Supreme Court Update: Federal Aviation Administration v. Cooper (10-1024) and Setser v. United States (10-7387)

April 2, 2012 Supreme Court Update

Greetings, Court fans!

Today, we bring you Federal Aviation Administration v. Cooper (10-1024), in which the Court determined that people harmed by violations of the federal Privacy Act may sue the government only for economic injuries, not mental or emotional distress, and Setser v. United States (10-7387), where the Court considered whether a district court may order a federal sentence to be consecutive to a state sentence that has not yet been imposed.

The Court split 5-3 (with Justice Kagan not participating) in FAA v. Cooper (10-1024). Stanmore Cooper is a private pilot, and, in order to fly, must periodically renew a medical certificate under FAA regulations. For many years, when applying for his medical certification, Cooper intentionally did not report that he was HIV positive and taking antiretroviral medication. As part of a broad criminal investigation known as "Operation Safe Pilot," the FAA learned that Cooper had received Social Security disability benefits in the 1990s, found out about his HIV status, and determined that the FAA would not have issued him a medical certificate had it known of his medical condition. After Cooper admitted to the omissions, the FAA revoked his pilot certificate; Cooper eventually pleaded guilty to making and delivering a false official writing. Cooper then sued the FAA, the Department of Transportation, and the Social Security Administration, alleging that they violated the Privacy Act, 5 U.S.C. § 552a, by sharing his records with one another and asserting that he had suffered "humiliation, embarrassment, mental anguish, fear of social ostracism, and other severe emotional distress." The Privacy Act provides that the United States is liable for "actual damages" sustained as a result of "intentional or willful" violations. The district court determined that the government had violated the Privacy Act but held that Cooper could not recovery damages because he claimed only mental and emotional harm, not economic loss, and thus could not prove "actual damages." The Ninth Circuit reversed, calling the term "actual damages" a "chameleon," and concluding that in the context of the Privacy Act it encompassed mental and emotional distress as well as economic harm.

The Supreme Court reversed. Justice Alito wrote for the majority, joined by the Chief and Justices Scalia, Kennedy, and Thomas. The Court first considered whether the Privacy Act's civil remedies provision waived the government's sovereign immunity – a waiver that must be "unequivocally expressed" in the text of the statute. Congress clearly intended to open the government to suit for damages, but the scope of the waiver hinged on the reach of the term "actual damages." The Court requires "that the scope of Congress' wavier be clearly discernable from the statutory text in light of traditional interpretive tools. If it is not, then we take the interpretation most favorable to the Government." Agreeing with the Ninth Circuit that the term "actual damages" has a "chameleon-like quality," the Court considered the context in which it appears in the Privacy Act and determined that Congress likely relied on the law of defamation and privacy torts when it drafted the legislation. The Court observed that, to prove the common law torts of libel per quod and slander, plaintiffs must prove at least some pecuniary harm, often referred to as "special damages." The Court also noted that, as part of the Privacy Act, Congress created a commission to consider, among other things, whether the government should be liable for "general damages," a term that it thus plainly considered distinct from "actual damages" and that, under the law of libel per quod and slander, encompasses loss of reputation and other non-pecuniary losses. Although the commission ultimately recommended liability for general damages, Congress never amended the law to allow them expressly. Interpreting Congress's waiver of sovereign immunity in the government's favor, the majority determined that a Privacy Act plaintiff may not recover from the government for mental and emotional distress.

Justice Sotomayor wrote a dissent, which Justices Ginsburg and Breyer joined. She concluded that the majority's limitation of "actual damages" under the Privacy Act to pecuniary loss "is at odds with the text, structure, and drafting history of the Act . . . [and] cripples the Act's core purpose of redressing and deterring violations of privacy interests." The dissenters explained that the "sovereign immunity canon is just that – a canon of construction," and one that need not be employed when traditional tools of statutory construction provide a clear answer. They also noted that, while precedent cautioned the Court against extending the waiver of sovereign immunity beyond what Congress intended, the Court also should not "as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it." Indian Towin Co. v. United States (1955). The dissenters thought that the term "actual damages" as used in the statute was clear and, as defined in Black's Law Dictionary at the time Congress passed the Privacy Act, was synonymous with "compensatory damages," which embraces compensation for all proven injuries or losses. Moreover, in the dissenters' view, the structure of the Privacy Act reinforces the notion that Congress meant "actual damages" to include non-pecuniary losses insofar as it refers at various points to its aim of avoiding breaches that could cause "embarrassment." The dissent also rejected the majority's determination that "actual damages" are synonymous with "special damages" as that terms is understood in the context of libel per quod and slander actions. Ultimately, the dissenters came back to the purpose of the Practice Act, which Congress said was "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." As the Court has recognized "time and again," the primary form of injury for privacy invasions "is nonpecuniary, and includes mental distress and personal humiliation." In the dissent's view, the majority's reading of "actual damages" "renders the remedial provision impotent . . . whenever the injury is solely nonpecuniary," a result "patently at odds with Congress' stated purpose."

Setser v. United States (10-7387) produced a 6-3 split. Monroe Ace Setser was in the midst of a five-year state probation term for a drug offense when police in Lubbock arrested him for possessing methamphetamine yet again. The state indicted him for possession with intent to deliver the drugs and also moved to revoke his probation. A federal grand jury also indicted Setser for possession with intent to distribute, a charge to which he pleaded guilty. Over Setser's objection, the district court sentenced him to 151 months consecutive to any state sentence for the probation violation, but concurrent with any state sentence on the possession charge. The state court ultimately sentenced him to concurrent sentences of five years for his probation violation and ten years on the drug charge. In his federal appeal, Setser argued that the district court had no authority to order the consecutive sentence, and also that such a sentence could not be implemented in light of the concurrent state sentences. The Fifth Circuit disagreed, holding that the district court acted within its authority and that the federal sentence was reasonable even if "partially foiled" by the state court's concurrent sentences.

18 U.S.C. § 3584(a), part of the Sentencing Reform Act of 1984, authorizes a district court to order a federal sentence to run concurrently with a state sentence when the two are imposed at the same time. It does not, however, address the district court's power where the state sentence has not yet come down. According to Setser – joined by the government – the statute's silence meant that the district court acted beyond its authority when it sentenced him; instead, he argued that, under the circumstances presented, the Bureau of Prisons was entitled to decide whether the federal sentence would run consecutively to or concurrently with the state term. (Because the Government agreed with Setser's view of the statute, the Court appointed an amicus to argue the opposing view.)

The Court, in a decision written by Justice Scalia, disagreed with Setser and the Government. (You've got to feel pretty bad if the Court finds against you even though you and the opposing party agree!) Scalia noted that, under the common law, "[j]udges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings." And, although § 3584(a) doesn't explicitly confer such authority where the state has not yet imposed an anticipated sentence, it also doesn't foreclose it. In fact, § 3584(a) does not grant authority at all, but only limits sentencing authority that already exists. As a result, the absence of language expressly permitting district courts to impose a sentence before a state court has done so does not limit the district courts' broad sentencing authority.

The Court also rejected Setser's argument that, even if the district court acted within its authority, the sentence was unreasonable because it was impossible to implement in light of the state court's decision to make his two state sentences concurrent. According to the majority, the federal sentence itself is reasonable and clear, and any difficulty arises "not from the [federal] sentence, but from the state court's decision to make both state sentences concurrent." The Court acknowledged that implementing the sentence would be difficult: "If the federal sentence is added to the state sentence it will not be concurrent with the new drug charge, and if it is merged in the state sentence it will not be consecutive to the parole revocation charge." But Setser identified no flaw in the district court's decisionmaking, and the state's subsequent act did not create an abuse of discretion that rendered the federal sentence unreasonable. The Court left it for the Bureau of Prisons to figure out just how long Setser must serve.

Justice Breyer, joined by Justices Kennedy and Ginsburg, dissented. Section 3584(a) provides that "[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively." According to the dissenters, § 3584(a) reflects Congress's expectation that judges sentencing a defendant convicted of multiple crimes will impose a sentence that "at least to a degree" reflects the defendant's underlying behavior, and acknowledges that "often (but not always) multiple convictions after a single trial will reflect a single course of behavior (different aspects of which violate different criminal statutes)." Thus, "[w]here two convictions reflect in whole or in part the same behavior, the overall sentences should reflect that fact, say by running concurrently." Likewise, "several convictions imposed after different trials are more likely to reflect unrelated behaviors," making consecutive sentences more appropriate. In other words, the ultimate combination of punishment ought to fit the underlying crime(s). Turning to the question before them, the dissenters questioned why § 3584(a) is silent about imposing a sentence that might run consecutively with a sentence another court has not yet imposed. Their answer: "the sentencing judge normally does not yet know enough about what will happen in the sentencing proceeding-yet-to-come to be able to construct a sentence that meets the Guidelines' instructions and which, in doing so, helps to assure that different individuals who engage in the same criminal behavior will typically receive roughly comparable sentences." The first sentencing judge is simply not in a position to devise an appropriate sentence absent complete information about the as-yet-imposed sentence. According to the dissenters, the Bureau of Prisons is better able to make the consecutive/concurrent decision once all the sentencing information – including any statement by the district court about its sentencing intent – is in.

The Court just issued two fresh opinions, so stay tuned -- we'll be back with more soon.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400