Privacy Act Protections for Whistleblowers At Risk
On Tuesday, October 4, 2011, the National Whistleblower Center filed a friend of the court brief with the U.S. Supreme Court in support of the plaintiff in a Privacy Act case, Federal Aviation Administration v. Cooper, No. 10-1024. The Supreme Court is currently reviewing whether the Privacy Act permits the recovery of damages for non-pecuniary harm, such as mental and emotional injuries, under the Act’s “actual damages” provision. 5 U.S.C. § 552a(g)(4)(A).
In the lower court, the Ninth Circuit held that the plaintiff was entitled to seek damages for emotional distress. The government, however, has appealed to the Supreme Court to seek a reversal claiming that the term “actual damages” should be narrowly construed to limit Privacy Act damages suits to recovery of out of pocket losses or economic harm caused by the government’s willful or intentional violation of the Act.
Whistleblowers who report wrongdoing by Federal agencies and government officials frequently are subject to violations of privacy. It cannot be over-stated how vital avenues of legal redress, including rights available under the Privacy Act, are to those courageous employee-whistleblowers, both actual and potential, who put the public good before their own careers and who face violations of their privacy as a result of taking unpopular positions. Protecting the privacy of these individuals is an essential component in encouraging employees to reveal severe abuses of power and dangerous industrial practices. Even under the best of circumstances, whistleblowers run enormous risks and suffer retaliation for reporting wrongdoing. If the Privacy Act does not provide remedies for actual non-pecuniary harms (such as for emotional distress and humiliation), then whistleblowers face even greater disincentives to expose misconduct or violations of law.Continue Reading...