Cummings v. Department of the Navy

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).