Doe v. Chao ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BUCK DOE, 
Plaintiff-Appellee,
and
ROBERT DOE; TAYS DOE; OTIS DOE;
THOMAS DOE; JOE DOE; CHARLES
DOE; DICK DOE,  No. 05-1068
Plaintiffs,
v.
ELAINE L. CHAO, Secretary of Labor,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Glen M. Williams, Senior District Judge.
(CA-97-43-2)
Argued: October 25, 2005
Decided: January 24, 2006
Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed in part; vacated and remanded in part by published opinion.
Judge Williams wrote the majority opinion, in which Judge Luttig
joined. Judge Michael wrote a dissenting opinion.
COUNSEL
ARGUED: Anthony Alan Yang, UNITED STATES DEPARTMENT
OF JUSTICE, Civil Division, Appellate Section, Washington, D.C.,
2 DOE v. CHAO
for Appellant. Terry Gene Kilgore, WOLFE, WILLIAMS & RUTH-
ERFORD, Norton, Virginia, for Appellee. ON BRIEF: Peter D.
Keisler, Assistant Attorney General, John L. Brownlee, United States
Attorney, Michael Jay Singer, Appellate Staff, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellant. Joseph E. Wolfe, Bobby Steve Belcher, WOLFE,
WILLIAMS & RUTHERFORD, Norton, Virginia, for Appellee.
OPINION
WILLIAMS, Circuit Judge:
In 1997, appellee, Buck Doe, brought an action against appellant,
the United States Secretary of Labor (the Government), seeking dam-
ages under the Privacy Act for the wrongful disclosure of his Social
Security number. We previously held — based on a reading of the
Act’s text — that a party must show some actual damages in order
to recover $1,000 in statutory damages. That decision was affirmed
by the United States Supreme Court and we remanded to the district
court, where the court granted Doe’s motion for attorney fees and
costs. Neither the Supreme Court’s opinion nor our original opinion
addressed the separate question presented today, which is whether a
person who cannot show actual damages under the Act may still
recover costs and reasonable attorney fees. We now affirm the district
court’s conclusion that Doe is entitled to costs and reasonable attor-
ney fees even though he suffered no actual damages. Because, how-
ever, we conclude that the district court did not properly calculate the
amount of attorney fees, we reverse the district court’s judgment and
remand the case for further proceedings in light of this opinion.
I.
Because this is the second time this case is before us, we only
briefly recite the pertinent facts and procedural history.
Like most applicants for benefits under the Black Lung Benefits
Act, Doe provided his Social Security number to the Department of
Labor’s Office of Workers’ Compensation Programs. The Govern-
DOE v. CHAO 3
ment, in order to facilitate the processing of black lung claims, used
applicants’ Social Security numbers as unique identifiers. The Social
Security numbers were often reproduced to other applicants, their
employers, and counsel, and were frequently included in published
administrative law decisions.
Robert Doe, who was also a Black Lung benefit claimant, filed suit
against the Secretary of Labor on February 13, 1997. The Govern-
ment promptly recognized that in reproducing Social Security num-
bers in such a way, it exceeded the limits set by the Privacy Act. See
5 U.S.C.A. § 552a(b) (West 1996 & Supp. 2005). On February 20,
1997, the Government stipulated to a district court consent decree in
Robert Doe’s case prohibiting future publication of black lung benefit
applicants’ Social Security numbers. Later that day, Doe and five
other claimants initiated six separate lawsuits seeking equitable relief
and money damages under the Privacy Act. See Doe v. Chao, 346 F.
Supp. 2d 840, 842 (W.D. Va. 2004) (Doe IV) (summarizing case his-
tory).1 These lawsuits were consolidated with Robert Doe’s suit on
June 4, 1997, and the seven claimants sought monetary damages for
violations of the Privacy Act, as well as certification of the class of
every Black Lung benefit claimant who applied for benefits since the
passage of the Act.
The parties filed cross-motions for summary judgment and on July
24, 2000, the district court denied the plaintiffs’ motion for class cer-
tification and granted summary judgment in favor of the Government
for all claimants except Doe. Doe v. Herman, No. Civ.A.
2:97CV00043, 2000 WL 34204432 (W.D. Va. July 24, 2000) (Doe
I). The court also granted summary judgment in favor of Doe and
awarded him $1,000.00 in statutory damages despite the fact that Doe
suffered no actual damages. Id. at *4.
The parties cross-appealed and we affirmed the district court’s
grant of summary judgment in favor of the Government and reversed
the district court’s grant of summary judgment in favor of Doe. Doe
1
We will refer to the four previous opinions in this case sequentially
as Doe I, Doe II, Doe III, and Doe IV, with Doe I as the initial district
court opinion, Doe II as our first opinion, Doe III as the Supreme Court’s
opinion, and Doe IV as the district court opinion currently under review.
4 DOE v. CHAO
v. Chao, 306 F.3d 170 (4th Cir. 2002) (Doe II). We held that because
Doe could not show actual damages, the plain language of the Privacy
Act precluded him from obtaining an award of statutory damages. Id.
at 177.
The Supreme Court granted certiorari to decide whether "some
actual damages must be proven before a plaintiff may receive the
minimum statutory award" under the Privacy Act. See Doe v. Chao,
124 S.Ct. 1204, 1206 (2004) (Doe III). The Supreme Court affirmed
the judgment of this Court on February 24, 2004, holding that Doe
was not entitled to an award of statutory damages because he failed
to show any actual damages. Id. at 1212.
After the Supreme Court’s decision, the case was remanded to the
district court, where Doe made a motion for attorney fees and costs
under 5 U.S.C.A. § 552a(g)(4)(B) of the Privacy Act, which the dis-
trict court granted. Doe IV, 346 F. Supp. 2d at 851. The district court
reasoned that both the language of the statute and Congressional
intent favored recovery of costs and fees by a party who did not
recover any actual damages as long as the party could show an
adverse effect caused by an intentional or willful violation. Id. at 847-
48. Because the district court concluded that Doe’s earlier suit estab-
lished that he was adversely affected by the Government’s intentional
or willful violation, it awarded him $57,520.97 in costs and attorney
fees. Id. at 850-51.
The Government timely appealed, arguing that when a party is
unable to show actual damages, he or she is also precluded from
recovering costs and fees. The Government bases its argument on (1)
the plain text of the Privacy Act, (2) language from the Supreme
Court’s opinion in Doe III, and (3) canons of construction. In the
alternative, the Government argues that the only "reasonable" attorney
fee in this case is no fee at all.
II.
We review de novo the district court’s legal determination that
§ 552a(g)(4) of the Privacy Act permits a party who does not recover
actual damages to recover costs and attorney fees. See In re Coleman,
426 F.3d 719, 724 (4th Cir. 2005) ("A ruling concerning the proper
DOE v. CHAO 5
interpretation of a statute is a legal determination, which we review
de novo."). As always, we begin our analysis with the text of the stat-
ute. See N.Y. State Conference of Blue Cross & Blue Shield Plans v.
Travelers Ins., 514 U.S. 645, 655 (1995) (noting that "we begin as we
do in any exercise of statutory construction with the text of the provi-
sion in question").
Section 552a(g)(4) provides:
In any suit brought under the provisions of subsection
(g)(1)(C) or (D) of this section in which the court deter-
mines that the agency acted in a manner which was inten-
tional 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 reasonable attor-
ney fees as determined by the court.
5 U.S.C.A. § 552a(g)(4).Subsection (g)(1)(D), under which Doe’s suit
is maintained, authorizes individuals to bring a civil action for the
government’s failure to comply with the Privacy Act when that failure
causes an "adverse effect on [the] individual."2
The text of §§ 552a(g)(1)(D) and (g)(4) clearly provide that (1) if
an individual can show an adverse effect (2) caused by the Govern-
2
The full text of § 552a(g)(1)(D) provides:
Civil Remedies — Whenever any agency
(D) fails to comply with any other provision of this section, or
any rule promulgated thereunder, in such a way as to have an
adverse effect on an individual, the individual may bring a civil
action against the agency, and the district courts of the United
States shall have jurisdiction in the matters under the provisions
of this subsection.
5 U.S.C.A. § 552a(g)(1).
6 DOE v. CHAO
ment’s intentional or willful breach of the statute, (3) the Government
shall be liable to that individual for the sum of (a) actual damages and
(b) the costs and reasonable attorney fees of the action. It is undis-
puted that Doe suffered an adverse effect caused by the Government’s
intentional or willful violation of the Privacy Act. Under a plain read-
ing, then, the Government is liable to Doe for the sum of his actual
damages and costs and fees.
The Government, however, argues that the plain language of the
statute shows that § 552a(g)(4) authorizes an award of attorney fees
and costs only to parties who can show actual damages. In particular,
the Government argues that the term "sum" means "that liability
exists only if damages are established." (Appellant’s Br. at 21.) We
find the Government’s argument without merit.
The word "sum" — as it is used in this instance — requires a court
to fulfill the simple act of adding actual damages and fees and costs
once the preceding elements of the statute are satisfied. See Webster’s
II New Riverside University Dictionary 1160 (1988) (defining sum as
"[t]he total obtained as a result of adding").3 Thus, subsection
(g)(4)(B) acts independent of subsection (g)(4)(A). In other words,
the statute does not require a showing of actual damages under
(g)(4)(A) in order to receive costs and reasonable attorney fees under
(g)(4)(B). If a court determined actual damages to be $0.00 and costs
and reasonable attorney fees to be $1,000.00, for example, as a math-
ematical matter the sum of those two numbers is $1,000.00. Likewise,
if actual damages were determined to be $1,000.00 and costs and fees
were $0.00, the sum would again be $1,000.00. In short, the fact that
one of two numbers might be zero does not prove that when added
to another number, the sum of the two numbers must also equal zero.
The word "sum" requires us to engage in addition, not multiplication.4
3
The word "sum" can also be defined as "an amount of money." Web-
ster’s II New Riverside University Dictionary 1160 (1988). That defini-
tion, on the other hand, is the most plausible one for the word’s use in
subsection (g)(4)(A). See 5 U.S.C.A. § 552a(g)(4)(A) (stating that a per-
son who is entitled to actual damages shall not "receive less than the sum
of $1,000").
4
The Government suggests that in reading the term "sum" to suggest
its ordinary, mathematical meaning, we are leaving the term "with no job
DOE v. CHAO 7
Thus, because Doe suffered an adverse effect caused by the Govern-
ment’s intentional or willful violation of the Act, the Government is
liable to Doe for actual damages plus costs and reasonable attorney
fees. The face of the statute leaves no room for confusion on this point.5
III.
When the language of a statute fairly can be understood to have
only one, specific reading — as is the case with § 552a(g)(4)(B) —
that fact would ordinarily signal the end of our discussion. See Dodd
v. United States, 125 S.Ct. 2478, 2483 (2005) ("When the statute’s
language is plain, the sole function of the courts — at least where the
to do" in the Act. See Doe III, 124 S.Ct. at 1210 (rejecting statutory read-
ing that leaves terms "with no job to do" because the use of the term
would "accomplish[ ] nothing"). This argument, however, begs the ques-
tion of how the statute must be read if we remove the term "sum" from
the Act. It is not enough to argue that each word of a statute must be
given effect; the Government must also show that a plausible contrary
reading exists.
In any event, we disagree with the Government’s argument that if the
statute is to be read as we suggest it must, Congress "could have simply
drafted § 552a(g)(4) to provide that ‘the United States shall be liable to
the individual in an amount equal to [ ]’ actual damages and costs with
attorney’s fees and removed the phrase ‘the sum of’ from the Act."
(Appellant’s Br. at 21.) Requiring a court to discern the "amount of" of
damages and costs and fees still requires a court to add the "amount of"
damages and the "amount of" costs and fees in order to calculate the
total. If the Government would have more support for its argument under
its hypothetical statute than it does under the actual statute, then, it is
because the suggested redrafting does more than simply remove the word
"sum" from the Act. Rather, it alters the entire structure of § 552a(g)(4).
Under the actual text and structure of the statute, the inclusion of the
term "sum," combined with the separating of damages in one subsection
and costs and fees in another, together clarify that those two amounts
must be determined independent of one another and then added together.
5
This is not to say that all of the statute’s provisions and components
are clear. We recognize that the question we decided in Doe II was a dif-
ficult one, just as there might be difficult questions of statutory interpre-
tation presented by Privacy Act litigation in the future. Under the
question that we decide today, however, the statute has no ambiguity.
8 DOE v. CHAO
disposition required by the text is not absurd — is to enforce it
according to its terms." (internal quotation marks omitted)). There
are, however, two reasons to pause in this instance. First, the Govern-
ment argues that language in the Supreme Court’s Doe III decision
effectively decides this case in its favor. Second, a result that grants
costs and attorney fees to a party who does not recover monetary
damages is quite unusual, and as the Supreme Court has previously
noted, "[b]efore we will conclude Congress abandoned [the] estab-
lished principle that a successful party need not pay its unsuccessful
adversary’s fees . . . a clear showing that this result was intended is
required." Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983).
A.
The Government’s argument that the Supreme Court’s decision in
Doe III precludes the holding we would reach based on the plain read-
ing of the statute is primarily based on Doe III’s (1) reading of the
term "liable" in the Act, (2) footnote 9, and (3) discussion of what
completes a cause of action. We disagree with the Government’s
reading of Doe III.
1.
In Doe III, the Supreme Court noted that "the statute does not
speak of liability (and consequent entitlement to recovery) in a free-
standing, unqualified way, but in a limited way, by reference to enu-
merated damages." Doe III, 124 S.Ct. at 1209. In other words, the
phrase "entitled to recovery" in subsection (g)(4)(A) informs the
nature of the Government’s liability. A showing of an adverse effect
and willfulness means not just that the Government is generally "lia-
ble;" rather, the Government is liable for something specific. Here,
the Government is liable for the sum of (1) actual damages and (2)
costs and reasonable attorney fees.
The Government interprets the Supreme Court’s above-quoted lan-
guage, however, to mean that "[o]nly when a plaintiff proves [actual]
damages as an element of his merits claim will the United States
become ‘liable’ for damages and the accompanying costs and fees."
(Appellant’s Br. at 19.) It is unclear why the Government reads this
language from Doe III — which was concerned entirely with
DOE v. CHAO 9
§ 552a(g)(4)(A), not 552a(g)(4)(B) — to have any implication on
costs and attorney fees. In fact, in no place did the Court in Doe III
purport to interpret § 552a(g)(4)(B). Instead, the Government’s
rephrasing should have stopped a few words short, as a proper inter-
pretation of the Supreme Court’s language is the more obvious one:
that only when a plaintiff proves actual damages with his merits claim
will the United States become liable for actual damages6 — or the
statutory damage amount that replaces actual damages.
The Government’s argument fails to recognize that the statute sep-
arates damages from costs and fees in two different subsections and
requires courts to add the two amounts when liability attaches. That
such liability attaches upon a showing of an adverse effect and that
the violation was intentional or willful is clear from the statute’s text.
Once such liability attaches, the Government is liable for actual dam-
ages (if there are any) plus costs and reasonable attorney fees (if there
are any). The Supreme Court’s phrase, then, means nothing more than
the obvious fact that the Government cannot be liable for actual dam-
ages if there are no actual damages.
2.
The Government also argues that Doe III’s footnote 9 rejects any
analysis that fails to treat actual damages as the recovery entitling a
plaintiff to costs and attorney fees. Again, we disagree with the Gov-
ernment.
Footnote 9 was a response to a specific argument put forth in dis-
6
In fact, the Supreme Court explicitly recognized this point not only
in terms of the statute’s text, but also in terms of traditional tort recovery.
The Court noted that "Doe’s manner of reading ‘entitle[ment] to recov-
ery’ as satisfied by adverse effect caused by intentional or willful viola-
tion is in tension with more than the text, however." Doe III, 124 S.Ct.
at 1209. The Court then cited Prosser and Keeton on the Law of Torts
for the proposition that Doe’s reading was "at odds with the traditional
understanding that tort recovery requires not only wrongful act plus cau-
sation reaching to the plaintiff, but proof of some harm for which dam-
ages can reasonably be assessed." Id. (citing W. Keeton et al., Prosser
and Keeton on the Law of Torts § 30 (5th ed. 1984)).
10 DOE v. CHAO
sent by Judge Michael in Doe II. In his dissent, Judge Michael recog-
nized that the statute’s text "allows for a plaintiff who has proven an
intentional or willful violation of the Privacy Act to recover costs and
reasonable attorney fees even if the plaintiff has suffered no actual
damages at all." Doe II, 306 F.3d at 188-89 (Michael, J., dissenting
in part). This recognition was nothing more than a restatement of the
plain meaning of the statute. Judge Michael went on, however, to
argue that the majority erred in concluding that "a person is not ‘enti-
tled to recovery’ [under (g)(4)(A)] even though the United States is
liable to that person for costs and attorney fees [under (g)(4)(B)]." Id.
at 189. The majority in Doe II rejected this interpretation because it
did "not believe that Congress would have invoked a term whose defi-
nition is dependent upon a subsequent statutory provision," and, in the
context of § 552a(g)(4)(A), which concerns damages, "‘recovery’ is
not plausibly read to reference litigation costs in the absence of any
underlying compensable injury." Id. at 179.
In footnote 9, the Supreme Court also rejected Judge Michael’s
argument. The Supreme Court understood Judge Michael to argue
"that any plaintiff who can demonstrate that he was adversely affected
by intentional or willful agency action is entitled to costs and reason-
able attorney’s fees under 5 U.S.C. § 552a(g)(4)(B), and is for that
reason ‘a person entitled to recovery’ [of actual damages] under sub-
section (g)(4)(A)." Doe III, 124 S.Ct. at 1211 n.9 (emphasis added).
The Court then dismissed the argument because "[i]nstead of treating
damages as a recovery entitling a plaintiff to costs and fees, . . . this
analysis would treat costs and fees as the recovery entitling a plaintiff
to minimum damages; it would get the cart before the horse." Id. In
other words, even assuming that Doe is entitled to attorney fees, it
would be a mistake to conclude that an award of fees makes Doe a
"person entitled to recovery" of actual damages under subsection
(g)(4)(A). By so holding, the Supreme Court did not attempt to
address in dicta whether Doe was entitled to attorney fees, but instead
confined its inquiry to the issue before it; that is, whether Doe would
be "entitled to recover" monetary damages because he incurred attor-
ney fees.7
7
If, as the Government argues, the Supreme Court had wished to assert
in dicta that fees are never allowed absent a showing of actual damages,
DOE v. CHAO 11
3.
The Government next argues that Doe III requires a showing of
actual damages in order for a plaintiff to have a cause of action under
subsection (g)(4). Although the Supreme Court’s language may be
subject to different interpretations, we do not believe it can be inter-
preted in the manner suggested by the Government.
In Doe III, the Court responded to Doe’s argument that "it would
have been illogical for Congress to create a cause of action for anyone
who suffers an adverse effect from intentional or willful agency
action, then deny recovery without actual damages." Doe III, 124
S.Ct. at 1210. Justice Souter’s opinion noted that subsection
(g)(1)(D)’s language "recognizing a federal ‘civil action’ on the part
of someone adversely affected" does not alone create a complete
cause of action. Id. There must also be "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." Id. at 1210-1211. Accordingly, then, "an
individual subjected to an adverse effect has injury enough to open
the courthouse door, but without more has no cause of action for dam-
ages under the Privacy Act." Id. at 1211.
one would think the Court’s opinion would have stated the proposition
as such. Although it would have been dicta just the same, Doe III easily
could have rejected Judge Michael’s interpretation by noting that Doe
was categorically not entitled to attorney fees because he could not show
actual damages, and thus there was no recovery of costs and attorney
fees to even act as a "recovery" under 552a(g)(4)(A). This, of course, is
not what the Supreme Court stated.
In his dissent, Judge Michael contends that we avoid confrontation
with footnote 9. See post at 25. As our discussion reveals, however, we
do not ignore the footnote or dismiss it as dicta. Moreover, the footnote
is only dicta if it is misread to state the proposition that Judge Michael
suggests. Without the gloss added by our good dissenting colleague and
the Government, footnote 9’s language stands for the simple proposition
that a legitimate award of costs and fees cannot transform Doe into a
"person entitled to recovery" of actual damages under subsection
(g)(4)(A). If it could, of course, we would be left with the cart before the
horse.
12 DOE v. CHAO
The Government argues that this language stands for the proposi-
tion that actual damages are part of the underlying cause of action and
that by failing to show actual damages, Doe may not now recover
costs and fees. We disagree. We understand the Supreme Court’s lan-
guage as stating what must be shown (or proved) in order to prevail
under the cause of action created by subsection (g)(4) in order to be
entitled to the remedy delineated in (g)(4)(A). In other words, in order
to succeed on the underlying cause of action and be entitled to a rem-
edy of actual damages, a litigant must show actual damages. Because
he could not show actual damages, Doe was not entitled to monetary
relief for the violation of the underlying cause of action that Congress
created with the Privacy Act.
The Government and Judge Michael’s dissent read far too much
into one single paragraph of the Supreme Court’s Doe III opinion
while simultaneously ignoring longstanding precedent. To accept the
Government’s reading would be to conflate the underlying cause of
action with the remedy provided. The Government’s argument sug-
gests that relief is part of the underlying cause of action. This is not
so. Such a reading fails to recognize traditional jurisprudential under-
standings of causes of actions.8
In Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court
detailed the history of the phrase "cause of action," and recognized
that traditionally the phrase refers "roughly to the alleged invasion of
recognized legal rights upon which a litigant bases his claim for
relief." Id. at 237 (internal quotation marks omitted). In other words,
"[t]he concept of a ‘cause of action’ is employed specifically to deter-
8
Judge Michael’s dissent contends that the relationship between
implied causes of action and express causes of action are "tangential at
best." Post at 26. Yet, Judge Michael fails to explain why the meaning
of a "cause of action" changes based on whether a cause of action is first
enunciated by Congress or the Court. In fact, and as Judge Michael
implicitly recognizes, "because Congress has expressly empowered
plaintiffs to bring private suits for money damages under the Privacy
Act," post at 26, our task is easier because we need only look to Con-
gress’s express language to determine which litigants are empowered to
bring a cause of action for appropriate relief, or in other words, money
damages.
DOE v. CHAO 13
mine who may judicially enforce the statutory rights or obligations."
Id. at 239. The Davis court noted that "the question of whether a liti-
gant has a ‘cause of action’ is analytically distinct and prior to the
question of what relief, if any, a litigant may be entitled to receive."
Id. Moreover, the Court recognized that it is possible for a plaintiff
to "have a cause of action even though he be entitled to no relief at
all." Id. at 239 n.18. Therefore, a cause of action is not connected to
"the quality or extent" of injury, but instead concerns whether the
plaintiff belongs to a class of litigants that may use the courts to
enforce a right.9 Id.; see also Transamerica Mortgage Advisors, Inc.
v. Lewis, 444 U.S. 11, 30 (1979) (noting that the question of "whether
a cause of action exists" is distinct from "the question of the nature
of relief available in such an action"); cf. Ragsdale v. Wolverine
World Wide, Inc., 535 U.S. 81, 89 (2002) ("To prevail under a cause
of action set out in [29 U.S.C.] § 2617, an employee must prove, as
a threshold matter, that the employer violated [29 U.S.C.] § 2615 by
interfering with, restraining, or denying his or her exercise of FMLA
rights. Even then, § 2617 provides no relief unless the employee has
been prejudiced by the violation.").
In the case of § 552a(g)(4), then, Congress created a cause of
action for a class of litigants who are adversely affected by the Gov-
ernment’s intentional or willful violation of the Privacy Act. In order
to prevail — or be entitled to monetary relief — under subsection
(g)(4)(A), a litigant must show actual damages.10 If there are no actual
9
To be sure, at first blush, the few sentences in Doe III concerning this
question appear to favor the Government’s reading. It must be remem-
bered, however, that "[a] ‘cause of action’ may mean one thing for one
purpose and something different for another." United States v. Memphis
Cotton Oil Co., 288 U.S. 62, 67-68 (1933). In fact, the complexity and
confusion attached to the phrase "cause of action" was one of the main
reasons "that the authors of the Federal Rules of Civil Procedure
eschewed it altogether," instead requiring that a complaint contain a short
and plain statement of the "claim." Davis v. Passman, 442 U.S. 228, 237
(1979). Nonetheless, if one thing is certain, it is that an entitlement to
relief is not part of an underlying cause of action.
10
Judge Michael’s dissent mixes and matches different portions of Jus-
tice Souter’s opinion in Doe III in an attempt to rewrite Congress’s
express text, redraft the Supreme Court’s actual language, and reconcep-
14 DOE v. CHAO
damages, of course, a litigant is entitled to none. Just the same, how-
ever, in order to prevail — or be entitled to relief — under subsection
(g)(4)(B), a litigant must show that he incurred costs and reasonable
attorney fees. But the cause of action itself is provided to those liti-
gants who are adversely affected by the Government’s intentional or
willful violation of the Privacy Act.11 The Government’s argument, on
tualize the meaning of a cause of action. He claims that the Supreme
Court cited Prosser and Keeton on the Law of Torts in order to support
the "‘traditional understanding’ of tort causes of action," post at 27, and
that our neglect of this portion of the Supreme Court’s analysis explains
our "erroneous conclusion" that a remedy is not part of an underlying
cause of action. The reason that we do not cite the Supreme Court’s lan-
guage detailing how the "traditional understanding of tort causes of
action" informs our decision here, however, is because such language
does not exist.
As we noted in footnote 6, the Doe III language that Judge Michael
relies on is concerned with what a litigant must show in order to be enti-
tled to recovery under the Act. In other words, and as we have often
stated throughout this opinion, in order to recover damages under subsec-
tion (g)(4)(A) of the Act, a litigant must show that he suffered some
actual damages. But the Supreme Court never speaks of the "traditional
understanding of tort causes of action." Instead, to quote the Supreme
Court, it speaks of the "traditional understanding [of] tort recovery." Doe
III, 124 S.Ct. at 1209 (emphasis added). And of course, relief — or
recovery stemming from the underlying cause of action — is distinct
from the cause of action itself. Finally, even if there remained any doubt,
the language that Judge Michael invokes stems from Part III of the
Supreme Court’s opinion, which concerned Doe’s primary argument that
any person who shows an adverse effect caused by the Government’s
intentional or willful violation is a person entitled to recovery under sub-
section (g)(4)(A). See id. It is not until Part IV, however, when Doe III
cleans up the "loose ends," that the opinion addresses the underlying Pri-
vacy Act cause of action. See id. at 1210.
11
We can envision a statute where Congress makes a showing of dam-
ages part of an underlying cause of action, but it would be an odd statute.
For example, if § 552a(g)(4) instead read, "when a court determines that
the agency acted in a manner which was intentional or willful, and a liti-
gant suffers actual damages, the United States shall be liable for the
amount of actual damages," it would be arguable that the showing of
damages was part of the cause of action because a litigant would not
have a statutory right under the Act unless she suffered actual damages.
The actual statute at issue here, of course, was not written this way.
DOE v. CHAO 15
the other hand, "mirrors the very misunderstanding over the differ-
ence between a cause of action and the relief afforded under it that
[the Supreme Court] attempted to clarify in Davis."12 Franklin v.
Gwinnett County Pub. Schools, 503 U.S. 60, 69 (1992).
In short, we find nothing in the Supreme Court’s Doe III opinion
that trumps the plain meaning of the statute.
B.
The Government argues that aside from Doe III, we must also
interpret § 552a(g)(4)(B) through the lens of two canons of statutory
construction. First, it suggests that statutory grants of the right to
recover attorney fees and costs must be construed strictly in favor of
the sovereign. Second, the Government argues that § 552a(g)(4) does
not amount to a "clear showing" of congressional intent to depart
from the rule that a prevailing party need not pay a non-prevailing
party’s litigation costs and fees.13
12
The incorrectness of the Government’s argument is perhaps best
underscored when the argument is taken to its logical conclusion.
Because under the Government’s reading, actual damages — under
(g)(4)(A) — make up part of the underlying cause of action, a showing
of costs and attorney fees — under (g)(4)(B) — would also make up a
necessary component of the cause of action. This is because subsections
A and B are structural equals in the text of the statute. Therefore, if A
is part of the cause of action, B must also be part of the cause of action.
We cannot accept an argument that would require the conclusion that a
litigant who does not incur costs and reasonable attorney fees has no
cause of action under the Act.
13
The Government realizes that these canons would be of most use to
us only if we found that the statute was less than "clear in requiring that
a . . . plaintiff recover some damages before he can obtain an award of
costs and fees." (Appellant’s Br. at 25.) We, of course, hold that the text
of the statute is unmistakably clear, but our holding results in a conclu-
sion opposite from the one urged by the Government: a plaintiff need not
show actual damages in order to obtain an award of costs and fees. Thus,
as we shall detail, these canons serve little value in this case because we
are interpreting an unambiguous, clear statutory provision. See Connecti-
cut v. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (noting that
"canons of construction are no more than rules of thumb that help courts
determine the meaning of legislation" and when a statute is unambiguous
on its face, no further canons need be consulted).
16 DOE v. CHAO
1.
The Government correctly recognizes that the scope of the govern-
ment’s waiver of sovereign immunity must be strictly construed in
favor of the sovereign. Lane v. Pena, 518 U.S. 187, 192 (1996).
Moreover, "[i]t is well-settled that attorneys’ fees may be assessed
against the United States only when it has waived its sovereign immu-
nity by statute." O’Brien v. Moore, 395 F.3d 499, 503 (4th Cir. 2005)
(internal quotation marks and alterations omitted). Thus, we will con-
clude that Congress intended to waive the government’s sovereign
immunity for an award of attorneys’ fees only when Congress
expresses such intent unambiguously. See id. (noting the Court’s task
of determining whether Congress’ waiver of immunity for fees in
civil actions unambiguously extends to habeas proceedings).
In examining § 552a(g)(4)(B), we find no ambiguity in Congress’
waiver. As we noted in Part II, supra, we believe the text of this stat-
ute as it relates to Doe’s quest for attorney fees is clear. Our conclu-
sion that the statute, on its face, undoubtedly allows for Doe to
recover an award of attorney fees could not have been made without
a simultaneous recognition that the statute also unambiguously waives
the government’s immunity and makes it liable to Doe for costs and
fees. The statute permits of no other reading.
2.
In Ruckelshaus, the Supreme Court noted that "requiring a defen-
dant, completely successful on all issues, to pay the unsuccessful
plaintiff’s legal fees would be a radical departure from long-standing
fee-shifting principles adhered to in a wide range of contexts." 463
U.S. at 683. Relying on Ruckelshaus, the Government argues that in
order for Doe’s attorney fee award to stand, we must find that Con-
gress made a "clear showing" of its intent to abandon the principle
that non-prevailing parties may not recover costs and attorney fees.
See id. at 685.
Ruckelshaus concerned a provision of the Clean Air Act, which
permitted a court to "award costs of litigation (including reasonable
attorney and expert witness fees) whenever [the court] determines
that such an award is appropriate." Id. at 682-83 (emphasis in origi-
DOE v. CHAO 17
nal). In the underlying case, the Sierra Club was unsuccessful in its
attacks against an EPA regulation, but the D.C. Circuit nonetheless
granted the Club attorney fees because their briefs and arguments
were helpful to understanding a very complex issue. See Sierra Club
v. Gorsuch, 672 F.2d 33, 41 (D.C. Cir. 1982). The Supreme Court
reversed the D.C. Circuit’s decision, concluding that Congress
included the word "appropriate" in the statute in order to ensure that
a party who was completely unsuccessful on the merits would not be
able to recover costs and fees. Ruckelshaus, 463 U.S. at 686. Ulti-
mately, the Court concluded that the provision lacked a clear showing
from Congress, which was needed in order for "a party who wrongly
charges someone with violations of the law . . . to force [a] defendant
to pay the costs of the wholly unsuccessful suit against it." Id. at 685.
Ruckelshaus does not aid the Government here. The Clean Air Act
provision at issue in Ruckelshaus was meaningfully different from the
Privacy Act provision here. The provision at issue in Ruckelshaus
allowed the award of costs and reasonable fees when "appropriate."
Other statutes have similar language, allowing for fee-shifting either
when "appropriate" or "in the interest of justice." See, e.g., 15
U.S.C.A. § 2072(a)(West 1998)(stating that in addition to damages in
a suit under the Consumer Product Safety Act, a litigant may recover
costs and reasonable attorneys’ fees "if the court determines it to be
in the interest of justice"). Notably, however, Congress took a decid-
edly different path under § 552a(g)(4)(B) and did not condition the
award of costs and reasonable fees on whether a court found them to
be "appropriate" or "in the interest of justice."14 Instead, Congress
attached no qualifications, only requiring an intentional or willful vio-
lation that causes an adverse effect. Moreover, in Doe I, the district
court found that Doe suffered an adverse effect from the Govern-
ment’s intentional violation of the Privacy Act. The Government was
found to have violated the Privacy Act, but Doe suffered no actual
damages because of that violation. Thus, unlike the Sierra Club in
Ruckelshaus, Doe is not an example of "a party who wrongly charges
someone with violations of the law." Ruckelshaus, 463 U.S. at 685.
14
Although both provisions require that any award of attorney fees be
"reasonable," that term has a distinct meaning that is addressed in Part
IV, infra.
18 DOE v. CHAO
In addition, because the statute is unambiguous, it necessarily
makes a clear showing that plaintiffs — under circumstances like
Doe’s — should recover costs and reasonable attorney fees. By
declining to include any qualifying phrase like "appropriate" or "in
the interest of the justice," Congress created an explicit statutory
scheme that has the potential of making the Government liable for
costs and reasonable fees even when the Government is not liable for
actual damages. Although this scheme may produce atypical results,
it is not the province of the courts to alter plain congressional text that
does not offend the Constitution; instead, we must take Congress at
its word. See Connecticut v. Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992) ("We have stated time and again that courts must pre-
sume that a legislature says in a statute what it means and means in
a statute what it says there. When the words of a statute are unambig-
uous, then . . . judicial inquiry is complete.").15
As it relates to attorney fees and costs, and given the Supreme
Court’s interpretation in Doe III, § 552a(g)(4) is a clear statute. It
makes the Government liable for costs and reasonable attorney fees
when the Government intentionally or willfully violates the Privacy
Act and that violation causes the litigant an adverse affect. Moreover,
it does so unambiguously and without qualification.
15
Moreover, because other subsections — not at issue here — of
§ 552a(g) require a claimant to "substantially prevail" before a fee award
is appropriate, see 5 U.S.C.A. § 552a(g)(2)(B) (stating that fees are only
appropriate if a complainant has "substantially prevailed," and 5
U.S.C.A. § 552a(g)(3)(B) (same), it is implausible to assume that Con-
gress accidentally omitted the "substantially prevail" language from sub-
section 552a(g)(4)(B). Instead, it must be viewed as an intentional
congressional omission. See Mallas v. United States, 993 F.2d 1111,
1124 (4th Cir. 1993) ("Where Congress includes particular language in
one section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and purposefully
in the disparate inclusion or exclusion." (quoting Russello v. United
States, 464 U.S. 16, 23 (1983))(internal quotation marks and alterations
omitted)).
DOE v. CHAO 19
IV.
The Government next contends that even if the district court was
correct in concluding that the Government was liable to Doe for costs
and reasonable attorney fees, the court abused its discretion and
awarded Doe an unreasonable fee. We agree.
We review a district court’s award of attorney fees for an abuse of
discretion. Johnson v. City of Aiken, 278 F.3d 333, 336 (4th Cir.
2002). "In reviewing such discretionary rulings, we have adhered to
the proposition that discretion has been abused if a court has failed
adequately to consider judicially recognized factors constraining its
exercise of discretion, or in relying on erroneous factual or legal
premises." Mid Atl. Med. Servs., LLC v. Sereboff, 407 F.3d 212, 221
(2005) (internal quotation marks omitted). The Supreme Court has
held that when fee-shifting statutes use similar language, they should
be interpreted alike. Indep. Fed’n of Flight Attendants v. Zipes, 491
U.S. 754, 758 n.2 (1989). Moreover, the word "reasonable" is a term
of art frequently used by Congress in fee-shifting statutes; accord-
ingly, the Supreme Court’s "case law construing what is a ‘reason-
able’ fee applies uniformly to all [fee-shifting statutes]." City of
Burlington v. Dague, 505 U.S. 557, 562 (1992).
The Government contends that because Doe sought money dam-
ages from the United States, and was awarded none, the only reason-
able attorney fee is no fee at all.16 Doe, on the other hand, counters
by arguing that the real value and importance in his suit should not
be measured by the monetary award, but instead by the declaratory
and injunctive relief he obtained. Accordingly, he argues that his
attorney fee award can be justified based on that relief.
We find Doe’s argument unpersuasive. First, Doe did not win any
declaratory or injunctive relief. While it is true that an injunction was
entered prohibiting the Government from identifying black lung
16
The district court did not consider Doe’s underlying litigation suc-
cess when it determined the reasonableness of his fee award. Instead, it
moved directly to a straight-forward application of the twelve Johnson
factors. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-719 (5th Cir. 1974).
20 DOE v. CHAO
claimants’ Social Security numbers in the future, Doe had no mean-
ingful role in that injunction. The district court issued a consent
decree on February 20, 1997, granting the injunctive relief. It was not
until later that day that Doe joined the action, and he was not even
a signatory to the decree. See Doe IV, 346 F.Supp. 2d at 842.
Second, and more importantly, subsection (g)(1)(D) of the Privacy
Act does not allow courts to grant injunctive or declaratory relief. In
fact, the only relief available to Doe under that subsection is monetary
relief. See Doe III, 540 U.S. at 635 (Ginsburg, J., dissenting on other
grounds ("It bears emphasis that the Privacy Act does not authorize
injunctive relief when suit is maintained under § 552a(g)(1)(C) or
(D).")); Doe v. Stephens, 851 F.2d 1457, 1463 (D.C. Cir. 1988) (hold-
ing that aside from two specific subsections, the Privacy Act "pre-
cludes other forms of declaratory and injunctive relief"); Clarkson v.
IRS, 678 F.2d 1368, 1375 n.11 (11th Cir. 1982) ("The Privacy Act
expressly provides for injunctive relief for only two types of agency
misconduct, that is, wrongful withholding of documents under sub-
section (d)(1) and wrongful refusal to amend an individual’s record
under subsection (d)(3). The remedy for violations of all other provi-
sions of the Act is limited to recovery of damages upon a showing
that the agency acted in an intentional or willful manner.") (internal
citation omitted); Hanley v. United States Dep’t of Justice, 623 F.2d
1138, 1139 (6th Cir. 1980) (holding that "the injunctive relief sought
by [the plaintiffs] is precluded under the Privacy Act by the failure
of Congress to provide for such relief"); Parks v. United States, 618
F.2d 677, 684 (10th Cir. 1980) (same); Cell Assoc., Inc. v. Nat’l Inst.
of Health, 579 F.2d 1155, 1159-60 (holding that the Privacy "Act
makes no provision for [injunctive relief to prevent violations of sub-
section (b)] as part of the remedies that it does provide").17 Even
17
We note that we do not read these cases to stand for the proposition
that the Government may not be enjoined from violating the Privacy Act
by disclosing personal records. Instead, we read these cases as stating
that such relief is not authorized by the Privacy Act, standing alone.
Often, however, and as was the case in the instant action, injunctive
relief for a Government’s violation of the Act will instead be appropriate
and authorized by the APA. See 5 U.S.C.A. § 706(2)(A) (West 1996)
(empowering courts to "hold unlawful and set aside agency action . . .
found to be . . . not in accordance with the law").
DOE v. CHAO 21
assuming, for the sake of argument, that Doe’s suit obtained some
declaratory or injunctive relief, such relief could not possibly have
been obtained, standing alone, under the relevant subsections of the
Privacy Act. Instead, any equitable relief obtained in the original
action stemmed from the Administrative Procedures Act.18 See Doe
III, 540 U.S. at 619 n.1 ("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 num-
bers in multiparty captions."). Simply put, because the Privacy Act
does not allow Doe to obtain injunctive relief under subsections
(g)(1)(C) or (D), it also bars Doe from securing an award of costs and
fees based on any injunctive relief he actually obtained.
We therefore return to the question of whether Doe’s fee award
was reasonable in light of his failure to prove monetary damages.
"Where recovery of private damages is the purpose of . . . litigation,
a district court, in fixing fees, is obligated to give primary consider-
ation to the amount of damages awarded as compared to the amount
sought." Farrar v. Hobby, 506 U.S. 103, 114 (1992). Moreover, "[a]
reduced fee award is appropriate if the relief, however significant, is
limited in comparison to the scope of the litigation as a whole." Hens-
ley v. Eckerhart, 461 U.S. 424, 440 (1983). Accordingly, if "a plain-
tiff recovers only nominal damages . . . the only reasonable fee is
usually no fee at all." Farrar, 506 U.S. at 115. Finally, and most
importantly, when a district court determines what fee is reasonable,
the "most critical factor" in that determination "is the degree of suc-
cess obtained." Hensley, at 436.
The basis of Doe’s suit under the Privacy Act was monetary dam-
ages. He sought damages for emotional distress, but as we concluded
in Doe II, he failed to show any actual damages. Accordingly, the
Government asks us to find that when a plaintiff fails to prove any
actual damages in his quest for monetary relief under § 552a(g)(4),
18
The APA does not itself allow for attorney fees, so any request for
fees in connection with the APA must be made under the Equal Access
to Justice Act, 28 U.S.C.A. § 2412(b) (West 1994). See, e.g., Ardestani
v. INS, 502 U.S. 129, 132-33 (1991) (explaining the relationship between
the EAJA and APA). The district court determined that Doe was not enti-
tled to fees under the EAJA, and Doe does not appeal that finding.
22 DOE v. CHAO
"the only reasonable fee is usually no fee at all." Farrar, 506 U.S. at
115.
The district court considered, but ultimately rejected this argument,
finding that it was "nothing more than a restatement of the [Govern-
ment’s] previous argument that since [ ] Doe failed to recover actual
damages . . . he is not entitled to an award of costs and attorneys’ fees
. . . ." Doe IV, 346 F.Supp. 2d at 848. The district court found that
the Government’s argument "reads ‘reasonable’ attorneys’ fees as
requiring that a party achieve some success on the merits before he
can recover." Id. at 849. Thus, according to the district court, the Gov-
ernment’s definition of the word "reasonable" impermissibly incorpo-
rates a "substantially prevail" requirement into the statute. Id.We disagree with the district court. Statutes that require a com-
plainant to "substantially prevail" in order to obtain costs and fees do
so as a prerequisite to obtaining fees. See Ruckelshaus, 463 U.S. at
701 (noting that most fee-shifting statutes require that a party ‘pre-
vail’ or ‘substantially prevail’ in order to obtain fees" (emphasis
added)). That is to say, a party has no claim whatsoever to fees under
such provisions — which are not implicated in this action — unless
the party substantially prevailed in their underlying claim. See, e.g.,
Reinbold v. Evers, 187 F.3d 348, 363 (4th Cir. 1999) (noting that the
question of "whether a party who has substantially prevailed is enti-
tled to recover attorneys’ fees [ ] is not reached unless and until [the
party] has proved he has substantially prevailed" (emphasis in origi-
nal)). The word "reasonable," as it is used in fee-shifting statutes,
such as the one here, however, has a distinct meaning, and it is only
after a district court determines that it may award attorney fees that
the word "reasonable" comes into play. See Hensley, 461 U.S. at 433(stating that after a court determines that a party "prevailed" under the
statute, "[i]t remains for the district court to determine what fee is
‘reasonable’"). Put simply, "reasonableness" concerns the appropriate
amount of fees once they are determined to be authorized, whereas
whether a party "substantially prevails" concerns the appropriateness
of awarding fees at all.
Thus, the district court erred in its reasonableness analysis by fail-
ing to "give primary consideration to the amount of damages awarded
as compared to the amount sought" by Doe, a consideration that exists
DOE v. CHAO 23
in order to constrain a court’s discretion in setting an award. See Far-
rar, 506 U.S. at 114. "Indeed, the most critical factor in determining
the reasonableness of a fee award is the degree of success obtained."
Id. (internal quotation marks omitted). Here, Doe failed to recover
any monetary award, despite the fact that damages were the primary
goal of his suit. Because his underlying litigation was largely unsuc-
cessful, it is unlikely that Doe may recover significant attorney fees.
See Hetzel v. County of Prince William, 89 F.3d 169, 173-74 (4th Cir.
1996) (holding that because the plaintiff "gained but an insignificant
portion of the relief she originally requested and because she has
failed to prevail on her most consequential claims, she is entitled only
to a fraction of her attorney’s fees").
Accordingly, because we find that the district court abused its dis-
cretion in determining the reasonableness of the fee award, we vacate
the award and because the district court is in the best position to
determine what is a "reasonable" attorney fee award, we remand to
the district court for recalculation of fees.19 We do not, however, dis-
turb the district court’s calculation of Buck Doe’s litigation costs.
Subsection (g)(4)(B) states that the Government shall be liable for
"the costs of the action together with reasonable attorney fees." Doe
is therefore entitled to the actual costs of his action unrestrained by
any reasonableness inquiry.
V.
In sum, we agree with the district court’s interpretation of the Pri-
vacy Act. It plainly states that the Government shall be liable for costs
and reasonable attorney fees when its intentional or willful violation
of the Act adversely affects a litigant, and neither the Supreme
Court’s Doe III opinion nor canons of construction lead to an opposite
conclusion. Because, however, the district court failed to determine
the reasonableness of Doe’s attorney fee award in light of the fact that
Doe recovered no damages, we vacate that portion of the award per-
19
In its recalculation, the district court should consider the Johnson
factors on which it initially referenced in addition to the success obtained
by Doe, including Doe’s argument that his claim was partially vindi-
cated, and that he is entitled to a substantial award under Mercer v. Duke
University, 401 F.3d 199 (4th Cir. 2005).
24 DOE v. CHAO
taining to fees and remand to the district court for reconsideration. We
affirm that portion of the award pertaining to costs.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
MICHAEL, Circuit Judge, dissenting:
If this case had called for examination of the Privacy Act’s text and
nothing else, perhaps I would have subscribed to the majority’s read-
ing of the statute. The statutory text alone, however, cannot be the
sole focus here because the Supreme Court has spoken, if not on the
exact question posed, then at least on a subject very closely related.
As a subordinate appellate court, our responsibility is to give effect
to statutory text in a way that hews to Supreme Court guidance on
how to interpret that text. Because I believe we must weigh the
Supreme Court’s words more heavily than does today’s majority, I
respectfully dissent. Although I concluded when this case was previ-
ously before us that Buck Doe had the better argument, here the gov-
ernment ought to carry the day. The Supreme Court’s Doe v. Chao
opinion virtually compels us to hold that a plaintiff who has not suf-
fered actual damages under 5 U.S.C. § 552a(g)(4)(A) cannot allege all
of the elements of a claim for relief under the Privacy Act and may
not as a result recover costs or attorney fees under § 552a(g)(4)(B).
Notwithstanding what the majority says, ante at 13-14 n.10, I am not
attempting to rewrite the Privacy Act; I am simply following the
Supreme Court’s teachings on how to construe that Act.
I dissented in part from our earlier opinion because I disagreed
with the conclusion that a plaintiff such as Buck Doe must suffer
actual damages to be eligible for statutory damages under
§ 552a(g)(4)(A). Doe v. Chao, 306 F.3d 170, 187-203 (4th Cir. 2002)
("Doe II") (Michael, J., concurring in part and dissenting in part). The
Supreme Court affirmed the result reached by the Doe II majority.
Doe v. Chao, 540 U.S. 614, 627 (2004) ("Doe III"). In Doe III the
Supreme Court suggested clearly how we should analyze eligibility
for a recovery of costs and fees under § 552a(g)(4)(B), even though
that fee provision was not then in dispute.
Specifically, Justice Souter wrote for the Court: "[A]n individual
subjected to an adverse effect has injury enough to open the court-
DOE v. CHAO 25
house door, but without more has no cause of action for damages
under the Privacy Act." 540 U.S. at 624-25. Further, in a footnote
rejecting part of the reasoning in my Doe II dissent, the Supreme
Court indicated that proper analysis of the statute — that is, analysis
that correctly places "the horse" before "the cart" — would treat
"damages as a recovery entitling a plaintiff to costs and fees." Id. at
625 n.9. Today’s majority quotes these passages. Ante at 11-12; 9-10.
Despite doing so, the majority fails to follow the path that the
Supreme Court marked for us in its interpretation of the Privacy Act.
I believe that path is clear. Since we must, so to speak, put the horse
before the cart, damages must be a prerequisite to costs and fees. A
plaintiff who has suffered no damages may have standing ("injury
enough to open the courthouse door," Doe III, 540 U.S. at 625), but
because such a plaintiff has no cause of action under the Act, he can-
not be eligible for judicial relief, including attorney fees and costs.
The majority avoids confrontation with footnote 9 of Doe III by
reading that footnote as pertaining only to Doe’s § 552a(g)(4)(A)
claim. See ante at 10 (asserting that "the Supreme Court did not
attempt to address in dicta whether Doe was entitled to attorney
fees"). This approach ignores the footnote’s direct statement that
"damages [are treated] as a recovery entitling a plaintiff to costs and
fees." Doe III, 540 U.S. at 625 n.9. This statement was not crucial to
Doe III’s holding, and it is dicta so far as Doe’s claim for attorney
fees is concerned. That does not end the analysis, however. We said
long ago that "certainly dicta of the United States Supreme Court
should be very persuasive." Fouts v. Maryland Casualty Co., 30 F.2d
357, 359 (4th Cir. 1929). Moreover, "[c]ourts frequently and properly
cite and rely upon dicta that correctly set forth governing or relevant
legal principles." New York Life Ins. Co. v. United States, 118 F.3d
1553, 1557 (Fed. Cir. 1997). The question presented in Doe III did
not have to involve attorney fees for the Supreme Court’s reasoning
on how to interpret the Privacy Act to be highly persuasive authority.
This reasoning should guide us here.
I also take seriously the Supreme Court’s lesson about the distinc-
tion between plaintiffs who have standing to sue and those who have
a true cause of action under the Privacy Act. Doe III, 540 U.S. at 624-
25. The majority attempts to sidestep this precept by emphasizing the
differences between a cause of action and the relief that a plaintiff
26 DOE v. CHAO
who has a cause of action may recover. Ante at 12-13, 15 (quoting
Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992), and
Davis v. Passman, 442 U.S. 228 (1979)). The majority also criticizes
the government for failing to appreciate these differences, ante at 15,
but it is the majority that has missed the mark.
The Supreme Court has "often stated" that "the question of what
remedies are available under a statute that provides a private right of
action is ‘analytically distinct’ from the issue of whether such a right
exists in the first place." Franklin, 503 U.S. at 65-66 (quoting Davis,
442 U.S. at 239). This sentence clarifies that Davis’s discussion of
causes of action and appropriate relief arose in a particular legal con-
text, namely the Supreme Court’s jurisprudence on implied private
rights of action. In that context, "it may be said that . . . cause of
action is a question of whether a particular plaintiff is a member of
the class of litigants that may, as a matter of law, appropriately invoke
the power of the court; and relief is a question of the various remedies
a federal court may make available." Davis, 442 U.S. at 239 n.18.
The relationship between that context and Doe’s case is tangential
at best, however, because Congress has expressly empowered plain-
tiffs to bring private suits for money damages under the Privacy Act.
The phrase "cause of action" has long denoted more than one legal
concept. In 1933 the Supreme Court, speaking through Justice Car-
dozo, explained that the Court "ha[d] not committed itself to the view
that the phrase is susceptible of any single definition that will be inde-
pendent of the context or of the relation to be governed." United
States v. Memphis Cotton Oil Co., 288 U.S. 62, 68 (1933). In the
years since the Court has continued to emphasize that the phrase’s
meaning depends on context. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 118 n.6 (1998) (Stevens, J., concurring) (indicat-
ing that Davis construed only "one meaning of the term."). A more
careful examination should have led the majority to see that the legal
concept at issue in Davis, a case assessing an implied right of action,
was not the same as the concept at issue in Doe III, a case assessing
the elements of an express statutory claim. Our task is simply to iden-
tify and apply the concept appropriate to this case.
Rather than look far afield to Davis and Franklin (again, cases con-
cerning implied rights of action) to understand the Privacy Act "cause
DOE v. CHAO 27
of action," I would look principally to Doe III itself. Some causes of
action do not require damages as an element of a claim for relief; oth-
ers (such as the traditional tort of negligence) do. The Supreme Court
taught us in Doe III that the Privacy Act cause of action is one of the
latter. In particular, the Supreme Court found Doe’s argument under
§ 552a(g)(4)(A) inconsistent 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 rea-
sonably be assessed." Doe III, 540 U.S. at 621. It is not a coincidence
that the treatise section that the Court cited to support this proposition
is titled "Elements of Cause of Action." W. Keeton et al., Prosser and
Keeton on the Law of Torts § 30 (5th ed. 1984). The treatise identifies
"[a]ctual loss or damage resulting to the interests of another" as one
of the traditional elements of a negligence cause of action, and adds:
"Since the action for negligence developed chiefly out of the old form
of action on the case, it retained the rule of that action, that proof of
damage was an essential part of the plaintiff’s case." Id.
The majority discusses Doe III’s invocation of the "traditional
understanding" of tort causes of action only in an attempt to wave
away this dissent. Ante at 9 n.6, 13-14 n.10. Thus, the majority
neglects the role that this understanding played in the Supreme
Court’s analysis of the elements of a Privacy Act claim. Perhaps this
neglect explains the majority’s erroneous conclusion that "those liti-
gants who are adversely affected by the Government’s intentional or
willful violation of the Privacy Act" have a "cause of action," ante at
14-15, regardless of whether they can allege any damages. This con-
clusion cannot be squared with the Supreme Court’s statement that
"an individual subjected to an adverse effect has injury enough to
open the courthouse door, but without more has no cause of action for
damages under the Privacy Act," Doe III, 540 U.S. at 624-25 (empha-
sis added), unless it is recognized that what the majority means by
"cause of action" is not what the Supreme Court means. And without
a cause of action in the Supreme Court’s sense of that term, Doe
would not be entitled to recover fees or costs because there would be
no basis for holding the United States "liable" to Doe for any "sum."
§ 552a(g)(4). That is, there can be no liability absent a claim for
relief, and no such claim absent actual damages.
To be sure, the practical impact of the majority’s interpretive errors
is somewhat blunted by its emphasis on the conventional judicial
28 DOE v. CHAO
standards for assessing the reasonableness of attorney fees. See ante
at 21 (quoting Farrar v. Hobby, 506 U.S. 103 (1992)). I suppose that
under these standards most victims who suffer no actual damages
from a government official’s "intentional or willful" violation of the
Privacy Act will ordinarily recover no attorney fees. But outcome
never trumps reasoning.
As I would reverse the district court’s judgment for the reasons
stated, I must respectfully dissent.