Certiorari To The United States Court Of Appeals For The Ninth Circuit
No. 10–1024. Argued November 30, 2011—Decided March 28, 2012
Respondent Cooper, a licensed pilot, failed to disclose his human immunodeficiency virus (HIV) diagnosis to the Federal Aviation Administration (FAA) at a time when the agency did not issue medical certificates, which are required to operate an aircraft, to persons with HIV. Subsequently, respondent applied to the Social Security Administration (SSA) and received long-term disability benefits on the basis of his HIV status. Thereafter, he renewed his certificate with the FAA on several occasions, each time intentionally withholding information about his condition. The Department of Transportation (DOT), the FAA’s parent agency, launched a joint criminal investigation with the SSA to identify medically unfit individuals who had obtained FAA certifications. The DOT provided the SSA with the names of licensed pilots, and the SSA, in turn, provided the DOT with a spreadsheet containing information on those pilots who had also received disability benefits. Respondent’s name appeared on the spreadsheet, and an investigation led to his admission that he had intentionally withheld information about his HIV status from the FAA. His pilot certificate was revoked, and he was indicted for making false statements to a Government agency. He pleaded guilty and was fined and sentenced to probation. He then filed suit, alleging that the FAA, DOT, and SSA violated the Privacy Act of 1974, which contains a detailed set of requirements for the management of records held by Executive Branch agencies. The Act allows an aggrieved individual to sue for “actual damages,” 5 U. S. C. §552a(g)(4)(A), if the Government intentionally or willfully violates the Act’s requirements in such a way as to adversely affect the individual. Specifically, respondent claimed that the unlawful disclosure to the DOT of his confidential medical information had caused him mental and emotional distress. The District Court concluded that the Government had violated the Act. But, finding the term “actual damages” ambiguous, the court relied on the sovereign immunity canon, which provides that sovereign immunity waivers must be strictly construed in the Government’s favor, to hold that the Act does not authorize the recovery of nonpecuniary damages. Reversing the District Court, the Ninth Circuit concluded that “actual damages” in the Act is not ambiguous and includes damages for mental and emotional distress.
Held: The Privacy Act does not unequivocally authorize damages for mental or emotional distress and therefore does not waive the Government’s sovereign immunity from liability for such harms. Pp. 4–19.
(a) A waiver of sovereign immunity must be unequivocally expressed in statutory text, see e.g., Lane v. Peņa, 518 U. S. 187, and any ambiguities are to be construed in favor of immunity, United States v. Williams, 514 U. S. 527. Ambiguity exists if there is a plausible interpretation of the statute that would not allow money damages against the Government. United States v. Nordic Village, Inc., 503 U. S. 30. Pp. 5–6.
(b) The term “actual damages” in the Privacy Act is a legal term of art, and Congress, when it employs a term of art, “ ‘presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken,’ ” Molzof v. United States, 502 U. S. 301. Even as a legal term, the precise meaning of “actual damages” is far from clear. Although the term is sometimes understood to include nonpecuniary harm, it has also been used or construed more narrowly to cover damages for only pecuniary harm. Because of the term’s chameleon-like quality, it must be considered in the particular context in which it appears. Pp. 6–9.
(c) The Privacy Act serves interests similar to those protected by defamation and privacy torts. Its remedial provision, under which plaintiffs can recover a minimum award of $1,000 if they first prove at least some “actual damages,” “parallels” the common-law torts of libel per quod and slander, under which plaintiffs can recover “general damages” if they first prove “special damages.” Doe v. Chao, 540 U. S. 614. “Special damages” are limited to actual pecuniary loss, which must be specially pleaded and proved. “General damages” cover nonpecuniary loss and need not be pleaded or proved. This parallel suggests the possibility that Congress intended the term “actual damages” to mean “special damages,” thus barring Privacy Act victims from any recovery unless they can first show some actual pecuniary harm. That Congress would choose “actual damages” instead of “special damages” is not without precedent, as the terms have occasionally been used interchangeably. Furthermore, any doubt about the plausibility of construing “actual damages” as special damages in the Privacy Act is put to rest by Congress’ deliberate refusal to allow recovery for “general damages.” In common-law defamation and privacy cases, special damages is the only category of compensatory damages other than general damages. Because Congress declined to authorize general damages, it is reasonable to infer that Congress intended the term “actual damages” in the Act to mean special dam-ages for proven pecuniary loss. Pp. 9–14.
(d) Although the contrary reading of the Privacy Act accepted by the Ninth Circuit and advanced by respondent is not inconceivable, it is plausible to read the Act as authorizing only damages for economic loss. Because Congress did not speak unequivocally, the Court adopts an interpretation of “actual damages” limited to proven pecuniary harm. To do otherwise would expand the scope of Congress’ sovereign immunity waiver beyond what the statutory text clearly requires. P. 14.
(e) Respondent raises several counterarguments: (1) common-law cases often define “actual damages” to mean all compensatory damages; (2) the elimination of “general damages” from the Privacy Act means that there can be no recovery for presumed damages, but plaintiffs can still recover for proven mental and emotional distress; (3) because some courts have construed “actual damages” in similar statutes to include mental and emotional distress, Congress must have intended “actual damages” in the Act to include mental and emotional distress as well; and (4) precluding nonpecuniary damages would lead to absurd results, thereby frustrating the Act’s remedial purpose. None of these arguments overcomes the sovereign immu-nity canon. Pp. 14–19.
622 F. 3d 1016, reversed and remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Sotomayor, J., filed a dissenting opinion, in which Ginsburg and Breyer, JJ., joined. Kagan, J., took no part in the consideration or decision of the case.
Certiorari To The United States Court Of Appeals For The Second Circuit
No. 10–1211. Argued January 18, 2012—Decided March 28, 2012
Before passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), United States immigration law provided deportation hearings for excludable aliens who had already entered the United States and exclusion hearings for excludable aliens seeking entry into the United States. Lawful permanent residents were not regarded as making an “entry,” upon their return from “innocent, casual, and brief excursion[s] . . . outside this country’s borders.” Rosenberg v. Fleuti, 374 U. S. 449. In IIRIRA, Congress abolished the distinction between exclusion and deportation procedures, creating a uniform “removal” proceeding. See 8 U. S. C. §§1229, 1229a. Congress made “admission” the key word, and defined “admission” to mean “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” §1101(a)(13)(A). This alteration, the Board of Immigration Appeals (BIA) determined, superseded Fleuti. Thus, lawful permanent residents returning from a trip abroad are now regarded as seeking admission if they have “committed an offense identified in section 1182(a)(2),” §1101(a)(13)(C)(v), including, as relevant here, “a crime involving moral turpitude . . . or conspiracy to commit such a crime,” §1182(a)(2)(A)(i).
Petitioner Vartelas, a lawful permanent resident of the United States since 1989, pleaded guilty to a felony (conspiring to make a counterfeit security) in 1994, and served a 4-month prison sentence. In the years after his conviction, and even after IIRIRA’s passage, Vartelas regularly traveled to Greece to visit his aging parents. In 2003, when Vartelas returned from a week-long trip to Greece, an immigration officer classified him as an alien seeking “admission” based on his 1994 conviction. At Vartelas’ removal proceedings, his attorneys conceded removability and requested discretionary relief under former §212(c) of the Immigration and Nationality Act. The Immigration Judge denied the request for relief, and ordered Vartelas removed to Greece. The BIA affirmed. In 2008, Vartelas filed with the BIA a timely motion to reopen the removal proceedings, alleging that his previous attorneys were ineffective for, among other lapses, conceding his removability. He sought to withdraw the concession of removability on the ground that IIRIRA’s new “admission” provision did not reach back to deprive him of lawful resident status based on his pre-IIRIRA conviction. The BIA denied the motion. The Second Circuit affirmed. Rejecting Vartelas’ argument that IIRIRA operated prospectively and therefore did not govern his case, the Second Circuit reasoned that he had not relied on the prior legal regime at the time he committed the disqualifying crime.
Held: The impact of Vartelas’ brief travel abroad on his permanent resident status is determined not by IIRIRA, but by the legal regime in force at the time of his conviction. Pp. 7–17.
(a) Under the principle against retroactive legislation invoked by Vartelas, courts read laws as prospective in application unless Congress has unambiguously instructed retroactivity. See Landgraf v. USI Film Products, 511 U. S. 244. The presumption against retroactive legislation “embodies a legal doctrine centuries older than our Republic.” Id., at 265. Numerous decisions of this Court have invoked Justice Story’s formulation for determining when a law’s retrospective application would collide with the doctrine, namely, as relevant here, when such application would “attac[h] a new disability, in respect to transactions or considerations already past,” Society for Propagation of Gospel v. Wheeler, 22 F. Cas. 756, 767. See, e.g., INS v. St. Cyr, 533 U. S. 289; Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939; Landgraf, 511 U. S., at 283. Vartelas urges that applying IIRIRA to him would attach a “new disability,” effectively a ban on travel outside the United States, “in respect to” past events, specifically, his offense, guilty plea, conviction, and punishment, all occurring prior to IIRIRA’s passage.
Congress did not expressly prescribe §1101(a)(13)’s temporal reach. The Court, therefore, proceeds to the dispositive question whether application of IIRIRA’s travel restraint to Vartelas “would have retroactive effect” Congress did not authorize. See id., at 280. Vartelas presents a firm case for application of the antiretroactivity principle. Beyond genuine doubt §1101(a)(13)(C)(v)’s restraint on lawful permanent residents like Vartelas ranks as a “new disability.” Once able to journey abroad to, e.g., fulfill religious obligations or respond to family emergencies, they now face potential banishment, a severe sanction. See, e.g., Padilla v. Kentucky, 559 U. S. ___, ___. The Government suggests that Vartelas could have avoided any adverse consequences if he simply stayed at home in the United States. But losing the ability to travel abroad is itself a harsh penalty, made all the more devastating if it means enduring separation from close family members.
This Court has rejected arguments for retroactivity in similar cases, see Chew Heong v. United States, 112 U. S. 536; St. Cyr, 533 U. S., at 321–323, and in cases in which the loss at stake was less momentous, see Landgraf, 511 U. S., at 280–286; Hughes Aircraft, 520 U. S., at 946–950. Pp. 7–11.
(b) The Court finds disingenuous the Government’s argument that no retroactive effect is involved in this case because the relevant event is the alien’s post-IIRIRA return to the United States. Vartelas’ return occasioned his treatment as a new entrant, but the reason for his “new disability” was his pre-IIRIRA conviction. That past misconduct is the wrongful activity targeted by §1101(a)(13)(C)(v). Pp. 11–13.
(c) In determining that the change IIRIRA wrought had no retroactive effect, the Second Circuit homed in on the words “committed an offense” in §1101(a)(13)(C)(v). It reasoned that reliance on the prior law is essential to application of the antiretroactivity principle, and that Vartelas did not commit his crime in reliance on immigration laws. This reasoning is doubly flawed. A party is not required to show reliance on the prior law in structuring his conduct. See, e.g., Landgraf, 511 U. S., at 282, n. 35. In any event, Vartelas likely relied on then-existing immigration law, and this likelihood strengthens the case for reading a newly enacted law prospectively. St. Cyr is illustrative. There, a lawful permanent resident pleaded guilty to a criminal charge that made him deportable. Under the immigration law in effect when he was convicted, he would have been eligible to apply for a waiver of deportation. But his removal proceeding was commenced after IIRIRA withdrew that dispensation. Disallowance of discretionary waivers attached a new disability to past conduct, 533 U. S., at 321. Aliens like St. Cyr “almost certainly relied upon th[e] likelihood [of receiving discretionary relief] in deciding [to plead guilty, thereby] forgo[ing] their right to a trial,” id., at 325. Because applying the IIRIRA withdrawal to St. Cyr would have an “obvious and severe retroactive effect,” ibid., and Congress made no such intention plain, ibid., n. 55, the prior law governed St. Cyr’s case. Vartelas’ case is at least as clear as St. Cyr’s for declining to apply a new law retroactively. St. Cyr could seek only the Attorney General’s discretionary dispensation, while Vartelas, under Fleuti, was free, without seeking an official’s permission, to make short trips to see and assist his parents in Greece. The Second Circuit compounded its initial misperception of the antiretroactivity principle by holding otherwise. Fleuti continues to govern Vartelas’ short-term travel. Pp. 14–17. 620 F. 3d 108, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas and Alito, JJ., joined.
Certiorari To The United States Court Of Appeals For The Fifth Circuit
No. 10–7387. Argued November 30, 2011—Decided March 28, 2012
When petitioner Setser was indicted in a Texas court on drug charges, the State also moved to revoke the probation term that he was then serving for another drug offense. At about the same time, Setser pleaded guilty to federal drug charges. The Federal District Court imposed a 151-month sentence to run consecutively to any state sentence imposed for the probation violation, but concurrently with any state sentence imposed on the new drug charge. While Setser’s federal appeal was pending, the state court sentenced him to 5 years for the probation violation and 10 years for the drug charge, but ordered the sentences to be served concurrently. The Fifth Circuit affirmed the federal sentence, holding that the District Court had authority to order a sentence consecutive to an anticipated state sentence, and that Setser’s sentence was reasonable, even if the state court’s decision made it unclear exactly how to administer it.
1. The District Court had discretion to order that Setser’s federal sentence run consecutively to his anticipated state sentence for the probation violation. Pp. 2–12.
(a) Judges have traditionally had broad discretion in selecting whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings, see Oregon v. Ice, 555 U. S. 160–169. The statutory text and structure do not foreclose a district court’s exercise of this discretion with respect to anticipated state sentences. The Sentencing Reform Act of 1984 addresses the concurrent-vs.-consecutive decision, but not the situation here, since the District Court did not impose “multiple terms of imprisonment . . . at the same time,” and Setser was not “already subject to” the state sentences at issue, 18 U. S. C. §3584(a). This does not mean, as Setser and the Government claim, that the District Court lacked authority to act as it did and that the Bureau of Prisons is to make the concurrent-vs.-consecutive decision after the federal sentence has been imposed. Section 3621(b), from which the Bureau claims to derive this authority, says nothing about concurrent or consecutive sentences. And it is more natural to read §3584(a) as leaving room for the exercise of judicial discretion in situations not covered than it is to read §3621(b) as giving the Bureau what amounts to sentencing authority. Setser’s arguments to the contrary are unpersuasive. Pp. 2–8.
(b) None of the other objections raised by Setser and the Government requires a different result. Pp. 8–12.
2. The state court’s subsequent decision to make the state sentences run concurrently does not establish that the Federal District Court imposed an unreasonable sentence. The difficulty here arises not from the federal-court sentence—which is to run concurrently with one state sentence and consecutively with another—but from the state court’s decision. Deciding which of the District Court’s dispositions should prevail under these circumstances is a problem, but it does not show the District Court’s sentence to be unlawful. The reasonableness standard for reviewing federal sentences asks whether the district court abused its discretion, see Gall v. United States, 552 U. S. 38, but Setser identifies no flaw in the District Court’s decisionmaking process, nor anything available at the time of sentencing that the court failed to consider. Where late-onset facts make it difficult, or even impossible, to implement the sentence, the Bureau of Prisons may determine, in the first instance, how long the District Court’s sentence authorizes it to continue Setser’s confinement, subject to the potential for judicial review. Pp. 12–14.
607 F. 3d 128, affirmed.
Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Sotomayor, and Kagan, JJ., joined. Breyer, J., filed a dissenting opinion, in which Kennedy and Ginsburg, JJ., joined.