DOE v. CHAO, SECRETARY OF LABOR

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614 OCTOBER TERM, 2003
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DOE v. CHAO, SECRETARY OF LABOR
certiorari to the united states court of appeals for
the fourth circuit
No. 02–1377. Argued December 3, 2003—Decided February 24, 2004
After petitioner Doe filed a black lung benefits claim with the Department
of Labor, the agency used his Social Security number to identify his
claim on official agency documents, including a multicaptioned hearing
notice that was sent to a group of claimants, their employers, and law-
yers. Doe and other black lung claimants sued the Department, claim-
ing that such disclosures violated the Privacy Act of 1974. The Govern-
ment stipulated to an order prohibiting future publication of Social
Security numbers on multicaptioned hearing notices, and the parties
moved for summary judgment. The District Court entered judgment
against all plaintiffs but Doe, finding that they had raised no issues of
cognizable harm. However, the court accepted Doe’s uncontroverted
testimony about his distress on learning of the improper disclosure,
granted him summary judgment, and awarded him $1,000, the minimum
statutory damages award under 5 U. S. C. § 552a(g)(4). The Fourth Cir-
cuit reversed on Doe’s claim, holding that the $1,000 minimum is avail-
able only to plaintiffs who suffer actual damages, and that Doe had not
raised a triable issue of fact about such damages, having submitted no
corroboration for his emotional distress claim.
Held: Plaintiffs must prove some actual damages to qualify for the mini-
mum statutory award. Pp. 618–627.
(a) The Privacy Act gives agencies detailed instructions for managing
their records and provides various sorts of civil relief to persons ag-
grieved by the Government’s failure to comply with the Act’s require-
ments. Doe’s claim falls within a catchall category for someone who
suffers an “adverse effect” from a failure not otherwise specified in the
remedial section of the Act. § 552a(g)(1)(D). If a court determines in
a subsection (g)(1)(D) suit that the agency acted in an “intentional or
willful” manner, the Government is liable for “actual damages sustained
by the individual . . . , but in no case shall a person entitled to recovery
receive less than . . . $1,000.” § 552a(g)(4)(A). Pp. 618–619.
(b) A straightforward textual analysis supports the Government’s po-
sition that the minimum guarantee goes only to victims who prove some
actual damages. By the time the statute guarantees the $1,000 mini-
mum, it not only has confined eligibility to victims of adverse effects
caused by intentional or willful actions, but has provided expressly for

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Syllabus
liability to such victims for “actual damages sustained.” When the next
clause of the sentence containing such an explicit provision guarantees
$1,000 to the “person entitled to recovery,” the obvious referent is the
immediately preceding provision for recovering actual damages, the
Act’s sole provision for recovering anything. Doe’s theory that the min-
imum requires nothing more than proof of a statutory violation is imme-
diately questionable in ignoring the “actual damages” language so
directly at hand and instead looking for “a person entitled to recovery”
in a separate part of the statute devoid of any mention of recovery or
of what might be recovered. Doe ignores statutory language by read-
ing the statute to speak of liability in a freestanding, unqualified way,
when it actually speaks in a limited way, by referencing enumerated
damages. His reading is also at odds with the traditional understand-
ing that tort recovery requires both wrongful act plus causation and
proof of some harm for which damages can reasonably be assessed.
And an uncodified provision of the Act demonstrates that Congress left
for another day the question whether to authorize general damages, i. e.,
an award calculated without reference to specific harm. In fact, draft-
ing history shows that Congress cut out the very language in the bill
that would have authorized such damages. Finally, Doe’s reading
leaves the entitlement to recovery reference with no job to do. As he
treats the text, Congress could have accomplished its object simply by
providing that the Government would be liable for actual damages but
in no case less than $1,000. Pp. 620–623.
(c) Doe’s argument suggests that it would have been illogical for Con-
gress to create a cause of action for anyone suffering an adverse effect
from intentional or willful agency action, then deny recovery without
actual damages. But subsection (g)(1)(D)’s recognition of a civil action
was not meant to provide a complete cause of action. A subsequent
provision requires proof of intent or willfulness in addition to adverse
effect, and if the specific state of mind must be proven additionally, it is
consistent with logic to require some actual damages as well. Doe also
suggests that it is peculiar to offer guaranteed damages, as a form of
presumed damages not requiring proof of amount, only to plaintiffs
who can demonstrate actual damages. But this approach parallels
the common-law remedial scheme for certain defamation claims in
which plaintiffs can recover presumed damages only if they can demon-
strate some actual, quantifiable pecuniary loss. Finally, Doe points to
subsequently enacted statutes with remedial provisions similar to
§ 552a(g)(4). However, the text of one provision is too far different from
the Privacy Act’s language to serve as a sound basis for analogy; and
even as to the other provisions, this Court has said repeatedly that sub-
sequent legislative history will rarely override a reasonable interpreta-

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tion of a statute that can be gleaned from its language and legislative
history prior to its enactment. Pp. 624–627.
306 F. 3d 170, affirmed.
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, and Thomas, JJ., joined, and in which
Scalia, J., joined except as to the penultimate paragraph of Part III and
footnote 8. Ginsburg, J., filed a dissenting opinion, in which Stevens
and Breyer, JJ., joined, post, p. 627. Breyer, J., filed a dissenting opin-
ion, post, p. 641.
Jack W. Campbell IV argued the cause for petitioner.
With him on the briefs were Donald B. Ayer, Dominick V.
Freda, and Joseph E. Wolfe.
Malcolm L. Stewart argued the cause for respondent.
With him on the brief were Solicitor General Olson, Assist-
ant Attorney General Keisler, Deputy Solicitor General
Kneedler, Patricia A. Millett, Leonard Schaitman, Anthony
A. Yang, Howard M. Radzely, Allen H. Feldman, Nathaniel
I. Spiller, and Michael P. Doyle.*
Justice Souter delivered the opinion of the Court.
The United States is subject to a cause of action for the
benefit of at least some individuals adversely affected by a
federal agency’s violation of the Privacy Act of 1974. The
question before us is whether plaintiffs must prove some ac-
tual damages to qualify for a minimum statutory award of
$1,000. We hold that they must.
I
Petitioner Buck Doe filed for benefits under the Black
Lung Benefits Act, 83 Stat. 792, 30 U. S. C. § 901 et seq., with
the Office of Workers’ Compensation Programs, the division
*David K. Colapinto, Stephen M. Kohn, and Michael D. Kohn filed a
brief for Linda R. Tripp et al. as amici curiae urging reversal.
Briefs of amici curiae were filed for the Electronic Privacy Information
Center et al. by Marc Rotenberg and David L. Sobel; and for the Report-
ers Committee for Freedom of the Press by Lucy A. Dalglish.

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of the Department of Labor responsible for adjudicating it.
The application form called for a Social Security number,
which the agency then used to identify the applicant’s claim,
as on documents like “multicaptioned” notices of hearing
dates, sent to groups of claimants, their employers, and the
lawyers involved in their cases. The Government concedes
that following this practice led to disclosing Doe’s Social Se-
curity number beyond the limits set by the Privacy Act.
See 5 U. S. C. § 552a(b).
Doe joined with six other black lung claimants to sue the
Department of Labor, alleging repeated violations of the Act
and seeking certification of a class of “ ‘all claimants for Black
Lung Benefits since the passage of the Privacy Act.’ ” Pet.
for Cert. 6a. Early on, the United States stipulated to an
order prohibiting future publication of applicants’ Social Se-
curity numbers on multicaptioned hearing notices, and the
parties then filed cross-motions for summary judgment.
The District Court denied class certification and entered
judgment against all individual plaintiffs except Doe, finding
that their submissions had raised no issues of cognizable
harm. As to Doe, the court accepted his uncontroverted ev-
idence of distress on learning of the improper disclosure,
granted summary judgment, and awarded $1,000 in statutory
damages under 5 U. S. C. § 552a(g)(4).
A divided panel of the Fourth Circuit affirmed in part but
reversed on Doe’s claim, holding the United States entitled
to summary judgment across the board. 306 F. 3d 170
(2002). The Circuit treated the $1,000 statutory minimum
as available only to plaintiffs who suffered actual damages
because of the agency’s violation, id., at 176–179, and then
found that Doe had not raised a triable issue of fact about
actual damages, having submitted no corroboration for his
claim of emotional distress, such as evidence of physical
symptoms, medical treatment, loss of income, or impact on
his behavior. In fact, the only indication of emotional afflic-
tion was Doe’s conclusory allegations that he was “ ‘torn . . .

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all to pieces’ ” and “ ‘greatly concerned and worried’ ” be-
cause of the disclosure of his Social Security number and its
potentially “ ‘devastating’ ” consequences. Id., at 181.
Doe petitioned for review of the holding that some actual
damages must be proven before a plaintiff may receive the
minimum statutory award. See Pet. for Cert. i. Because
the Fourth Circuit’s decision requiring proof of actual dam-
ages conflicted with the views of other Circuits, see, e. g.,
Orekoya v. Mooney, 330 F. 3d 1, 7–8 (CA1 2003); Wilborn v.
Department of Health and Human Servs., 49 F. 3d 597, 603
(CA9 1995); Waters v. Thornburgh, 888 F. 2d 870, 872 (CADC
1989); Johnson v. Department of Treasury, IRS, 700 F. 2d
971, 977, and n. 12 (CA5 1983); Fitzpatrick v. IRS, 665 F. 2d
327, 330–331 (CA11 1982), we granted certiorari. 539 U. S.
957 (2003). We now affirm.
II
“[I]n order to protect the privacy of individuals identified
in information systems maintained by Federal agencies, it is
necessary . . . to regulate the collection, maintenance, use,
and dissemination of information by such agencies.” Pri-
vacy Act of 1974, § 2(a)(5), 88 Stat. 1896. The Act gives
agencies detailed instructions for managing their records
and provides for various sorts of civil relief to individuals
aggrieved by failures on the Government’s part to comply
with the requirements.
Subsection (g)(1) recognizes a civil action for agency mis-
conduct fitting within any of four categories (the fourth, in
issue here, being a catchall), 5 U. S. C. §§ 552a(g)(1)(A)–(D),
and then makes separate provision for the redress of each.
The first two categories cover deficient management of rec-
ords: subsection (g)(1)(A) provides for the correction of any
inaccurate or otherwise improper material in a record, and
subsection (g)(1)(B) provides a right of access against any
agency refusing to allow an individual to inspect a record
kept on him. In each instance, further provisions specify

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such things as the de novo nature of the suit (as distinct from
any form of deferential review), §§ 552a(g)(2)(A), (g)(3)(A),
and mechanisms for exercising judicial equity jurisdiction
(by in camera inspection, for example), § 552a(g)(3)(A).
The two remaining categories deal with derelictions hav-
ing consequences beyond the statutory violations per se.
Subsection (g)(1)(C) describes an agency’s failure to main-
tain an adequate record on an individual, when the result
is a determination “adverse” to that person. Subsection
(g)(1)(D) speaks of a violation when someone suffers an “ad-
verse effect” from any other failure to hew to the terms of
the Act. Like the inspection and correction infractions,
breaches of the statute with adverse consequences are ad-
dressed by specific terms governing relief:
“In any suit brought under the provisions of subsec-
tion (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—
“(A) 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; and
“(B) the costs of the action together with reasona-
ble attorney fees as determined by the court.” § 552a
(g)(4).1
1 The Privacy Act says nothing about standards of proof governing equi-
table relief that may be open to victims of adverse determinations or ef-
fects, although it may be that this inattention is explained by the general
provisions for equitable relief within the Administrative Procedure Act
(APA), 5 U. S. C. § 706. Indeed, the District Court relied on the APA in
determining that it had jurisdiction to enforce the stipulated order prohib-
iting the Department of Labor from using Social Security numbers in mul-
tiparty captions. Doe v. Herman, Civ. Action No. 97–0043–B, 1998 WL
34194937, *5–*7 (DC Va., Mar. 18, 1998).

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III
Doe argues that subsection (g)(4)(A) entitles any plaintiff
adversely affected by an intentional or willful violation to
the $1,000 minimum on proof of nothing more than a statu-
tory violation: anyone suffering an adverse consequence of
intentional or willful disclosure is entitled to recovery. The
Government claims the minimum guarantee goes only to vic-
tims who prove some actual damages. We think the Gov-
ernment has the better side of the argument.
To begin with, the Government’s position is supported by
a straightforward textual analysis. When the statute gets
to the point of guaranteeing the $1,000 minimum, it not only
has confined any eligibility to victims of adverse effects
caused by intentional or willful actions, but has provided ex-
pressly for liability to such victims for “actual damages sus-
tained.” It has made specific provision, in other words, for
what a victim within the limited class may recover. When
the very next clause of the sentence containing the explicit
provision guarantees $1,000 to a “person entitled to recov-
ery,” the simplest reading of that phrase looks back to the
immediately preceding provision for recovering actual dam-
ages, which is also the Act’s sole provision for recovering
anything (as distinct from equitable relief). With such an
obvious referent for “person entitled to recovery” in the
plaintiff who sustains “actual damages,” Doe’s theory is
immediately questionable in ignoring the “actual damages”
language so directly at hand and instead looking for “a per-
son entitled to recovery” in a separate part of the statute
devoid of any mention either of recovery or of what might
be recovered.
Nor is it too strong to say that Doe does ignore statutory
language. When Doe reads the statute to mean that the
United States shall be liable to any adversely affected sub-
ject of an intentional or willful violation, without more, he
treats willful action as the last fact necessary to make the
Government “liable,” and he is thus able to describe anyone

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to whom it is liable as entitled to the $1,000 guarantee. But
this way of reading the statute simply pays no attention to
the fact that the statute does not speak of liability (and con-
sequent entitlement to recovery) in a freestanding, unquali-
fied way, but in a limited way, by reference to enumerated
damages.2
Doe’s manner of reading “entitle[ment] to recovery” as sat-
isfied by adverse effect caused by intentional or willful viola-
tion is in tension with more than the text, however. It is at
odds with the traditional understanding that tort recovery
requires not only wrongful act plus causation reaching to
the plaintiff, but proof of some harm for which damages can
reasonably be assessed. See, e. g., W. Keeton, D. Dobbs,
R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts
§ 30 (5th ed. 1984). Doe, instead, identifies a person as enti-
tled to recover without any reference to proof of damages,
actual or otherwise. Doe might respond that it makes sense
to speak of a privacy tort victim as entitled to recover with-
out reference to damages because analogous common law
would not require him to show particular items of injury in
order to receive a dollar recovery. Traditionally, the com-
mon law has provided such victims with a claim for “general”
damages, which for privacy and defamation torts are pre-
sumed damages: a monetary award calculated without refer-
ence to specific harm.3
2 Indeed, if adverse effect of intentional or willful violation were alone
enough to make a person entitled to recovery, then Congress could have
conditioned the entire subsection (g)(4)(A) as applying only to “a person
entitled to recovery.” That, of course, is not what Congress wrote. As
we mentioned before, Congress used the entitled-to-recovery phrase only
to describe those entitled to the $1,000 guarantee, and it spoke of entitle-
ment and guarantee only after referring to an individual’s actual damages,
indicating that “actual damages” is a further touchstone of the entitlement.
3 3 Restatement of Torts § 621, Comment a (1938) (“It is not necessary
for the plaintiff [who is seeking general damages in an action for defama-
tion] to prove any specific harm to his reputation or any other loss caused
thereby”); 4 id., § 867, Comment d (1939) (noting that damages are avail-

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Such a rejoinder would not pass muster under the Privacy
Act, however, because a provision of the Act not previously
mentioned indicates beyond serious doubt that general dam-
ages are not authorized for a statutory violation. An uncod-
ified section of the Act established a Privacy Protection
Study Commission, which was charged, among its other jobs,
to consider “whether the Federal Government should be lia-
ble for general damages incurred by an individual as the re-
sult of a willful or intentional violation of the provisions of
sections 552a(g)(1)(C) or (D) of title 5.” 4 § 5(c)(2)(B)(iii), 88
Stat. 1907. Congress left the question of general damages,
that is, for another day. Because presumed damages are
therefore clearly unavailable, we have no business treating
just any adversely affected victim of an intentional or willful
violation as entitled to recovery, without something more.
This inference from the terms of the Commission’s man-
date is underscored by drafting history showing that Con-
gress cut out the very language in the bill that would have
authorized any presumed damages.5 The Senate bill would
have authorized an award of “actual and general damages
able for privacy torts “in the same way in which general damages are
given for defamation,” without proof of “pecuniary loss [or] physical
harm”); see also 3 Restatement (Second) of Torts § 621, Comment a (1976).
4 The Commission ultimately recommended that the Act should “permit
the recovery of special and general damages . . . but in no case should a
person entitled to recovery receive less than the sum of $1,000 or more
than the sum of $10,000 for general damages in excess of the dollar amount
of any special damages.” Personal Privacy in an Information Society: The
Report of the Privacy Protection Study Commission 531 (July 1977).
5 On this point, we do not understand Justice Ginsburg’s dissent to
take issue with our conclusion that Congress explicitly rejected the pro-
posal to make presumed damages available for Privacy Act violations.
Instead, Justice Ginsburg appears to argue only that Congress would
have wanted nonpecuniary harm to qualify as actual damages under sub-
section (g)(4)(A). Post, at 635, n. 4 (plaintiff may recover for emotional
distress “ ‘that he proves to have been actually suffered by him’ ” (quoting
3 Restatement (Second) of Torts, supra, at 402, Comment b)). That issue,
however, is not before us today. See n. 12, infra.

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sustained by any person,” with that language followed by the
guarantee that “in no case shall a person entitled to recovery
receive less than the sum of $1,000.” S. 3418, 93d Cong., 2d
Sess., § 303(c)(1) (1974). Although the provision for general
damages would have covered presumed damages, see n. 3,
supra, this language was trimmed from the final statute,
subject to any later revision that might be recommended by
the Commission. The deletion of “general damages” from
the bill is fairly seen, then, as a deliberate elimination of any
possibility of imputing harm and awarding presumed dam-
ages.6 The deletion thus precludes any hope of a sound in-
terpretation of entitlement to recovery without reference to
actual damages.7
Finally, Doe’s reading is open to the objection that no pur-
pose is served by conditioning the guarantee on a person’s
being entitled to recovery. As Doe treats the text, Con-
gress could have accomplished its object simply by providing
that the Government would be liable to the individual for
actual damages “but in no case . . . less than the sum of
$1,000” plus fees and costs. Doe’s reading leaves the refer-
ence to entitlement to recovery with no job to do, and it
accordingly accomplishes nothing.8
6 While theoretically there could also have been a third category, that
of “nominal damages,” it is implausible that Congress intended tacitly to
recognize a nominal damages remedy after eliminating the explicit refer-
ence to general damages.
7 Justice Scalia does not join this paragraph or footnote 8.
8 Justice Ginsburg responds that our reading is subject to a similar
criticism: “Congress more rationally [c]ould have written: ‘actual damages
. . . but in no case shall a person who proves such damages [in any amount]
receive less than $1,000.’ ” Post, at 630. Congress’s use of the entitle-
ment phrase actually contained in the statute, however, is explained by
drafting history. The first bill passed by the Senate authorized recovery
of both actual and general damages. See supra, at 622 and this page.
At that point, when discussing eligibility for the $1,000 guarantee, it was
reasonable to refer to plaintiffs with either sort of damages by the general
term “a person entitled to recovery.” When subsequent amendment lim-
ited recovery to actual damages by eliminating the general, no one appar-

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IV
There are three loose ends. Doe’s argument suggests it
would have been illogical for Congress to create a cause of
action for anyone who suffers an adverse effect from inten-
tional or willful agency action, then deny recovery without
actual damages. But this objection assumes that the lan-
guage in subsection (g)(1)(D) recognizing a federal “civil ac-
tion” on the part of someone adversely affected was meant,
without more, to provide a complete cause of action, and of
course this is not so. A subsequent provision requires proof
of intent or willfulness in addition to adverse effect, and if
the specific state of mind must be proven additionally, it is
equally consistent with logic to require some actual damages
as well. Nor does our view deprive the language recogniz-
ing a civil action by an adversely affected person of any inde-
pendent effect, for it may readily be understood as having a
limited but specific function: the reference in § 552a(g)(1)(D)
to “adverse effect” acts as a term of art identifying a poten-
tial plaintiff who satisfies the injury-in-fact and causation
requirements of Article III standing, and who may conse-
quently bring a civil action without suffering dismissal for
want of standing to sue. See Director, Office of Workers’
Compensation Programs v. Newport News Shipbuilding &
Dry Dock Co., 514 U. S. 122, 126 (1995) (“The phrase ‘person
adversely affected or aggrieved’ is a term of art used in
many statutes to designate those who have standing to chal-
lenge or appeal an agency decision, within the agency or be-
fore the courts”); see also 5 U. S. C. § 702 (providing review
of agency action under the Administrative Procedure Act
to individuals who have been “adversely affected or ag-
grieved”). That is, an individual subjected to an adverse ef-
ently thought to delete the inclusive reference to entitlement. But this
failure to remove the old language did not affect its reference to “actual
damages,” the term remaining from the original pair, “actual and general.”

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fect has injury enough to open the courthouse door, but with-
out more has no cause of action for damages under the Pri-
vacy Act.9
Next, Doe also suggests there is something peculiar in of-
fering some guaranteed damages, as a form of presumed
damages not requiring proof of amount, only to those plain-
tiffs who can demonstrate actual damages. But this ap-
proach 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, Com-
ments 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 guaran-
teed minimum contingent upon some showing of actual dam-
ages, thereby avoiding giveaways to plaintiffs with nothing
9 Nor are we convinced by the analysis mentioned in the dissenting opin-
ion 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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more than “abstract injuries,” Los Angeles v. Lyons, 461
U. S. 95, 101–102 (1983).10
In a final effort to save his claim, Doe points to a pair of
statutes with remedial provisions that are worded similarly
to § 552a(g)(4). See Tax Reform Act of 1976, § 1201(i)(2)(A),
90 Stat. 1665–1666, 26 U. S. C. § 6110( j)(2)(A); § 1202(e)(1), 90
Stat. 1687, 26 U. S. C. § 7217(c) (1976 ed., Supp. V) (repealed
1982); Electronic Communications Privacy Act of 1986, § 201,
100 Stat. 1866, 18 U. S. C. § 2707(c). He contends that legis-
lative history of these subsequent enactments shows that
Congress sometimes used language similar to 5 U. S. C.
§ 552a(g)(4) with the object of authorizing true liquidated
damages remedies. See, e. g., S. Rep. No. 94–938, p. 348
(1976) (discussing § 1202(e)(1) of the Tax Reform Act); S. Rep.
No. 99–541, p. 43 (1986) (discussing § 201 of the Electronic
Communications Privacy Act). There are two problems
with this argument. First, as to § 1201(i)(2)(A) of the Tax
Reform Act, the text is too far different from the language
of the Privacy Act to serve as any sound basis for analogy;
it does not include the critical limiting phrase “entitled to
recovery.” But even as to § 1202(e)(1) of the Tax Reform
Act and § 201 of the Electronic Communications Privacy Act,
the trouble with Doe’s position is its reliance on the legis-
lative histories of completely separate statutes passed well
after the Privacy Act. Those of us who look to legisla-
tive history have been wary about expecting to find reliable
interpretive help outside the record of the statute being con-
strued, and we have said repeatedly that “ ‘subsequent legis-
10 We also reject the related suggestion that the category of cases with
actual damages not exceeding $1,000 is so small as to render the minimum
award meaningless under our reading. It is easy enough to imagine pecu-
niary expenses that might turn out to be reasonable in particular cases
but fall well short of $1,000: fees associated with running a credit report,
for example, or the charge for a Valium prescription. Since we do not
address the definition of actual damages today, see n. 12, infra, this chal-
lenge is too speculative to overcome our interpretation of the statute’s
plain language and history.

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627 Cite as: 540 U. S. 614 (2004)
Ginsburg, J., dissenting
lative history will rarely override a reasonable interpreta-
tion of a statute that can be gleaned from its language and
legislative history prior to its enactment,’ ” Solid Waste
Agency of Northern Cook Cty. v. Army Corps of Engineers,
531 U. S. 159, 170, n. 5 (2001) (quoting Consumer Product
Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 118,
n. 13 (1980)).11
V
The “entitle[ment] to recovery” necessary to qualify for
the $1,000 minimum is not shown merely by an intentional
or willful violation of the Act producing some adverse ef-
fect. The statute guarantees $1,000 only to plaintiffs who
have suffered some actual damages.12 The judgment of
the Fourth Circuit is affirmed.
It is so ordered.
Justice Ginsburg, with whom Justice Stevens and
Justice Breyer join, dissenting.
In th is Pr ivacy Act suit brought under 5 U. S. C.
§ 552a(g)(1)(D), the Government concedes the alleged viola-
11 In support of Doe’s position, Justice Ginsburg’s dissent also cites
another item of extratextual material, an interpretation of the Privacy Act
that was published by the Office of Management and Budget in 1975 as a
guideline for federal agencies seeking to comply with the Act. Post, at
633. The dissent does not claim that any deference is due this interpreta-
tion, however, and we do not find its unelaborated conclusion persuasive.
12 The Courts of Appeals are divided on the precise definition of actual
damages. Compare Fitzpatrick v. IRS, 665 F. 2d 327, 331 (CA11 1982)
(actual damages are restricted to pecuniary loss), with Johnson v. Depart-
ment of Treasury, IRS, 700 F. 2d 971, 972–974 (CA5 1983) (actual damages
can cover adequately demonstrated mental anxiety even without any out-
of-pocket loss). That issue is not before us, however, since the petition
for certiorari did not raise it for our review. We assume without deciding
that the Fourth Circuit was correct to hold that Doe’s complaints in this
case did not rise to the level of alleging actual damages. We do not
suggest that out-of-pocket expenses are necessary for recovery of the
$1,000 minimum; only that they suffice to qualify under any view of ac-
tual damages.

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628 DOE v. CHAO
Ginsburg, J., dissenting
tion and does not challenge the District Court’s finding that
the agency in question (the Department of Labor) acted in
an intentional or willful manner. Tr. of Oral Arg. 35; Brief
for Respondent (I). Nor does the Government here contest
that Buck Doe, the only petitioner before us, suffered an
“adverse effect” from the Privacy Act violation. The case
therefore cleanly presents a sole issue for this Court’s resolu-
tion: Does a claimant who has suffered an “adverse effect”—
in this case and typically, emotional anguish—from a fed-
eral agency’s intentional or willful Privacy Act violation, but
has proved no “actual damages” beyond psychological harm,
qualify as “a person entitled to recovery” within the meaning
of § 552a(g)(4)(A)? In accord with Circuit Judge Michael,
who disagreed with the Fourth Circuit’s majority on the need
to show actual damages, I would answer that question yes.
Section 552a(g)(4)(A) affords a remedy for violation of a
Privacy Act right safeguarded by § 552a(g)(1)(C) or (D).
The words “a person entitled to recovery,” as used in
§ 552a(g)(4)(A)’s remedial prescription, are most sensibly
read to include anyone experiencing an “adverse effect” as a
consequence of an agency’s intentional or willful commis-
sion of a Privacy Act violation of the kind described in
§ 552a(g)(1)(C) or (D). The Act’s text, structure, and pur-
pose warrant this construction, under which Doe need not
show a current pecuniary loss, or “actual damages” of some
other sort, to recover the minimum award of $1,000, attor-
ney’s fees, and costs.
I
Section 552a(g)(4) provides:
“In any suit brought under the provisions of subsec-
tion (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—

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629 Cite as: 540 U. S. 614 (2004)
Ginsburg, J., dissenting
“(A) 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; and
“(B) the costs of the action together with reasonable
attorney fees as determined by the court.”
The opening clause of § 552a(g)(4) prescribes two condi-
tions on which liability depends. First, the claimant’s suit
must lie under § 552a(g)(1)(C) or (D); both provisions re-
quire an agency action “adverse” to the claimant. Section
552a(g)(1)(C) authorizes a civil action when an agency “fails
to maintain [a] record concerning [an] individual with [the]
accuracy, relevance, timeliness, and completeness” needed to
determine fairly “the qualifications, character, rights, or op-
portunities of, or benefits to the individual,” if the agency’s
lapse yields a “determination . . . adverse to the individual.”
(Emphasis added.) Section 552a(g)(1)(D) allows a civil ac-
tion when an agency “fails to comply with [a] provision of
[§ 552a], or [a] rule promulgated thereunder, in such a way
as to have an adverse effect on an individual.” (Emphasis
added.) Second, the agency action triggering the suit under
§ 552a(g)(1)(C) or (D) must have been “intentional or willful.”
§ 552a(g)(4). If those two liability-determining conditions
are satisfied (suit under § 552a(g)(1)(C) or (D); intentional or
willful conduct), the next clause specifies the consequences:
“[T]he United States shall be liable to the individual in an
amount equal to the sum of ” the recovery allowed under
§ 552a(g)(4)(A) and the costs and fees determined under
§ 552a(g)(4)(B).
The terms “actual damages” and “person entitled to re-
covery” appear only in the text describing the relief attend-
ant upon the agency’s statutory dereliction; they do not
appear in the preceding text describing the conditions on
which the agency’s liability turns. Most reasonably read,
§ 552a(g)(4)(A) does not wend back to add “actual damages”
as a third liability-determining element. See Davis v. Mich-

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630 DOE v. CHAO
Ginsburg, J., dissenting
igan Dept. of Treasury, 489 U. S. 803, 809 (1989) (“It is a
fundamental canon of statutory construction that the words
of a statute must be read in their context and with a view to
their place in the overall statutory scheme.”).
Nor, when Congress used different words, here “actual
damages sustained by the individual” and “a person enti-
tled to recovery,” should a court ordinarily equate the two
phrases. Had Congress intended the meaning that the Gov-
ernment urged upon this Court, one might have expected
the statutory instruction to read, not as it does: “actual dam-
ages . . . but in no case shall a person entitled to recovery
receive less than . . . $1,000.” Instead, Congress more ra-
tionally would have written: “actual damages . . . but in no
case shall a person who proves such damages [in any amount]
receive less than $1,000.” Cf. Barnhart v. Sigmon Coal Co.,
534 U. S. 438, 454 (2002) (“ ‘We refrain from concluding here
that the differing language in the two subsections has the
same meaning in each. We would not presume to ascribe
this difference to a simple mistake in draftsmanship.’ ”
(quoting Russello v. United States, 464 U. S. 16, 23 (1983))).
Just as the words “person entitled to recovery” suggest
greater breadth than “individual [who has sustained] actual
damages,” so the term “recovery” ordinarily encompasses
more than “ ‘get[ting] or win[ning] back,’ ” Brief for Respond-
ent 26 (quoting Webster’s Third New International Diction-
ary 1898 (1966)). “Recovery” generally embraces “[t]he
obtain[ing] of a right to something (esp. damages) by a judg-
ment or decree” and “[a]n amount awarded in or collected
from a judgment or decree.” Black’s Law Dictionary 1280
(7th ed. 1999). So comprehended, “recovery” here would
yield a claimant who suffers an “adverse effect” from an
agency’s intentional or willful § 552a(g)(1)(C) or (D) violation
a minimum of $1,000 plus costs and attorney’s fees, whether
or not the claimant proves “actual damages.”
“It is ‘a cardinal principle of statutory construction’ that
‘a statute ought, upon the whole, to be so construed that, if

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631 Cite as: 540 U. S. 614 (2004)
Ginsburg, J., dissenting
it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.’ ” TRW Inc. v. Andrews,
534 U. S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U. S.
167, 174 (2001)). The Court’s reading of § 552a(g)(4) is
hardly in full harmony with that principle. Under the
Court’s construction, the words “a person entitled to recov-
ery” have no office, see ante, at 623, n. 8, and the liability-
determining element “adverse effect” becomes superfluous,
swallowed up by the “actual damages” requirement.1 Fur-
ther, the Court’s interpretation renders the word “recovery”
nothing more than a synonym for “actual damages,” and
it turns the phrase “shall be liable” into “may be liable.” In
part because it fails to “ ‘give effect . . . to every clause and
word’ ” Congress wrote, United States v. Menasche, 348
U. S. 528, 538–539 (1955) (quoting Montclair v. Ramsdell, 107
U. S. 147, 152 (1883)), the Court’s reading of § 552a(g)(4) is
at odds with the interpretation prevailing in the Federal
Circuits.
I would adhere to the interpretation of the key statutory
terms advanced by most courts of appeals. As interpreted
by those courts, § 552a(g)(4) authorizes a minimum $1,000
award that need not be hinged to proof of actual dam-
ages. See Orekoya v. Mooney, 330 F. 3d 1, 5 (CA1 2003)
(§ 552a(g)(4) makes available “[b]oth ‘actual damages sus-
tained by the individual’ and statutory minimum damages
of $1,000”); Wilborn v. Department of Health and Human
1 The Court interprets “the reference in § 552a(g)(1)(D) to ‘adverse ef-
fect’ . . . as a term of art identifying a potential plaintiff who satisfies
the injury-in-fact and causation requirements of Article III standing, and
who may consequently bring a civil action without suffering dismissal for
want of standing to sue.” Ante, at 624. Under the Court’s reading,
§ 552a(g)(1)(D) “open[s] the courthouse door” to individuals “adversely af-
fected” by an intentional or willful agency violation of the Privacy Act,
ante, at 624–625, while § 552a(g)(4) bars those individuals from recovering
anything if they do not additionally show actual damages. See infra, at
635–636. In other words, the open door for plaintiffs like Buck Doe is an
illusion: what one hand opens, the other shuts.

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632 DOE v. CHAO
Ginsburg, J., dissenting
Servs., 49 F. 3d 597, 603 (CA9 1995) (“statutory minimum
of $1,000” under § 552a(g)(4)(A) meant to provide plaintiffs
“with ‘no provable damages’ the incentive to sue” (quoting
Fitzpatrick v. IRS, 665 F. 2d 327, 330 (CA11 1982))); Waters
v. Thornburgh, 888 F. 2d 870, 872 (CADC 1989) (If a plaintiff
establishes that she suffered an “adverse effect” from an “in-
tentional or willful” violation of § 552a(e)(2), “the plaintiff is
entitled to the greater of $1,000 or the actual damages sus-
tained.” (internal quotation marks omitted)); Johnson v. De-
partment of Treasury, IRS, 700 F. 2d 971, 977, and n. 12
(CA5 1983) (Even without proof of actual damages, “[t]he
statutory minimum of $1,000 [under § 552a(g)(4)(A)], of
course, is recoverable.”); Fitzpatrick, 665 F. 2d, at 331 (“Be-
cause [the plaintiff] proved only that he suffered a general
mental injury from the disclosure, he could not recover be-
yond the statutory $1,000 minimum damages, costs, and rea-
sonable attorneys’ fees [under § 552a(g)(4)].”); cf. Quinn v.
Stone, 978 F. 2d 126, 131 (CA3 1992) (“adverse effect” but
not “actual damages” is a “necessary” element “to maintain
a suit for damages under the catch-all provision of 5 U. S. C.
§ 552a(g)(1)(D)” (internal quotation marks omitted)); Parks v.
IRS, 618 F. 2d 677, 680, 683 (CA10 1980) (plaintiffs seeking
“the award of a minimum of $1,000 damages together with
attorney’s fees” under § 552a(g)(4) state a claim by alleging
the agency acted intentionally or willfully when it illegally
disclosed protected information, causing “psychological dam-
age or harm”). But see Hudson v. Reno, 130 F. 3d 1193,
1207 (CA6 1997) (“A final basis for affirming the District
Court’s decision with respect to [the plaintiff]’s claims under
the Privacy Act is her failure to show ‘actual damages,’
as required by [§ 552a(g)(4)].”), overruled in part on other
grounds, Pollard v. E. I. du Pont de Nemours & Co., 532
U. S. 843 (2001); Molerio v. FBI, 749 F. 2d 815, 826 (CADC
1984) (“This cause of action under [§§ 552a(g)(1)(C) and
(g)(4)(A)] requires, however, not merely an intentional or

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633 Cite as: 540 U. S. 614 (2004)
Ginsburg, J., dissenting
willful failure to maintain accurate records, but also ‘actual
damages sustained’ as a result of such failure.”).
The view prevailing in the Federal Circuits is in sync with
an Office of Management and Budget (OMB) interpreta-
tion of the Privacy Act published in 1975, the year follow-
ing the Act’s adoption. Congress instructed OMB to “de-
velop guidelines and regulations for the use of agencies in
implementing the provisions of [the Privacy Act].” § 6, 88
Stat. 1909. Just over six months after the Act’s adoption,
OMB promulgated Privacy Act Guidelines. 40 Fed. Reg.
28949 (1975). The Guidelines speak directly to the issue
presented in this case. They interpret §§ 552a(g)(1)(C), (D),
and (g)(4) to convey:
“When the court finds that an agency has acted will-
fully or intentionally in violation of the Act in such a
manner as to have an adverse effect upon the individual,
the United States will be required to pay
“Actual damages or $1,000, whichever is greater
“Court costs and attorney fees.” Id., at 28970.
The Guidelines have been amended several times since 1975,
but OMB’s published interpretation of § 552a(g)(4) has re-
mained unchanged. See id., at 56741; 44 Fed. Reg. 23138
(1979); 47 Fed. Reg. 21656 (1982); 48 Fed. Reg. 15556 (1983);
49 Fed. Reg. 12338 (1984); 50 Fed. Reg. 52738 (1985); 52 Fed.
Reg. 12990 (1987); 54 Fed. Reg. 25821 (1989); 58 Fed. Reg.
36075 (1993); 59 Fed. Reg. 37914 (1994); 61 Fed. Reg. 6435
(1996).2
2 In briefing this case, the Government noted a communication to the
Office of the Solicitor General from an unnamed OMB official conveying
that OMB does not now “interpret its Guideline to require the payment
of $1000 to plaintiffs who have sustained no actual damages from a vio-
lation of the Act.” Brief for Respondent 47–48. Such an informal com-
munication cannot override OMB’s contemporaneous, long-published con-
struction of § 552a(g)(4); cf. Bowen v. Georgetown Univ. Hospital, 488 U. S.
204, 212 (1988) (“We have never applied [deference] to agency litigating
positions that are wholly unsupported by regulations, rulings, or adminis-

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634 DOE v. CHAO
Ginsburg, J., dissenting
II
The purpose and legislative history of the Privacy Act, as
well as similarly designed statutes, are in harmony with the
reading of § 552a(g)(4) most federal judges have found sound.
Congress sought to afford recovery for “any damages” re-
sulting from the “willful or intentional” violation of “any in-
dividual’s rights under th[e] Act.” § 2(b)(6), 88 Stat. 1896
(emphasis added). Privacy Act violations commonly cause
fear, anxiety, or other emotional distress—in the Act’s par-
lance, “adverse effects.” Harm of this character must, of
course, be proved genuine.3 In cases like Doe’s, emotional
distress is generally the only harm the claimant suffers, e. g.,
the identity theft apprehended never materializes.4
trative practice.”); INS v. Cardoza-Fonseca, 480 U. S. 421, 446, n. 30 (1987)
(“An agency interpretation of a relevant provision which conflicts with the
agency’s earlier interpretation is ‘entitled to considerably less deference,’
than a consistently held agency view.” (quoting Watt v. Alaska, 451 U. S.
259, 273 (1981))).
3 Circuit Judge Michael, who dissented from the Fourth Circuit’s judg-
ment as to petitioner Buck Doe but agreed with his colleagues on this
point, noted: “[A]dverse effects must be proven rather than merely pre-
sumed . . . .” 306 F. 3d 170, 187 (2002) (opinion concurring in part and
dissenting in part). Doe had declared in his affidavit that “no amount of
money could compensate [him] for worry and fear of not knowing when
someone would use [his] name and Social Security number to establish
credit, a new identity, change [his] address, use [his] checking account or
even get credit cards.” App. 15. Doe’s several coplaintiffs, against
whom summary judgment was entered and unanimously affirmed on ap-
peal, made no such declaration.
4 The Court asserts that Doe’s reading of § 552a(g)(4)(A) “is at odds with
the traditional understanding that tort recovery requires . . . proof of some
harm for which damages can reasonably be assessed.” Ante, at 621. Al-
though that understanding applies to common negligence actions, see W.
Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of
Torts 165 (5th ed. 1984) (cited ante, at 621), it is not the black letter rule
for privacy actions. See 3 Restatement (Second) of Torts § 652H, p. 401
(1976) (“One who has established a cause of action for invasion of his pri-
vacy is entitled to recover damages for . . . his mental distress proved to
have been suffered if it is of a kind that normally results from such an

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635 Cite as: 540 U. S. 614 (2004)
Ginsburg, J., dissenting
It bears emphasis that the Privacy Act does not auth-
orize injunctive relief when suit is maintained under
§ 552a(g)(1)(C) or (D). Injunctive relief, and attendant coun-
sel fees and costs, are available under the Act in two catego-
ries of cases: suits to amend a record, § 552a(g)(2), and suits
for access to a record, § 552a(g)(3). But for cases like Doe’s,
brought under § 552a(g)(1)(C) or (D), see supra, at 629, only
monetary relief is available. Hence, in the Government’s
view, if a plaintiff who sues under § 552a(g)(1)(C) or (D) fails
to prove actual damages, “he will not be entitled to attor-
ney’s fees.” Brief for Respondent 39 (“[T]he Privacy Act
permits an award only of ‘reasonable’ attorney’s fees. The
most critical factor in determining the reasonableness of an
attorney fee award is the degree of success obtained. For a
plaintiff who enjoys no success in prosecuting his claim, ‘the
only reasonable fee’ is ‘no fee at all.’ ” (quoting Farrar v.
Hobby, 506 U. S. 103, 115 (1992) (citations omitted))).
The Court’s reading of § 552a(g)(4) to require proof of “ac-
tual damages,” however small, in order to gain the $1,000
statutory minimum, ironically, invites claimants to arrange
or manufacture such damages. The following colloquy from
oral argument is illustrative.
Court: “Suppose . . . Doe said, ‘I’m very concerned
about the impact of this on my credit rating, so I’m going
to [pay] $10 to a . . . credit reporting company to find
out whether there’s been any theft of my identity, $10.’
Would there then be a claim under this statute for ac-
tual damages?”
Counsel for respondent Secretary of Labor Chao:
“[T]here would be a question . . . whether that was a
reasonable response to the threat, but in theory, an ex-
invasion . . . .”); id., at 402, Comment b (“The plaintiff may also recover
damages for emotional distress or personal humiliation that he proves to
have been actually suffered by him, if it is of a kind that normally results
from such an invasion [of privacy] and it is normal and reasonable in its
extent.”).

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636 DOE v. CHAO
Ginsburg, J., dissenting
pense like that could qualify as pecuniary harm and,
thus, is actual damages.” Tr. of Oral Arg. 43 (internal
quotation marks added).
Indeed, the Court itself suggests that “fees associated with
running a credit report” or “the charge for a Valium pre-
scription” might suffice to prove “actual damages.” Ante,
at 626, n. 10. I think it dubious to insist on such readily
created costs as essential to recovery under § 552a(g)(4).
Nevertheless, the Court’s examples of what might qualify
as “actual damages” indicate that its disagreement with the
construction of the Act prevailing in the Circuits, see supra,
at 631–632, is ethereal.
The Government, although recognizing that “actual dam-
ages” may be slender and easy to generate, fears depletion
of the federal fisc were the Court to adopt Doe’s reading of
§ 552a(g)(4). Brief for Respondent 22–23, n. 5. Experience
does not support those fears. As the Government candidly
acknowledged at oral argument: “[W]e have not had a prob-
lem with enormous recoveries against the Government up
to this point.” Tr. of Oral Arg. 35. No doubt mindful that
Congress did not endorse massive recoveries, the District
Court in this very case denied class-action certification, see
App. to Pet. for Cert. 65a, and other courts have similarly
refused to certify suits seeking damages under § 552a(g)(4)
as class actions. See, e. g., Schmidt v. Department of Veter-
ans Affairs, 218 F. R. D. 619, 637 (ED Wis. 2003) (denying
class certification on ground that each individual would have
to prove he “suffered an adverse effect as a result of the
[agency]’s failure to comply with [the Act]”); Lyon v. United
States, 94 F. R. D. 69, 76 (WD Okla. 1982) (“In Privacy Act
damages actions, questions affecting only individual mem-
bers greatly outweigh questions of law and fact common to
the class.”). Furthermore, courts have disallowed the run-
away liability that might ensue were they to count every
single wrongful disclosure as a discrete basis for a $1,000
award. See, e. g., Tomasello v. Rubin, 167 F. 3d 612, 618
(CADC 1999) (holding that 4,500 “more-or-less contempora-

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637 Cite as: 540 U. S. 614 (2004)
Ginsburg, J., dissenting
neous transmissions of the same record” by facsimile consti-
tuted one “act,” entitling the plaintiff to a single recovery of
$1,000 in damages (internal quotation marks omitted)).
The text of § 552a(g)(4), it is undisputed, accommodates
two concerns. Congress sought to give the Privacy Act
teeth by deterring violations and providing remedies when
violations occur. At the same time, Congress did not want
to saddle the Government with disproportionate liability.
The Senate bill advanced the former concern; the House bill
was more cost conscious. The House bill, as reported by
the Committee on Government Operations and passed by the
House, provided:
“In any suit brought under the provisions of subsec-
tion (g)(1)(B) or (C) of this section in which the court
determines that the agency acted in a manner which was
willful, arbitrary, or capricious, the United States shall
be liable to the individual in an amount equal to the
sum of—
“(A) actual damages sustained by the individual as a
result of the refusal or failure; and
“(B) the costs of the action together with reasonable
attorney fees as determined by the court.” H. R. 16373,
93d Cong., 2d Sess., § 552a(g)(3) (1974), reprinted in Leg-
islative History of the Privacy Act of 1974: Source Book
on Privacy, p. 288 (Joint Comm. Print compiled for the
Senate and House Committees on Government Opera-
tions) (hereinafter Source Book).
The Senate bill, as amended and passed, provided:
“The United States shall be liable for the actions or
omissions of any officer or employee of the Government
who violates the provisions of this Act, or any rule, reg-
ulation, or order issued thereunder in the same manner
and to the same extent as a private individual under like
circumstances to any person aggrieved thereby in an
amount equal to the sum of—

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638 DOE v. CHAO
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 to-
gether 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 ear-
lier 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 bar-
rier.” Brief for Petitioner 29; Reply Brief 1 (“Congress and commenta-
tors 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 train-
ing 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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639 Cite as: 540 U. S. 614 (2004)
Ginsburg, J., dissenting
for genuine, albeit nonpocketbook, harm, and gives persons
thus adversely affected an incentive to sue to enforce the
Act.6
Congress has used language similar to § 552a(g)(4) in other
privacy statutes. See 18 U. S. C. § 2707(c); 7 26 U. S. C.
§ 6110( j)(2); 8 26 U. S. C. § 7217(c) (1976 ed., Supp. V).9 These
6 The Court places great weight on Congress’ establishment of a Privacy
Protection Study Commission, and its charge to the Commission to con-
sider, among many other things, “whether the Federal Government should
be liable for general damages incurred by an individual as the result of a
willful or intentional violation of [§ 552a(g)(1)(C) or (D)].” Ante, at 622
(internal quotation marks omitted). This less than crystalline reference
to the Commission, however, left unaltered § 552a(g)(4)(A)’s embracive
term “a person entitled to recovery,” words the Court must read out of the
statute to render its interpretation sensible. See ante, at 623–624, n. 8.
7 Section 2707(c), concerning unauthorized access to electronic communi-
cations, provides:
“The court may assess as damages in a civil action under this section
the sum of the actual damages suffered by the plaintiff and any profits
made by the violator as a result of the violation, but in no case shall a
person entitled to recover receive less than the sum of $1,000. If the
violation is willful or intentional, the court may assess punitive damages.
In the case of a successful action to enforce liability under this section, the
court may assess the costs of the action, together with reasonable attorney
fees determined by the court.” (Emphasis added.)
8 Section 6110( j)(2) provides:
“In any suit brought under the provisions of paragraph (1)(A) in which
the Court determines that an employee of the Internal Revenue Service
intentionally or willfully failed to delete in accordance with subsection
(c), or in any suit brought under subparagraph (1)(B) in which the Court
determines that an employee intentionally or willfully failed to act in ac-
cordance with subsection (g) or (i)(4)(B), the United States shall be liable
to the person in an amount equal to the sum of—
“(A) actual damages sustained by the person but in no case shall a
person be entitled to receive less than the sum of $1,000, and
“(B) the costs of the action together with reasonable attorney’s fees as
determined by the Court.” (Emphasis added.)
9 Section 7217(c), which was repealed in 1982, provided:
“In any suit brought under the provisions of subsection (a), upon a find-
ing of liability on the part of the defendant, the defendant shall be liable
to the plaintiff in an amount equal to the sum of—

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640 DOE v. CHAO
Ginsburg, J., dissenting
other statutes have been understood to permit recovery of
the $1,000 statutory minimum despite the absence of proven
actual damages. See H. R. Rep. No. 99–647, p. 74 (1986)
(“Damages [under 18 U. S. C. § 2707(c)] include actual dam-
ages, any lost profits but in no case less than $1,000.”);
S. Rep. No. 99–541, p. 43 (1986) (“[D]amages under [18
U. S. C. § 2707(c)] includ[e] the sum of actual damages suf-
fered by the plaintiff and any profits made by the violator
as the result of the violation . . . with minimum statutory
damages of $1,000 . . . and . . . reasonable attorney’s fees
and other reasonable litigation costs.”); H. R. Conf. Rep.
No. 94–1515, p. 475 (1976) (Title 26 U. S. C. § 6110( j)(2) “cre-
ates a civil remedy for intentional or willful failure of the
IRS to make required deletions or to follow the procedures
of this section, including minimum damages of $1,000 plus
costs.”); S. Rep. No. 94–938, p. 348 (1976) (“Because of the
difficulty in establishing in monetary terms the damages sus-
tained by a taxpayer as the result of the invasion of his pri-
vacy caused by an unlawful disclosure of his returns or re-
turn information, [26 U. S. C. § 7217(c)] provides that these
damages would, in no event, be less than liquidated damages
of $1,000 for each disclosure.”). See also Johnson v. Sawyer,
120 F. 3d 1307, 1313 (CA5 1997) (“Pursuant to [26 U. S. C.]
§ 7217, a plaintiff is entitled to his actual damages sustained
as a result of an unauthorized disclosure (including punitive
damages for willful or grossly negligent disclosures) or to
liquidated damages of $1,000 per such disclosure, whichever
is greater, as well as the costs of the action.”); Rorex v.
Traynor, 771 F. 2d 383, 387–388 (CA8 1985) (“We do not think
“(1) actual damages sustained by the plaintiff as a result of the unau-
thorized disclosure of the return or return information and, in the case of
a willful disclosure or a disclosure which is the result of gross negligence,
punitive damages, but in no case shall a plaintiff entitled to recovery
receive less than the sum of $1,000 with respect to each instance of such
unauthorized disclosure; and
“(2) the costs of the action.” (Emphasis added.)

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641 Cite as: 540 U. S. 614 (2004)
Breyer, J., dissenting
that hurt feelings alone constitute actual damages compen-
sable under [26 U. S. C. § 7217(c)]. Accordingly, the jury’s
award of $30,000 in actual damages must be vacated. The
taxpayers are each entitled to the statutory minimum award
of $1,000.”). As Circuit Judge Michael, dissenting from the
Fourth Circuit’s disposition of Doe’s claim, trenchantly ob-
served: “[T]he remedy of minimum statutory damages is a
fairly common feature of federal legislation. . . . In contrast,
I am not aware of any statute in which Congress has pro-
vide[d] for a statutory minimum to actual damages.” 306
F. 3d 170, 195 (2002) (opinion concurring in part and dissent-
ing in part) (internal quotation marks omitted).
* * *
Doe has standing to sue, the Court agrees, based on “alle-
gations that he was ‘torn . . . all to pieces’ and ‘greatly con-
cerned and worried’ because of the disclosure of his Social
Security number and its potentially ‘devastating’ conse-
quences.” Ante, at 617–618 (some internal quotation marks
omitted). Standing to sue, but not to succeed, the Court
holds, unless Doe also incurred an easily arranged out-of-
pocket expense. See ante, at 626, n. 10. 10 In my view, Con-
gress gave Privacy Act suitors like Doe not only standing to
sue, but the right to a recovery if the fact trier credits their
claims of emotional distress brought on by an agency’s inten-
tional or willful violation of the Act. For the reasons stated
in this dissenting opinion, which track the reasons ex-
pressed by Circuit Judge Michael dissenting in part in the
Fourth Circuit, I would reverse the judgment of the Court
of Appeals.
Justice Breyer, dissenting.
I agree with Justice Ginsburg and join her opinion.
I emphasize Justice Ginsburg’s view that the statute (as
10 Cf. ante, at 627, n. 12 (suggesting that a nonpecuniary, but somehow
heightened “adverse effect” (“demonstrated mental anxiety”) might do).

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642 DOE v. CHAO
Breyer, J., dissenting
we interpret it) is not likely to produce “massive recoveries”
against the Government—recoveries that “Congress did not
endorse.” Ante, at 636 (dissenting opinion). I concede that
the statute would lead to monetary recoveries whenever the
Government’s violation of the Privacy Act of 1974 is “inten-
tional or willful.” 5 U. S. C. § 552a(g)(4). But the Govern-
ment at oral argument pointed out that the phrase
“ ‘intentional or willful’ has been construed by the lower
courts as essentially a term of art, and the prevailing
test . . . is . . . akin to the standard that would prevail
in a Bivens action[:] . . . ‘[C]ould a reasonable officer in
this person’s position have believed what he was doing
was legal?’ ” Tr. of Oral Arg. 33–34 (internal quotation
marks added).
That is to say, the lower courts have interpreted the phrase
restrictively, essentially applying it where the Government’s
violation of the Act is in bad faith. See, e. g., Albright v.
United States, 732 F. 2d 181, 189 (CADC 1984) (the term
means “without grounds for believing [an action] to be lawful,
or by flagrantly disregarding others’ rights under the Act”);
see also, e. g., Scrimgeour v. IRS, 149 F. 3d 318, 326 (CA4
1998) (same); Wisdom v. Department of Housing and Urban
Development, 713 F. 2d 422, 424–435 (CA8 1983) (same); Pip-
pinger v. Rubin, 129 F. 3d 519, 530 (CA10 1997) (same); Hud-
son v. Reno, 130 F. 3d 1193, 1205 (CA6 1997) (similar), over-
ruled in part on other grounds, Pollard v. E. I. du Pont
de Nemours & Co., 532 U. S. 843, 848 (2001); Moskiewicz v.
Department of Agriculture, 791 F. 2d 561, 564 (CA7 1986)
(similar); Wilborn v. Department of Health and Human
Servs., 49 F. 3d 597, 602 (CA9 1995) (similar). But cf. Covert
v. Harrington, 876 F. 2d 751, 757 (CA9 1989) (apparently
applying a broader standard).
Given this prevailing interpretation, the Government need
not fear liability based upon a technical, accidental, or good-
faith violation of the statute’s detailed provisions. Hence

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643 Cite as: 540 U. S. 614 (2004)
Breyer, J., dissenting
Justice Ginsburg’s interpretation would not risk injury to
the public fisc. And I consequently find no support in any
of the statute’s basic purposes for the majority’s restrictive
reading of the damages provision.