Pilot With HIV Gets Second Chance At Lawsuit With FAA

 

 
 
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Pilot With HIV Gets Second Chance At Lawsuit With FAA

By Daniel Guevarra
 

February 24, 2010 - Stanmore Cawthon Cooper, a pilot with AIDS, claimed to have sustained damages as the result of an interagency exchange of information performed as part of a joint criminal investigation by Defendants Federal Aviation Administration (FAA), Social Security Administration (SSA), and Department of Transportation (DOT). On Monday the the United States District Court of Appeals for the Northern District of California reversed and remanded the case, Stanmore Cawthon Cooper VS FAA, to the district court for further proceedings consistent with the opinion of the court.

After 911, when a series of coordinated suicide attacks by Al-Qaeda hijacked four commercial passenger jets and intentionally crashed two of the jets into the Twin Towers, the federal government began looking at pilot licensing requirements.  

One the areas the feds began looking into, beginning in 1992, was a review of pilots who had made disability claims with the Social Security Administration. The feds were interested in identifying those pilots who had used different doctors, one to certify fitness to fly and another to certify disability for SSA benefits. This was a coordinated effort between the Department of Transportation, the Social Security Administration and the Federal Aviation Administration.

Stanmore Cooper learned he was HIV/AIDS positive and at the time he was an active FAA licensed pilot. Prior to testing and unaware he had acquired the virus, Cooper began to succumb to opportunistic infections.  He developed Peripheral Neuropathy, a condition caused by nerve damage which is an area that carries information to and from the brain and spinal cord. In many cases, Peripheral Neuropathy symptoms improve with time, especially if it's caused by an underlying condition that can be treated.   

Human Immunodeficiency Virus (HIV) is a lentivirus (a member of the retrovirus family) that causes Acquired Immunodeficiency Syndrome (AIDS), a condition in humans in which the immune system begins to fail, leading to life threatening opportunistic infections if untreated.  

Cooper began to experience those conditions associated with Peripheral Neuropathy, such as loss of sensation, pain and an inability to control muscles. Cooper under went an extensive medical exam, he learned that he was HIV/AIDS positive and that he was suffering from Peripheral Neuropathy. Cooper was placed on HIV medication. 

Cooper’s medical condition began to deteriorate, typically it takes a while before the benefits of the medication begins to shows positive results. Cooper sought medical and financial relief. He applied to the Social Security Administration and began receiving disability benefits.

 

Cooper continued with his regiment of HVI medications and over the years, Cooper's T-Cells increased dramatically and he found himself able to go back to work. Cooper notified the Social Security Administration he was no longer in need of benefits and was going back to work.   

In 1998, itching to fly again as a private pilot, Cooper applied for a new third class airman’s medical certificate.  He competed the required forms and passed the physical, and again applied in 2000, 2002, and 2004, and again passed the physicals. However, Cooper failed to report on the medical forms for all four years his HIV status and that was on HIV medication, although he did report he was on Lipitor.  

By failing to report his HIV status and HIV medication, Cooper was in violation of the Federal Aviation Administration’s regulations. “By that action, Cooper substituted his own evaluation of eligibility for airman medical qualification for that of the Federal Air Surgeon” said the government. 

Cooper was in violation of section 67.403 (A) (1). Which reads, § 67.403 Applications, certificates, logbooks, reports, and records: Falsification, reproduction, or alteration; incorrect statements. (a) No person may make or cause to be made— (1) A fraudulent or intentionally false statement on any application for a medical certificate or on a request for any Authorization for Special Issuance of a Medical Certificate (Authorization) or Statement of Demonstrated Ability (SODA) under this part.  

A spreadsheet immerged with a list of pilots. Cooper’s name was on that list. DOT-OIG and SSA-OIG investigators reviewed Cooper’s medical certificate and learned Cooper did not make it known on his medical forms for the years 1998, 2000, 2002 and 2004, of neither his HIV status nor that was he on HIV medication. As a result, Cooper’s pilot and medical certificates were revoked by the FAA.  

Cooper was interviewed by investigators and during the interview process Cooper admitted he intentionally did not disclose his HIV status and use of HIV medications. In 2006, under "Operation Safe Pilot" Cooper was indicted on three counts of making false statements to a government agency. The government also made a public announcement of the indictment and the news media quickly ran the story announcing Cooper’s HIV status. Cooper pleaded guilty to one count of making and delivering a false official writing. He was given two years of probation and fined $1,000.   

In 2007, Cooper filed a lawsuit alleging the Federal Aviation Administration, Social Security Administration, and United States Department of Transportation violated the Privacy Act of 1974, and he had suffered emotional distress. The case was heard in U.S. District by Chief Judge Vaughn Walker. The judge ruled that the government had violated the Privacy Act but held that emotional distress and other non-pecuniary (money)damages don't constitute "actual damages."  

The district court found this information sharing to be improper under the Privacy Act, 5 U.S.C. § 552a:  Because DOT-OIG transmitted Cooper’s records to another agency without his prior consent and this use does not fall within the routine use or another exception to 5 USC § 552a(b), the DOT-OIG’s use of Cooper’s record was unlawful under 5 USC § 552a(b).  

 
   

Cooper then appealed his case, Stanmore Cooper v. FAA, No. 08-17074  before a three judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco, California.   

Arguments were heard on January 15, 2010, before the three judge panel. It appears that the conservative court may allow Cooper to proceed with his case. The court is dealing whether the "actual damages" allowed for willful and intentional violations of the Privacy Act include non-pecuniary damages, such as those for emotional and mental distress.   

“‘Actual damages’ is clearly a limiting term,” explained Samantha Chaifetz, a Department of Justice attorney. “Here's what we know for certain is that the term has no plain meaning.”  

“But doesn’t that actually argue against the government’s case?” countered Judge Milan Smith Jr., “It is, after all, a privacy act. The whole idea is that there are things about ourselves we want to keep private. I would think that 99 percent of the damages that would be suffered would be emotional or non-pecuniary damages.”  

Judge Hawkins asked Cooper's attorney, David Bird, if his client's embarrassment over the disclosure of his health status and shame over being arrested could be distinguished if the case is remanded for trial. "Are you prepared," Judge Hawkins asked, "to prove there are damages that are separate and apart from the criminal case?" Attorney David Bird noted that he can present corroborating testimony from Cooper's friends and doctor that he was devastated by the release of his medical status.   

On Monday February 22, 2010, the United States District Court of Appeals for the Northern District of California reversed and remanded the case back to the district court, (See PDF File) also see (Pilot With HIV Sues FAA Under Privacy Act Of 1974)

The court said (Vaughn R. Walker, Chief District Judge, Presiding, Michael Daly Hawkins, and Milan D. Smith, Jr., Circuit Judges), “Applying traditional tools of statutory interpretation, we hold that in using the term actual damages, Congress clearly intended that when a federal agency intentionally or willfully fails to uphold its record-keeping obligations under the Act, and that failure proximately causes an adverse effect on the plaintiff, the plaintiff is entitled to recover for both pecuniary and nonpecuniary injuries. As a result, we reverse and remand to the district court for further proceedings consistent with this opinion.”

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