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 His pilot certificate was revoked, and he was indicted for mak-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