dissenting:
If this ease had called for examination of the Privacy Act’s text and nothing else, perhaps I would have subscribed to the majority’s reading of the statute. The statutory text alone, however, cannot be the sole focus here because the Supreme Court has spoken, if not on the exact question posed, then at least on a subject very closely related. As a subordinate appellate court, our responsibility is to give effect to statutory text in a way that hews to Supreme Court guidance on how to interpret that text. Because I believe we must weigh the Supreme Court’s words more heavily than does today’s majority, I respectfully dissent. Although I concluded when this case was previously before us that Buck Doe had the better argument, here the government ought to carry the day. The Supreme Court’s Doe v. Chao opinion virtually compels us to hold that a plaintiff who has not suffered actual damages under 5 U.S.C. § 552a(g)(4)(A) cannot allege all of the elements of a claim for relief under the Privacy Act and may not as a result recover costs or attorney fees under § 552a(g)(4)(B). Notwithstanding what the majority says, ante at 500 n. 10,1 am not attempting to rewrite the Privacy Act; I am simply following the Supreme Court’s teachings on how to construe that Act.
I dissented in part from our earlier opinion because I disagreed with the conclusion that a plaintiff such as Buck Doe must suffer actual damages to be eligible for statutory damages under § 552a(g)(4)(A). Doe v. Chao, 306 F.3d 170, 187-203 (4th Cir.2002) (“Doe II”) (Michael, J., concurring in part and dissenting in part). The Supreme Court affirmed the result reached by the Doe II majority. Doe v. Chao, 540 U.S. 614, 627, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004) (“Doe III”). In Doe III the Supreme Court suggested clearly how we should analyze eligibility for a recovery of costs and fees under § 552a(g)(4)(B), even though that fee provision was not then in dispute.
Specifically, Justice Souter wrote for the Court:“[A]n individual subjected to an adverse effect has injury enough to open the courthouse door, but without more has no cause of action for damages under the Privacy Act.” 540 U.S. at 624-25, 124 S.Ct. 1204. Further, in a footnote rejecting part of the reasoning in my Doe II dissent, the Supreme Court indicated that proper analysis of the statute — that is, analysis that correctly places “the horse” before “the cart” — would treat “damages as a recovery entitling a plaintiff to costs and fees.” Id. at 625, 124 S.Ct. 1204 n. 9. Today’s majority quotes these passages. Ante at 498-499; 497 - 498. Despite doing so, the majority fails to follow the path that the Supreme Court marked for us in its interpretation of the Privacy Act. I believe that path is clear. Since we must, so to speak, put the horse before the cart, damages must be a prerequisite to costs and fees. A plaintiff who has suffered no damages may have standing (“injury enough to open the courthouse door,” Doe III, 540 U.S. at 625, 124 S.Ct. 1204), but because such a plaintiff has no cause of action under the Act, he cannot be eligible for judicial relief, including attorney fees and costs.
The majority avoids confrontation with footnote 9 of Doe III by reading that footnote as pertaining only to Doe’s
*508§ 552a(g)(4)(A) claim. See ante at 498 (asserting that “the Supreme Court did not attempt to address in dicta whether Doe was entitled to attorney fees”). This approach ignores the footnote’s direct statement that “damages [are treated] as a recovery entitling a plaintiff to costs and fees.” Doe III, 540 U.S. at 625, 124 S.Ct. 1204 n. 9. This statement was not crucial to Doe Ill’s holding, and it is dicta so far as Doe’s claim for attorney fees is concerned. That does not end the analysis, however. We said long ago that “certainly dicta of the United States Supreme Court should be very persuasive.” Fonts v. Maryland Casualty Co., 30 F.2d 357, 359 (4th Cir.1929). Moreover, “[e]ourts frequently and properly cite and rely upon dicta that correctly set forth governing or relevant legal principles.” New York Life Ins. Co. v. United States, 118 F.3d 1553, 1557 (Fed. Cir.1997). The question presented in Doe 111 did not have to involve attorney fees for the Supreme Court’s reasoning on how to interpret the Privacy Act to be highly persuasive authority. This reasoning should guide us here.
I also take seriously the Supreme Court’s lesson about the distinction between plaintiffs who have standing to sue and those who have a true cause of action under the Privacy Act. Doe III, 540 U.S. at 624-25, 124 S.Ct. 1204. The majority attempts to sidestep this precept by emphasizing the differences between a cause of action and the relief that a plaintiff who has a cause of action may recover. Ante at 499-500, 501 (quoting Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 112 S.Ct. 1028,117 L.Ed.2d 208 (1992), and Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979)). The majority also criticizes the government for failing to appreciate these differences, ante at 501, but it is the majority that has missed the mark.
The Supreme Court has “often stated” that “the question of what remedies are available under a statute that provides a private right of action is ‘analytically distinct’ from the issue of whether such a right exists in the first place.” Franklin, 503 U.S. at 65-66, 112 S.Ct. 1028 (quoting Davis, 442 U.S. at 239, 99 S.Ct. 2264). This sentence clarifies that Davis’s discussion of causes of action and appropriate relief arose in a particular legal context, namely the Supreme Court’s jurisprudence on implied private rights of action. In that context, “it may be said that ... cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court; and relief is a question of the various remedies a federal court may make available.” Davis, 442 U.S. at 239 n. 18, 99 S.Ct. 2264.
The relationship between that context and Doe’s case is tangential at best, however, because Congress has expressly empowered plaintiffs to bring private suits for money damages under the Privacy Act. The phrase “cause of action” has long denoted more than one legal concept. In 1933 the Supreme Court, speaking through Justice Cardozo, explained that the Court “ha[d] not committed itself to the view that the phrase is susceptible of any single definition that will be independent of the context or of the relation to be governed.” United States v. Memphis Cotton Oil Co., 288 U.S. 62, 68, 53 S.Ct. 278, 77 L.Ed. 619 (1933). In the years since the Court has continued to emphasize that the phrase’s meaning depends on context. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 n. 6, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (Stevens, J., concurring) (indicating that Davis construed only “one meaning of the term.”). A more careful examination should have led the majority to see that the legal concept at issue in *509Davis, a case assessing an implied right of action, was not the same as the concept at issue in Doe III, a case assessing the elements of an express statutory claim. Our task is simply to identify and apply the concept appropriate to this case.
Rather than look far afield to Davis and Franklin (again, cases concerning implied rights of action) to understand the Privacy Act “cause of action,” I would look principally to Doe III itself. Some causes of action do not require damages as an element of a claim for relief; others (such as the traditional tort of negligence) do. The Supreme Court taught us in Doe III that the Privacy Act cause of action is one of the latter. In particular, the Supreme Court found Doe’s argument under § 552a(g)(4)(A) inconsistent with “the traditional understanding that tort recovery requires not only wrongful act plus causation reaching to the plaintiff, but proof of some harm for which damages can reasonably be assessed.” Doe III, 540 U.S. at 621,124 S.Ct. 1204. It is not a coincidence that the treatise section that the Court cited to support this proposition is titled “Elements of Cause of Action.” W. Kee-ton et al., Prosser and Keeton on the Law of Torts § 30 (5th ed.1984). The treatise identifies “[ajctual loss or damage resulting to the interests of another” as one of the traditional elements of a negligence cause of action, and adds: “Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of the plaintiffs case.” Id.
The majority discusses Doe Ill’s invocation of the “traditional understanding” of tort causes of action only in an attempt to wave away this dissent. Ante at 497 n. 6, 500 n. 10. Thus, the majority neglects the role that this understanding played in the Supreme Court’s analysis of the elements of a Privacy Act claim. Perhaps this neglect explains the majority’s erroneous conclusion that “those litigants who are adversely affected by the Government’s intentional or willful violation of the Privacy Act” have a “cause of action,” ante at 501, regardless of whether they can allege any damages. This conclusion cannot be squared with the Supreme Court’s statement that “an individual subjected to an adverse effect has injury enough to open the courthouse door, but without more has no cause of action for damages under the Privacy Act,” Doe III, 540 U.S. at 624-25, 124 S.Ct. 1204 (emphasis added), unless it is recognized that what the majority means by “cause of action” is not what the Supreme Court means. And without a cause of action in the Supreme Court’s sense of that term, Doe would not be entitled to recover fees or costs because there would be no basis for holding the United States “liable” to Doe for any “sum.” § 552a(g)(4). That is, there can be no liability absent a claim for relief, and no such claim absent actual damages.
To be sure, the practical impact of the majority’s interpretive errors is somewhat blunted by its emphasis on the conventional judicial standards for assessing the reasonableness of attorney fees. See ante at 505 (quoting Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566,121 L.Ed.2d 494 (1992)). I suppose that under these standards most victims who suffer no actual damages from a government official’s “intentional or willful” violation of the Privacy Act will ordinarily recover no attorney fees. But outcome never trumps reasoning.
As I would reverse the district court’s judgment- for the reasons stated, I must respectfully dissent.