The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a trial court’s award of $2,500 in statutory damages to a plaintiff whose private information was improperly viewed by a sheriff’s deputy who had a romantic relationship with the plaintiff’s exhusband in violation of the federal Driver’s Privacy Protection Act (DPPA), holding that the statute did not provide for cumulative damages of $2,500 per violation. 

In so ruling, the Court reversed the trial court’s award of only 10 percent of the amount of attorney’s fees requested by the plaintiff’s counsel. 

The trial court limited the attorney fee award because the plaintiff failed to prove any actual damages, therefore only recovering the statutory penalty, which the trial court likened to cases in which “a party ‘recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief,’ where ‘the only reasonable fee is usually no fee at all.’”

In reversing the trial court’s limited fee award, the Eleventh Circuit held that a plaintiff need not prove actual damages to recover the other types of remedies provided by the statute at issue, including attorney’s fees, and that the statutory penalty was a “liquidated damages” remedy rather than only “nominal damages.” 

A copy of opinion is available at: Link to Opinion. 

The plaintiff and her husband divorced in 2010. The following year, the former husband married an Orange County sheriff’s deputy with whom he had an affair while still married to the plaintiff. 

Between January 2010 and November 2011, the sheriff’s deputy, “while sitting alone in her patrol car, … used her access to law enforcement databases … to search [plaintiff’s] name.” After the divorce, the plaintiff made a Freedom of Information Act (FOIA) request and “learned that [the sheriff’s deputy] had been searching her name on drivers’ license databases.”

The plaintiff then filed an administrative complaint with the police department and during the investigation the sheriff’s deputy admitted “that she did not have a legitimate business or law enforcement reason for accessing [plaintiff’s] information.” The deputy “was suspended for 60 hours without pay and placed on disciplinary probation for six months.”

The plaintiff sued the sheriff’s deputy for violating the DPPA and her civil rights under 42 U.S.C. § 1983, alleging that she suffered emotional distress.

The trial court granted the plaintiff’s motion for judgment as a matter of law on the issue of liability after a jury trial. The plaintiff waived her 42 U.S.C. § 1983 claim and agreed to pursue damages only under the DPPA.

At trial, the court provided the jury with a verdict form containing three interrogatories to determine damages. In response to the first interrogatory, the jury found that the sheriff’s deputy violated the DPPA 101 times. In response to the second interrogatory, the jury found that the deputy’s actions did not cause the plaintiff to suffer any actual damages. The jury did not reach the third interrogatory, which asked what amount of compensable damages were attributable to the deputy’s conduct. 

The plaintiff requested $252,500 in liquidated damages: $2,500 for each of the deputy’s 101 violations of the DPPA, as well as attorney’s fees of $153,787 and costs of $4,227.44. The trial court awarded only $2,500 in liquidated damages, $15,379 in attorney’s fees, and $4,227.44 in costs. The trial court reasoned that the case did “not implicate the purposes of the DPPA, [the deputy] did not use or disclose [plaintiff’s] private information, and [plaintiff] did not suffer any actual damages.” As to attorney’s fees, the trial court reasoned that the reduction was justified because the plaintiff recovered none of the compensatory damages she sought and only 1 percent of her statutory damages, and therefore in the trial court’s view only 10 percent of the requested attorney’s fees was a reasonable amount. The plaintiff appealed. 

On appeal, the Eleventh Circuit began by analyzing the text of the DPPA, 18 U.S.C. § 2724, which provides that “[a] person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court.” The statute further provides that “[t]he court may award … (1) actual damages, but not less than liquidated damages in the amount of $2,500; (2) punitive damages upon proof of willful or reckless disregard of the law; (3) reasonable attorneys’ fees and other litigation costs reasonably incurred; and (4) such other preliminary and equitable relief as the court determines to be appropriate.” 

The Court characterized as “an issue of first impression in this Circuit” the plaintiff’s argument that she was entitled to $2,500 per violation, pointing out that despite the plaintiff’s argument that the statutory language was clear, it found the language “far from clear.” The Eleventh Circuit noted that the text of the DPPA does not explicitly require per violation awards, but it does not seem to rule them out either. 

The Eleventh Circuit held, however, that the remedy part of the statute’s use of the word “may” “does use plainly permissive language. … Not only does the use of the word “may” imply permissiveness, but we have expressly held so when interpreting this exact provision of the DPPA.” In a prior ruling, the Court held that “[t]he use of the word ‘may’ [in § 2724(b)] suggests that the award of any damages is permissive and discretionary.”

Having found that an award of any damages was discretionary, the Court concluded that because the jury found the plaintiff did not suffer any actual damages, “[t]he district court properly used its discretion to fashion a damages award appropriate for this situation. A textual reading of § 2724 leads us to the conclusion that the district court’s discretion is only limited in the sense that it must award at least $2,500 if any violation has been shown. For awards above that amount, we review for abuse of discretion.” 

The Eleventh Circuit buttressed its conclusion by noting that Congress included “cumulative damages in the criminal section of the DPPA, § 2723, … [and] ‘[i]t is well settled that 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 purposely in the disparate inclusion of exclusion.’” Thus, Congress could have, but presumably chose not to “include language that permits cumulative damages in the civil section….” 

The Court pointed out that while the deputy’s “conduct here was unmistakably wrong and police officers should not be allowed to take advantage of their position of power to access private information, [since] the statute specifically provides for punitive damages to deter this conduct[,] … [r]eading ‘per violation’ into the statute’s liquidated damages clause to mandate cumulative damages would enable unharmed plaintiffs to abuse this provision.” Accordingly, the trial court’s award of $2,500 in liquidated damages was affirmed.

Turning to the issue of attorney’s fees and the trial court’s award of compensation for only “48 hours of work” when the plaintiff asked for “481 hours of attorney time,” the Court reasoned that “[t]he starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. … This number is called the lodestar and ‘there is a strong presumption’ that the lodestar is the reasonable sum the attorneys deserve. … In determining whether the lodestar is reasonable, ‘the district court is to consider the 12 factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). … If the lodestar is reasonable, a downward adjustment ‘is merited only if the prevailing party was partially successful in its efforts. … A district court must determine what counts as partial success on a case-by-case basis.” The Eleventh Circuit concluded that the trial court mistakenly “did not start its analysis with the lodestar and erred in its approach to the Johnson factors,” giving too much weight to the “eighth … factor, the amount involved and the results obtained. While those are certainly relevant considerations, especially for determining an appropriate downward adjustment, under the circumstances of this case we find that the district court went too far by reducing the requested fees by 90%.” 

The Court disagreed with the trial court’s reasoning that the case was similar “to one in which a party ‘recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief,’ where ‘the only reasonable fee is usually no fee at all.’” 

The Eleventh Circuit held that a plaintiff “’need not prove actual damages to recover the other types of remedies listed in § 2724,’ which includes attorneys’ fees.” It also distinguished between liquidated and actual damages. “Liquidated damages are ‘[a]n amount … stipulated as a reasonable estimation of actual damages.’ … Liquidated damages are a pre-fixed amount, set here by Congress. Nominal damages are ‘a judicial declaration that the plaintiff’s right has been violated.'” Because Congress set a fixed amount of liquidated damages, the Court concluded it “should defer to Congress’s judgment.” 

Accordingly, the trial court’s judgment was affirmed as to damages, and reversed as to attorney’s fees, and the matter was remanded for recalculation of the fees.