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  No. 05-1068 DOE; DICK DOE,

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.,
for Appellant. Terry Gene Kilgore, WOLFE, WILLIAMS & RUTHERFORD, 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 damages 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 attorney fees even though he suffered no actual damages. Because, however, 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 Govern2 DOE v. CHAO
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 Government promptly recognized that in reproducing Social Security numbers 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 history).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 certification 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

1We 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.

DOE v. CHAO 3
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 district 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 established 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

4 DOE v. CHAO
interpretation of a statute is a legal determination, which we review

de novo."). As always, we begin our analysis with the text of the statute. 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 provision 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 determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the

individual in an amount equal to the sum of—

(A) actual damages sustained by the individual as a result

of the refusal or failure, but in no case shall a person entitled

to recovery receive less than the sum of $1,000; and

(B) the costs of the action together with reasonable attorney 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 Govern2The 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). 

DOE v. CHAO 5
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 undisputed that Doe suffered an adverse effect caused by the Government’s

intentional or willful violation of the Privacy Act. Under a plain reading, 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 mathematical 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

3The word "sum" can also be defined as "an amount of money." Webster’s II New Riverside University Dictionary 1160 (1988). That definition, 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 person who is entitled to actual damages shall not "receive less than the sum

of $1,000"). 

4The Government suggests that in reading the term "sum" to suggest

its ordinary, mathematical meaning, we are leaving the term "with no job

6 DOE v. CHAO
Thus, because Doe suffered an adverse effect caused by the Government’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 reading that leaves terms "with no job to do" because the use of the term

would "accomplish[ ] nothing"). This argument, however, begs the question 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.

5This 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 difficult one, just as there might be difficult questions of statutory interpretation presented by Privacy Act litigation in the future. Under the

question that we decide today, however, the statute has no ambiguity. 

DOE v. CHAO 7
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 Government 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] established 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 reading 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 freestanding, unqualified way, but in a limited way, by reference to enumerated 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 "liable;" 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 language, 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

8 DOE v. CHAO
§ 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 interpretation 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 separates 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 damages (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 damages 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 Government. 

Footnote 9 was a response to a specific argument put forth in dis6

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 recovery’ as satisfied by adverse effect caused by intentional or willful violation 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 causation reaching to the plaintiff, but proof of some harm for which damages can reasonably be assessed." Id. (citing W. Keeton et al., Prosser

and Keeton on the Law of Torts § 30 (5th ed. 1984)). 

DOE v. CHAO 9
sent by Judge Michael in Doe II. In his dissent, Judge Michael recognized 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 ‘entitled 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 definition 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 reasonable 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 subsection (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 attorney 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,

10 DOE v. CHAO
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 interpreted 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 damages 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. 

DOE v. CHAO 11
The Government argues that this language stands for the proposition 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 language 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 remedy 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 suggests that relief is part of the underlying cause of action. This is not

so. Such a reading fails to recognize traditional jurisprudential understandings 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 deter8

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 Congress’s express language to determine which litigants are empowered to

bring a cause of action for appropriate relief, or in other words, money

damages. 

12 DOE v. CHAO
mine who may judicially enforce the statutory rights or obligations."

Id. at 239. The Davis court noted that "the question of whether a litigant 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 Government’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

9To be sure, at first blush, the few sentences in Doe III concerning this

question appear to favor the Government’s reading. It must be remembered, 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. 

10Judge Michael’s dissent mixes and matches different portions of Justice Souter’s opinion in Doe III in an attempt to rewrite Congress’s

express text, redraft the Supreme Court’s actual language, and reconcepDOE v. CHAO 13
damages, of course, a litigant is entitled to none. Just the same, however, 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 litigants 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 language 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 entitled to recovery under the Act. In other words, and as we have often

stated throughout this opinion, in order to recover damages under subsection (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 subsection (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 Privacy Act cause of action. See id. at 1210. 

11We can envision a statute where Congress makes a showing of damages 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 litigant 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. 

14 DOE v. CHAO
the other hand, "mirrors the very misunderstanding over the difference 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

12The 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. 

13The 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 conclusion 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 Connecticut 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). 

DOE v. CHAO 15
1.

The Government correctly recognizes that the scope of the government’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 immunity by statute." O’Brien v. Moore, 395 F.3d 499, 503 (4th Cir. 2005)

(internal quotation marks and alterations omitted). Thus, we will conclude 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 statute as it relates to Doe’s quest for attorney fees is clear. Our conclusion 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 defendant, 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 Congress 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 origi16 DOE v. CHAO
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. Ultimately, 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 decidedly 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 violation that causes an adverse effect. Moreover, in Doe I, the district

court found that Doe suffered an adverse effect from the Government’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.

14Although both provisions require that any award of attorney fees be

"reasonable," that term has a distinct meaning that is addressed in Part

IV, infra. 

DOE v. CHAO 17
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 presume 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 unambiguous, 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.

15Moreover, 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 Congress accidentally omitted the "substantially prevail" language from subsection 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)). 

18 DOE v. CHAO
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; accordingly, the Supreme Court’s "case law construing what is a ‘reasonable’ 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 damages from the United States, and was awarded none, the only reasonable 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

16The district court did not consider Doe’s underlying litigation success 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). 

DOE v. CHAO 19
claimants’ Social Security numbers in the future, Doe had no meaningful 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) (holding that aside from two specific subsections, the Privacy Act "precludes 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 subsection (d)(1) and wrongful refusal to amend an individual’s record

under subsection (d)(3). The remedy for violations of all other provisions 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 subsection (b)] as part of the remedies that it does provide").17 Even

17We 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"). 

20 DOE v. CHAO
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 numbers 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 consideration 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." Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). Accordingly, if "a plaintiff 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 success obtained." Hensley, at 436. 

The basis of Doe’s suit under the Privacy Act was monetary damages. 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),

18The 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 entitled to fees under the EAJA, and Doe does not appeal that finding. 

DOE v. CHAO 21
"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 [Government’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 Government’s definition of the word "reasonable" impermissibly incorporates a "substantially prevail" requirement into the statute. Id.

We disagree with the district court. Statutes that require a complainant 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 ‘prevail’ 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 entitled to recover attorneys’ fees [ ] is not reached unless and until [the

party] has proved he has substantially prevailed" (emphasis in original)). 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 failing to "give primary consideration to the amount of damages awarded

as compared to the amount sought" by Doe, a consideration that exists

22 DOE v. CHAO
in order to constrain a court’s discretion in setting an award. See Farrar, 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 unsuccessful, 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 discretion 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, disturb 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 Privacy 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 per19In 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 vindicated, and that he is entitled to a substantial award under Mercer v. Duke

University, 401 F.3d 199 (4th Cir. 2005). 

DOE v. CHAO 23
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 reading 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 previously before us that Buck Doe had the better argument, here the government ought to carry the day. The Supreme Court’s Doe v. Chao

opinion virtually compels us to hold that a plaintiff who has not suffered 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 court24 DOE v. CHAO
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 cannot 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 distinction 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

DOE v. CHAO 25
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 context, 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 plaintiffs 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 Cardozo, explained that the Court "ha[d] not committed itself to the view

that the phrase is susceptible of any single definition that will be independent 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) (indicating 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 identify and apply the concept appropriate to this case. 

Rather than look far afield to Davis and Franklin (again, cases concerning implied rights of action) to understand the Privacy Act "cause

26 DOE v. CHAO
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; others (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 reasonably 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 litigants 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 conclusion 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 (emphasis 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

DOE v. CHAO 27
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.

28 DOE v. CHAO