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Cummings v. Department of the Navy

Where Navy released, without authorization, plaintiff's training record to a civilian author, dismissal of Privacy Act lawsuit reversed; Feres Doctrine, which protects government from liability under Federal Tort Claims Act for injuries to servicemen where injuries arise out of or are in the course of activity incident to service, does not extend to suits under Privacy Act.

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Argued October 16, 2001

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 (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.

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