Alaska Employment Law

The Federal Aviation Administration and the Social Security Administration set up a joint investigation, named “Operation Safe Pilot,” to find FAA-licensed pilots who were drawing Social Security disability benefits, figuring that they might be medically unfit to fly.  The agencies shared medical records as part of the investigation.  As a result of the probe, a private pilot drawing disability lost his license and was convicted  of making and delivering a false official writing.  He sued both agencies for non-pecuniary loss as a result of the intra-agency sharing of his medical records.

There was no dispute that the intra-agency sharing of the medical records, without the pilot’s consent, violated the Privacy Act.  On appeal, the only issue was whether the Act permitted recovery of non-pecuniary damages (for embarrassment, etc.).  (The Act sets a minimum recovery of $1,000.)   There’s an intra-Circuit split on the issue.  The panel found that the statutory text (”actual damages”) and the legislative history were unhelpful - “the term is ‘chameleon,’ as its meaning changes with the specific statute in which it is found.”  But the court still found that the statutory purpose (to subject agencies to suit “for any damages” arising from willful or intentional agency violations) was sufficiently clear not only to permit the recovery of non-pecuniary damages, but also to overcome the presumption against waiver of sovereign immunity.  The panel also relied on the similarity of purpose between the Privacy Act and the Fair Credit Reporting Act and the construction of “actual damages” to the latter to permit recovery of non-pecuniary damages.

Cooper v. FAA, ___ F.3d ___ (9th Cir. Feb. 22, 2010)