United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2001 Decided February 15, 2002
No. 00-5348
Mary Louise Cummings,
Appellant
v.
Department of the Navy,
Appellee
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, 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, ar-
gued 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 (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 mili-
tary 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 Cum-
mings's action and remand for further proceedings address-
ing 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 No-
vember 1994. Approximately seven months after Cum-
mings'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 con-
clusion, 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 permit-
ted 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 proceed-
ed throughout the [Hornet] training program." Cummings,
116 F. Supp. 2d at 78 (quoting Compl. p 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
__________
1 The following factual account is drawn largely from the "Factual
Background" portion of the district court order, Cummings, 116
F. Supp. 2d at 77-78, which in turn is "drawn from the allegations
in the [c]omplaint." Id. at 77 n.2.
humiliation, both personally and professionally." Id. (quoting
Compl. p 65).
Cummings sued the Navy for violating the Privacy Act of
1974. See 5 U.S.C. s 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 action-
able--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 (1993)). Our review of the issues
raised by Cummings's appeal is de novo. See Artis v. Green-
span, 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. 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 (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 (quoting Rubin v. United States, 449
U.S. 424, 430 (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.
s 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. ss 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. s 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. s 552a(k)(7). The district
court rightly noted that such exemptions "would be unneces-
sary if military servicepersons were excluded from the Priva-
cy Act altogether." Cummings, 116 F. Supp. 2d at 78 n.5.
We conclude that the aforementioned provisions, taken
together, demonstrate that the Congress unambiguously in-
tended to establish a duty that runs from a "military depart-
ment" (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. s 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 service-
member 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. s 552a(g)(2)(A), (3)(A), and monetary relief, 5 U.S.C.
s 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. s 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 con-
tent,3 see, e.g., 5 U.S.C. s 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 correctly reminded us that "waivers of
sovereign immunity must be unequivocally expressed and
narrowly construed," Cummings, 116 F. Supp. 2d at 81
(quoting Dorsey v. Dep't of Labor, 41 F.3d 1551, 1555 (D.C.
Cir. 1994)). Erroneously, however, it denied effect to the
unequivocally expressed waiver contained in the Privacy Act,
5 U.S.C. s 552a(g). Construing a waiver of sovereign immu-
__________
2 Section 552a(g)(4) provides:
In any suit brought under the provisions of ... this [Act] in
which the court determines that the agency acted in a manner
which was intentional or willful, the United States shall be
liable to the individual in an amount equal to the sum of ...
actual damages sustained by the individual ... and ... the
costs of the action together with reasonable attorney fees as
determined by the court.
3 Whether the Navy has exempted--and whether s 552a(k) per-
mits it to exempt--Cummings's report from the requirements of
the Privacy Act are issues to be addressed, if at all, on remand.
We express no opinion on those matters here.
nity narrowly, even "strictly in favor of the sovereign," means
only that a court may not "enlarge[ ] [the waiver] beyond
what the language requires." Tomasello v. Rubin, 167 F.3d
612, 618 (D.C. Cir. 1999) (quoting United States v. Nordic
Village, Inc., 503 U.S. 30, 34 (1992)). We need not "enlarge"
by any stretch the Privacy Act's purview in order for the
statute to avoid the effects of the Feres doctrine. As the
district court acknowledged, "[o]n its face, the Privacy Act
would appear to permit actions brought by military person-
nel...." Cummings, 116 F. Supp. 2d at 81. And statutory
text remains the best evidence of congressional intent. See
Tataranowicz v. Sullivan, 959 F.2d 268, 276 (D.C. Cir. 1992).
The Act not only appears to, but does, permit actions brought
by military personnel.
The fact that "the Privacy Act was enacted once the Feres
doctrine was in place, yet does not specifically [insulate] the
causes of action it creates from the effects of Feres," Cum-
mings, 116 F. Supp. 2d at 81, does not alter our conclusion.
Congressional enactments are better evidence of legislative
intent than is congressional silence. See Burns v. United
States, 501 U.S. 129, 136 (1991) ("[A]n inference drawn from
congressional silence certainly cannot be credited when it is
contrary to all other textual and contextual evidence of con-
gressional intent."); but cf. Arthur Conan Doyle, Silver
Blaze, in 1 Sherlock Holmes: The Complete Novels and
Stories 455, 475 (1986) ("I had grasped the significance of the
silence of the dog, for one true inference invariably suggests
others.... Obviously the midnight visitor was someone
whom the dog knew well."). True, the Congress's familiarity
with Feres can be presumed, see Wash. Legal Found. v.
United States Sentencing Comm'n, 17 F.3d 1446, 1450 (D.C.
Cir. 1994) (citation omitted), but the Feres doctrine was not
extended beyond the Federal Tort Claims Act (FTCA) con-
text until 1983. See generally Chappell v. Wallace, 462 U.S.
296 (1983) (applying Feres to constitutional tort claims under
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971)). When the Congress enacted
the Privacy Act in 1974, therefore, it had no reason to insulate
the Act from the effects of a doctrine that, at the time,
applied exclusively to the FTCA.
That the Congress did not bark about Feres in enacting the
Privacy Act is especially unenlightening in view of the fact
that a Privacy Act lawsuit does not implicate any of the
concerns that caused the Supreme Court to enunciate the
Feres doctrine in the first place. Cf. Lockhart v. Fretwell,
506 U.S. 364, 373 (1993) (applying maxim "[c]essante ratione
legis, cessat et ipsa lex" (when reason for law ceases, so does
law itself)). In formulating the (oft-criticized) Feres doctrine,
the Supreme Court first observed that because the FTCA
provides that "[t]he United States shall be liable ... in the
same manner and to the same extent as a private individual
under like circumstances," Feres, 340 U.S. at 141 (quoting 28
U.S.C. s 2674), an "obvious shortcoming" in the plaintiffs'
claims was that they pointed to "no liability of a 'private
individual' even remotely analogous to that which they [were]
asserting against the United States." Id. Second, the Court
found that because of the "distinctively federal" relationship
between the United States and its military forces, the Con-
gress could not have intended the armed forces to be subject
to local tort law pursuant to the FTCA's provisions. Id. at
142-44 (quoting United States v. Standard Oil Co., 332 U.S.
301 (1947)). Third, the Court found that because servicemen
were already entitled to veterans' benefits, the Congress
could not have meant for them to recover double compensa-
tion for their injuries by allowing them to sue under the
FTCA as well. Id. at 144. Four years after Feres, in United
States v. Brown, 348 U.S. 110 (1954), the Court offered a
fourth justification for military immunity from the FTCA--
the "peculiar and special relationship of the soldier to his
superiors, the effects of the maintenance of [tort] suits on
discipline, and the extreme results that might obtain if suits
under the [FTCA] were allowed for negligent orders given or
negligent acts committed in the course of military duty...."
Brown, 348 U.S. at 112.
Cummings convinces us that none of these rationales sup-
ports extension of the Feres doctrine to the Privacy Act. The
Supreme Court's first concern is inapplicable to a Privacy Act
lawsuit because the Act, unlike the FTCA, nowhere estab-
lishes the private liability parallel as a prerequisite for the
"United States [to] be liable ... in the same manner and to
the same extent ... under like circumstances...." Feres,
340 U.S. at 141 (quoting 28 U.S.C. s 2674). Feres's second
and third rationales are likewise inapposite because the Priva-
cy Act is federal (not state) law and because the Congress has
provided no other compensation or benefits for those injured
by a violation of the Act.
The Navy makes a superficially compelling argument that
Feres's fourth concern (as expounded in Brown) mandates the
doctrine's extension to Privacy Act suits. The portion of the
district court order addressing the matter strengthens the
Navy's case: "The [possibility] that every time a serviceman
were demoted or saddled with a less than perfect perfor-
mance rating he could resort to the courthouse could be a
very real one if Privacy Act suits were not subject to the
Feres doctrine." Cummings, 116 F. Supp. 2d at 82 (quota-
tions omitted). Although judicial reluctance to impinge on
military matters is understandable in many contexts,4 it is
__________
4 In Bois v. Marsh, 801 F.2d 462 (D.C. Cir. 1986), for example, we
applied the Feres doctrine to a 42 U.S.C. s 1985(3) suit by a
military officer against her superiors because the Supreme Court's
"analysis in Feres and Chappell that courts should not imply
damage remedies for service-connected injuries is fully applicable
to" such suits generally. Bois, 801 F.2d at 469 (emphasis added).
In addition, we extended Feres to the officer's intentional tort
claims against her superiors because "subjecting military command-
ers to personal liability" for such claims would "pose[ ] an equal, if
not greater, threat to military discipline as would permitting suits
under the FTCA." Id. at 471.
Bois's reasoning remains sound. We do not mean to imply
otherwise by declining to extend it here; we simply note that
neither of the concerns prompting our decision in that case exists in
the Privacy Act context. Likewise, by declining to extend Feres to
the Privacy Act, we are not--contrary to the assertion of our
dissenting colleague--"abandon[ing]" it because it is "under a
cloud." Dissenting op. at 6. Nor are we fashioning "a rule rather
arbitrarily cutting [Feres] off with the exact applications already
unjustified in this setting; as we have discussed, the Con-
gress clearly enlisted the federal courts to inquire into poten-
tial military violations of the Privacy Act. Cf. United States
v. Johnson, 481 U.S. 681, 699 (1987) (Scalia, J., dissenting) ("I
do not think the effect upon military discipline is so certain,
or so certainly substantial, that we are justified in holding (if
we are ever justified in holding) that Congress did not mean
what it plainly said in the statute before us."). What is more,
subjecting the Navy to suit under the Act does not permit a
servicewoman like Cummings to "resort to the courthouse"
simply because she does not agree with her performance
ratings. Instead, the Act provides a remedy only if the
military department has unlawfully released the performance
rating and if the claimant establishes that she was injured as
a result. See 5 U.S.C. s 552a(b) (prohibiting disclosure in
certain circumstances); 5 U.S.C. s 552a(g)(1)(D) (requiring
claimant to show "adverse effect" because of disclosure).
The Navy claims that because Feres has been extended
beyond the FTCA context to suits under civil rights statutes
and to common-law and constitutional tort actions, we must
extend it as well to suits under the Privacy Act. See Br. of
Appellee at 17-18 (citing, inter alia, United States v. Stanley,
483 U.S. 669, 682 (1987); Chappell, 462 U.S. at 300). It is
true that we, like other circuits, have extended Feres to bar
claims brought "under both 42 U.S.C. s 1985(3) for depriva-
tion of ... civil rights and under common-law tort theories."
Bois v. Marsh, 801 F.2d at 468; see supra note 4; see also,
e.g., Mackey v. United States, 226 F.3d 773, 776 (6th Cir.
2000) (joining D.C., Second, Third, Fourth, Seventh, Eighth
and Ninth Circuits in "hold[ing] that the Feres doctrine
applies to intentional torts"); Alvarez v. Wilson, 600 F. Supp.
706, 712 (N.D. Ill. 1985) (extending Feres to claims brought
under s 1985(3)). But that fact in itself means nothing; we
have also concluded "that the Feres doctrine and its rationale
__________
found by the Supreme [C]ourt and no more." Id. Instead, we are
merely holding that the Privacy Act means what it says. We would
hope that that is not an option "available only to the Supreme
Court." Id.
have no application to claims [brought by members of the
armed forces] under the Swine Flu Act" because we cannot
"imagine how [that] type of litigation could impinge on any
legitimate interest in maintaining discipline within our fight-
ing forces." Hunt v. United States, 636 F.2d 580, 599 (D.C.
Cir. 1980). That is, even "[d]espite the absence of a clear
legislative intent" in the Swine Flu Act to insulate the legisla-
tion from the effects of Feres, we have nonetheless found it
insulated. Id. at 589. Because "the duty remains ours to
determine the meaning of [a particular] statute," id., and to
determine whether the Congress in a particular statute in-
tended to provide service personnel with a cause of action
against the military departments, the bare fact that the Feres
doctrine has been extended beyond the FTCA to other statu-
tory contexts is not particularly probative. The Congress
may provide a cause of action in some laws and leave other
statutes subject to Feres; it is our job to sort out which it has
done here. As the district court correctly noted, "[n]o court
has yet provided an analysis of whether or not Feres should
apply to actions under the Privacy Act" specifically. Cum-
mings, 116 F. Supp. 2d at 79. It would appear, then, that we
have a clean slate to implement the Congress's will and to
permit Cummings to seek monetary relief from the Navy for
the allegedly unauthorized release of her training record to a
civilian author.
B.
Because we conclude that the Feres doctrine is inapplicable
to Cummings's action against the Navy, we need not address
whether the release of her record was "incident to service"
under Feres's case-specific test. That test is irrelevant and
the issue is moot.
III.
Given a clear congressional mandate, we hold that the
doctrine of Feres v. United States does not extend to Privacy
Act lawsuits brought by military personnel against the mili-
tary departments. Accordingly, we reverse the district
court's dismissal of Cummings's action against the Navy.
She may proceed with her action on remand.
So ordered.
Williams, Senior Circuit Judge, dissenting: Feres v. Unit-
ed States, 340 U.S. 135 (1950), holds that the Federal Torts
Claims Act ("FTCA") waiver of sovereign immunity is inappli-
cable to suits by uniformed military personnel for injuries
arising out of activity "incident to service." The Feres doc-
trine is under something of a cloud. See, e.g., United States
v. Johnson, 481 U.S. 681, 700 (1987) (Scalia, J., dissenting)
("Feres was wrongly decided and heartily deserves the 'wide-
spread, almost universal criticism' it has received."). None-
theless, the Supreme Court, this court and our fellow circuits
have all consistently extended Feres beyond the FTCA. That
they have done so is unsurprising for damage actions that
carry a genuine risk of disrupting the hierarchical command
relations among military personnel--after all, that is the risk
that ultimately underlies Feres. Comparing Privacy Act
damage actions with other claims that the Supreme Court
and this court have found barred by Feres, I see neither any
greater hint from Congress that Feres should not govern, nor
any indication that Privacy Act damage claims pose less risk
of interference with command relations. This leads me to the
conclusion that Cummings's claim is precluded.
It might seem at first blush that the Privacy Act's explicit
provisions addressing the military might justify non-
application of Feres. The Act purports to govern "any execu-
tive department, military department, Government corpora-
tion, Government controlled corporation, or other establish-
ment in the executive branch of the government ... or any
independent regulatory agency." 5 U.S.C. s 552(f) (incorpo-
rated into the Privacy Act by 5 U.S.C. s 552a(a)(1) & s 552a
note (References in Text)). But Congress similarly specified
the military in the FTCA. "Federal agency," the FTCA's
basic unit for liability, see 28 U.S.C. s 2675, is defined to
include "the military departments," id. s 2671.
The Privacy Act also exempts certain military documents
from protection under limited circumstances. See, e.g., 5
U.S.C. s 552a(k)(5) (discussing "investigatory material com-
piled solely for the purpose of determining suitability, eligibil-
ity, or qualifications for ... military service"); 5 U.S.C.
s 552a(k)(7) (addressing "evaluation material used to deter-
mine potential for promotion in the armed services"). But
these provisions provide no basis for refusing to apply Feres;
once again, the FTCA has similar language. It exempts
claims "arising out of the combatant activities of the military
or naval force, or the Coast Guard, during time of war," 28
U.S.C. s 2680; yet Feres applies to all claims, combat-related
or not, wartime or peacetime. See, e.g., United States v.
Shearer, 473 U.S. 52 (1985) (applying Feres to claim involving
crime off duty and off base).
Indeed, any inferences against Feres drawn from a stat-
ute's explicit coverage and partial exemptions of the military
are weaker for Privacy Act damage actions than for the
FTCA. The Privacy Act creates a range of specific, non-
damage remedies, see 5 U.S.C. s 552a(g)(2) & (3), which the
government concedes remain fully applicable. Navy Br. at
25. Cf. Jorden v. National Guard Bureau, 799 F.2d 99, 110-
11 (3d Cir. 1986) (distinguishing between monetary and in-
junctive relief in applying Feres to s 1983). But the FTCA
provides only damage actions. Thus there is a broad world to
which the military-specific language of the Privacy Act can
apply, while Feres leaves the FTCA's similar language with
little or no role.
More generally, we have understood Feres to create the
equivalent of a "clear statement" rule. In finding it applica-
ble to claims under 42 U.S.C. s 1985(3), we said:
... Feres itself represents a refusal to read statutes with
their ordinary sweep. The unique setting of the military
led the Feres Court to resist bringing the armed services
within the coverage of a remedial statute in the absence
of an express Congressional command.
Bois v. Marsh, 801 F.2d 462, 469 n.13 (D.C. Cir. 1986)
(emphasis added); see also Coffman v. State of Michigan, 120
F.3d 57, 59 (6th Cir. 1997) (holding that ADA and Rehabilita-
tion Act do not apply to the military absent a "clear di-
rection" from Congress (emphasis added)); Roper v. Depart-
ment of Army, 832 F.2d 247, 248 (2d Cir. 1987) (holding that
in the "absence of some express indication" from Congress,
Title VII does not apply to the military). In the Privacy Act
there is no more of an "express Congressional command"
than there is in the FTCA.
The Supreme Court has itself extended Feres to all Bivens
actions. United States v. Stanley, 483 U.S. 669, 681-84
(1987); Chappell v. Wallace, 462 U.S. 296 (1983). Bivens, of
course, imposes liability on individual officials, as indeed
does the liability under 42 U.S.C. s 1985(3) that in Bois we
found subject to Feres. Thus one might write off both
Stanley and Chappell, and Bois, as extensions addressed to
some special anxiety that might flow from individual exposure
to liability. Compare Maj. Op. at 9 n.4. That is, of course,
conceivable. But it is a rather odd spin on Feres itself, which
after all involved only government liability. There is no basis
in the Supreme Court opinions for some idea that the disci-
pline issues explaining Feres depend materially on the nomi-
nal defendant. That is not surprising, in view of the wide-
spread government provision for reimbursement of officers
found liable for acts committed in the service of government.
See, e.g., Huang v. Johnson, 251 F.3d 65, 70 (2d Cir. 2001)
(noting that the "vast majority" of s 1983 claims that the
Second Circuit handles involve state indemnification of the
individual defendants); see also Board of County Commis-
sioners of Bryan County v. Brown, 520 U.S. 397, 436 (1997)
(Breyer, J., dissenting) (listing various state statutes "autho-
rizing indemnification of employees found liable under s 1983
for actions within the scope of their employment").
Alternatively, one might write Stanley/Chappell off as sim-
ply an exercise of judicial restraint when implying damage
actions (such implication is, of course, the only basis for
Bivens). See Stanley, 483 U.S. at 679. But we have already
rejected this as too narrow a view. In Bois, confronting
exactly such an argument by the dissenting judge, we said:
But Chappell will not reasonably bear such a crabbed
interpretation. To the contrary, the Supreme Court
expressly held in Chappell that the same analysis, based
on concern with the disruption of military discipline,
applies regardless of whether a court is asked to enter-
tain an intramilitary suit under the Constitution or a
statute.
801 F.2d at 470 n.13 (citing explicit passages from Chappell).
Thus we must address the kinds of risks to military disci-
pline that damage actions under the Privacy Act pose. For
damage actions under the Act (in contrast with claims for
specific relief), the plaintiff must show that the agency action
was "intentional or willful." 5 U.S.C. s 552a(g)(4). Proof
that such an intent underlies the alleged breach (here an
impermissible release of data) is likely to take the factfinder
deep into the breach's context. Indeed, the complaint here
affirmatively asserts that the release arose out of sharply
contested views about Cummings's performance as a trainee
on "Hornet" aircraft. See Complaint p p 5-43; see generally
Maj. Op. at 2-4. How does this stack up against the plain
vanilla sex discrimination claim involved in Bois? I cannot
imagine why it would less involve "second guessing of military
decisions by civilian courts," Bois, 801 F.3d at 470, or less
"require testimony by military personnel about command
decisions," id., or less "tend to pit a plaintiff's superiors
against one another," id. Indeed, damage actions under
s 552a(g)(4) seem quite commonly to yield evidence of pro-
longed workplace donnybrooks. See, e.g., Tomasello v.
Rubin, 167 F.3d 612, 614-17 (D.C. Cir. 1999) (involving
government employee's claim of various unauthorized disclo-
sures in conjunction with an alleged pattern of ethnic and age
discrimination); Mount v. U.S. Postal Service, 79 F.3d 531
(6th Cir. 1996) (involving employee's claim that certain disclo-
sures of medical and other records to director and union
official were motivated by a desire to retaliate for complaints
about work conditions); Henson v. NASA, 14 F.3d 1143, 1146
(6th Cir. 1994) (involving employee's claim that superior
released confidential medical information, "intentionally or
negligently inflicted severe emotional distress ... [and] en-
gaged in an intentional, reckless, malicious, and tortious
pattern of abusive management" as part of a pattern of
retaliation). So Bois, I believe, controls.
In sharp contrast is Hunt v. United States, 636 F.2d 580
(D.C. Cir. 1980), where we found Feres inapplicable to the
"substituted liability" regime established under the Swine Flu
Act. Id. at 583 n.3. To encourage flu vaccine production, the
government had assumed responsibility for product liability
suits against the manufacturers, id. at 591-92, though assign-
ing the United States a possible right of later indemnification,
id. at 595-96. Suits under the Swine Flu Act therefore
involved claims of tortious conduct only by the manufacturer,
conduct that seems as remote from matters of military disci-
pline and command as one can imagine.
I dissent primarily because the court's decision seems to
me inconsistent with the principles laid down by the Supreme
Court in its Feres jurisprudence, and with our circuit's clear
understanding of those principles. But it's worth noting that
other circuits have carried Feres well beyond its FTCA
origins, applying it to s 1983 claims,1 to various antidiscrimi-
nation statutes such as Title VII,2 the Americans with Disabil-
ities Act,3 and the Age Discrimination in Employment Act.4
And it has been applied to various admiralty waivers of
immunity, such as those in the Suits in Admiralty Act, 46
U.S.C. App. s 742 et seq., and the Public Vessels Act, 46
U.S.C. App. s 781 et seq.5 As the Ninth Circuit has ob-
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1 E.g., Bowen v. Oistead, 125 F.3d 800, 803 n.2 (9th Cir. 1997);
Knutson v. Wisconsin Air National Guard, 995 F.2d 765, 769 (7th
Cir. 1993); Watson v. Arkansas National Guard, 886 F.2d 1004
(8th Cir. 1989); Walden v. Bartlett, 840 F.2d 771, 773 (10th Cir.
1988); Crawford v. Texas Army National Guard, 794 F.2d 1034
(5th Cir. 1986); Penagaricano v. Llenza, 747 F.2d 55 (1st Cir. 1984).
2 E.g., Roper, 832 F.2d at 247-48; Gonzalez v. Department of
the Army, 718 F.2d 926, 927-28 (9th Cir. 1983); Mackey v. United
States, 226 F.3d 773, 776 (6th Cir. 2000).
3 Baldwin v. United States Army, 223 F.3d 100 (2d Cir. 2000);
Coffman, 120 F.3d at 57-59.
4 Spain v. Ball, 928 F.2d 61 (2d Cir. 1991) (dictum).
5 See, e.g., Blakey v. U.S.S. Iowa, 991 F.2d 148 (4th Cir. 1993);
Potts v. United States, 723 F.2d 20 (6th Cir. 1983); Charland v.
served, holding that Feres barred a slew of common law,
constitutional and even RICO complaints, the Feres "bar has
been interpreted broadly," so that "practically any suit that
'implicates ... military judgments and decisions' runs the
risk of colliding with Feres." Bowen, 125 F.3d at 803 (case
citations omitted).
Feres is, as I observed earlier, under a cloud. The most
plausible solutions seem to be (1) consistent application of its
principle; (2) a rule rather arbitrarily cutting it off with the
exact applications already found by the Supreme court and no
more; and (3) complete abandonment. As the second and
third options are available only to the Supreme Court, Rodri-
guez de Quijas v. Shearson/American Express, Inc., 490 U.S.
477, 484 (1989); Khan v. State Oil Co., 93 F.3d 1358, 1364 (7th
Cir. 1996) (Posner, C.J.) ("We have been told by our judicial
superiors not to read the sibylline leaves of the U.S. Reports
for prophetic clues to overruling."), I would proceed with the
first.
I respectfully dissent.
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United States, 615 F.2d 508 (9th Cir. 1980); Beaucoudray v. United
States, 490 F.2d 86 (5th Cir. 1974).