Gay Pilot Wins New Hearing on Privacy Act Damages

A unanimous panel of the U.S. Court of Appeals for the 9th Circuit ruled on Feburary 22 that Stanmore Cawthon Cooper, a gay pilot whose Social Security Disability medical file was unlawfully shared by the Social Security Administration with investigators from the Federal Aviation Administration and the Department of Transportation, was entitled to seek damages for non-pecuniary injuries under the federal Privacy Act.  The ruling in Cooper v. FAA, 2010 Westlaw 597486, reverses a determination by U.S. District Judge Vaughn Walker (N.D.Cal.) that the statute's authorization of damages for "actual injuries" must be narrowly construed to be limited only to pecuniary losses resulting from a violation of the statute.

Cooper, who had a pilot's license beginning in 1964, learned he was HIV+ in 1985, but decided not to disclose this to the FAA, because he was worried about confidentiality concerning his sexual orientation and HIV status.  He actually allowed his medical certification from the FAA to lapse at one point, knowing that the agency was grounding pilots who were taking anti-retroviral medications.  In 1994, he reapplied for a medical certificate from the FAA, but did not disclose his HIV status or medication situation on the application, and a new certificate was issued.  However, his HIV-related symptoms worsened and in 1995 Cooper applied to the Social Security Administration for disability benefits, which were awarded to him from August 1995 to August 1996.  Cooper did not notify the FAA about this development concerning his health.

In July 2002, the FAA launched an investigation into possible fraud by pilots failing to disclose adverse health information to the agency.  They launched a data matching program in Northern California, where they sent a list of all holders of active FAA medical certifications, together with their social security numbers, to the Social Security Adminstration, which then reported back to them all of the pilots on the list who had sought disability benefits from the agency.  Cooper's name was on the list.  He was subsequently confronted with this, and pled guilty to a count of making and delivering a false official writing, a misdemeanor for which he was fined $1,000.  Upset that the Social Security Administration had disclosed medical information to the FAA that was supposed to be confidential, Cooper launched this lawsuit, and won a ruling from the district court that the agencies had violated the Privacy Act by failing to obtain his authorization to disclose his Social Security medical records.  But Judge Walker, as noted above, refused to award damages, since Cooper's injuries were entirely psychological (emotional distress, etc.).

The court of appeals found that there is a split of circuit authority on the question whether non-pecuniary injuries are compensable under the Privacy Act, but that it was a question of first impression for the 9th Circuit.  The panel unanimously concluded that in light of the purpose and function of the statute, it was clear that such injuries should be compensable.  Indeed, elsewhere in the statute in relating the legislative purposes, the law mentions compensating "all injuries," and there is a clear recognition in other federal privacy statutes and in the Supreme Court's constitutional privacy jurisprudence that frequently the main injury resulting from a breach of privacy is embarrassment or emotional distress.  Consequently, it would be unreasonable to construe the statute to deny compensation for such injuries. The case was remanded to Judge Walker for a determination whether the disclosure caused any non-pecuniary injuries to Cooper that should be compensated.  If any qualifying injury is shown, the statute authorizes damages of at least $1,000.

Given the split of circuit authority, it is possible that the government will seek en banc review and/or an appeal to the Supreme Court.  Cooper is represented on the appeal by Raymond A. Cardozo, Tiffany Renee Thomas, James M. Wood and David J. Bird from the firm of Reed Smith LLP.

Comments

[reader]

My understanding is that the pilot did not fly between 1985 and 1998.
http://blogs.wsj.com/law/2008/08/28/ct-emotional-distress-not-enough-to-recover-for-privacy-act-violations/tab/article/

[Art Leonard]

Yes, he grounded himself voluntarily.