such an invasion . . . .”). The related

common-law tort of defamation also provides monetary relief

for nonpecuniary harms. In defamation cases, the Supreme

Court has stated that “the more customary types of actual

harm inflicted by defamatory falsehood include impairment of

reputation and standing in the community, personal humilia-

tion, and mental anguish and suffering.” Gertz v. Robert

Welch, Inc., 418 U.S. 323, 350 (1974). Accordingly, in her

dissent in Doe v. Chao, Justice Ginsburg, commenting on the

Act’s purpose of providing relief for “any damages,” stated

“Act violations commonly cause fear, anxiety, or other emo-

14264 COOPER v. FAA

tional distress—in the Act’s parlance, ‘adverse effects[,]’ ”

and that in such cases, “emotional distress is generally the

only harm the claimant suffers.” 540 U.S. at 634 (Ginsburg,

J., dissenting). One can readily envision circumstances in

which these types of injuries might flow from the disclosure

of one’s confidential medical records, which often contain

some of the most sensitive and intimate information about

one’s physical, mental, and emotional well-being, and sexual

orientation. Given the nature of the injuries that most fre-

quently flow from privacy violations, it is difficult to see how

Congress’s stated goal of subjecting federal agencies to civil

suit for any damages resulting from a willful or intentional

violation of the Act could be fully realized unless the Act

encompasses both pecuniary and nonpecuniary injuries.

Congress signaled its intent, throughout the Act, to extend

monetary recovery beyond pure economic loss. The Act obli-

gates agencies to maintain a records system that “shall . . .

establish appropriate administrative, technical, and physical

safeguards to insure the security and confidentiality of records

and to protect against any anticipated threats or hazards to

their security or integrity which could result in substantial

harm, embarrassment, inconvenience, or unfairness to any

individual on whom information is maintained.” 5 U.S.C.

§ 552a(e)(10) (emphasis added). Further, the Act provides a

civil remedy for an agency’s failure “to maintain any record

concerning any individual with such accuracy, relevance,

timeliness, and completeness as is necessary to assure fairness

in any determination relating to the . . . character . . . of . . .

the individual that may be made on the basis of such record.”

Id. § 552a(g)(1)(C) (emphasis added). Congress’s use of lan-

guage to ensure that a federal agency’s record-keeping prac-

tices do not result in embarrassment or harm to one’s

character bolsters a construction of actual damages that

reaches nonpecuniary damages.

[8] Further, a contrary reading of the Act seems unreason-

able in light of how we and other courts have construed the

COOPER v. FAA 14265

term “adverse effect.” The Act provides actual damages for

intentional or wilful violations that have an adverse effect on

an individual. Our circuit and at least seven others have rec-

ognized that a nonpecuniary harm, such as emotional distress,

may constitute an adverse effect under the Act. See Orekoya

v. Mooney, 330 F.3d 1, 7-8 (1st Cir. 2003) (holding that

“provable emotional distress may constitute an adverse

effect”), abrogated on other grounds by Doe, 540 U.S. at 618;

Doe v. Chao, 306 F.3d 170, 181 n.6 (4th Cir. 2002); Quinn

v. Stone, 978 F.2d 126, 135-36 (3d Cir. 1992) (holding that

stress and emotional anguish can constitute adverse effects);

Englerius v. Veterans Admin., 837 F.2d 895, 897 (9th Cir.

1988) (agreeing with the D.C. Circuit and Tenth Circuit that

“emotional trauma” can constitute an adverse effect); Albright

v. United States, 732 F.2d 181, 186 (D.C. Cir. 1984)

(“emotional trauma alone is sufficient to qualify as an

‘adverse effect’ under Section 552a(g)(1)(D) of the Act”);

Johnson, 700 F.2d at 976-77; Parks v. IRS, 618 F.2d 677, 683

(10th Cir. 1980) (holding that “mental distress or embarrass-

ment” could constitute an adverse effect). Even the Eleventh

Circuit acknowledged in Fitzpatrick that humiliation or an

emotional injury can qualify as an adverse effect. 665 F.2d at

331 & n.7. To recognize that the Act entitles one to actual

damages for an adverse effect related to one’s mental or emo-

tional well-being, or one’s character, as we and other circuits

have previously done, while holding that one injured under

the Act cannot recover actual damages for nonpecuniary inju-

ries, would be an unreasonable construction of the Act.

Indeed, such a reading would essentially render the provision

of actual damages meaningless in cases where the plaintiff’s

injury relates to his or her character, or mental or emotional

health, even though such cases are common under the Act.

See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a car-

dinal principle of statutory construction that a statute ought,

upon the whole, to be so construed that, if it can be prevented,

no clause, sentence, or word shall be superfluous, void, or

insignificant.” (internal quotation marks omitted)).

14266 COOPER v. FAA

B. Extrinsic Sources

The parties in this case have argued at length about how the

Act’s legislative history supports their respective positions on

the meaning of actual damages.

The statutory text itself is the “authoritative statement” of

a statute’s meaning. Exxon Mobil Corp. v. Allapattah Servs.,

Inc., 545 U.S. 546, 568 (2005). However, courts can and do

consult extrinsic materials, such as legislative history, for

guidance in construing an ambiguous statute. See Oklahoma

v. New Mexico, 501 U.S. 221, 236 n.5 (1991) (“[W]e repeat-

edly have looked to legislative history and other extrinsic

material when required to interpret a statute which is ambigu-

ous[.]”). But courts resort to extrinsic materials “only to the

extent they shed a reliable light on the enacting Legislature’s

understanding of otherwise ambiguous terms.” Exxon Mobil

Corp., 545 U.S. at 568.

In this case, the Act’s legislative history is not a reliable

source for the meaning of actual damages because both sides

of the argument can readily find support for their respective

positions in that history. Accordingly, it is not surprising that

in Fitzpatrick and Johnson, the Eleventh and Fifth Circuits

conducted their own thorough reviews of the legislative his-

tory of the Act, only to arrive at diametrically opposing con-

structions of the same term. For these reasons, we decline to

wade through the “murky, ambiguous, and contradictory” leg-

islative history of the Act in the vain hope of finding clear

guidance concerning the meaning of the term “actual dam-

ages.” Id.

Moreover, legislative history is of no help to us in constru-

ing the scope of the Government’s waiver of sovereign immu-

nity at issue in this case, see infra Part III.C, because “the

‘unequivocal expression’ of elimination of sovereign immu-

nity that we insist upon is an expression in statutory text. If

clarity does not exist there, it cannot be supplied by a commit-

COOPER v. FAA 14267

tee report.” United States v. Nordic Village, Inc., 503 U.S. 30,

37 (1992).

However, one extrinsic source that does shed some reliable

light on the meaning of the term actual damages in the Act is

the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et

seq. In 1970, only four years before Congress passed the Act,

Congress enacted the FCRA with the express purpose of

requiring

consumer reporting agencies [to] adopt reasonable

procedures for meeting the needs of commerce for

consumer credit, personnel, insurance, and other

information in a manner which is fair and equitable

to the consumer, with regard to the confidentiality,

accuracy, relevancy, and proper utilization of such

information in accordance with the requirements of

this subchapter.

15 U.S.C. § 1681(b).

In enacting the FCRA, Congress recognized that this coun-

try’s banking system has produced a complex system of credit

reporting, involving consumer reporting agencies gathering

and evaluating a wide range of personal and sensitive infor-

mation, such as “credit worthiness, credit standing, credit

capacity, character, and general reputation of consumers.” Id.

§ 1681(a)(2). Congress passed the FCRA to ensure that “con-

sumer reporting agencies exercise their grave responsibilities

with fairness, impartiality, and a respect for the consumer’s

right to privacy.” Id. § 1681(a)(4) (emphasis added); see also

Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007)

(“Congress enacted the FCRA in 1970 to . . . protect con-

sumer privacy.”). To that end, the FCRA prohibits credit

reporting agencies from releasing consumer credit reports

except as provided under 15 U.S.C. § 1681b(a).

Thus, not only did Congress enact the Act and the FCRA

within a few years of each other, but they were passed to

14268 COOPER v. FAA

address an identical concern growing out of closely analogous

circumstances. In both cases, Congress acknowledged that

vast databases of personal information are being gathered by

agencies—in one case, federal agencies, and in the other,

credit reporting agencies—and sought to circumscribe these

agencies in the manner they gather, maintain, and use that

sensitive information. Ultimately, Congress passed both laws

with the purpose of protecting an individual’s right of privacy

from being violated by the disclosure of private information.

Further, the Act and the FCRA provide similar remedies.

The FCRA creates a private right of action for injured con-

sumers to recover any “actual damages” caused by an agen-

cy’s negligent or willful violation of the FCRA. See 15 U.S.C.

§§ 1681n, 1681o (emphasis added). Most importantly, we

have held that actual damages under the FCRA encompass

damages for emotional distress. Guimond v. Trans Union

Credit Info. Co., 45 F.3d 1329, 1332-33 (9th Cir. 1995). Other

courts have held similarly. See, e.g., Sloane v. Equifax Info.

Servs., 510 F.3d 495, 500 (4th Cir. 2007); Casella v. Equifax

Credit Info. Servs., 56 F.3d 469, 474 (2d Cir. 1995); Thomp-

son v. San Antonio Retail Merchants Ass’n, 682 F.2d 509, 513

(5th Cir. 1982).

[9] “[W]hen Congress uses the same language in two stat-

utes having similar purposes, particularly when one is enacted

shortly after the other, it is appropriate to presume that Con-

gress intended that text to have the same meaning in both stat-

utes.” Smith v. City of Jackson, 544 U.S. 228, 233 (2005)

(plurality opinion); see also United States v. Novak, 476 F.3d

1041, 1051 (9th Cir. 2007) (en banc) (“Moreover, courts gen-

erally interpret similar language in different statutes in a like

manner when the two statutes address a similar subject mat-

ter.”). The presumption is appropriate in this case. Therefore,

our construction of the identical language in the FCRA, a stat-

ute closely analogous in purpose and time as the Act, is a reli-

able extrinsic source that buttresses a construction of the Act

COOPER v. FAA 14269

to mean that actual damages encompass both pecuniary and

nonpecuniary damages.2

[10] Having reviewed the text, purpose, and structure of

the Act, as well as how actual damages has been construed in

other closely analogous federal statutes, we hold that Con-

gress intended the term actual damages in the Act to encom-

pass both pecuniary and nonpecuniary injuries.

C. Sovereign Immunity Canon

The district court held that the term actual damages is

ambiguous and, consequently, applied the sovereign immu-

nity canon in the Government’s favor, construing actual dam-

ages narrowly to encompass only pecuniary damages. Our

finding of clear congressional intent in the statute itself—its

purpose, structure, and language—and external support in the

language and construction of the FCRA mandates reversal of

the district court’s decision.

[11] The sovereign immunity canon holds that “[a] waiver

of the Federal Government’s sovereign immunity must be

unequivocally expressed in statutory text.” Lane v. Pena, 518

U.S. 187, 192 (1996). To the extent there are any ambiguities

in the statutory text, those ambiguities must be strictly con-

strued in favor of the sovereign. Id. Therefore, “[t]o sustain a

claim that the Government is liable for awards of [nonpecuni-

ary] monetary damages, the waiver of sovereign immunity

must extend unambiguously to such monetary claims.” Id.

2

There are other federal statutes that allow for the recovery of actual

damages, which courts have construed as including nonpecuniary dam-

ages, but we do not find those statutes to be as analogous in time, purpose,

and subject matter to the Act. See, e.g., Anderson v. United Finance Co.,

666 F.2d 1274, 1277 (9th Cir. 1982) (holding that “actual damages” under

the Equal Credit Opportunity Act, 15 U.S.C. § 1691e, may include “injury

to credit reputation, and mental anguish, humiliation or embarrassment”);

Jeanty v. McKey & Poague, Inc., 496 F.2d 1119, 1121 (7th Cir. 1974)

(holding that “actual damages” under the Fair Housing Act, 42 U.S.C.

§ 3612(c), may include damages for emotional distress and humiliation).

14270 COOPER v. FAA

Cooper argues that the canon applies only where the initial

waiver of immunity is in question. Because the Act expressly

authorizes a private cause of action against the Government

for damages, Cooper contends that the canon is of no use in

construing the meaning of actual damages.

Cooper’s position is not supported by applicable case law.

In United States v. Nordic Village, Inc., the Court applied the

sovereign immunity canon to hold that 11 U.S.C. § 106(c)

does not waive the federal government’s sovereign immunity

from an action seeking monetary recovery in bankruptcy. 503

U.S. at 33-39. The Court acknowledged that § 106(c)’s com-

panion provisions, § 106(a) and § 106(b), plainly waive

immunity with regard to monetary relief, and that § 106(c)

waives immunity as to some form of relief (e.g., declaratory

relief). Id. at 34. Despite the waiver, the Court did not limit

its application of the sovereign immunity canon; it proceeded

to analyze the canon as to the scope of the waiver. Because

the language of § 106(c) was “susceptible of at least two

interpretations that do not authorize monetary relief,” the

Court applied the canon to hold that § 106(c) “fails to estab-

lish unambiguously that the waiver extends to monetary

claims,” and ruled in the government’s favor. Id. Thus, the

sovereign immunity canon remains relevant and applicable

beyond the initial waiver of sovereign immunity for purposes

of gauging the scope of the waiver. See Lane, 518 U.S. at 192

(“[A] waiver of the Government’s sovereign immunity will be

strictly construed, in terms of its scope, in favor of the sover-

eign.”).

[12] Applying the canon to this case, if actual damages is

susceptible of two plausible interpretations, then the sovereign

immunity canon requires the court to construe the term nar-

rowly in favor of the Government, holding that nonpecuniary

damages are not covered. See Siddiqui v. United States, 359

F.3d 1200, 1203-04 (9th Cir. 2004) (applying the sovereign

immunity canon in the government’s favor because both par-

ties had proposed conflicting yet plausible constructions of

COOPER v. FAA 14271

the disputed statutory provision). For the reasons explained

above in Part III.A-B, we conclude that when read in connec-

tion with the text of the entire Act, the Act’s remedial scheme,

and its underlying purpose of providing relief for “any dam-

ages” resulting from a violation of the privacy interests pro-

tected by the Act, the term actual damages is unambiguous.

Given Congress’s clear intent to furnish monetary relief for

some injuries that are nonpecuniary in nature, and are proxi-

mately caused by an agency’s wilful or intentional violation

of the Act, we do not deem a construction that limits recovery

to pecuniary loss plausible. United States v. Williams, 514

U.S. 527, 541 (1995) (Scalia, J., concurring) (“the rule requir-

ing clear statement of waivers of sovereign immunity . . . .

does not, however, require explicit waivers to be given a

meaning that is implausible” (internal citation omitted)).

[13] The district court erred by failing to consider the full

panoply of sources available to it for evaluating the scope of

the Government’s waiver of sovereign immunity under the

Act. Rather, the district court relied on the sovereign immu-

nity canon alone, to the exclusion of the traditional tools of

statutory construction. “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 tradi-

tional tools of statutory construction.” Richlin Sec. Serv. Co.

v. Chertoff, 128 S. Ct. 2007, 2019 (2008); accord Chickasaw

Nation v. United States, 534 U.S. 84, 94 (2001) (noting that

“canons are not mandatory rules” but guides “designed to

help judges determine the Legislature’s intent,” and that

“other circumstances evidencing congressional intent can

overcome their force”).

[14] Moreover, the scope of a waiver of sovereign immu-

nity can be ascertained only by reference to the congressional

policy underlying the statute. United States v. Oregon, 44

F.3d 758, 766 (9th Cir. 1994) (citing Franchise Tax Bd. v.

U.S. Postal Serv., 467 U.S. 512, 521 (1984)); see also Hopi

Tribe v. Navajo Tribe, 46 F.3d 908, 921-23 (9th Cir. 1995)

14272 COOPER v. FAA

(reversing the district court’s holding that the Settlement Act

did not waive sovereign immunity as to prejudgment interest,

concluding that the district court improperly applied the sov-

ereign immunity canon by not looking to congressional pur-

pose underlying the Settlement Act).

Congress enacted the Act to secure a citizen’s “right to pri-

vacy [, which] is a personal and fundamental right protected

by the Constitution of the United States.” Pub. L. No. 93-579,

§ 2(A)(4). “Rights, constitutional and otherwise, do not exist

in a vacuum. Their purpose is to protect persons from injuries

to particular interests, and their contours are shaped by the

interests they protect.” Carey v. Piphus, 435 U.S. 247, 254

(1978). In connection with compensating constitutional inju-

ries under 42 U.S.C. § 1983, another federal statute that seeks

to provide compensation for injuries resulting from govern-

ment misconduct, see Carey, 435 U.S. at 255-56, the Supreme

Court has stated, “to further the purpose of § 1983, the rules

governing compensation for injuries caused by the depriva-

tion of constitutional rights should be tailored to the interests

protected by the particular right in question,” id. at 258-59.

Similarly, to achieve the policy underlying the Act, the pri-

vacy right should be tailored to the particular interests impli-

cated by the Act. Those interests will, in most cases, result in

injuries that go beyond mere financial loss (e.g., embarrass-

ment, mental anguish, emotional distress). In light of the

inherently noneconomic interests central to the Act, we can-

not plausibly construe actual damages under the Act to

exclude nonpecuniary damages.3

3

The Government argues that even if actual damages include nonpecu-

niary injuries, we should affirm the district court based upon the insuffi-

ciency of Cooper’s evidence regarding his nonpecuniary injuries. The

district court, however, made no findings of fact as to the sufficiency of

Cooper’s evidence of nonpecuniary injuries. Accordingly, while we do not

reach the issue of what type or amount of evidence Cooper must introduce

into evidence to prove that he has sustained nonpecuniary damages under

the Act, on remand, the district court has discretion to entertain motions

from the parties regarding whether Cooper has proffered sufficient evi-

dence of his nonpecuniary injuries to prove actual damages under the Act,

and if so, to determine the proper amount of those damages.

COOPER v. FAA 14273

IV. CONCLUSION

[15] Applying traditional tools of statutory interpretation,

we hold that in using the term actual damages, Congress

clearly intended that when a federal agency intentionally or

willfully fails to uphold its record-keeping obligations under

the Act, and that failure proximately causes an adverse effect

on the plaintiff, the plaintiff is entitled to recover for both

pecuniary and nonpecuniary injuries. As a result, we reverse

and remand to the district court for further proceedings con-

sistent with this opinion.

REVERSED and REMANDED.