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Court Tosses Federal Office of Personnel Management Data Breach Class Action

By George Khoury, Esq. on September 27, 2017 | Last updated on March 21, 2019

In 2015, the federal Office of Personnel Management, which handles employment matters on behalf of the government, suffered a serious data breach that resulted in the theft of over 22 million people's information. That data breach led to a class action lawsuit being filed on behalf of all those whom had their data stolen against the OPM for failing to safeguard their data.

The federal court has just dismissed this class action and has essentially invited the defeated plaintiffs to appeal. The district court stated: "Neither the Supreme Court nor the U.S. Court of Appeals for the D.C. Circuit has held that the fact that a person's data was taken is enough by itself to create standing to sue."

Ripe for Appeal?

Regardless of what the D.C. Circuit Court of Appeals thinks, it seems likely that this case will be before it shortly. When technology and privacy create standing issues that are potentially novel, it's just too thick with scholarly interest, it is almost always expected that appeals will be brought. And that's what this case hinges upon.

The district court explained that the right to recover under the privacy act is limited to actual economic harm. Essentially saying that if a person's information is stolen in a hack, unless that info is actually used and causes economic harm, there are no damages to recover. That just feels harsh, and the court explains that:

"The law is clear that the statute does not create a cause of action for those who have been merely aggrieved by, or are even actively worried about, the fact that their information has been taken. "

These bold statements, coupled with the lengthy discussion governing the merits of this central legal issue, makes this a case to watch out for in the D.C. Circuit. Plaintiffs' counsel are reportedly considering the appeal.

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