                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-14400                ELEVENTH CIRCUIT
                                                          FEBRUARY 6, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                   D. C. Docket No. 07-01015-CV-TCB-1

FLOYD C. MITCHELL,


                                                           Plaintiff-Appellant,

                                  versus

DEPARTMENT OF VETERANS AFFAIRS,
Health Eligibility Center, an Agency of
Federal Government,

                                                          Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                            (February 6, 2009)

Before CARNES, HULL and FAY, Circuit Judges.

PER CURIAM:
      Floyd Mitchell appeals pro se the district court’s grant of summary judgment

in favor of the Department of Veterans Affairs (“VA”) on his claim under the

Privacy Act, 5 U.S.C. § 552a(g)(1)(D), (4). After review, we affirm.

                                I. BACKGROUND

A.    Mitchell’s Child Support Proceedings

      Mitchell, a Gulf War Army veteran, suffers from a number of medical

conditions, including depression, degenerative disc disease, lung disease and

hypertension. In 1991, while still in the Army, Mitchell underwent surgery for

sarcoidosis in his lungs, which resulted in his breathing capacity being severely

restricted. Shortly afterward, Mitchell was honorably discharged. Mitchell has

been on permanent disability VA benefits since 1995.

      In 2001 Mitchell fathered a child with Annette Robinson. Robinson

instituted child support proceedings in state court. Mitchell was ordered to pay

child support. Because Mitchell was disabled and unemployed, he struggled to pay

the court-ordered child support and often borrowed money from relatives to do so.

In 2002 and 2003, Mitchell was twice held in contempt and jailed for failure to pay

child support. Between June and August 2004, Mitchell’s financial condition

worsened, and he fell behind on his household bills, including his mortgage and

utilities bills. Mitchell pawned personal items and borrowed money to pay these



                                          2
bills.

         In 2005, Mitchell filed a motion to reduce his child support payments. At a

July 2005 hearing on the motion, Robinson attempted to introduce into evidence

two VA documents that contained personal information about Mitchell, including

his social security number and the amount of his VA benefits. When Mitchell

objected to this information, the state court refused to consider the documents. The

state court denied Mitchell’s motion to reduce, but also denied Robinson’s request

for a child support increase.

         Mitchell testified at his deposition that, after the hearing, he became angry

and upset about Robinson’s use of this information in the child support dispute and

that this aggravated his depression. At his wife’s urging, Mitchell saw a

psychiatrist, who suggested that Mitchell take medication. Mitchell also was

evaluated by a psychologist, who prepared a report. The report stated that

Mitchell has suffered from depression since leaving the Army in 1991 and that his

depression stems from his physical restrictions after lung surgery. The

psychologist diagnosed Mitchell with severe depression and panic disorder and

recommended weekly psychotherapy. According to Mitchell, he now takes

medication and has obtained counseling through the VA.

B.       Disclosure of Records



                                             3
      In August 2005, after the child support hearing, Mitchell complained to the

VA about disclosing his records to Robinson. An internal investigation revealed

that a VA employee who was Robinson’s neighbor had accessed a VA database

and printed Mitchell’s “Enrollment File List” and “HINQ record” on July 19, 2005.

The internal investigation concluded that the information was accessed and

disclosed to Robinson without Mitchell’s consent or authorization in violation of

§ 522a of the Privacy Act. The investigation recommended disciplinary action

against the VA employee.

C.    District Court Proceedings

      In federal district court, Mitchell filed this pro se action alleging that, as a

result of the VA employee’s unauthorized disclosure of his records, he suffered

mental depression and financial loss. Mitchell asked for damages and injunctive

relief. Following discovery, the VA moved for summary judgment. The VA

conceded that an unauthorized disclosure of records under the Privacy Act

occurred, but argued that Mitchell was not entitled to relief because he had not

shown: (1) that the unauthorized disclosure had an “adverse effect” on him, as

required by 5 U.S.C. § 552a(g)(1)(D); or (2) that he had suffered “actual damages,”

as required by 5 U.S.C. § 552a(g)(4).

      The district court granted summary judgment on the first ground, concluding



                                            4
that Mitchell had not suffered an adverse effect as a result of the Privacy Act

violation. The district court noted that the VA records were not admitted into

evidence at the child support hearing and presumably did not affect the state

court’s decision not to alter the child support amount. The district court rejected

Mitchell’s argument that the disclosure aggravated his depression, stating that

“[n]othing in the medical report or in any other evidence presented indicates that

the [VA’s] violation had any significant bearing on Mitchell’s current condition”

and that “there was no proof offered that psychological care was necessitated by

the disclosure itself; rather, the evidence shows that Mitchell’s pre-existing,

ongoing depressive condition required care.”

      Mitchell filed an objection, arguing inter alia that the stress from the

disclosure aggravated his pre-existing depression. The district court construed the

objection as a motion for reconsideration and denied it. Mitchell filed this appeal.

                                  II. DISCUSSION

      The Privacy Act prohibits a federal agency, with some exceptions not

applicable here, from disclosing records without prior written consent of the

individual to whom the records pertain. 5 U.S.C. § 552a(b). The Privacy Act

authorizes a civil action against the agency in district court if an unauthorized

disclosure occurs “in such a way as to have an adverse effect on an individual.”



                                           5
§ 552a(g)(1)(D).1 Further, the Privacy Act provides a civil damages remedy of at

least $1,000, but only when the agency’s conduct was intentional or willful and the

individual has sustained actual damages as a result. Id. § 552a(g)(4).2

       Thus, under this statutory framework, a plaintiff must show (1) that he was

adversely affected by an intentional or willful violation of the Privacy Act, and (2)

that he has suffered “actual damages.” See Doe v. Chao, 540 U.S. 614, 620-23,

124 S. Ct. 1204, 1208-10 (2004) (concluding that summary judgment should have

been granted on plaintiff’s Privacy Act damages claim for emotional distress where

plaintiff failed to present evidence of actual damages). This Court has concluded


       1
        Section 552a(g)(1) states:
       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. § 552a(g)(1)(D).
       2
        Section 552a(g)(4) states:
       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. § 552a(g)(4)(A)-(B).


                                                  6
that “‘actual damages’ as used in the Privacy Act permits recovery only for proven

pecuniary losses and not for generalized mental injuries, loss of reputation,

embarrassment or other non-quantifiable injuries.” Fitzpatrick v. IRS, 665 F.2d

327, 331 (11th Cir. 1982), abrogated on other grounds by Doe v. Chao, 540 U.S. at

616, 124 S. Ct. at 1206.3

       On appeal, Mitchell challenges the district court’s conclusion that he failed

to present a genuine issue of material fact as to whether he suffered an “adverse

effect” from the unauthorized disclosure of his VA records.4 The Supreme Court

has described the Privacy Act’s “adverse effect” requirement as “a term of art

identifying a potential plaintiff who satisfies the injury-in-fact and causation

requirements of Article III standing, and who may consequently bring a civil action

without suffering dismissal for want of standing to sue.” Doe, 540 U.S. at 624,



       3
         To the extent Fitzpatrick suggested that a Privacy Act plaintiff need prove actual
damages only to be awarded more than the minimum statutory damages of $1,000, Fitzpatrick is
no longer good law after Doe. Doe made clear that the Privacy Act “guarantees $1,000 only to
plaintiffs who have suffered some actual damages.” 540 U.S. at 627, 124 S. Ct. at 1212.
However, Doe explicitly left untouched and expressed no opinion about Fitzpatrick’s
interpretation of the meaning of “actual damages” within the Privacy Act. See id. at 627 n.12,
124 S. Ct. at 1212 n.12. Thus, Fitzpatrick’s restriction of “actual damages” to pecuniary losses
remains binding precedent in this Circuit.
       4
         “We review a district court’s grant of summary de novo, viewing the record and drawing
all inferences in favor of the non-moving party.” Fisher v. State Mut. Ins. Co., 290 F.3d 1256,
1259-60 (11th Cir. 2002). Summary judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c).

                                                7
124 S. Ct. at 1211. “That is, 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 624-25, 124 S. Ct. at 1211. However,

neither we nor the Supreme Court has addressed what constitutes an “adverse

effect” for purposes of the Privacy Act. In addition, the VA claims Mitchell would

need medical evidence to show the record disclosure aggravated his depression.

We need not resolve these questions here, however, because even assuming

arguendo that Mitchell’s statement that he suffered “aggravated depression” was

sufficient to show an “adverse effect,” Mitchell did not submit evidence from

which a reasonable jury could find “actual damages.”

       Although Mitchell arguably presented evidence of mental injury–his

aggravated depression–he clearly did not present any evidence of his pecuniary

losses stemming from that mental injury, such as bills for his medical treatment,

psychological counseling or prescriptions.5 Under our precedent, Mitchell’s

mental injury alone is insufficient to show “actual damages.” See Fitzpatrick, 665

F.2d at 329 n.3 (noting that plaintiff’s “damages claim was based solely on his



       5
         Mitchell’s declaration summarily states, “The Bill was $425.” However, Mitchell did
not state that he paid this bill. Nor did he even attach a copy of this bill. The only bills Mitchell
submitted were his overdue bills from the summer of 2004, which predated the unauthorized
disclosure in July 2005. Thus, these pecuniary losses were not “sustained . . . as a result of” the
Privacy Act violation. See 5 U.S.C. § 552a(g)(4)(A).

                                                  8
mental injuries” and that plaintiff did not submit evidence “of pecuniary losses,

such as expenses of psychiatric care stemming from the disclosure”).

       Accordingly, the district court properly granted summary judgment to the

VA on Mitchell’s Privacy Act claim for damages.6 We also reject Mitchell’s

argument that the district court abused its discretion in denying his motion for

reconsideration.

       AFFIRMED.




       6
         For the first time on appeal, Mitchell argues that, even if he has not shown proof of
actual damages, he is entitled to recover costs under 5 U.S.C. § 552a(g)(4)(B). We decline to
address this issue because it was not raised in the district court. See McGinnis v. Ingram Equip.
Co., Inc., 918 F.2d 1491, 1495 (11th Cir. 1990). Mitchell does not challenge the entry of
summary judgment on his injunctive relief claim. Thus, we do not address this issue either. See
Tanner Advert. Group, LLC v. Fayette County, 451 F.3d 777, 778 (11th Cir. 2006).

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