Yesterday I blogged about oral arguments in Federal Aviation Administration v. Cooper, a case that asks the Supreme Court to decide whether The Privacy Act of 1974 allows awards for emotional distress when there is no other harm or injury demonstrated. Over on Huffington Post, Mike Sacks provides a write-up of how oral argument went, and he doesn’t think it went too well for the airline pilot whose HIV status was improperly disclosed by the Social Security Administration to the FAA:
Ultimately, the Court’s decision will turn less on the source or scope of Cooper’s emotional distress and more on how the justices parse the word “actual.”
Sotomayor, the only justice who once served as a trial judge, questioned Feigin’s purely economic definition. “I’m not sleeping, I have a nervous stomach, I’m not eating,” Sotomayor said, noting “the typical things that juries look at to determine whether you have proven emotional distress.” She asked, “Why is that not actual injury?”
Because, Feigin answered, Congress assigned a commission “to make a recommendation about whether the act should later be expanded to include general damages,” a term traditionally understood as non-economic injuries. And the law was not expanded.
In his conclusion, Cardozo responded that Feigin’s argument relied on legalistic parsing that “renders this act virtually irrelevant.” He urged the Court to “give actual damages its most common and ordinary meaning: proven, not presumed.” But by the end of the hour, it was clear that most of the justices had not been convinced by the simplicity of that argument, leaving Cooper and others similarly injured with no remedy under this particular federal law.
Read more on Huffington Post and PogoWasRight.org.