638
Ginsburg, J., dissenting
"(1) any actual and general damages sustained by any person but in no case shall a person entitled to recovery receive less than the sum of $1,000; and
"(2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court." S. 3418, 93d Cong., 2d Sess., § 303(c) (1974), reprinted in Source Book 371.
The provision for monetary relief ultimately enacted, § 552a(g)(4), represented a compromise between the House and Senate versions. The House bill's culpability standard ("willful, arbitrary, or capricious"), not present in the Senate bill, accounts for § 552a(g)(4)'s imposition of liability only when the agency acts in an "intentional or willful" manner. That culpability requirement affords the Government some insulation against excessive liability.5 On the other hand, the enacted provision adds to the House allowance of "actual damages" only, the Senate specification that "in no case shall a person entitled to recovery receive less than the sum of $1,000 . . . ." § 552a(g)(4)(A). The $1,000 minimum, as earlier developed, supra, at 634, enables individuals to recover
5 Petitioner Doe recognizes that "the 'intentional [or] willful' level of culpability a Privacy Act plaintiff must demonstrate is a formidable barrier." Brief for Petitioner 29; Reply Brief 1 ("Congress and commentators agree [the 'intentional or willful' qualification] is a formidable obstacle to recovery under the Act."). In this Court and case, as earlier noted, supra, at 627-628, the Government does not challenge the finding that the Department of Labor's violation of the Act was "intentional or willful." Tr. of Oral Arg. 35; see App. to Pet. for Cert. 96a-97a (Characterizing the Department of Labor's actions as "intentional and willful," the Magistrate Judge observed: "The undisputed evidence shows that the Department took little, if any, action to see that it complied with the Privacy Act. . . . Several of the Administrative Law Judges responsible for sending out the multi-captioned hearing notices testified that they had received no training on the Privacy Act."). Because the "intentional or willful" character of the agency's conduct is undisputed here, the Court is not positioned to give that issue the full consideration it would warrant were the issue the subject of dispute.
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