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Torts — sovereign immunity

By: WISCONSIN LAW JOURNAL STAFF//March 29, 2012//

Torts — sovereign immunity

By: WISCONSIN LAW JOURNAL STAFF//March 29, 2012//

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U.S. Supreme Court

Civil

Torts — sovereign immunity

The Privacy Act of 1974 does not unequivocally authorize damages for mental or emotional distress and therefore does not waive the Government’s sovereign immunity from liability for such harms.

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 “general damages” if they first prove “special damages.” Doe v. Chao, 540 U. S. 614. “Special damages” are limited to actual pecuniary loss, which must be specially pleaded and proved. “General damages” cover nonpecuniary loss and need not be pleaded or proved. This parallel suggests the possibility that Congress intended the term “actual damages” to mean “special damages,” thus barring Privacy Act victims from any recovery unless they can first show some actual pecuniary harm. That Congress would choose “actual damages” instead of “special damages” is not without precedent, as the terms have occasionally 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 privacy 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 intended the term “actual damages” in the Act to mean special dam-ages for proven pecuniary loss.

622 F. 3d 1016, reversed and remanded.

10-1024 FAA v. Cooper

Alito, J.; Sotomayor, J., dissenting.

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