Did Petitioner forfeit his Privacy Act damages claim where the damages issue was fully briefed and the decision finds no support in existing caselaw?

After deciding that the salacious Footnote 112 in the Mueller Report defamed Petitioner and remanding his equitable claim, the circuit court held that his Privacy Act damages claim was forfeited. Did Petitioner forfeit his claim for damages, where: (i) the damages issue was fully briefed in both lower courts, and (ii) the decision finds no support in the caselaw of the Court, the circuit court or any other federal appellate court?