Feres and the Privacy Act: Are Military Personnel Records Protected?

Article excerpt


A book author is permitted to observe the training of a group of Navy aviators as they learn the intricacies of flying a high-powered fighter jet.1 During this training, one of the pilots, Mary Louise commits serious errors, including aligning her aircraft with the wrong runway and causing another pilot to take evasive action while flying in formation.2 The Navy launches an investigation into whether Mary Louise should continue to fly, producing hearings and documentary evidence, and ultimately, Mary Louise is allowed to keep her position.3 The book this author later releases quotes from the negative reports on Mary Louise that the Navy had permitted him to see.4 Mary Louise sues the Navy for violations of the Privacy Act for releasing her private information without her consent.5 This may seem like a fairly obvious and egregious violation of the Privacy Act, but the inquiry is not nearly that simple. Indeed, she may not even be able to bring the suit because she is a member of the United States Armed Forces.6

The Privacy Act protects individuals from the release of confidential records by the United States government without that person's consent.7 Not everyone, however, is so protected. The Court of Appeals for the Eighth Circuit in Uhl v. Swanstrom barred Privacy Act claims by members of the military,8 while the Court of Appeals for the District of Columbia in Cummings v. Department of the Navy allowed such a claim.9 This Note suggests that, upon close scrutiny, these two seemingly irreconcilable decisions are actually in accord with each other and in harmony with the congressional intent of the Privacy Act.

The United States Armed Forces rely on an all-volunteer force to accomplish the military missions of this nation and protect its citizens from harm at home and abroad.10 The military has long been subject to a system of justice different from that which the general citizens are subject.11 This alternate system of justice governed soldiers during World War I and World War II, even though many of them were drafted into service.12 In response to the astonishing number of courts-martial during World War II, Congress passed the Uniform Code of Military Justice ("UCMJ").13 This legislation, implemented through executive orders, formed the Manual for Courts-Martial ("MCM") and was a major revision of the law governing the military.14 The preamble to the MCM states its objectives: "The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States."15 Since the military is governed by this alternate justice system, the question thus arises whether members of the military, or the military branches themselves, are subject to more general civil laws such as the Federal Torts Claim Act ("FTCA"),16 Bivens claims,17 and the Privacy Act.18

Despite the waiver of sovereign immunity in the FTCA, the Supreme Court prohibited members of the military from bringing claims under the FTCA. This bar began in Feres v. United States,19 where, as explored below, the Court held, in a ruling now known as the Feres doctrine, 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."20 After Feres, the Supreme Court extended the Feres doctrine beyond its original scope, and the rationales behind the doctrine evolved. Claims for injuries that "arise out of or are in the course of activity incident to service" are prohibited.21 Such a service-related claim must, according to United States v. Johnson, be barred because it "necessarily implicates the military judgments and decisions that are inextricably intertwined with the conduct of the military mission."22

Over the next few decades, the Feres doctrine expanded beyond personal injury claims and became relevant in the context of privacy. …