CIVIL REMEDIES

E. Intentional/Willful Standard and Actual Damages in Accuracy and Other Damages Lawsuits

"In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of . . . actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000." 5 U.S.C. § 552a(g)(4).

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In order for there to be any liability in a (g)(1)(C) or (D) damages lawsuit, the agency must have acted in an "intentional or willful" manner. 5 U.S.C. § 552a(g)(4). It is important to understand that the words "intentional" and "willful" in subsection (g)(4) do not have their vernacular meanings; instead, they are "terms of art." White v. OPM, 840 F.2d 85, 87 (D.C. Cir. 1988) (per curiam). The Act's legislative history indicates that this unique standard is "[o]n a continuum between negligence and the very high standard of willful, arbitrary, or capricious conduct," and that it "is viewed as only somewhat greater than gross negligence." 120 Cong. Rec. 40,406 (1974), reprinted in Source Book at 862.

While not requiring premeditated malice, see Parks v. IRS, 618 F.2d 677, 683 (10th Cir. 1980), the voluminous case law construing this standard makes clear that it is a formidable barrier for a plaintiff seeking damages. See, e.g., Scrimgeour v. Internal Revenue, 149 F.3d 318, 326 (4th Cir. 1998) (plaintiff did not "demonstrate the higher standard of culpability required for recovery under the Privacy Act" where court had already determined that IRS's release of his tax returns did not meet lower standard of gross negligence for recovery under provision of Internal Revenue Code); Deters v. United States Parole Comm'n, 85 F.3d 655, 660 (D.C. Cir. 1996) (Parole Commission did not "'flagrantly disregard'" plaintiff's privacy when it supplemented his file with rebuttal quantity of drugs attributed to him in presentence investigation report (PSI) and offered inmate hearing concerning accuracy of disputed report and "[e]ven if the Commission inadvertently or negligently violated [plaintiff's] Privacy Act rights by not examining the accuracy of the PSI before preparing a preliminary assessment . . . such a violation (if any) could in no sense be deemed 'patently egregious and unlawful'" (quoting Albright and Laningham, infra)); Bailey v. Clay, No. 95-7533, 1996 WL 155160, at *1 (4th Cir. Mar. 29, 1996) (stating that because appellant had alleged mere negligence, he had not stated claim under Privacy Act); Nathanson v. FDIC, No. 95-1604, 1996 U.S. App. LEXIS 3111, at **3-6 (1st Cir. Feb. 22, 1996) (per curiam) (although declining to affirm district court opinion on basis that disclosure pursuant to routine use was proper given that published agency commentary conflicted with such routine use, nevertheless affirming on grounds that disclosure was not intentional and willful because routine use "afforded reasonable grounds for belie[f] that [agency employee's] conduct was lawful"); Kellett v. United States Bureau of Prisons, No. 94-1898, 1995 U.S. App. LEXIS 26746, at **8-10 (1st Cir. Sept. 18, 1995) (per curiam) (standard requires "showing that the agency acted without grounds for believing its action to be lawful, or in 'flagrant disregard' for rights under the Act" (quoting Wilborn v. HHS, infra)); Rose v. United States, 905 F.2d 1257, 1260 (9th Cir. 1990) ("conduct amounting to more than gross negligence" is required); Johnston v. Horne, 875 F.2d 1415, 1422-23 (9th Cir. 1989) (same); Scullion v. VA, No. 87-2405, slip op. at 4-8 (7th Cir. June 22, 1988) (no damages where agency relied upon apparently valid and unrevoked written consent to disclose records); Andrews v. VA, 838 F.2d 418, 424-25 (10th Cir. 1988) (standard "clearly requires conduct amounting to more than gross negligence" and that "must amount to, at the very least, reckless behavior"); Reuber v. United States, 829 F.2d 133, 144 (D.C. Cir. 1987) (standard not met as no evidence showed maintenance of record "was anything other than a good-faith effort to preserve an unsolicited and possibly useful piece of information"); Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987) (per curiam) (violation must be so "'patently egregious and unlawful'" that anyone undertaking the conduct "'should have known it unlawful'" (quoting Wisdom v. HUD, infra)); Hill v. United States Air Force, 795 F.2d 1067, 1070 (D.C. Cir. 1986) (per curiam) (no damages where no evidence of conduct greater than gross negligence); Moskiewicz v. USDA, 791 F.2d 561, 564 (7th Cir. 1986) (noting that "elements of recklessness often have been a key characteristic incorporated into a definition of willful and intentional conduct" (citing Sorenson v. United States, 521 F.2d 325 (9th Cir. 1975); South v. FBI, 508 F. Supp. 1104 (N.D. Ill. 1981))); Dowd v. IRS, 776 F.2d 1083, 1084 (2d Cir. 1985) (per curiam) ("mere administrative error" in negligently destroying files not a predicate for liability); Chapman v. NASA, 736 F.2d 238, 242-43 (5th Cir. 1984) (per curiam) (standard not met where agency "reasonably could have thought" untimely filing of evaluations was proper; "before our previous opinion 'timely' had no precise legal meaning in this circuit"); Albright v. United States, 732 F.2d 181, 189-90 (D.C. Cir. 1984) (standard requires that agency "act without grounds for believing it to be lawful, or by flagrantly disregarding others' rights under the Act"); Wisdom v. HUD, 713 F.2d 422, 424-25 (8th Cir. 1983) (good faith release of loan default records pursuant to unchallenged "Handbook" not willful violation of Act); Perry v. Block, 684 F.2d 121, 129 (D.C. Cir. 1982) (delayed disclosure of documents through administrative oversight not intentional or willful); Edison v. Department of the Army, 672 F.2d 840, 846 (11th Cir. 1982) (failure to prove agency acted "unreasonably" in maintaining records precludes finding intentional or willful conduct); Bruce v. United States, 621 F.2d 914, 917 (8th Cir. 1980) (standard not met where agency relied on regulations permitting disclosure of records pursuant to subpoena, as there were "at that time no regulations or other authority to the contrary"); Mallory v. DOD, No. 97-2377, slip op. at 9-14 (D.D.C. Sept. 30, 1999) (although DOD disclosure of record of plaintiff's rifle purchase to corporation was unlawful, intentional and willful standard was not met because statute gave DOD officials grounds to believe that transfer of such records was implicitly required by statute); Wesley v. Don Stein Buick, Inc., 985 F. Supp. 1288, 1305-06 (D. Kan. 1997) (standard not met where, although disclosure was "unlawful," employee acted with belief that disclosure was proper, and it would have been proper if procedures set forth in routine use had been followed); Armstrong v. United States Bureau of Prisons, 976 F. Supp. 17, 22 (D.D.C. 1997) (standard not met where Bureau of Prisons refused to amend prison records to incorporate favorable information from inmate's prior incarceration in accordance with Bureau of Prisons guidelines), summary affirmance granted sub nom. Armstrong v. Federal Bureau of Prisons, No. 97-5208, 1998 WL 65543 (D.C. Cir. Jan. 30, 1998); Porter v. United States Postal Serv., No. CV595-30, slip op. at 10, 13, 21-22 (S.D. Ga. July 24, 1997) (concluding that Postal Service acted with "mere negligence" when it disclosed letter from plaintiff's attorney written as response to plaintiff's proposed termination to two union officials with belief that they had "a right and duty to know the disciplinary affairs of a fellow postal worker" even though plaintiff had not filed a grievance through union and "had specifically instructed the management that he did not want anyone from the [union] representing his interests"), aff'd, 166 F.3d 352 (11th Cir. 1998) (unpublished table decision); Harris v. USDA, No. 3:92CV-283-H, slip op. at 1-2, 4-5 (W.D. Ky. May 14, 1996) (standard not met where agency acted pursuant to Correspondence Management Handbook in maintaining supporting documentation for plaintiff's 1975 suspension), aff'd, 124 F.3d 197 (6th Cir. 1997) (unpublished table decision); Purrier v. HHS, No. 95-CV-6203, slip op. at 6-7 (W.D.N.Y. Mar. 15, 1996) ("given [defendant's] knowledge that she was subject to a grand jury subpoena," disclosure of limited information "even if [it] did violate the Act (which, with respect to plaintiff at least, [it] did not), fell far short of the kind of flagrant disregard of plaintiff's rights that is required"); Smith v. United States Bureau of Prisons, No. 94-1798, 1996 WL 43556, at *2 (D.D.C. Jan. 31, 1996) (standard not met where adverse determination had been rectified; fact that certain forms were corrected immediately, even though another form may not have been, "indicates that BOP officials did not intend to maintain plaintiff[']s records incorrectly"); Henson v. Brown, No. 95-213, slip op. at 5-7 (D. Md. June 23, 1995) (disclosure of medical records in response to subpoena signed by judge to attorney for plaintiff's ex-wife, rather than to court, did not "constitute an extreme departure from the standard of ordinary care"); Baitey v. VA, No. 8:CV89-706, slip op. at 8 (D. Neb. June 21, 1995) (standard not met where plaintiff failed to prove that VA acted in "flagrant or reckless disregard of [plaintiff's] rights under the Privacy Act" when it disclosed his medical records in response to incomplete and unsigned medical authorization); Olivares v. NASA, 882 F. Supp. 1545, 1549-50 (D. Md. 1995) (NASA's actions in contacting educational institutions to verify and correct discrepancies in plaintiff's record, even assuming initial consent to contact those institutions was limited, were not even negligent and do not "come close" to meeting standard), aff'd, 103 F.3d 119 (4th Cir. 1996) (unpublished table decision); Webb v. Magaw, 880 F. Supp. 20, 25 (D.D.C. 1995) (stating that even if court had found Privacy Act violation, agency conduct "at worst . . . would only amount to negligence . . . and would not amount to willful, intentional or even reckless disregard"); Sterling v. United States, 826 F. Supp. 570, 572 (D.D.C. 1993) (standard not met where agency's "efforts both before and after the release of information . . . indicate a sensitivity to the potential harm the release might cause and represent attempts to avert that harm"), summary affirmance granted, No. 93-5264 (D.C. Cir. Mar. 11, 1994); Dickson v. OPM, No. 83-3503, 1991 WL 423968, at **16-17 (D.D.C. Aug. 27, 1991) ("mere negligence" due to failure to follow internal guidelines not enough to show willfulness), summary affirmance granted, No. 91-5363 (D.C. Cir. Aug. 31, 1992); Stephens v. TVA, 754 F. Supp. 579, 582 (E.D. Tenn. 1990) (no damages where "some authority" existed for proposition that retrieval not initially and directly from system of records was not a "disclosure," and agency attempted to sanitize disclosed records); Brumley v. United States Dep't of Labor, No. 87-2220, 1990 WL 640002, at **2-3 (D.D.C. Dec. 5, 1990) (no damages for delayed response to amendment request); Alexander v. IRS, No. 86-0414, 1987 WL 13958, at *6 (D.D.C. June 30, 1987) (standard not met where agency relied on OMB Guidelines and internal manual in interviewing third parties prior to contacting plaintiff); Blanton v. United States Dep't of Justice, No. 82-0452, slip op. at 6-8 (D.D.C. Feb. 17, 1984) (unauthorized "leak" of record not intentional or willful agency conduct); Krohn v. United States Dep't of Justice, No. 78-1536, slip op. at 3-7 (D.D.C. Nov. 29, 1984) (standard not met where agency relied in good faith on previously unchallenged routine use to publicly file records with court); Daniels v. St. Louis VA Reg'l Office, 561 F. Supp. 250, 252 (E.D. Mo. 1983) (mere delay in disclosure due in part to plaintiff's failure to pay fees not intentional or willful); Doe v. GSA, 544 F. Supp. 530, 541-42 (D. Md. 1982) (disclosure not "wholly unreasonable" where "some kind of consent" given for release of psychiatric records and where agency employees believed that release was authorized under GSA's interpretation of its own guidelines, even though court concluded that such interpretation was erroneous).

While some district court decisions have found "intentional or willful" violations of the statute, see, e.g., Doe v. Herman, No. 2:97CV00043, 1999 U.S. Dist. LEXIS at **44-46 (W.D. Va. Oct. 29, 1999) (magistrate's recommendation); Stewart v. FBI, No. 97-1595, slip op. at 5-8 (D. Or. Mar. 12, 1999); Tomasello v. Rubin, No. 93-1326, slip op. at 17-19 (D.D.C. Aug. 19, 1997), aff'd on other grounds, 167 F.3d 612 (D.C. Cir. 1999); Porter, No. CV595-30, slip op. at 22-23 (S.D. Ga. July 24, 1997); Romero-Vargas v. Shalala, 907 F. Supp. 1128, 1133-34 (N.D. Ohio 1995); Swenson v. United States Postal Serv., No. S-87-1282, 1994 U.S. Dist. LEXIS 16524, at **33-45 (E.D. Cal. Mar. 10, 1994); Connelly v. Comptroller of the Currency, No. H-84-3783, slip op. at 25-27 (S.D. Tex. June 3, 1991); MacDonald v. VA, No. 87-544-CIV-T-15A, slip op. at 4, 7 (M.D. Fla. July 28, 1989); Fitzpatrick v. IRS, 1 Gov't Disclosure Serv. (P-H) ¶ 80,232, at 80,580 (N.D. Ga. Aug. 22, 1980), aff'd in part, vacated & remanded in part, on other grounds, 655 F.2d 327 (11th Cir. 1982); see also Louis v. VA, No. C95-5606, slip op. at 4-5 (W.D. Wash. Oct. 31, 1996) (awarding damages where agency conduct amounted to "reckless disregard" of plaintiff's rights), as yet the only court of appeals to have found "intentional or willful" violations of the statute is the Court of Appeals for the Ninth Circuit, see Wilborn v. HHS, 49 F.3d 597, 602-03 (9th Cir. 1995); Covert v. Harrington, 876 F.2d 751, 756-57 (9th Cir. 1989).

In Wilborn, the plaintiff, an attorney who previously had been employed by the Department of Health and Human Services, sought damages under the Privacy Act for the disclosure of adverse personnel information about him that was disclosed in an opinion by an Administrative Law Judge before whom he had presented a case. 49 F.3d at 599-602. The court ruled that the "uncontroverted facts plainly establish that the ALJ disclosed the information . . . without any ground for believing it to be lawful and in flagrant disregard of the rights of Wilborn under the Privacy Act." Id. at 602. The Ninth Circuit noted that not only was the ALJ personally familiar with the Privacy Act and had advised his staff concerning the Act's disclosure prohibition, but further, that the ALJ had been informed by an agency attorney that the language at issue was "inappropriate and should not be included in the decision." Id. Particularly troubling in this case is the additional fact that all information pertaining to the adverse personnel record was required to, and in fact had been, removed from the system of records by the ALJ as a result of a grievance action filed by the plaintiff. Id.

In Covert, the Ninth Circuit ruled that the Department of Energy Inspector General's routine use disclosure of prosecutive reports, showing possible criminal fraud, to the Justice Department violated subsection (e)(3)(C) because, at the time of their original collection by another component of the agency, portions of those reports--consisting of personnel security questionnaires submitted by the plaintiffs--did not provide actual notice of the routine use. 876 F.2d 751, 754-57 (9th Cir. 1989). The Ninth Circuit held that the failure to comply with subsection (e)(3)(C) was "greater than grossly negligent" even though the Inspector General was relying on statutes, regulations and disclosure practices that appeared to permit disclosure, and no prior court had ever suggested that noncompliance with subsection (e)(3)(C) would render a subsequent subsection (b)(3) routine use disclosure improper. See id. Though it paid lip service to the correct standard, the Ninth Circuit in Covert actually applied a strict liability standard--one based upon the government's failure to anticipate its novel "linkage" between subsection (e)(3)(C) and subsection (b)(3)--a standard which markedly departs from settled precedent. Compare Covert, 876 F.2d at 756-57, with Chapman, 736 F.2d at 243, Wisdom, 713 F.2d at 424-25, and Bruce, 621 F.2d at 917. See also Doe v. Stephens, 851 F.2d 1457, 1462 (D.C. Cir. 1988) ("We cannot, in short, fairly predicate negligence liability on the basis of the VA's failure to predict the precise statutory interpretation that led this court in [Doe v. DiGenova, 779 F.2d 74, 79-85 (D.C. Cir. 1985)] to reject the agency's reliance on the [law indicating that a subpoena constituted a subsection (b)(11) court order].").

The Court of Appeals for the Third Circuit has held that the Privacy Act--with its stringent "greater than gross negligence" standard for liability--does not indicate a congressional intent to limit an individual's right under state law to recover damages caused by the merely negligent disclosure of a psychiatric report. See O'Donnell v. United States, 891 F.2d 1079, 1083-87 (3d Cir. 1989) (Federal Tort Claims Act case). But see Hager v. United States, No. 86-3555, slip op. at 7-8 (N.D. Ohio Oct. 20, 1987) (Privacy Act preempts FTCA action alleging wrongful disclosure); cf. Doe v. DiGenova, 642 F. Supp. 624, 629-30, 632 (D.D.C. 1986) (holding state law/FTCA claim preempted by Veterans' Records Statute, 38 U.S.C. §§ 3301-3302 (renumbered as 38 U.S.C. §§ 5701-5702 (1994))), aff'd in pertinent part, rev'd in part & remanded sub nom. Doe v. Stephens, 851 F.2d 1457 (D.C. Cir. 1988).

Assuming that a Privacy Act plaintiff can show: (1) a violation; (2) an adverse effect; (3) causation; and (4) intentional or willful agency conduct, then "actual damages sustained by the [plaintiff are recoverable] but in no case shall a person [who is] entitled to recovery receive less than the sum of $1,000." 5 U.S.C. § 552a(g)(4)(A).

The Court of Appeals for the District of Columbia Circuit recently ruled that a plaintiff was not entitled to $1000 for each copy of a letter that was disclosed in violation of the Privacy Act to 4500 individuals. See Tomasello v. Rubin, 167 F.3d 612, 617-18 (D.C. Cir. 1999). The D.C. Circuit stated that "[w]hile it may be linguistically possible to read the language [of § 552a(g)(4)] so as to forbid the aggregation of several more-or-less contemporaneous transmissions of the same record into one 'act[]' or 'failure [to comply with the Privacy Act],' the result [sought in this case] shows that such a reading defies common sense." Id. at 618. In reaching its determination "that each letter disclosure was not independently compensable," the D.C. Circuit also reasoned that as a waiver of sovereign immunity, subsection (g)(4) "'must be construed strictly in favor of the sovereign, and not enlarge[d] . . . beyond what the language requires.'" Id. (quoting United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992)).

The issue of what kinds of damages are recoverable under subsection (g)(4)(A) has engendered some confusing case law. The OMB Guidelines state that "[a]ctual damages or $1,000, whichever is greater," are/is recoverable. OMB Guidelines, 40 Fed. Reg. 28,948, 28,970 (1975) (emphasis added). Consistent with OMB's guidance, several courts have held that the statutory minimum damages amount of $1000 is recoverable for "proven injuries"--even in the absence of out-of-pocket expenses (pecuniary loss). See Fitzpatrick v. IRS, 665 F.2d 327-31 (11th Cir. 1982); Leverette v. Federal Law Enforcement Training Ctr., No. CV 280-136, slip op. at 2-5 (S.D. Ga. July 6, 1982); see also Doe v. Herman, No. 2:97CV00043, 1999 U.S. Dist. LEXIS 17302, at **49-52 (W.D. Va. Oct. 29, 1999) (magistrate's recommendation) (although "persuaded that a plaintiff should be able to recover the statutory damages . . . upon a showing that he has suffered emotional distress," interpreting the damages provision to "requir[e] a plaintiff to both plead and prove damages before being entitled to any recovery, including the statutory damages provided").

Two courts have seemed to take this even further by seemingly not requiring "proven injuries." See Wilborn, 49 F.3d at 603 (no need to remand to district court for determination of amount of damages because Wilborn had limited damages sought to statutory minimum of $1000 (citing Fitzpatrick)); Romero-Vargas, 907 F. Supp. at 1134 (stating that "emotional distress caused by the fact that the plaintiff's privacy has been violated is itself an adverse effect, and . . . statutory damages can be awarded without an independent showing of adverse effects"), motion to alter or amend denied, id. at 1135 (although defendant argued that court had made an error of law in awarding plaintiffs statutory damages in absence of specific findings of mental distress, finding that plaintiffs did present adequate evidence that they were adversely affected by disclosures); cf. Fitzpatrick, 665 F.2d at 330 (although confronted with a case in which appellant had "proved . . . that he suffered a general mental injury," stating that "$1,000 damage floor" was added as additional element of recovery "[t]o avoid a situation in which persons suffering injury had no provable damages and hence no incentive to sue"); Porter, No. CV595-30, slip op. at 15, 25 (S.D. Ga. July 24, 1997) (finding that because plaintiff had proven intentional and willful violation of his Privacy Act rights, he was entitled to recover statutory minimum of $1000 even though he had suffered no pecuniary loss and court did not discuss any nonpecuniary loss).

However, a few courts have held that even recovery of the statutory minimum damages amount of $1000 requires proof of "actual damages"--which, according to these courts, consist only of out-of-pocket expenses. See DiMura v. FBI, 823 F. Supp. 45, 48 (D. Mass. 1993); Nutter v. VA, No. 84-2392, slip op. at 6 n.2 (D.D.C. July 9, 1986); Houston v. United States Dep't of the Treasury, 494 F. Supp. 24, 30 (D.D.C. 1979); see also Mobley v. Doyle, No. JH-87-3300, slip op. at 6 (D. Md. Nov. 8, 1988) (congressional "intention to limit 'actual damages' to 'out of pocket' expenses"); Pope v. Bond, 641 F. Supp. 489, 500-01 (D.D.C. 1986) (plaintiff's recovery limited to "out-of-pocket" expenses).

With respect to damages beyond the $1000 level, "actual damages" must be proven. Although it is settled that actual damages include out-of-pocket expenses, there is a split of authority as to whether nonpecuniary damages for physical and mental injury--such as emotional trauma, anger, fear, or fright--are recoverable. Compare Johnson v. Department of the Treasury, IRS, 700 F.2d 971, 974-80 (5th Cir. 1983) (nonpecuniary damages recoverable), Parks, 618 F.2d at 682-83, 685 (stating that plaintiffs had "alleged viable claims for damages" where only alleged adverse effect was "psychological harm"), Dong v. Smithsonian Inst., 943 F. Supp. 69, 74-75 (D.D.C. Oct. 31, 1996) (following Johnson and awarding damages for injury to reputation), rev'd on grounds of statutory inapplicability, 125 F.3d 877 (D.C. Cir. 1997) (ruling that "Smithsonian is not an agency for Privacy Act purposes"), cert. denied, 524 U.S. 922 (1998); Louis, No. C95-5606, slip op. at 5 (W.D. Wash. Oct. 31, 1996) (awarding damages for "emotional suffering"), Swenson, No. S-87-1282, 1994 U.S. Dist. LEXIS 16524, at **46-52 (E.D. Cal. Mar. 10, 1994) (following Johnson), and Kassel v. VA, No. 87-217-S, slip op. at 38 (D.N.H. Mar. 30, 1992) (same), with Hudson v. Reno, 130 F.3d 1193, 1207 (6th Cir. 1997) (citing plaintiff's failure to show "actual damages" as additional basis for affirming district court decision and stating that "the weight of authority suggests that actual damages under the Privacy Act do not include recovery for 'mental injuries, loss of reputation, embarrassment or other non-quantifiable injuries'" (citing Fitzpatrick, Pope, and DiMura)), cert. denied, 525 U.S. 822 (1998); Fitzpatrick, 665 F.2d at 329-31 (damages for generalized mental injuries, loss of reputation, embarrassment or other nonquantifiable injuries not recoverable), Mallory v. DOD, No. 97-2377, slip op. at 15-16 n.3 (D.D.C. Sept. 30, 1999) (holding that actual damages limited to out-of-pocket losses); Gowan v. Department of the Air Force, No. 90-94, slip op. at 31 (D.N.M. Sept. 1, 1995) (adopting analysis of DiMura that emotional damages would not be recoverable), aff'd, 148 F.3d 1182 (10th Cir.), cert. denied, 525 U.S. 1042 (1998); DiMura, 823 F. Supp. at 47-48 ("'actual damages' does not include emotional damages"), Pope, 641 F. Supp. at 500-01 (only out-of-pocket expenses recoverable), and Houston, 494 F. Supp. at 30 (same).

The Court of Appeals for the District of Columbia Circuit has not expressly ruled on this issue. In Albright v. United States, 558 F. Supp. 260, 264 (D.D.C. 1982), the district court, citing Houston with approval, held that only out-of-pocket expenses--not damages for emotional trauma, anger, fright, or fear--are recoverable. On appeal, however, the D.C. Circuit affirmed on other grounds, expressly declining to decide whether "actual damages" include more than out-of-pocket expenses. Albright, 732 F.2d at 183, 185-86 & n.11; cf. Tomasello, 167 F.3d at 614, 618 n.6, 619 n.9 (declining to decide whether nonpecuniary damages were available under Privacy Act, given plaintiff's failure to raise issue below). In the absence of direction from the D.C. Circuit, the District Court for the District of Columbia on at least three other occasions has ruled that damages are limited to out-of-pocket expenses, see Mallory, No. 97-2377, slip op. at 15-16 n.3; Pope, 641 F. Supp. at 500-01; Houston, 494 F. Supp. at 30; and on one other occasion has awarded damages for nonpecuniary loss, see Dong, 943 F. Supp. at 74-75.

It is well settled that injunctive relief is available only under subsections (g)(1)(A) (amendment) and (g)(1)(B) (access)--both of which, incidentally, require exhaustion--and that it is not available under subsections (g)(1)(C) or (g)(1)(D). See, e.g., Locklear v. Holland, No. 98-6407, 1999 WL 1000835, at *1 (6th Cir. Oct. 28, 1999); Risley v. Hawk, 108 F.3d 1396, 1397 (D.C. Cir. 1997) (per curiam); Doe v. Stephens, 851 F.2d at 1463; Hastings v. Judicial Conference of the United States, 770 F.2d 1093, 1104 (D.C. Cir. 1985); Edison, 672 F.2d at 846; Hanley v. United States Dep't of Justice, 623 F.2d 1138, 1139 (6th Cir. 1980) (per curiam); Parks, 618 F.2d at 684; Cell Assocs. v. NIH, 579 F.2d 1155, 1161-62 (9th Cir. 1978); Purrier, No. 95-CV-6203, slip op. at 5 (W.D.N.Y. Mar. 15, 1996); AFGE v. HUD, 924 F. Supp. 225, 228 n.7 (D.D.C. 1996), rev'd on other grounds, 118 F.3d 786 (D.C. Cir. 1997); Robinson v. VA, No. 89-1156-B(M), slip op. at 2 (S.D. Cal. Dec. 14, 1989); Houston, 494 F. Supp. at 29; see also Word v. United States, 604 F.2d 1127, 1130 (8th Cir. 1979) (no "exclusionary rule" for subsection (b) violations; "No need and no authority exists to design or grant a remedy exceeding that established in the statutory scheme."); Shields v. Shetler, 682 F. Supp. 1172, 1176 (D. Colo. 1988) (Act "does not create a private right of action to enjoin agency disclosures"); 120 Cong. Rec. 40,406 (1974), reprinted in Source Book at 862. But see Florida Med. Ass'n v. HEW, 479 F. Supp. 1291, 1299 & n.8 (M.D. Fla. 1979) (aberrational decision construing subsection (g)(1)(D) to confer jurisdiction to enjoin agency's disclosure of Privacy Act-protected record).

There should be no reason for regarding this settled law as inapplicable where a subsection (e)(7) claim is involved. See Wabun-Inini v. Sessions, 900 F.2d 1234, 1245 (8th Cir. 1990); Clarkson v. IRS, 678 F.2d 1368, 1375 n.11 (11th Cir. 1982); Committee in Solidarity v. Sessions, 738 F. Supp. 544, 548 (D.D.C. 1990), aff'd, 929 F.2d 742 (D.C. Cir. 1991); see also Socialist Workers Party v. Attorney Gen., 642 F. Supp. 1357, 1431 (S.D.N.Y. 1986) (in absence of exhaustion, only damages remedy, rather than injunctive relief, is available for violation of subsection (e)(7)). In Haase v. Sessions, 893 F.2d 370, 373-75 (D.C. Cir. 1990), however, the D.C. Circuit, in dictum, suggested that its decision in Nagel v. HEW, 725 F.2d 1438, 1441 (D.C. Cir. 1984), could be read to recognize the availability of injunctive relief to remedy a subsection (e)(7) violation, under subsection (g)(1)(D); cf. Becker v. IRS, 34 F.3d 398, 409 (7th Cir. 1994) (finding that IRS had not justified maintenance of documents under subsection (e)(7) and stating that thus "the documents should be expunged"). Such a view is somewhat difficult to reconcile with the structure of subsection (g) and with the case law mentioned above.

There is a split of authority on the issue of whether destruction of a Privacy Act record gives rise to a damages action. Compare Tufts v. Department of the Air Force, 793 F.2d 259, 261-62 (10th Cir. 1986) (no), with Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983) (assuming action exists), and Waldrop v. United States Dep't of the Air Force, 3 Gov't Disclosure Serv. (P-H) ¶ 83,016, at 83,453 (S.D. Ill. Aug. 5, 1981) (yes); see also Dowd v. IRS, 776 F.2d 1083, 1084 (2d Cir. 1985) (per curiam) (expressly declining to decide issue).

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