Doe, Buck, et al. v. Chao, Elaine (Labor Secy.) (02/24/2004)

Questions presented: Whether, under the Privacy Act, 5 U.S.C. 552a, individuals who have proven a violation of the act, for the disclosure of their Social Security numbers (SSNs), but cannot prove actual damages, are automatically entitled to $1000 in damages?

BY TARA ALEXANDER, MEDILL NEWS SERVICE

For many people who grew up in the Central Appalachian region of the country during the 20th century, coal mining was more of a birthright than a career path.

Known for both its poverty and its rugged beauty, Central Appalachias economy thrived on the often demanding physical labor of its people.

Like many of his peers, Buck Doe (not his real name) chose to leave school at an early age in order to become a coal miner.

Coal mining jobs offered little pay and substantial risk, such as cave-ins, explosions from natural gas and black lung disease.

After roughly 30 years of devotion to his job, the same particles that had blackened his nails and dirtied his face since he was a young man, had begun to claim Does lungs.

Unable to work due to black lung disease, he turned to the federal government for financial support granted to coal miners under the Black Lung Benefits Act.

The Department of Labor, which was responsible for handling black lung claims, used Does and thousands of other coal miners Social Security numbers as identification numbers.

After realizing that his Social Security number had been published along with his name on multiparty hearing notices, Doe feared that anyone could use the information to steal his identity.

The Labor Department had been publishing claimants Social Security numbers for 22 years, without protest from any of the scores of judges, lawyers or black lung claimants who participated in the hearings.

In February 1997 Doe and several others filed suits against the department in federal court in the Western District of Virginia, alleging that the Department had violated their privacy.

According to a provision in the 1974 Privacy Act, any individual who has proven an "adverse affect" caused by the government intentionally or willfully violating his or her privacy is entitled to no less than $1,000 compensation.

Not only did Doe prevail in court, but the department changed its practice of publishing Social Security numbers shortly after the suit was filed.

But on appeal, Does case was not as successful, being partially overturned by a divided 4th Circuit Court of Appeals panel in September 2002.

For the 2-1 majority, Judge Karen Williams said that although the Labor Department was negligent, Doe was not entitled to $1,000 because he could not prove "actual damages" as a result of the governments actions.

Actual damages are those monetary losses that can be calculated, such as lost wages or medical bills.

"Because we hold that a Privacy Act plaintiff only may recover money damages upon a showing of actual damages, and because Appellant Buck Doe has not made such a showing," wrote Williams, "we reverse the district court's grant of summary judgment."

In his dissent, Judge Blane Michael said that Congress never intended to make people prove that they had suffered in order to receive compensation.

"It's not as if you can produce a receipt, obviously, that says you suffered this amount of damage," said Jack W. Campbell IV, Doe's attorney.

According to Campbell, the intent of the law was not to make plaintiffs rich, but to hold the government accountable for misuse of private information.

"It is about vindication of his right to privacy," Campbell said. "It says to agencies, 'look, if you go out and [publish private information], people are going to bring lawsuits against you, so be real careful.'"

If people are forced to show tangible evidence of damages such as emotional distress, it will be too hard for plaintiffs to hold the government accountable for violating the Privacy Act, according to Campbell.

On June 27, 2003, the final day of the Court's 2002-03 term, the Court accepted review of the case during its 2003-04 term.

In support of Does claim, 11 privacy organizations, 16 legal scholars and one national whistleblower organization have filed an amicus brief in the U.S. Supreme Court.

"We would like for the Court to strongly affirm the Privacy Act," said one amici petitioner, Marc Rotenberg, executive director of the Electronic Privacy Information Center. This case will not only establish how the Privacy Act is enforced, but also how careful the government must be when handling social security numbers in the future, according to Rotenberg.

On Feb. 24, 2004, the Court sided with the government, holding 6-3 that Doe must prove some actual damages to qualify for the minimum statutory award.Justice David Souter wrote the majority opinion. Justices Ruth Bader Ginsburg, John Paul Stevens and Stephen Breyer dissented.

[*Buck Doe is the name used to protect the claimants real identity in the court proceedings.]