Justice Breyer, dissenting.

I agree with Justice Ginsburg and join her opinion. I emphasize Justice Ginsburg's view that the statute (as we interpret it) is not likely to produce "massive recoveries" against the Government--recoveries that "Congress did not endorse." Ante, at 10 (dissenting opinion). I concede that the statute would lead to monetary recoveries whenever the Government's violation of the Privacy Act of 1974 is "intentional or willful." 5 U. S. C. §552a(g)(4). But the Government 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); Pippinger v. Rubin, 129 F. 3d 519, 530 (CA10 1997) (same); Hudson v. Reno, 130 F. 3d 1193, 1205 (CA6 1997) (similar), overruled 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 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.

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FOOTNOTES

Footnote 1

The Privacy Act says nothing about standards of proof governing equitable relief that may be open to victims of adverse determinations or effects, 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 prohibiting the Department of Labor from using Social Security numbers in multiparty captions. Doe v. Herman, Civ. Action No. 97-0043-B (DC Va., Mar. 18, 1998), pp. 9-11.

Footnote 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 entitlement and guarantee only after referring to an individual's actual damages, indicating that "actual damages" is a further touchstone of the entitlement.

Footnote 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 defamation] to prove any specific harm to his reputation or any other loss caused thereby"); 4 id., §867, Comment d (1939) (noting that damages are available 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).

Footnote 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).

Footnote 5

On this point, we do not understand Justice Ginsburg's dissent to take issue with our conclusion that Congress explicitly rejected the proposal 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 subsection (g)(4)(A). Post, at 8, 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.

Footnote 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 reference to general damages.

Footnote 7

Justice Scalia does not join this paragraph or footnote 8.

Footnote 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 3-4. Congress's use of the entitlement 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 infra, at 7-8. 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 limited recovery to actual damages by eliminating the general, no one apparently 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."

Footnote 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 §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.

Footnote 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 pecuniary 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 challenge is too speculative to overcome our interpretation of the statute's plain language and history.

Footnote 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 6-7. The dissent does not claim that any deference is due this interpretation, however, and we do not find its unelaborated conclusion persuasive.

Footnote 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. Department of Treasury, 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 actual damages.