[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Wednesday. In Setser v. US [transcript, PDF; JURIST report], the justices heard arguments on a federal district court’s power to determine whether a federal sentence will be served consecutively or concurrently to an as-yet undischarged state sentence. The petitioner argued that under § 3584 [text] of the Sentencing Reform Act (SRA) and in the absence of an existing state sentence, the federal judge lacked authority to stipulate that the federal sentence to be served consecutively.:

[A]t the time that the Federal judge passed this sentence, he had no idea what was going to happen in either [State] case. But more importantly, with regard to the term of probation, the Federal judge had no idea whether that term was going to be revoked, whether it would be modified, or whether he would receive any sentence of—of imprisonment at all. And in making the judgment on whether those terms should run concurrently or consecutively, Your Honor, 3584(b) directs the Court to look at the factors of 3553(a) in making that determination. And it would be impossible to make that determination under 3553(a) whether the sentence is adequate to deter, whether that sentence protects the public, without knowing what that State term of imprisonment actually is.

Interestingly, the government had conceded the issue and argued on behalf of petitioner that the federal judge exceeded his authority by making the consecutive/concurrent decision in the absence of a state sentence. Rather, that decision would lie with the federal Bureau of Prisons (BOP) which would consider several factors including a recommendation from the sentencing judge. Appointed counsel arguing in support of the Fifth Circuit opinion urged that § 3584, which instructs when sentences ought or ought not be consecutive or concurrent, did not address the current situation. Therefore, the federal judiciary retained its inherent power to sentence, including discretion to make the sentence run concurrently or not. The respondent asserted, “Neither section 3584 nor any other provision of the Sentencing Reform Act even remotely approaches the clarity that Congress would use if it intended to restrict judicial sentencing in cases like Setser’s.” Respondent queried whether the question of consecutive-concurrent sentencing was best handled by the judge or jailor, urging that Congress did not intend to take that sentencing power away from judges in favor of BOP bureaucrats.

In Federal Aviation Administration v. Cooper [transcript, PDF; JURIST report], the justices heard arguments on whether a pilot who was convicted and fined for failing to disclose to the Federal Aviation Administration (FAA) that he had HIV, a fact which was illegally revealed by the Social Security Administration (SSA) [official websites] where Cooper sought disability based on his HIV status, can sue the federal government for mental and emotional damages for violating the Privacy Act of 1974 [5 USC § 552a]. The government argued that Congress, by specifically excluding general damages, did not provide for damages for mental and emotional distress or, at least, did not clearly waive sovereign immunity. Asserting the dichotomy of special (or economic) damages versus general damages, inclusive of damages for mental and emotional distress, the government insisted that only damages of pecuniary nature could be recovered from the government under the Privacy Act. The respondent pilot characterized the government’s argument as unnecessarily introducing ambiguity into the statute which would undermine the purpose of the Act. The respondent emphasized the text of the Act:

What was authorized in the text, the substantive provision, is actual damages, not special damages. If Congress had wanted to peel off the whole piece and require only economic loss, the more common and routine term of art that is used is special damages. … In the context of this act, … Congress does not choose special damages as the term of what it’s authorizing, and instead chooses the broader term, “actual damages.”

Respondent insisted that the plain meaning of actual damages is proved damages, as opposed to presumed damages. Respondent also urged that under the government’s construction of the statute, intentional and willful violations of the act, like, for example, a whistleblower the government wants to silence by leaking embarrassing details to the press as opposed to outright firing, would have no remedy because they are not out of pocket any money.