Federal Aviation Administration v. Cooper

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

FEDERAL AVIATION ADMINISTRATION ET AL. v.

COOPER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 10–1024. Argued November 30, 2011—Decided March 28, 2012

Respondent Cooper, a licensed pilot, failed to disclose his human im-

munodeficiency virus (HIV) diagnosis to the Federal Aviation Admin-

istration (FAA) at a time when the agency did not issue medical cer-

tificates, which are required to operate an aircraft, to persons with

HIV. Subsequently, respondent applied to the Social Security Ad-

ministration (SSA) and received long-term disability benefits on the

basis of his HIV status. Thereafter, he renewed his certificate with

the FAA on several occasions, each time intentionally withholding in-

formation about his condition. The Department of Transportation

(DOT), the FAA’s parent agency, launched a joint criminal investiga-

tion with the SSA to identify medically unfit individuals who had ob-

tained FAA certifications. The DOT provided the SSA with the

names of licensed pilots, and the SSA, in turn, provided the DOT

with a spreadsheet containing information on those pilots who had

also received disability benefits. Respondent’s name appeared on the

spreadsheet, and an investigation led to his admission that he had

intentionally withheld information about his HIV status from the

FAA. His pilot certificate was revoked, and he was indicted for mak-

ing false statements to a Government agency. He pleaded guilty and

was fined and sentenced to probation. He then filed suit, alleging

that the FAA, DOT, and SSA violated the Privacy Act of 1974, which

contains a detailed set of requirements for the management of rec-

ords held by Executive Branch agencies. The Act allows an aggrieved

individual to sue for “actual damages,” 5 U. S. C. §552a(g)(4)(A), if

the Government intentionally or willfully violates the Act’s require-

ments in such a way as to adversely affect the individual. Specifical-

ly, respondent claimed that the unlawful disclosure to the DOT of his

2 FAA v. COOPER

Syllabus

confidential medical information had caused him mental and emo-

tional distress. The District Court concluded that the Government

had violated the Act. But, finding the term “actual damages” ambig-

uous, the court relied on the sovereign immunity canon, which pro-

vides that sovereign immunity waivers must be strictly construed in

the Government’s favor, to hold that the Act does not authorize the

recovery of nonpecuniary damages. Reversing the District Court, the

Ninth Circuit concluded that “actual damages” in the Act is not am-

biguous and includes damages for mental and emotional distress.

Held: The Privacy Act does not unequivocally authorize damages for

mental or emotional distress and therefore does not waive the Gov-

ernment’s sovereign immunity from liability for such harms. Pp. 4–

19.

(a) A waiver of sovereign immunity must be unequivocally ex-

pressed in statutory text, see e.g., Lane v. Peña, 518 U. S. 187, 192,

and any ambiguities are to be construed in favor of immunity, United

States v. Williams, 514 U. S. 527, 531. Ambiguity exists if there is a

plausible interpretation of the statute that would not allow money

damages against the Government. United States v. Nordic Village,

Inc., 503 U. S. 30, 37. Pp. 5–6.

(b) The term “actual damages” in the Privacy Act is a legal term of

art, and Congress, when it employs a term of art, “ ‘presumably

knows and adopts the cluster of ideas that were attached to each bor-

rowed word in the body of learning from which it was taken,’ ” Molzof

v. United States, 502 U. S. 301, 307. Even as a legal term, the precise

meaning of “actual damages” is far from clear. Although the term is

sometimes understood to include nonpecuniary harm, it has also been

used or construed more narrowly to cover damages for only pecuniary

harm. Because of the term’s chameleon-like quality, it must be con-

sidered in the particular context in which it appears. Pp. 6–9.

(c) The Privacy Act serves interests similar to those protected by

defamation and privacy torts. Its remedial provision, under which

plaintiffs can recover a minimum award of $1,000 if they first prove

at least some “actual damages,” “parallels” the common-law torts of

libel per quod and slander, under which plaintiffs can recover “gen-

eral damages” if they first prove “special damages.” Doe v. Chao, 540

U. S. 614, 625. “Special damages” are limited to actual pecuniary

loss, which must be specially pleaded and proved. “General damag-

es” cover nonpecuniary loss and need not be pleaded or proved. This

parallel suggests the possibility that Congress intended the term “ac-

tual damages” to mean “special damages,” thus barring Privacy Act

victims from any recovery unless they can first show some actual pe-

cuniary harm. That Congress would choose “actual damages” instead

of “special damages” is not without precedent, as the terms have oc-

Cite as: 566 U. S. ____ (2012) 3

Syllabus

casionally been used interchangeably. Furthermore, any doubt about

the plausibility of construing “actual damages” as special damages in

the Privacy Act is put to rest by Congress’ deliberate refusal to allow

recovery for “general damages.” In common-law defamation and pri-

vacy cases, special damages is the only category of compensatory

damages other than general damages. Because Congress declined to

authorize general damages, it is reasonable to infer that Congress in-

tended the term “actual damages” in the Act to mean special damag-

es for proven pecuniary loss. Pp. 9–14.

(d) Although the contrary reading of the Privacy Act accepted by

the Ninth Circuit and advanced by respondent is not inconceivable, it

is plausible to read the Act as authorizing only damages for economic

loss. Because Congress did not speak unequivocally, the Court

adopts an interpretation of “actual damages” limited to proven pecu-

niary harm. To do otherwise would expand the scope of Congress’

sovereign immunity waiver beyond what the statutory text clearly

requires. P. 14.

(e) Respondent raises several counterarguments: (1) common-law

cases often define “actual damages” to mean all compensatory dam-

ages; (2) the elimination of “general damages” from the Privacy Act

means that there can be no recovery for presumed damages, but

plaintiffs can still recover for proven mental and emotional distress;

(3) because some courts have construed “actual damages” in similar

statutes to include mental and emotional distress, Congress must

have intended “actual damages” in the Act to include mental and

emotional distress as well; and (4) precluding nonpecuniary damages

would lead to absurd results, thereby frustrating the Act’s remedial

purpose. None of these arguments overcomes the sovereign immuni-

ty canon. Pp. 14–19.

622 F. 3d 1016, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,

and SCALIA, KENNEDY, and THOMAS, JJ., joined. SOTOMAYOR, J., filed a

dissenting opinion, in which GINSBURG and BREYER, JJ., joined. KAGAN,

J., took no part in the consideration or decision of the case.

Cite as: 566 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1024

_________________

FEDERAL AVIATION ADMINISTRATION, ET AL.,

PETITIONERS v. STANMORE CAWTHON

COOPER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[March 28, 2012]

JUSTICE ALITO delivered the opinion of the Court.

The Privacy Act of 1974, codified in part at 5 U. S. C.

§552a, contains a comprehensive and detailed set of re­

quirements for the management of confidential records

held by Executive Branch agencies. If an agency fails to

comply with those requirements “in such a way as to have

an adverse effect on an individual,” the Act authorizes the

individual to bring a civil action against the agency.

§552a(g)(1)(D). For violations found to be “intentional or

willful,” the United States is liable for “actual damages.”

§552a(g)(4)(A). In this case, we must decide whether the

term “actual damages,” as used in the Privacy Act, in­

cludes damages for mental or emotional distress. We hold

that it does not.

I

The Federal Aviation Administration (FAA) requires

pilots to obtain a pilot certificate and medical certificate as

a precondition for operating an aircraft. 14 CFR §§61.3(a),

(c) (2011). Pilots must periodically renew their medical

certificates to ensure compliance with FAA medical stand­

2 FAA v. COOPER

Opinion of the Court

ards. See §61.23(d). When applying for renewal, pilots

must disclose any illnesses, disabilities, or surgeries they

have had, and they must identify any medications they are

taking. See 14 CFR pt. 67.

Respondent Stanmore Cooper has been a private pilot

since 1964. In 1985, he was diagnosed with a human im-

munodeficiency virus (HIV) infection and began taking

antiretroviral medication. At that time, the FAA did not

issue medical certificates to persons with respondent’s

condition. Knowing that he would not qualify for renewal

of his medical certificate, respondent initially grounded

himself and chose not to apply. In 1994, however, he ap-

plied for and received a medical certificate, but he did so

without disclosing his HIV status or his medication. He

renewed his certificate in 1998, 2000, 2002, and 2004,

each time intentionally withholding information about his

condition.

When respondent’s health deteriorated in 1995, he

applied for long-term disability benefits under Title II of

the Social Security Act, 42 U. S. C. §401 et seq. To sub­

stantiate his claim, he disclosed his HIV status to the

Social Security Administration (SSA), which awarded him

benefits for the year from August 1995 to August 1996.

In 2002, the Department of Transportation (DOT), the

FAA’s parent agency, launched a joint criminal investiga­

tion with the SSA, known as “Operation Safe Pilot,” to

identify medically unfit individuals who had obtained FAA

certifications to fly. The DOT gave the SSA a list of names

and other identifying information of 45,000 licensed pilots

in northern California. The SSA then compared the list

with its own records of benefit recipients and compiled a

spreadsheet, which it gave to the DOT.

The spreadsheet revealed that respondent had a current

medical certificate but had also received disability bene­

fits. After reviewing respondent’s FAA medical file and

his SSA disability file, FAA flight surgeons determined in

Cite as: 566 U. S. ____ (2012) 3

Opinion of the Court

2005 that the FAA would not have issued a medical cer-

tificate to respondent had it known his true medical

condition.

When investigators confronted respondent with what

had been discovered, he admitted that he had intention-

ally withheld from the FAA information about his HIV

status and other relevant medical information. Because of

these fraudulent omissions, the FAA revoked respondent’s

pilot certificate, and he was indicted on three counts of

making false statements to a Government agency, in

violation of 18 U. S. C. §1001. Respondent ultimately

pleaded guilty to one count of making and delivering a

false official writing, in violation of §1018. He was sen­

tenced to two years of probation and fined $1,000.1

Claiming that the FAA, DOT, and SSA (hereinafter

Government) violated the Privacy Act by sharing his

records with one another, respondent filed suit in the

United States District Court for the Northern District of

California. He alleged that the unlawful disclosure to the

DOT of his confidential medical information, including his

HIV status, had caused him “humiliation, embarrassment,

mental anguish, fear of social ostracism, and other severe

emotional distress.” App. to Pet. for Cert. 120a. Notably,

he did not allege any pecuniary or economic loss.

The District Court granted summary judgment against

respondent. 816 F. Supp. 2d 778, 781 (2008). The court

concluded that the Government had violated the Privacy

Act and that there was a triable issue of fact as to whether

the violation was intentional or willful.2 But the court

——————

1 Respondent eventually applied for recertification as a pilot. After

reviewing respondent’s medical records, including information about

his HIV diagnosis and treatment, the FAA reissued his pilot certificate

and medical certificate. Brief for Respondent 5, n. 1.

2 With certain exceptions, it is unlawful for an agency to disclose a

record to another agency without the written consent of the person to

whom the record pertains. 5 U. S. C. §552a(b). One exception to this

4 FAA v. COOPER

Opinion of the Court

held that respondent could not recover damages because

he alleged only mental and emotional harm, not economic

loss. Finding that the term “actual damages” is “facially

ambiguous,” id., at 791, and relying on the sovereign

immunity canon, which provides that waivers of sovereign

immunity must be strictly construed in favor of the Gov­

ernment, the court concluded that the Act does not author­

ize the recovery of damages from the Government for

nonpecuniary mental or emotional harm.

The United States Court of Appeals for the Ninth Cir­

cuit reversed and remanded. 622 F. 3d 1016, 1024 (2010).

The court acknowledged that the term “actual damages”

is a “ ‘chameleon’ ” in that “its meaning changes with the

specific statute in which it is found.” Id., at 1029. But the

court nevertheless held that, as used in the Privacy Act,

the term includes damages for mental and emotional

distress. Looking to what it described as “[i]ntrinsic” and

“[e]xtrinsic” sources, id., at 1028, 1031, the court concluded

that the meaning of “actual damages” in the Privacy

Act is not ambiguous and that “a construction that limits

recovery to pecuniary loss” is not “plausible,” id., at 1034.

The Government petitioned for rehearing or rehearing

en banc, but a divided court denied the petition. Id., at

1019. The Government then petitioned for certiorari, and

we granted review. 564 U. S. ___ (2011).

II

Because respondent seeks to recover monetary compen­

sation from the Government for mental and emotional

harm, we must decide whether the civil remedies provi­

——————

nondisclosure requirement applies when the head of an agency makes a

written request for law enforcement purposes to the agency that

maintains the record. See §552a(b)(7). The agencies in this case could

easily have shared respondent’s medical records pursuant to the

procedures prescribed by the Privacy Act, but the District Court con­

cluded that they failed to do so.

Cite as: 566 U. S. ____ (2012) 5

Opinion of the Court

sion of the Privacy Act waives the Government’s sovereign

immunity with respect to such a recovery.

A

We have said on many occasions that a waiver of sover­

eign immunity must be “unequivocally expressed” in

statutory text. See, e.g., Lane v. Peña, 518 U. S. 187, 192

(1996); United States v. Nordic Village, Inc., 503 U. S. 30,

33 (1992); Irwin v. Department of Veterans Affairs, 498

U. S. 89, 95 (1990). Legislative history cannot supply a

waiver that is not clearly evident from the language of

the statute. Lane, supra, at 192. Any ambiguities in the

statutory language are to be construed in favor of immu-

nity, United States v. Williams, 514 U. S. 527, 531 (1995),

so that the Government’s consent to be sued is never en-

larged beyond what a fair reading of the text requires,

Ruckelshaus v. Sierra Club, 463 U. S. 680, 685–686 (1983)

(citing Eastern Transp. Co. v. United States, 272 U. S. 675,

686 (1927)). Ambiguity exists if there is a plausible inter­

pretation of the statute that would not authorize money

damages against the Government. Nordic Village, supra,

at 34, 37.

The question that confronts us here is not whether

Congress has consented to be sued for damages under the

Privacy Act. That much is clear from the statute, which

expressly authorizes recovery from the Government for

“actual damages.” Rather, the question at issue concerns

the scope of that waiver. For the same reason that we

refuse to enforce a waiver that is not unambiguously

expressed in the statute, we also construe any ambiguities

in the scope of a waiver in favor of the sovereign. Lane,

supra, at 192.

Although this canon of interpretation requires an un­

mistakable statutory expression of congressional intent to

waive the Government’s immunity, Congress need not

state its intent in any particular way. We have never

6 FAA v. COOPER

Opinion of the Court

required that Congress use magic words. To the contrary,

we have observed that the sovereign immunity canon “is

a tool for interpreting the law” and that it does not “dis­

plac[e] the other traditional tools of statutory construc­

tion.” Richlin Security Service Co. v. Chertoff, 553 U. S.

571, 589 (2008). What we thus require is that the scope of

Congress’ waiver be clearly discernable from the statutory

text in light of traditional interpretive tools. If it is not,

then we take the interpretation most favorable to the

Government.

B

The civil remedies provision of the Privacy Act provides

that, for any “intentional or willful” refusal or failure to

comply with the Act, the United States shall be liable for

“actual damages sustained by the individual as a result of

the refusal or failure, but in no case shall a person entitled

to recovery receive less than the sum of $1,000.” 5 U. S. C.

§552a(g)(4)(A). Because Congress did not define “actual

damages,” respondent urges us to rely on the ordinary

meaning of the word “actual” as it is defined in standard

general-purpose dictionaries. But as the Court of Appeals

explained, “actual damages” is a legal term of art, 622

F. 3d, at 1028, and it is a “cardinal rule of statutory con­

struction” that, when Congress employs a term of art, “ ‘it

presumably knows and adopts the cluster of ideas that

were attached to each borrowed word in the body of learn­

ing from which it was taken,’ ” Molzof v. United States, 502

U. S. 301, 307 (1992) (quoting Morissette v. United States,

342 U. S. 246, 263 (1952)).

Even as a legal term, however, the meaning of “actual

damages” is far from clear. The latest edition of Black’s

Law Dictionary available when Congress enacted the

Privacy Act defined “actual damages” as “[r]eal, substan­

tial and just damages, or the amount awarded to a com­

plainant in compensation for his actual and real loss or

Cite as: 566 U. S. ____ (2012) 7

Opinion of the Court

injury, as opposed on the one hand to ‘nominal’ damages,

and on the other to ‘exemplary’ or ‘punitive’ damages.”

Black’s Law Dictionary 467 (rev. 4th ed. 1968). But this

general (and notably circular) definition is of little value

here because, as the Court of Appeals accurately observed,

the precise meaning of the term “changes with the specific

statute in which it is found.” 622 F. 3d, at 1029.

The term is sometimes understood to include nonpecu­

niary harm. Take, for instance, some courts’ interpreta­

tions of the Fair Housing Act (FHA), 42 U. S. C. §3613(c),

and the Fair Credit Reporting Act (FCRA), 15 U. S. C.

§§1681n, 1681o. A number of courts have construed “ac­

tual” damages in the remedial provisions of both statutes

to include compensation for mental and emotional dis­

tress. See, e.g., Seaton v. Sky Realty Co., 491 F. 2d 634,

636–638 (CA7 1974) (authorizing compensatory damages

under the FHA, 42 U. S. C. §3612, the predecessor to

§3613, for humiliation); Steele v. Title Realty Co., 478 F. 2d

380, 384 (CA10 1973) (stating that damages under the

FHA “are not limited to out-of-pocket losses but may

include an award for emotional distress and humiliation”);

Thompson v. San Antonio Retail Merchants Assn., 682

F. 2d 509, 513–514 (CA5 1982) (per curiam) (explaining

that, “[e]ven when there are no out-of-pocket expenses,

humiliation and mental distress do constitute recoverable

elements of damage” under the FCRA); Millstone v.

O’Hanlon Reports, Inc., 528 F. 2d 829, 834–835 (CA8 1976)

(approving an award of damages under the FCRA for “loss

of sleep, nervousness, frustration and mental anguish”).

In other contexts, however, the term has been used or

construed more narrowly to authorize damages for only

pecuniary harm. In the wrongful-death provision of the

Federal Tort Claims Act (FTCA), for example, Congress

authorized “actual or compensatory damages, measured

by the pecuniary injuries resulting from such death.” 28

U. S. C. §2674, ¶2. At least one court has defined “actual

8 FAA v. COOPER

Opinion of the Court

damages” in the Copyright Act of 1909, 17 U. S. C. §101(b)

(1970 ed.), as “the extent to which the market value of

a copyrighted work has been injured or destroyed by an

infringement.” Frank Music Corp. v. Metro-Goldwyn-

Mayer, Inc., 772 F. 2d 505, 512 (CA9 1985); see also

Mackie v. Rieser, 296 F. 3d 909, 917 (CA9 2002) (holding

that “ ‘hurt feelings’ over the nature of the infringement”

have no place in the actual damages calculus). And some

courts have construed “actual damages” in the Securities

Exchange Act of 1934, 15 U. S. C. §78bb(a), to mean “some

form of economic loss.” Ryan v. Foster & Marshall, Inc.,

556 F. 2d 460, 464 (CA9 1977); see also Osofsky v. Zipf,

645 F. 2d 107, 111 (CA2 1981) (stating that the purpose of

§78bb(a) “is to compensate civil plaintiffs for economic loss

suffered as a result of wrongs committed in violation of the

1934 Act”); Herpich v. Wallace, 430 F. 2d 792, 810 (CA5

1970) (noting that the “gist” of an action for damages

under the Act is “economic injury”).3

Because the term “actual damages” has this chameleon­

like quality, we cannot rely on any all-purpose definition

but must consider the particular context in which the term

——————

3 This narrow usage is reflected in contemporaneous state-court deci­

sions as well. See, e.g., Reist v. Manwiller, 231 Pa. Super. 444, 449,

n. 4, 332 A. 2d 518, 520, n. 4 (1974) (explaining that recovery for

intentional infliction of emotional distress is allowed “despite the total

absence of physical injury and actual damages”); Nalder v. Crest Corp.,

93 Idaho 744, 749, 472 P. 2d 310, 315 (1970) (noting that damages for

“mental anguish” due to the wrongful execution of a judgment “are

allowable only as an element of punitive but not of actual damages”). It

is also reflected in post-Privacy Act statutes and judicial decisions. See,

e.g., 17 U. S. C. §1009(d)(1)(A)(ii) (defining “actual damages” in the

Audio Home Recording Act of 1992 as “the royalty payments that

should have been paid”); 18 U. S. C. §2318(e)(3) (2006 ed., Supp. IV)

(calculating “actual damages” for purposes of a counterfeit labeling

statute in terms of financial loss); Guzman v. Western State Bank of

Devils Lake, 540 F. 2d 948, 953 (CA8 1976) (stating that compensatory

damages in a civil rights suit “can be awarded for emotional and mental

distress even though no actual damages are proven”).

Cite as: 566 U. S. ____ (2012) 9

Opinion of the Court

appears.4

C

The Privacy Act directs agencies to establish safeguards

to protect individuals against the disclosure of confiden­

tial records “which could result in substantial harm, em­

barrassment, inconvenience, or unfairness to any indi-

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

§552a(e)(10); see also §2(b), 88 Stat. 1896 (stating that the

“purpose of this Act is to provide certain safeguards for

an individual against an invasion of personal privacy”).

Because the Act serves interests similar to those protected

by defamation and privacy torts, there is good reason to

infer that Congress relied upon those torts in drafting the

Act.

In Doe v. Chao, 540 U. S. 614 (2004), we held that the

Privacy Act’s remedial provision authorizes plaintiffs to

recover a guaranteed minimum award of $1,000 for viola­

——————

4 The dissent criticizes us for noting that the dictionary definition

contains an element of circularity. The dissent says that the defini­

tion—“ ‘[a]ctual damages’ compensate for actual injury”—is “plain

enough.” Post, at 3 (opinion of SOTOMAYOR, J.). But defining “actual”

damages by reference to “actual” injury is hardly helpful when our task

is to determine what Congress meant by “actual.” The dissent’s refer­

ence to the current version of Black’s Law Dictionary, which provides

that “actual damages” can mean “tangible damages,” only highlights

the term’s ambiguity. See Black’s Law Dictionary 445 (9th ed. 2009).

If “actual damages” can mean “tangible damages,” then it can be

construed not to include intangible harm, like mental and emotional

distress. Similarly unhelpful is the dissent’s citation to a general­

purpose dictionary that defines “actual” as “existing in fact or reality”

and “damages” as “compensation or satisfaction imposed by law for a

wrong or injury.” Webster’s Third New International Dictionary 22,

571 (2002) (emphasis added). Combining these two lay definitions says

nothing about whether compensation for mental and emotional distress

is in fact imposed by law. The definitions merely beg the question we

are trying to answer. It comes as little surprise, therefore, that “actual

damages” has taken on different meanings in different statutes, as our

examples amply illustrate.

10 FAA v. COOPER

Opinion of the Court

tions of the Act, but only if they prove at least some

“actual damages.” Id., at 620, 627; see §552a(g)(4)(A).

Although we did not address the meaning of “actual dam­

ages,” id., at 622, n. 5, 627, n. 12, we observed that the

provision “parallels” the remedial scheme for the common­

law torts of libel per quod and slander, under which plain­

tiffs can recover “general damages,” but only if they prove

“special harm” (also known as “special damages”), id., at

625; see also 3 Restatement of Torts §575, Comments a

and b (1938) (hereinafter Restatement); D. Dobbs, Law of

Remedies §7.2, pp. 511–513 (1973) (hereinafter Dobbs).5

“Special damages” are limited to actual pecuniary loss,

which must be specially pleaded and proved. 1 D. Hag­

gard, Cooley on Torts §164, p. 580 (4th ed. 1932) (hereinaf­

ter Cooley).6 “General damages,” on the other hand, cover

“loss of reputation, shame, mortification, injury to the

feelings and the like and need not be alleged in detail and

require no proof.” Id., §164, at 579.7

——————

5 Libel per quod and slander (as opposed to libel and slander per se)

apply to a communication that is not defamatory on its face but that is

defamatory when coupled with some other extrinsic fact. Dobbs §7.2, at

512–513.

6 See also 3 Restatement §575, Comment b (“Special harm . . . is harm

of a material and generally of a pecuniary nature”); Dobbs §7.2, at 520

(“Special damages in defamation cases mean pecuniary damages, or at

least ‘material loss’ ” (footnote omitted)). Special damages do not

include mental or emotional distress. See 3 Restatement §575, Com­

ment c (“The emotional distress caused to the person slandered by his

knowledge that he has been defamed is not special harm and this is so

although the distress results in a serious illness”); Dobbs §7.2, at 520

(“Even under the more modern approach, special damages in defama­

tion cases must be economic in nature, and it is not enough that the

plaintiff has suffered harm to reputation, mental anguish or other

dignitary harm, unless he has also suffered the loss of something

having economic value”).

7 See also id., §3.2, at 139 (explaining that noneconomic harms “are

called general damages”); W. Prosser, Law of Torts §112, p. 761 (4th ed.

1971) (noting that “ ‘general’ damages may be recovered for the injury

to the plaintiff’s reputation, his wounded feelings and humiliation, and

Cite as: 566 U. S. ____ (2012) 11

Opinion of the Court

This parallel between the Privacy Act and the common­

law torts of libel per quod and slander suggests the possi­

bility that Congress intended the term “actual damages”

in the Act to mean special damages. The basic idea is that

Privacy Act victims, like victims of libel per quod or slan­

der, are barred from any recovery unless they can first

show actual—that is, pecuniary or material—harm. Upon

showing some pecuniary harm, no matter how slight, they

can recover the statutory minimum of $1,000, presumably

for any unproven harm. That Congress would choose to

use the term “actual damages” instead of “special damages”

was not without precedent. The terms had occasionally

been used interchangeably. See, e.g., Wetzel v. Gulf Oil

Corp., 455 F. 2d 857, 862 (CA9 1972) (holding that plain­

tiff could not establish libel per quod because he “did not

introduce any valid and sufficient evidence of actual dam­

age”); Electric Furnace Corp. v. Deering Milliken Research

Corp., 325 F. 2d 761, 765 (CA6 1963) (stating that “libel

per quod standing alone without proof of actual damages

. . . will not support a verdict for the plaintiff ”); M & S

Furniture Sales Co. v. Edward J. De Bartolo Corp., 249

Md. 540, 544, 241 A. 2d 126, 128 (1968) (“In the case of

words or conduct actionable only per quod, the injurious

effect must be established by allegations and proof of

special damage and in such cases it is not only necessary

to plead and show that the words or actions were defama­

tory, but it must also appear that such words or conduct

caused actual damage”); Clementson v. Minnesota Tribune

Co., 45 Minn. 303, 47 N. W. 781 (1891) (distinguishing

“actual, or, as they are sometimes termed, ‘special,’ dam­

ages” from “general damages—that is, damages not pecu­

——————

resulting physical illness and pain, as well as estimated future dam­

ages of the same kind” (footnotes omitted)); 3 Restatement §621, Com­

ment a (stating that, in actions for defamation, a plaintiff may recover

general damages for “impairment of his reputation or, through loss of

reputation, to his other interests”).

12 FAA v. COOPER

Opinion of the Court

niary in their nature”).8

Any doubt about the plausibility of construing “actual

damages” in the Privacy Act synonymously with “special

damages” is put to rest by Congress’ refusal to authorize

“general damages.” In an uncodified section of the Act,

Congress established the Privacy Protection Study Com­

mission to consider, among other things, “whether the

Federal Government should be liable for general dam-

ages.” §5(c)(2)(B)(iii), 88 Stat. 1907, note following 5 U. S. C.

§552a, p. 712. As we explained in Doe, “Congress left the

question of general damages . . . for another day.” 540

U. S., at 622. Although the Commission later recom-

mended that general damages be allowed, ibid., n. 4,

Congress never amended the Act to include them. For

that reason, we held that it was “beyond serious doubt”

that general damages are not available for violations of

the Privacy Act. Id., at 622.

By authorizing recovery for “actual” but not for “gen­

eral” damages, Congress made clear that it viewed those

terms as mutually exclusive. In actions for defamation

and related dignitary torts, two categories of compensa-

tory damages are recoverable: general damages and special

damages. Cooley §164, at 579; see also 4 Restatement

§867, Comment d (1939) (noting that damages for inter­

ference with privacy “can be awarded in the same way in

which general damages are given for defamation”).9 Be­

——————

8 The dissent disregards these precedents as the product of careless

imprecision. Post, at 8, n. 6. But just as we assume that Congress did

not act carelessly, we should not be so quick to assume that the courts

did. The better explanation for these precedents is not that the courts

were careless, but that the term “actual damages” has a varied mean­

ing that, depending on the context, can be limited to compensation for

only pecuniary harm.

9 See also Moriarty v. Lippe, 162 Conn. 371, 382–383, 294 A. 2d 326,

332–333 (1972) (“Having admittedly alleged or proven no special

damages, the plaintiff here is limited to a recovery of general damages

. . .”); Meyerle v. Pioneer Publishing Co., 45 N. D. 568, 574, 178 N. W.

Cite as: 566 U. S. ____ (2012) 13

Opinion of the Court

cause Congress declined to authorize “general damages,”

we think it likely that Congress intended “actual dam­

ages” in the Privacy Act to mean special damages for

proven pecuniary loss.

Not surprisingly, this interpretation was accepted by

the Privacy Protection Study Commission, an expert body

authorized by Congress and highly sensitive to the Act’s

goals. The Commission understood “actual damages” in

the Act to be “a synonym for special damages as that term

is used in defamation cases.” Personal Privacy in an

Information Society: The Report of the Privacy Protection

Study Commission 530 (July 1977); see also ibid. (“The

legislative history and language of the Act suggest that

Congress meant to restrict recovery to specific pecuniary

losses until the Commission could weigh the propriety of

extending the standard of recovery”). Although we are not

bound in any way by the Commission’s report, we think it

confirms the reasonableness of interpreting “actual dam­

ages” in the unique context of the Privacy Act as the

equivalent of special damages.

——————

792, 794 (1920) (per curiam) (“Generally speaking, there are recognized

two classes of damages in libel cases, general damages and special

damages”); Winans v. Chapman, 104 Kan. 664, 666, 180 P. 266, 267

(1919) (“Actual damages include both general and special damages”);

Childers v. San Jose Mercury Printing & Publishing Co., 105 Cal. 284,

288–289, 38 P. 903, 904 (1894) (explaining that special damages, “as

a branch of actual damages[,] may be recovered when actual pecuniary

loss has been sustained” and that the “remaining branch of actual

damages embraces recovery for loss of reputation, shame, mortification,

injury to feelings, etc.”); see generally Dobbs §7.3, at 531 (“Though the

dignitary torts often involve only general damages . . . , they sometimes

produce actual pecuniary loss. When this happens, the plaintiff is

usually entitled to recover any special damage he can prove . . . ”); 1

F. Harper & F. James, Law of Torts §5.30, p. 470 (1956) (“When liability

for defamation is established, the defendant, in addition to such ‘gen­

eral’ damages as may be assessed by the jury, is also liable for any

special damage which he has sustained”).

14 FAA v. COOPER

Opinion of the Court

D

We do not claim that the contrary reading of the statute

accepted by the Court of Appeals and advanced now by

respondent is inconceivable. But because the Privacy Act

waives the Federal Government’s sovereign immunity, the

question we must answer is whether it is plausible to read

the statute, as the Government does, to authorize only

damages for economic loss. Nordic Village, 503 U. S., at

34, 37. When waiving the Government’s sovereign im­

munity, Congress must speak unequivocally. Lane, 518

U. S., at 192. Here, we conclude that it did not. As a

consequence, we adopt an interpretation of “actual dam­

ages” limited to proven pecuniary or economic harm. To

do otherwise would expand the scope of Congress’ sover­

eign immunity waiver beyond what the statutory text

clearly requires.

III

None of respondent’s contrary arguments suffices to

overcome the sovereign immunity canon.

A

Respondent notes that the term “actual damages” has

often been defined broadly in common-law cases, and in

our own, to include all compensatory damages. See Brief

for Respondent 18–25. For example, in Birdsall v. Coo­

lidge, 93 U. S. 64 (1876), a patent infringement case, we

observed that “[c]ompensatory damages and actual dam­

ages mean the same thing.” Ibid. And in Gertz v. Robert

Welch, Inc., 418 U. S. 323 (1974), we wrote that actual

injury in the defamation context “is not limited to out-of­

pocket loss” and that it customarily includes “impairment

of reputation and standing in the community, personal

humiliation, and mental anguish and suffering.” Id., at

350.

These cases and others cited by respondent stand for the

Cite as: 566 U. S. ____ (2012) 15

Opinion of the Court

unremarkable point that the term “actual damages” can

include nonpecuniary loss. But this generic meaning does

not establish with the requisite clarity that the Privacy

Act, with its distinctive features, authorizes damages for

mental and emotional distress. As we already explained,

the term “actual damages” takes on different meanings in

different contexts.

B

Respondent’s stronger argument is that the exclusion of

“general damages” from the statute simply means that

there can be no recovery for presumed damages. Privacy

Act victims can still recover for mental and emotional

distress, says respondent, so long as it is proved. See Brief

for Respondent 54–56.10

This argument is flawed because it suggests that proven

mental and emotional distress does not count as general

damages. The term “general damages” is not limited to

compensation for unproven injuries; it includes compensa­

tion for proven injuries as well. See 3 Restatement §621,

Comment a (noting that general damages compensate for

“harm which . . . is proved, or, in the absence of proof,

is assumed to have caused to [the plaintiff’s] reputation”).

To be sure, specific proof of emotional harm is not required

to recover general damages for dignitary torts. Dobbs

§7.3, at 529. But it does not follow that general damages

cannot be recovered for emotional harm that is actually

proved.

Aside from the fact that general damages need not be

proved, what distinguishes those damages, whether

proved or not, from the only other category of compensa-

tory damages available in the relevant common-law suits is

the type of harm. In defamation and privacy cases, “the

affront to the plaintiff’s dignity and the emotional harm

——————

10 The dissent advances the same argument. See post, at 9–11.

16 FAA v. COOPER

Opinion of the Court

done” are “called general damages, to distinguish them

from proof of actual economic harm,” which is called “spe­

cial damages.” Id., §3.2, at 139; see also supra, at 10, 12–

13, and nn. 6, 7, 9. Therefore, the converse of general

damages is special damages, not all proven damages, as

respondent would have it. Because Congress removed

“general damages” from the Act’s remedial provision, it is

reasonable to infer that Congress foreclosed recovery for

nonpecuniary harm, even if such harm can be proved, and

instead waived the Government’s sovereign immunity only

with respect to harm compensable as special damages.

C

Looking beyond the Privacy Act’s text, respondent

points to the use of the term “actual” damages in the

remedial provisions of the FHA, 42 U. S. C. §3613(c), and

the FCRA, 15 U. S. C. §§1681n, 1681o. As previously

mentioned, courts have held that “actual” damages within

the meaning of these statutes include compensation for

mental and emotional distress. Supra, at 7. Citing the

rule of construction that Congress intends the same lan­

guage in similar statutes to have the same meaning, see

Northcross v. Board of Ed. of Memphis City Schools, 412

U. S. 427, 428 (1973) (per curiam), respondent argues that

the Privacy Act should also be interpreted as authorizing

damages for mental and emotional distress. See Brief for

Respondent 25–32.

Assuming for the sake of argument that these lower

court decisions are correct, they provide only weak support

for respondent’s argument here. Since the term “actual

damages” can mean different things in different contexts,

statutes other than the Privacy Act provide only limited

interpretive aid, and that is especially true here. Neither

the FHA nor the FCRA contains text that precisely mir­

Cite as: 566 U. S. ____ (2012) 17

Opinion of the Court

rors the Privacy Act.11 In neither of those statutes did

Congress specifically decline to authorize recovery for

general damages as it did in the Privacy Act. Supra, at

12–13. And most importantly, none of the lower court

cases interpreting the statutes, which respondent has

cited, see Brief for Respondent 29–31, involves the sover­

eign immunity canon.

Respondent also points to the FTCA, but the FTCA’s

general liability provision does not even use the term

“actual damages.” It instead provides that the “United

States shall be liable” for certain tort claims “in the same

manner and to the same extent as a private individual”

under relevant state law. 28 U. S. C. §2674, ¶1. For that

reason alone, the FTCA’s general liability provision is not

a reliable source for interpreting the term “actual damages”

in the Privacy Act. Nor does the FTCA’s wrongful­

death provision—which authorizes “actual or compensa-

tory damages, measured by the pecuniary injuries resulting

from such death,” §2674, ¶2—prove that Congress under­

stood the term “actual damages” in the Privacy Act to

include nonpecuniary mental and emotional harm. To the

contrary, it proves that actual damages can be understood

to entail only pecuniary harm depending on the context.

Because the FTCA, like the FHA and FCRA, does not

share the same text or design as the Privacy Act, it is not

a fitting analog for construing the Act.

——————

11 Compare 42 U. S. C. §3613(c)(1) (stating that “the court may award

to the plaintiff actual and punitive damages”); 15 U. S. C. §1681n(a)(1)

(authorizing “(A) any actual damages sustained by the consumer as a

result of the failure or damages of not less than $100 and not more than

$1,000; or (B) . . . actual damages sustained by the consumer as a result

of the failure or $1,000, whichever is greater”); §1681o(a)(1) (authoriz­

ing “any actual damages sustained by the consumer as a result of the

failure”) with 5 U. S. C. §552a(g)(4)(A) (authorizing “actual damages

sustained by the individual as a result of the refusal or failure, but in

no case shall a person entitled to recovery receive less than the sum of

$1,000”).

18 FAA v. COOPER

Opinion of the Court

D

Finally, respondent argues that excluding damages for

mental and emotional harm would lead to absurd results.

Persons suffering relatively minor pecuniary loss would

be entitled to recover $1,000, while others suffering only

severe and debilitating mental or emotional distress would

get nothing. See Brief for Respondent 33–35.

Contrary to respondent’s suggestion, however, there is

nothing absurd about a scheme that limits the Govern­

ment’s Privacy Act liability to harm that can be substanti­

ated by proof of tangible economic loss. Respondent in­

sists that such a scheme would frustrate the Privacy Act’s

remedial purpose, but that ignores the fact that, by delib­

erately refusing to authorize general damages, Congress

intended to cabin relief, not to maximize it.12

——————

12 Despite its rhetoric, the dissent does not dispute most of the steps

in our analysis. For example, although the dissent belittles the sover­

eign immunity canon, the dissent does not call for its abandonment.

See post, at 2–3. Nor does the dissent point out any error in our under­

standing of the canon’s meaning. See ibid. The dissent acknowledges

that statutes and judicial opinions sometimes use the term “actual

damages” to mean pecuniary harm, see post, at 5, and that determining

its meaning in a particular statute requires consideration of context,

see ibid. In addition, the dissent concedes—as it must in light of our

reasoning in Doe v. Chao, 540 U. S. 614 (2004)—that the common law

of defamation has relevance in construing the term “actual damages” in

the Privacy Act. See post, at 7–9.

The dissent’s argument thus boils down to this: The text and purpose

of the Privacy Act make it clear beyond any reasonable dispute that the

term “actual damages,” as used in the Act, means compensatory dam­

ages for all proven harm and not just damages for pecuniary harm.

The dissent reasons that, because the Act seeks to prevent pecuniary

and nonpecuniary harm, Congress must have intended to authorize the

recovery of money damages from the Federal Government for both

types of harm. This inference is plausible, but it surely is not unavoid­

able. The Act deters violations of its substantive provisions in other

ways—for instance, by permitting recovery for economic injury; by

imposing criminal sanctions for some violations, see 5 U. S. C. §552a(i);

and possibly by allowing for injunctive relief under the Administrative

Cite as: 566 U. S. ____ (2012) 19

Opinion of the Court

* * *

In sum, applying traditional rules of construction, we

hold that the Privacy Act does not unequivocally authorize

an award of damages for mental or emotional distress.

Accordingly, the Act does not waive the Federal Govern­

ment’s sovereign immunity from liability for such harms.

We therefore reverse the judgment of the United States

Court of Appeals for the Ninth Circuit and remand the

case for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE KAGAN took no part in the consideration or

decision of this case.

——————

Procedure Act (APA), 5 U. S. C. §§702, 706; see Doe, supra, at 619, n. 1

(noting that the absence of equitable relief in suits under

§§552a(g)(1)(C) or (D) may be explained by the availability of such relief

under the APA).

Cite as: 566 U. S. ____ (2012) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–1024

_________________

FEDERAL AVIATION ADMINISTRATION, ET AL.,

PETITIONERS v. STANMORE CAWTHON

COOPER

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 Gov-

ernment 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 under-

stand to be the primary, and often only, damages sus-

tained 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 viola-

tions of privacy interests. I respectfully dissent.

I

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 interpre-

tation is not compelled by the plain text of the statute or

otherwise required by any other traditional tool of statu-

2 FAA v. COOPER

SOTOMAYOR, J., dissenting

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 sover-

eign 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 tra-

ditional 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 construc-

tion—the statute’s text, structure, drafting history, and

purpose—provide a clear answer: The term “actual dam-

ages” 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 con-

strue” 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, 117–118 (1979)

(emphasis added). See also, e.g., Block v. Neal, 460 U. S.

289, 298 (1983) (“The exemption of the sovereign from suit

Cite as: 566 U. S. ____ (2012) 3

SOTOMAYOR, J., dissenting

involves hardship enough where consent has been with-

held. We are not to add to its rigor by refinement of con-

struction 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).

II

A

“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 cir-

cumstance, is finished.” Estate of Cowart v. Nicklos Drill-

ing 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 Dic-

tionary defined “actual damages” as “[r]eal, substantial

and just damages, or the amount awarded to a complain-

ant 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 “no-

tably circular” definition, ante, at 7, but it is unclear why.

The definition is plain enough: “Actual damages” compen-

sate for actual injury, and thus the term is synonymous

with compensatory damages. See Black’s 467 (defining

“compensatory damages” as damages that “will compen-

sate the injured party for the injury sustained, and noth-

ing more; such as will simply make good or replace the

4 FAA v. COOPER

SOTOMAYOR, J., dissenting

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 recog-

nized 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 complain-

ant to compensate for a proven injury or loss; damages

that repay actual losses.—Also termed compensatory

damages; tangible damages; real damages” (italics omit-

ted)). 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

——————

1 Black’s Law Dictionary also defined “actual damages” as synony-

mous 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 ‘ac-

tual’ 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.,

418 U. S. 323, 350 (1974). 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”).

Cite as: 566 U. S. ____ (2012) 5

SOTOMAYOR, J., dissenting

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 eco-

nomic 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 “ac-

tual 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 (quot-

ing 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 con-

cerned 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.

——————

3 See 28 U. S. C. §2674; 17 U. S. C. §1009(d)(1); 18 U. S. C. §2318(e)(3)

(2006 ed., Supp. IV); 17 U. S. C. §101(b) (1970 ed.); 15 U. S. C. §78bb(a)

(2006 ed., Supp. IV).

6 FAA v. COOPER

SOTOMAYOR, J., dissenting

B

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 result-

ing in intangible harms to the individual. The Act re-

quires 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 indi-

vidual.” 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 neces-

sary to assure fairness to the individual in the determina-

tion.” §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 require-

ment 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 unreme-

died: 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 nonpecuni-

ary harms harmonizes the Act’s substantive and remedial

provisions. Robinson v. Shell Oil Co., 519 U. S. 337, 341

Cite as: 566 U. S. ____ (2012) 7

SOTOMAYOR, J., dissenting

(1997) (statutory interpretation must consider “the

broader context of the statute as a whole”).4

The majority draws a different conclusion from the sub-

stantive 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 provi-

sion “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 con-

cludes, “suggests the possibility that Congress intended

the term ‘actual damages’ in the Act to mean special dam-

ages.” Ante, at 11.

The majority reads too much into Doe. At issue in that

——————

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 peti-

tioner, brings suit under subparagraph (g)(1)(C) or (D) for an inten-

tional or willful violation of the Act will be without a remedy under

the 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.

8 FAA v. COOPER

SOTOMAYOR, J., dissenting

case was the question whether the Act’s civil-suit provi-

sion 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 “some-

thing peculiar in offering some guaranteed damages . . .

only to those plaintiffs who can demonstrate actual dam-

ages.” 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 statu-

tory context, and in particular the Act’s substantive provi-

sions, confirms the ordinary meaning of “actual damages.”

Although the Act shares parallels with common-law defa-

mation torts, such analogies do not warrant a reading of

——————

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.

Cite as: 566 U. S. ____ (2012) 9

SOTOMAYOR, J., dissenting

the phrase that is at odds with the statute’s plain text.7

C

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 reconcil-

iation, 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 Gov-

ernment should be liable for general damages incurred by

an individual as the result of a willful or intentional vio-

lation of the provisions of sections 552a(g)(1)(C) or (D).”

§5(c)(2)(B)(iii), 88 Stat. 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

——————

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 “Con-

gress 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).

10 FAA v. COOPER

SOTOMAYOR, J., dissenting

622, n. 5 (“Congress explicitly rejected the proposal to

make presumed damages available for Privacy Act viola-

tions”). 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, 349–350 (1974) (distinguishing in defamation context

between presumed damages and damages for actual inju-

ries 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, 262–264

(1978) (distinguishing between presumed damages and

proven damages for mental and emotional distress).

Rather than view the deletion of general damages (pre-

sumed damages) as leaving the converse (proven dam-

ages), 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 major-

ity’s insistence that “Congress intended ‘actual damages’ in

the Privacy Act to mean special damages for proven pecu-

niary 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 rele-

vant 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

Cite as: 566 U. S. ____ (2012) 11

SOTOMAYOR, J., dissenting

such proven injury) does not alter the definition of “gen-

eral 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 what-

ever 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 recov-

ery 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

D

I turn finally to the statute’s purpose, for “[a]s in all

cases of statutory interpretation, our task is to interpret

——————

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, extratex-

tual material is due any deference; nor do I find its unelaborated

conclusions persuasive.

12 FAA v. COOPER

SOTOMAYOR, J., dissenting

the words of th[e] statut[e] in light of the purposes Con-

gress 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) (“Inter-

pretation 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 authori-

ties that inform the analysis”). The purposes of the Priv-

acy Act could not be more explicit, and they are consistent

with interpreting “actual damages” according to its ordi-

nary meaning.

“The historical context of the Act is important to an

understanding of its remedial purposes. In 1974, Con-

gress 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 recog-

nized that “the increasing use of computers and sophisti-

cated 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), 88 Stat. 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 agen-

cies, 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. (empha-

sis added). That statement is an explicit reference to suits

Cite as: 566 U. S. ____ (2012) 13

SOTOMAYOR, J., dissenting

brought under §552a(g)(4); no other provision speaks to a

civil suit based on “willful or intentional” agency miscon-

duct. 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 dis-

tress”); 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 impair-

ment of reputation and standing in the community, per-

sonal 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 Con-

gress’ stated purpose. The majority, however, does not

grapple with the ramifications of its opinion. It acknowl-

edges the suggestion that its holding leads to absurd

results as it allows individuals suffering relatively minor

14 FAA v. COOPER

SOTOMAYOR, J., dissenting

pecuniary losses to recover $1,000 while others suffering

severe mental anguish to recover nothing. But it con-

cludes 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 major-

ity’s contrary assumption discounts the gravity of emo-

tional harm caused by an invasion of the personal integ-

rity 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 ex-

press 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.