Cooper v. Fed. Aviation Admin.

Decision Date16 September 2010
Docket NumberNo. 08-17074.,08-17074.
Citation622 F.3d 1016
PartiesStanmore Cawthon COOPER, Plaintiff-Appellant, v. FEDERAL AVIATION ADMINISTRATION; Social Security Administration; United States Department of Transportation, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Raymond A. Cardozo, Tiffany Renee Thomas, James M. Wood, and David J. Bird, Reed Smith LLP, for plaintiff-appellant Stanmore Cawthon Cooper.

Michael F. Hertz, Joseph P. Russoniello, Mark B. Stern, and Samantha Chaifetz, for defendants-appellees, Federal Aviation Administration, Social Security Administration, and United States Department of Transportation.

Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, Chief District Judge, Presiding. D.C. No. 3:07-cv-01383-VRW.

Before: MYRON H. BRIGHT, * HAWKINS, and MILAN D. SMITH, JR., Circuit Judges.

Order; Concurrence to Order by Judge MILAN D. SMITH, JR.; Dissent to Order by Judge O'SCANNLAIN; Opinion by Judge MILAN D. SMITH, JR.


The opinion filed February 22, 2010, and published at 596 F.3d 538, is hereby amended by deleting footnote 2 (and renumbering succeeding footnotes) on pages 2825-26 of the slip opinion (also found at 596 F.3d 538, 543-44).

With this amendment, the panel votes to deny the petition for panel rehearing. Judge M. Smith votes to deny the petition for rehearing en banc, and Judges Bright and Hawkins so recommend.

The full court was advised of the petition for rehearing en banc. After a request for a vote by an active judge, a vote was taken, and a majority of the active judges of the court failed to vote for a rehearing en banc. Fed. R.App. P. 35(f).

The petitions for panel rehearing and rehearing en banc are DENIED. Further petitions for rehearing and rehearing en banc shall not be entertained.

MILAN D. SMITH, JR., Circuit Judge, concurring in the order denying rehearing en banc:

I write to respond briefly to the dissent filed with this order.

The Privacy Act (Act) unequivocally waives sovereign immunity. Under the Act, if a court determines that [an] 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 ... actual damages sustained by the individual as a result of the refusal or failure” to comply with the Privacy Act. 5 U.S.C. § 552a(g)(4) (emphases added). In light of that unconditional waiver, we appropriately followed Justice Cardozo's admonition: ‘The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refinement of construction, where consent has been announced.’ United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 383, 70 S.Ct. 207, 94 L.Ed. 171 (1949) (quoting Anderson v. Hayes Constr. Co., 243 N.Y. 140, 153 N.E. 28, 29-30 (1926)).

Our dissenting colleague mistakenly asserts that our opinion waives the sovereign immunity of the United States. In fact, Congress did so. Thus, the issue in this case is not the existence of a waiver, but rather the scope of that express waiver, as contemplated in the Act. To that end, we correctly construed the waiver to allow the recovery of nonpecuniary damages, based upon clear congressional intent.


The sovereign immunity canon requires that governmental waivers of sovereign immunity be “unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (internal quotation marks omitted). The canon has clearly been satisfied in this case. The Act categorically waives the federal government's immunity from suit and indisputably authorizes the recovery of “actual damages.” The government's surrender to liability for damages is in the plain text of the Act itself, leaving us only to construe the scope of that surrender.

To construe the scope of this waiver, the panel followed controlling precedent directing the panel to look to the policies or objectives underlying the Act. See, e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (construing the scope of a waiver of sovereign immunity that reflects “a realistic assessment of legislative intent); Franchise Tax Bd. of Cal. v. Postal Serv., 467 U.S. 512, 514-16, 521, 104 S.Ct. 2549, 81 L.Ed.2d 446 (1984) (rejecting the government's narrow construction of the scope of the waiver of sovereign immunity under 39 U.S.C. § 401 and holding that “the scope of such a waiver can only be ascertained by reference to underlying congressional policy”); Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 921-22 (9th Cir.1995) (holding that a narrow construction of sovereign immunity under the Navajo-Hopi Settlement Act was improper in light of “the overriding congressional purpose behind the Settlement Act); United States v. Oregon, 44 F.3d 758, 766 (9th Cir.1994) (“The Supreme Court has repeatedly looked to indicia of Congressional intent in order to construe the scope of the unequivocally expressed waiver of immunity in the McCarran Amendment.”); In re Town & Country Home Nursing Servs., Inc., 963 F.2d 1146, 1151 (9th Cir.1991) (“It is well established that when the federal government waives its immunity, the scope of the waiver is construed to achieve its remedial purpose.”).


The dissent wrongly concludes that the court's observation that the term “actual damages,” standing alone, is ambiguous necessarily means that the Act does not waive sovereign immunity for nonpecuniary damages. Our jurisprudence has clarified that [r]ather than focusing just on the word or phrase at issue, this court looks to the entire statute to determine Congressional intent.” Sanchez v. Pac. Powder Co., 147 F.3d 1097, 1099 (9th Cir.1998). “Thus, the structure and purpose of a statute may also provide guidance in determining the plain meaning of its provisions.” The Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.2003) (en banc).

Accordingly, we looked to several sources manifesting the Act's overall objective. We noted the Act's preambular statement of purpose, wherein Congress stated that [t]he purpose of this act is to provide certain safeguards for an individual against an invasion of personal privacy by requiring federal agencies ... to ... 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.” Pub.L. No. 93-579, § 2(b)(6) (emphasis added). We highlighted the Act's requirement that agencies maintain records “to protect against any anticipated threats or hazards ... which could result in ... embarrassment.” 5 U.S.C. § 552a(e)(10). We also observed the Act provides a remedy for an agency's violation that inhibits a fair determination relating to one's “character.” § 552a(g)(1)(C). Such sources provided helpful guidance in discerning Congress's remedial aim in enacting the Act.

Understanding that “statutory language cannot be construed in a vacuum,” Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989), the panel construed the term “actual damages” in its proper context, see id., to conclude that it unequivocally encompasses nonpecuniary damages. When a statute is ambiguous, the doctrine of sovereign immunity is useful as “a tool for interpreting the law.” Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 128 S.Ct. 2007, 2019, 170 L.Ed.2d 960 (2008). When a statute is not ambiguous, however, [t]here is no need for us to resort to the sovereign immunity canon.” Id. Because “there [was] no ambiguity left for us to construe,” id., the application of the sovereign immunity canon was unnecessary in this case.

Further, [t]he 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 traditional tools of statutory construction.” Id.; see also Clark v. Martinez, 543 U.S. 371, 382, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (“The canon is thus a means of giving effect to congressional intent, not of subverting it.”); Chickasaw Nation v. United States, 534 U.S. 84, 94, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001) (noting that “canons are not mandatory rules” but guides “designed to help judges determine the Legislature's intent,” and that “other circumstances evidencing congressional intent can overcome their force”). Based upon the clear congressional intent as to the scope of “actual damages” under the Privacy Act, this court properly concluded that the government could not “carry the day by invoking general maxims of judicial policy.” Town & Country, 963 F.2d at 1152.


The dissent misconstrues the relationship between the requirement of showing an “adverse effect” and that of “actual damages.” In Doe v. Chao, the Court held that “an individual subjected to an adverse effect has injury enough to open the courthouse door.” 540 U.S. 614, 624-25, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004). A majority of the circuits in this country, including our own, has held that mental distress or emotional harm is sufficient to constitute an adverse effect. See, e.g., Englerius v. Veterans Admin., 837 F.2d 895, 897 (9th Cir.1988).

Under the dissent's view, a plaintiff is entitled to establish standing for an injury under the Act that results in a nonpecuniary harm, but is not entitled to seek actual damages for such a nonpecuniary injury. Such a construction of the Act would clearly frustrate the intent of Congress. In contrast, our opinion is true to the overall objective of the Act, allowing a plaintiff who demonstrates a nonpecuniary adverse effect to have the opportunity to recover nonpecuniary damages, to the extent the plaintiff can proffer the requisite degree of competent evidence that there is a real and tangible nonpecuniary injury. Our opinion is also consistent with the...

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