Cummings v. Department of Navy, Civ.A. 98-1183(JHG).
| Decision Date | 06 September 2000 |
| Docket Number | No. Civ.A. 98-1183(JHG).,Civ.A. 98-1183(JHG). |
| Citation | 116 F.Supp.2d 76 |
| Parties | Mary Louise CUMMINGS, Plaintiff, v. DEPARTMENT OF THE NAVY, Defendant. |
| Court | U.S. District Court — District of Columbia |
Eugene R. Fidell, David Patrick Sheldon, Feldesman, Tucker, Leifer, Fidell & Bank, LLP, Washington, DC, for Mary Louise Cummings, plaintiff.
Mark E. Nagle, Wilma Antoinette Lewis, Meredith Manning, U.S. Attorney's Office, Washington, DC, for Department of Navy, federal defendant.
The defendant in this case, the Department of the Navy ("Navy"), has filed both a motion to dismiss and a motion for summary judgment. In a previous Order, the Court denied the motion to dismiss without prejudice, and elected to address the arguments from both the motion to dismiss and the motion for summary judgment in one Order.
Ms. Cummings1 alleges that the Navy violated the Privacy Act, 5 U.S.C. § 552a (1996), by releasing to an author, Robert Gandt, a copy of a Field Naval Aviator Evaluation Board ("FNAEB") report evaluating Ms. Cummings' flying abilities and potential. The Navy has moved to dismiss on the grounds that the Feres doctrine bars Ms. Cummings' claim. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Because the Court finds that Ms. Cummings' suit is barred under the Feres doctrine, it is unnecessary to reach the arguments in the defendant's motion for summary judgment, and the motion to dismiss is granted.
Ms. Cummings attended the United States Naval Academy, completed her flight training and became a Naval aviator, and received her Master of Science degree from the Naval Post-Graduate School in 1994.2 She was assigned to the VFA-106 squadron at Naval Air Station Cecil Field, in Jacksonville, Florida, and began training on the Strike Fighter Attack 18 ("F/A-18"), or "Hornet" aircraft, in November 1994. About seven months after Ms. Cummings Hornet training began, the Navy convened a FNAEB to evaluate Ms. Cummings's abilities. The FNAEB heard testimony and reviewed the records of four training flights involving Ms. Cummings. The FNAEB issued a report with findings of fact, conclusions, and recommendations, and also included the record of an earlier "JAGMAN" (Manual of the Judge Advocate General) investigation. The Board recommended that the Navy terminate Ms. Cummings' flying status, and revoke with prejudice her right to wear her aviators wings.3 However, Ms. Cummings' commanding officer, Captain Moffit, recommended instead that she retain her flight status and be transferred to a different administrative command. Vice Admiral Allen, the Commander of the Navy's U.S. Atlantic Fleet, also rejected the Board's analysis. He directed Ms. Cummings to retain her flight status and resume Hornet training under the same command.4
While Ms. Cummings was training on the Hornet aircraft, the Navy permitted Mr. Gandt to observe VFA-106 training at Cecil Field so that he could research a book he planned to write about the training of fighter pilots at Cecil Field. According to the plaintiff, Vice Admiral Allen "allowed Gandt to follow specific squadron personnel without their knowledge as they proceeded throughout the F/A-18 training program." Complaint at para. 13.
In June 1997 Mr. Gandt published "Bogeys and Bandits: Making of a Fighter Pilot." Ms. Cummings alleges that this book was based on Mr. Gandt's observations at Cecil Field and the information the Navy supplied to him, and that one of the characters appearing in his book, by the name of "Sally Hopkins," portrays her. The book includes specific details from her FNAEB report, including direct quotations from various sections of the report. Ms. Cummings alleges that as a result of the publication of Mr. Gandt's book, "her military and civilian career prospects have been severely damaged, and she has suffered severe mental distress, embarrassment, and humiliation, both personally and professionally." Complaint at para. 65
The Navy has moved to dismiss the complaint on the grounds that the Feres doctrine bars the claim.5 The Court must undertake a two-part analysis, first determining whether or not the Feres doctrine applies to a cause of action under the Privacy Act. If Feres is applicable, the next step is to apply Feres' "incident to service" test. See, e.g., United States v. Stanley, 483 U.S. 669, 683, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987).
Feres involved a claim brought by the executrix of a military serviceman who died while on active duty, due to a fire in his barracks. The claim was brought pursuant to the Federal Tort Claims Act (FTCA), which waives sovereign immunity in order to allow tort claims to be brought against the government. The military was explicitly included as one of the agencies subject to the FTCA. See 28 U.S.C. § 1346(b) & § 2671 (1994) (). On its face, the FTCA appears to waive sovereign immunity for actions by military personnel. See Stanley, 483 U.S. at 681-82, 107 S.Ct. 3054 ().
Nonetheless, Feres held that the plaintiff had not brought a claim recognizable in law. The Court noted that service-connected injuries had not been actionable before, and refused to "impute to Congress such a radical departure from established law in the absence of express congressional command." Feres, 340 U.S. at 146, 71 S.Ct. 153. The Supreme Court determined that the government is not liable under the FTCA for "injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 141 & 146, 71 S.Ct. 153. That formulation became known as the "incident to service" test, or the Feres doctrine. The reasoning behind Feres is 1) the "distinctively federal" relationship between the government and members of the armed forces and the concern that the location of the injury would arbitrarily cause a state's tort law to govern a soldier's lawsuit; 2) the alternative sources of compensation available to members of the armed forces; and 3) "the peculiar and special relationship of the soldier to his superiors, and the effects of the maintenance of such suits on discipline." Chappell v. Wallace, 462 U.S. 296, 299, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (quoting United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (1954)). The third factor became the dominant justification for the Feres doctrine. See Hunt v. United States, 636 F.2d 580, 599 (D.C.Cir. 1980); Lombard v. United States, 690 F.2d 215, 229 (D.C.Cir.1982).
The soundness of the Feres doctrine has been repeatedly questioned, see, e.g., Lombard 690 F.2d at 229 n. 7; United States v. Johnson, 481 U.S. 681, 700, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting) () (internal citations omitted). Despite the occasional criticism, with which this Court agrees, the Feres doctrine not only remains the law for actions pursuant to the FTCA, it has been expanded beyond the context of the FTCA. In Chappell the Court found that the rationale behind Feres applied to the nonstatutory damage remedy recognized in Bivens actions. See Chappell, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Feres doctrine has been applied to other constitutional torts and to civil rights statutes. See, e.g., Bois v. Marsh, 801 F.2d 462 (D.C.Cir.1986) (42 U.S.C. § 1985 action); Verma v. United States, 19 F.3d 646 (D.C.Cir.1994) (); Brown v. United States, 739 F.2d 362 (8th Cir.1984) ().
No court has yet provided an analysis of whether or not Feres should apply to actions under the Privacy Act, although a few courts have apparently presumed that the Feres doctrine would operate in that context. For example, in Uhl v. Swanstrom, 79 F.3d 751 (8th Cir.1996), the plaintiff was a former Air National Guard officer who brought claims pursuant to the FTCA, 42 U.S.C. § 1983, and the Privacy Act. The district court had held first that the Privacy Act claim was barred by the statute of limitations, and then went on to hold that each claim was "non-justiciable under Feres." See Uhl, 876 F.Supp. 1545, 1561 & 1570 (N.D.Iowa 1995). The district court did not discuss whether or not Feres had traditionally been applied to Privacy Act cases, but instead appeared to use the "incident to service" test as "the test for determining the applicability of Feres." Id. at 1563.6 In affirming, Eighth Circuit did not draw a distinction between the application of Feres to the FTCA, 1983, and Privacy Act claims. In Britt v. Naval Investigative Service, 1987 WL 13681 (E.D.Pa.1987), the court was confronted with both Bivens and Privacy Act claims. The court relied on Supreme Court precedent holding Feres applicable to Bivens type actions, but applied Feres to both types of claims without acknowledging that the Court had not addressed the applicability of the Feres doctrine in the context of the Privacy Act. Finally, in Aviles v. United States, 696 F.Supp. 217 (E.D.La. 1988), the plaintiff brought suit against the United States and individual Coast Guard officers alleging several causes of action, including constitutional tort, FTCA, Rehabilitation Act (29 U.S.C. § 794), and Privacy Act claims. The court dismissed all of the claims, specifically...
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Cummings v. Department of the Navy
...Privacy Act lawsuit if her injury arose out of or occurred in the course of activity "incident to service." Cummings v. Dep't of the Navy, 116 F.Supp.2d 76, 78-82 (D.D.C.2000). The court further determined on the facts that Cummings's injury did, indeed, arise in the course of activity inci......
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...71 S.Ct. 153, 95 L.Ed. 152 (1950). This Court has held that the Feres doctrine applies to the Privacy Act. See Cummings v. Dep't of the Navy, 116 F.Supp.2d 76, 82 (D.D.C.2000). ...