Congress intended "actual damages" to include compensation for mental distress under the Privacy Act. Johnson, 700 F.2d at 977. Indeed, the court commented that "[a] federal act affording special protection to the right of privacy can hardly accomplish its purpose of protecting a personal and fundamental constitutional right if the primary damage resulting from an invasion of privacy is not recoverable under the major remedy of 'actual damages' that has been provided by Congress." Id.
We find the Fifth Circuit's logic more compelling than that of the Eleventh Circuit. In acknowledging a link between common law and statute, the Fifth Circuit's reasoning assures that the Privacy Act will compensate individuals for privacy violations by allowing damages for what, in some instances, may be the only harm resulting from the disclosure of confidential information -- namely, emotional distress. Similarly, § 7431, designed to protect a taxpayer's right to privacy in his filings, ought to compensate a person for attendant emotional or mental distress.
In addition to comporting with Congressional intent to protect taxpayers' right to privacy in their income tax information, the award of damages for mental or emotional anguish under § 7431 is consistent with the relief granted plaintiffs under the Federal Tort Claims Act for the disclosure of income return information in violation of 21 U.S.C. § 6103. In Johnson v. Sawyer, 980 F.2d 1490, 1505 (5th Cir. 1992), the court permitted a jury to award damages for emotional distress and mental anguish. Though recovery under a tort action may be distinguished from recovery under a statutory scheme, it illustrates that emotional distress and mental anguish represent real and compensable consequences of unauthorized income tax disclosure.
In sum, although no jurisdiction has addressed whether the "actual damages" language in 28 U.S.C. § 7431 includes damages for emotional distress, we find that the statute permits the Hrubecs to seek these damages. In passing §§ 6301 and 7431, Congress intended to protect the confidentiality of tax returns and to encourage taxpayers to file candidly. Inherent in the statute is a taxpayer's right to privacy in his filings. As with the right to privacy generally, when violated, the outstanding damage is mental and/or emotional distress. In order to further Congress' purpose, then, mental and emotional distress logically should be included in the "actual damages provided for in § 7431(c).
We therefore deny Amtrak's motion to dismiss paragraph 18 of plaintiffs' complaint.
B. Motion to Strike Amtrak's Motion to Strike
Federal Rule of Civil Procedure 12(f) provides for motions to strike pleadings containing "immaterial, impertinent or scandalous matter." Courts, however, have been unwilling to construe "pleading" broadly. For example, in Anna Ready Mix, Inc. v. N.E. Pierson Const. Co., 747 F. Supp. 1299, 1303 (S.D. Ill. 1990), the court found that an objection to a magistrate judge's report and recommendation was more like a memorandum of law than a pleading, and refused to strike it under 12(f). Similarly, in Board of Education v. Admiral Heating and Ventilation, Inc., 94 F.R.D. 300, 304 (N.D. Ill. 1982), the court refused to strike a superfluous footnote in a memorandum. Here, the Hrubecs have moved to strike Amtrak's motion to strike and its memorandum in support of that motion. Neither of the offending items, however, constitutes a pleading. Thus, neither are candidates for Rule 12(f), and we deny the Hrubec's motion.
C. Motion for Rule 11 Sanctions
Federal Rule of Civil Procedure 11 provides that if an attorney files documents that are not reasonably based in fact or law, or that are meant to harass, delay or increase the cost of litigation, then the court shall impose appropriate sanctions. See, e.g., Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1082 (7th Cir. 1987). The standard of inquiry is whether, objectively, the charged party's conduct was reasonable under the circumstances. Brown v. Federation of State Medical Boards, 830 F.2d 1429, 1435 (7th Cir. 1987). The main purpose of the 1983 switch to the objective standard away from the subjective bad faith inquiry was to deter dilatory or abusive pretrial tactics and to streamline litigation. Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1536 (9th Cir. 1986).
There is no dispute that a motion to strike may be used to remove an excessive or unauthorized claim for damages. See Byers v. Rockford Mass Transit Dist., 635 F. Supp. 1387, 1391 (N.D. Ill. 1986). Nor can we conclude that Amtrak's motion was unwarranted by existing law. The question posed by Amtrak's motion was one of first impression in this District. See Nelson v. Piedmont Aviation, Inc., 750 F.2d 1234, 1238 (4th Cir. 1984), cert. denied, 471 U.S. 1116, 86 L. Ed. 2d 259, 105 S. Ct. 2358 (1985) (a pleading or motion is warranted by existing law if it addresses a question of first impression); Brown Mackie College v. Graham, 1991 U.S. Dist. LEXIS 18676 (D. Kan. 1991). The inconsistent interpretations of the term "actual damages" under many federal statutes further underscores validity to Amtrak's motion. While the Hrubec's accurately note that Amtrak poorly analyzed and presented the issue on which their motion hinged, the question itself nonetheless warranted examination and provided a legitimate basis for the motion to strike. Accordingly, we decline to award sanctions against Amtrak.
For the foregoing reasons, we deny defendant's motion to strike paragraph 18 of the complaint and deny plaintiffs' motion to strike and their motion for sanctions. It is so ordered.
MARVIN E. ASPEN
United States District Judge