Pilot With HIV Sues FAA Under Privacy Act Of 1974

 

 
 
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Pilot With HIV Sues FAA Under Privacy Act Of 1974

By Mike Mitchell
 

February 9, 2010 - 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 place 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 that he was on HIV medication and of his HIV status, 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. 

In part, due to 911 (September 11, 2001), when a series of coordinated suicide attacks by al-Qaeda hijacked four commercial passenger jet airliners and  intentionally crashed two of the jets into the Twin Towers of the World Trade Center in New York City, killing everyone on board and many others working in the buildings. The federal government began to look at licensing requirements of pilots and other issues.   

The Department of Transportation (DOT) under the Office of Inspector General (DOT-OIG) and the Social Security Administration Office of Inspector General (SSA-OIG) began investigations. One of their investigations in 2002, was to take a look at pilots who had made disability claims with the Social Security Administration, pilots who had used different doctors, one to certify fitness to fly and another to certify disability for SSA benefits. 

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 law suit 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 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.” (see Pilot With HIV Gets Second Chance At Lawsuit With FAA)

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.

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