Cummings v. Department of the Navy

279 F.3d 1051

Mary Louise CUMMINGS, Appellant, v. DEPARTMENT OF THE NAVY, Appellee.

No. 00-5348.

United States Court of Appeals, District of Columbia Circuit.

Argued October 16, 2001.

Decided February 15, 2002.

Appeal from the United States District Court for the District of Columbia (No. 98cv01183).

David P. Sheldon argued the cause for the appellant. Eugene R. Fidell and Steven H. Wishod were on brief.

Eric L. Hirschhorn, Anne W. Stukes, Philip B. Onderdonk Jr., Ronald S. Flagg, Joseph R. Guerra and Arthur B. Spitzer were on brief for amici curiae The American Legion, et al., in support of the appellant.

Meredith Manning, Assistant United States Attorney, argued the cause for the appellee. Kenneth L. Wainstein, Acting United States Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant United States Attorney, were on brief.

Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Senior Circuit Judge WILLIAMS.

KAREN LeCRAFT HENDERSON, Circuit Judge:

The appellant, Mary Louise Cummings, seeks reversal of the district court's September 6, 2000 dismissal of her Privacy Act lawsuit against the Department of the Navy (Navy). The district court held that the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), bars a servicewoman's 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 incident to her service. See id. at 82-84. On appeal, Cummings challenges the district court's decision on two grounds. First, she argues that the Feres doctrine does not apply to service personnel's Privacy Act claims against the military. Second, she contends that even if the doctrine does attach to such suits generally, the unauthorized release of her training record to a civilian author was not incident to service under Feres's case-specific inquiry and that her suit against the Navy, therefore, is not barred.

Whether members of the armed forces may sue the military for damages under the Privacy Act is a question of first impression. We answer in the affirmative and hold that the Feres doctrine does not extend to suits under the Privacy Act. Accordingly, we reverse the district court's dismissal of Cummings's action and remand for further proceedings addressing her specific Privacy Act allegations.

I.

Cummings attended the United States Naval Academy, completed flight training and became a Naval aviator.¹ She was assigned to a flight squadron at the Naval Air Station, Cecil Field, in Jacksonville, Florida and began training on the Strike Fighter Attack 18 — a.k.a. "Hornet" — aircraft in November 1994. Approximately seven months after Cummings's Hornet training began, the Navy convened a Field Naval Aviator Evaluation Board (Evaluation Board) to assess her flying skills and potential. After hearing testimony and reviewing the records of Cummings's four training flights, the Evaluation Board recommended that the Navy terminate her flying status. Notwithstanding the Evaluation Board's conclusion, Vice Admiral Richard Allen — Commander of the Navy's Atlantic Fleet — directed Cummings to retain her flight status and resume Hornet training under the same administrative command.

During Cummings's time at Cecil Field, the Navy permitted an author, Robert Gandt, to observe Hornet training so that he could research a book he was writing about the training of fighter pilots. Cummings alleges in her complaint that Vice Admiral Allen "allowed Gandt to follow specific squadron personnel without their knowledge as they proceeded throughout the [Hornet] training program." Cummings, 116 F.Supp.2d at 78 (quoting Compl. ¶ 13).

In 1997 Gandt published his book, Bogeys and Bandits: Making of a Fighter Pilot. The book was based primarily upon Gandt's observations of the Hornet training program and upon Navy-supplied information. Cummings asserts that a character in Gandt's book named "Sally Hopkins" portrays Cummings, that the book includes specific details and direct quotes from her negative Evaluation Board report, that as a result of the book's publication "her military and civilian career prospects have been severely damaged" and that "she has suffered severe mental distress, embarrassment, and humiliation, both personally and professionally." Id. (quoting Compl. ¶ 65).

Cummings sued the Navy for violating the Privacy Act of 1974. See 5 U.S.C. § 552a(b) ("No agency shall disclose any record which is contained in a system of records by any means of communication to any person ... except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains...."). The Navy moved to dismiss Cummings's claim on Feres grounds. The district court held that Feres applies to Privacy Act lawsuits and that the Navy's release of Cummings's Evaluation Board report was "incident to service" — and, therefore, not actionable — because it "was related to the policy [of openness] the Navy had ... established toward Mr. Gandt." Cummings, 116 F.Supp.2d at 84.

II.

Reviewing the district court's grant of the Navy's motion to dismiss, we accept as true the facts that Cummings alleges in her complaint. See El-Hadad v. United Arab Emirates, 216 F.3d 29, 32 n. 5 (D.C.Cir.2000) (citing Saudi Arabia v. Nelson, 507 U.S. 349, 351, 113 S.Ct. 1471, 1474, 123 L.Ed.2d 47 (1993)). Our review of the issues raised by Cummings's appeal is de novo. See Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C.Cir.1998) ("[W]e apply the de novo standard of review to the district court's application of law to undisputed fact[s].").

A.

In Feres, the United States Supreme Court held that "the Government is not liable under the Federal Tort Claims Act 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 146, 71 S.Ct. at 159. Cummings argues that this doctrine should not be extended to suits against government agencies under the Privacy Act. For the reasons discussed infra, we agree.

In determining whether members of the armed forces may sue the military for damages under the Privacy Act, we start with the "cardinal" canon of statutory construction: "[C]ourts must presume that [the Congress] says in a statute what it means and means in a statute what it says there." Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (citations omitted). "When the words of a statute are unambiguous, then, this first canon is also the last: `judicial inquiry is complete.'" Id. at 254, 112 S.Ct. at 1149 (quoting Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981)). With these precepts in mind, we turn to the text of the Privacy Act.

As the district court recognized, the Privacy Act "applies to `agencies,' defined as `any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the government ... or any independent regulatory agency.'" Cummings, 116 F.Supp.2d at 78 n. 5 (quoting 5 U.S.C. § 552(f)) (emphasis added). And, as the trial court further observed, certain provisions of the Act manifest congressional intent to protect uniformed personnel like Cummings. See id. at 78 n. 5, 81 (citing 5 U.S.C. §§ 552(f), 552a(g)(1), 552a(k)(5) and 552a(k)(7)). One provision permits agencies, in certain circumstances, to exempt from the Act's purview "investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for ... military service...." 5 U.S.C. § 552a(k)(5). Another allows exemption — again, in limited circumstances — of "evaluation material used to determine potential for promotion in the armed services...." 5 U.S.C. § 552a(k)(7). The district court rightly noted that such exemptions "would be unnecessary if military servicepersons were excluded from the Privacy Act altogether." Cummings, 116 F.Supp.2d at 78 n. 5.

We conclude that the aforementioned provisions, taken together, demonstrate that the Congress unambiguously intended to establish a duty that runs from a "military department" (like the Navy) to military personnel (like Cummings) not to "disclose any record which is contained in a system of records" (like Cummings's Evaluation Board report). 5 U.S.C. § 552a(b). The Navy does not contest this. Instead, it contends that "without necessarily waiving immunity with respect to money damages," the Congress "intended to apply the Act to `military departments'" by permitting a servicemember to seek equitable remedies only. Br. of Appellee at 25. Its contention finds no support in the text of the statute; without regard to the identity of the plaintiff or the agency she is suing, the Act plainly authorizes injunctive relief, 5 U.S.C. § 552a(g)(2)(A), (3)(A), and monetary relief, 5 U.S.C. § 552a(g)(4),² and it permits a court to "assess against the United States reasonable attorney fees and other litigation costs," 5 U.S.C. § 552a(g)(2)(B), (3)(B). Moreover, that the Act (as seen supra) allows a military department to exempt from the Act's reach certain records based upon their content,³ see, e.g., 5 U.S.C. § 552a(k)(5), (7), demonstrates that the Congress did not intend the courts to craft additional exemptions from coverage based upon the type of relief a servicewoman requests (i.e., by limiting suits to equitable relief only). See Fawn Mining Corp. v. Hudson, 80 F.3d 519, 523 (D.C.Cir.1996) ("Neither lawyers nor judges serve as back-seat lawmakers who may extend statutes beyond their bounds or change the rules that Congress has set.").

The district court...