Cite as: 540 U. S. 614 (2004)
Opinion of the Court
fect has injury enough to open the courthouse door, but without more has no cause of action for damages under the Privacy Act.9
Next, Doe also suggests there is something peculiar in offering some guaranteed damages, as a form of presumed damages not requiring proof of amount, only to those plaintiffs who can demonstrate actual damages. But this approach parallels another remedial scheme that the drafters of the Privacy Act would probably have known about. At common law, certain defamation torts were redressed by general damages but only when a plaintiff first proved some "special harm," i. e., "harm of a material and generally of a pecuniary nature." 3 Restatement of Torts § 575, Comments a and b (1938) (discussing defamation torts that are "not actionable per se"); see also 3 Restatement (Second) of Torts § 575, Comments a and b (1976) (same). Plaintiffs claiming such torts could recover presumed damages only if they could demonstrate some actual, quantifiable pecuniary loss. Because the recovery of presumed damages in these cases was supplemental to compensation for specific harm, it was hardly unprecedented for Congress to make a guaranteed minimum contingent upon some showing of actual damages, thereby avoiding giveaways to plaintiffs with nothing
9 Nor are we convinced by the analysis mentioned in the dissenting opinion in the Court of Appeals, that any plaintiff who can demonstrate that he was adversely affected by intentional or willful agency action is entitled to costs and reasonable attorney's fees under 5 U. S. C. § 552a(g)(4)(B), and is for that reason "a person entitled to recovery" under subsection (g)(4)(A). See 306 F. 3d 170, 188-189 (CA4 2002). Instead of treating damages as a recovery entitling a plaintiff to costs and fees, see, e. g., 42 U. S. C. § 1988(b) (allowing "a reasonable attorney's fee" to a "prevailing party" under many federal civil rights statutes); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247-258 (1975) (discussing history of American courts' power to award fees and costs to prevailing plaintiffs), this analysis would treat costs and fees as the recovery entitling a plaintiff to minimum damages; it would get the cart before the horse.
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