Doe v. Chao

• Citation: 435 F.3d 492
• Decision Date: 24 January 2006
• Docket Number: No. 05-1068.,05-1068.
• Parties: Buck DOE, Plaintiff-Appellee, and Robert Doe; Tays Doe; Otis Doe; Thomas Doe; Joe Doe; Charles Doe; Dick Doe, Plaintiffs, v. Elaine L. CHAO, Secretary of Labor, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 492

435 F.3d 492

Buck DOE, Plaintiff-Appellee, and Robert Doe; Tays Doe; Otis Doe; Thomas Doe; Joe Doe; Charles Doe; Dick Doe, Plaintiffs, v. Elaine L. CHAO, Secretary of Labor, Defendant-Appellant.

No. 05-1068.

United States Court of Appeals, Fourth Circuit.

Argued: October 25, 2005.

Decided: January 24, 2006.

ARGUED: Anthony Alan Yang, United States Department of Justice, Civil Division, Appellate Section, Washington, DC, for Appellant. Terry Gene Kilgore, Wolfe, Williams & Rutherford, Norton, Virginia, for Appellee. ON BRIEF: Peter D. Keisler, Assistant Attorney General, John L. Brownlee, United States Attorney, Michael Jay Singer, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, for Appellant. Joseph E. Wolfe, Bobby Steve Belcher, Wolfe, Williams & Rutherford, Norton, Virginia, for Appellee.

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed in part; vacated and remanded in part by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge LUTTIG joined. Judge MICHAEL wrote a dissenting opinion.

OPINION

WILLIAMS, Circuit Judge:

In 1997, appellee, Buck Doe, brought an action against appellant, the United States Secretary of Labor (the Government), seeking damages under the Privacy Act for the wrongful disclosure of his Social Security number. We previously held — based on a reading of the Act's text — that a party must show some actual damages in order to recover $1,000 in statutory damages. That decision was affirmed by the United States Supreme Court and we remanded to the district court, where the court granted Doe's motion for attorney fees and costs. Neither the Supreme Court's opinion nor our original opinion addressed the separate question presented today, which is whether a person who cannot show actual damages under the Act may still recover costs and reasonable attorney fees. We now affirm the district court's conclusion that Doe is entitled to costs and reasonable attorney fees even though he suffered no actual damages. Because, however, we conclude that the district court did not properly calculate the amount of attorney fees, we reverse the district court's judgment and remand the case for further proceedings in light of this opinion.

I.

Because this is the second time this case before us, we only briefly recite the pertinent facts and procedural history.

Like most applicants for benefits under the Black Lung Benefits Act, Doe provided his Social Security number to the Department of Labor's Office of Workers' Compensation Programs. The Government, in order to facilitate the processing of black lung claims, used applicants' Social Security numbers as unique identifiers. The Social Security numbers were often reproduced to other applicants, their employers, and counsel, and were frequently included in published administrative law decisions.

Robert Doe, who was also a Black Lung benefit claimant, filed suit against the Secretary of Labor on February 13, 1997. The Government promptly recognized that in reproducing Social Security numbers in such a way, it exceeded the limits set by the Privacy Act. See 5 U.S.C.A. § 552a(b) (West 1996 & Supp.2005). On February 20, 1997, the Government stipulated to a district court consent decree in Robert Doe's case prohibiting future publication of black lung benefit applicants' Social Security numbers. Later that day, Doe and five other claimants initiated six separate lawsuits seeking equitable relief and money damages under the Privacy Act. See Doe v. Chao, 346 F.Supp.2d 840, 842 (W.D.Va.2004) (Doe IV) (summarizing case history).¹ These lawsuits were consolidated with Robert Doe's suit on June 4, 1997, and the seven claimants sought monetary damages for violations of the Privacy Act, as well as certification of the class of every Black Lung benefit claimant who applied for benefits since the passage of the Act.

The parties filed cross-motions for summary judgment and on July 24, 2000, the district court denied the plaintiffs' motion for class certification and granted summary judgment in favor of the Government for all claimants except Doe. Doe v. Herman, No. Civ.A. 2:97CV00043, 2000 WL 34204432 (W.D.Va. July 24, 2000) (Doe I). The court also granted summary judgment in favor of Doe and awarded him $1,000.00 in statutory damages despite the fact that Doe suffered no actual damages. Id. at *4.

The parties cross-appealed and we affirmed the district court's grant of summary judgment in favor of the Government and reversed the district court's grant of summary judgment in favor of Doe. Doe v. Chao, 306 F.3d 170 (4th Cir.2002) (Doe II). We held that because Doe could not show actual damages, the plain language of the Privacy Act precluded him from obtaining an award of statutory damages. Id. at 177.

The Supreme Court granted certiorari to decide whether "some actual damages must be proven before a plaintiff may receive the minimum statutory award" under the Privacy Act. See Doe v. Chao, 540 U.S. 614, 124 S.Ct. 1204, 1206, 157 L.Ed.2d 1122 (2004) (Doe III). The Supreme Court affirmed the judgment of this Court on February 24, 2004, holding that Doe was not entitled to an award of statutory damages because he failed to show any actual damages. Id. at 1212.

After the Supreme Court's decision, the case was remanded to the district court, where Doe made a motion for attorney fees and costs under 5 U.S.C.A. § 552a(g)(4)(B) of the Privacy Act, which the district court granted. Doe IV, 346 F.Supp.2d at 851. The district court reasoned that both the language of the statute and Congressional intent favored recovery of costs and fees by a party who did not recover any actual damages as long as the party could show an adverse effect caused by an intentional or willful violation. Id. at 847-48. Because the district court concluded that Doe's earlier suit established that he was adversely affected by the Government's intentional or willful violation, it awarded him $57,520.97 in costs and attorney fees. Id. at 850-51.

The Government timely appealed, arguing that when a party is unable to show actual damages, he or she is also precluded from recovering costs and fees. The Government bases its argument on (1) the plain text of the Privacy Act, (2) language from the Supreme Court's opinion in Doe III, and (3) canons of construction. In the alternative, the Government argues that the only "reasonable" attorney fee in this case is no fee at all.

II.

We review de novo the district court's legal determination that § 552a(g)(4) of the Privacy Act permits a party who does not recover actual damages to recover costs and attorney fees. See In re Coleman, 426 F.3d 719, 724 (4th Cir.2005) ("A ruling concerning the proper interpretation of a statute is a legal determination, which we review de novo."). As always, we begin our analysis with the text of the statute. See N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995) (noting that "we begin as we do in any exercise of statutory construction with the text of the provision in question").

Section 552a(g)(4) provides:

In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of —

(A) 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; and

(B) the costs of the action together with reasonable attorney fees as determined by the court.

5 U.S.C.A. § 552a(g)(4).Subsection (g)(1)(D), under which Doe's suit is maintained, authorizes individuals to bring a civil action for the government's failure to comply with the Privacy Act when that failure causes an "adverse effect on [the] individual."²

The text of §§ 552a(g)(1)(D) and (g)(4) clearly provide that (1) if an individual can show an adverse effect (2) caused by the Government's intentional or willful breach of the statute, (3) the Government shall be liable to that individual for the sum of (a) actual damages and (b) the costs and reasonable attorney fees of the action. It is undisputed that Doe suffered an adverse effect caused by the Government's intentional or willful violation of the Privacy Act. Under a plain reading, then, the Government is liable to Doe for the sum of his actual damages and costs and fees.

The Government, however, argues that the plain language of the statute shows that § 552a(g)(4) authorizes an award of attorney fees and costs only to parties who can show actual damages. In particular, the Government argues that the term "sum" means "that liability exists only if damages are established." (Appellant's Br. at 21.) We find the Government's argument without merit.

The word "sum" — as it is used in this instance — requires a court to fulfill the simple act of adding actual damages and fees and costs once the preceding elements of the statute are satisfied. See Webster's II New Riverside University Dictionary 1160 (1988) (defining sum as "[t]he total obtained as a result of adding").³ Thus, subsection (g)(4)(B) acts independent of subsection (g)(4)(A). In other words, the statute does not require a showing of actual damages under (g)(4)(A) in order to receive costs and reasonable attorney fees under (g)(4)(B). If a court determined actual damages to be $0.00 and costs and reasonable attorney fees to be $1,000.00, for example, as a mathematical matter the sum of those two numbers is $1,000.00. Likewise, if actual damages were determined to be $1,000.00 and costs and fees were $0.00, the sum would again be $1,000.00. In short, the fact that one of two numbers might be zero does not prove that when added to another number, the sum of the two numbers must also equal zero. The word "...