|DOE V. CHAO (02-1377) 540 U.S. 614 (2004)
306 F.3d 170, affirmed.
[ Souter ]
[ Ginsburg ]
[ Breyer ]
BUCK DOE, PETITIONER v. ELAINE L.
SECRETARY OF LABOR
ON WRIT OF CERTIORARI TO THE UNITED STATES
APPEALS FOR THE FOURTH CIRCUIT
[February 24, 2004]
Justice Breyer, dissenting.
I agree with Justice Ginsburg and join her opinion. I emphasize Justice Ginsburgs view that the statute (as we interpret it) is not likely to produce massive recoveries against the Governmentrecoveries that Congress did not endorse. Ante, at 10 (dissenting opinion). I concede that the statute would lead to monetary recoveries whenever the Governments 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
That is to say, the lower courts have interpreted the phrase
restrictively, essentially applying it where the
Governments 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, 424435
(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 statutes detailed provisions. Hence Justice Ginsburgs interpretation would not risk injury to the public fisc. And I consequently find no support in any of the statutes basic purposes for the majoritys restrictive reading of the damages provision.