Privacy victory for female Naval aviator scores openness loss for access advocates

From the Spring 2002 issue of The News Media & The Law, page 41.

A former Naval aviator has a clear path to recover damages from the Department of Navy for releasing an unfavorable evaluation of her flying abilities.

A federal appeals court determined that the military, like civilian agencies, can be liable for damages under the Privacy Act.

Mary Louise Cummings, a former Navy lieutenant, sued the Navy for the leak of an evaluation of her ability to fly a Strike Fighter Attack F-18 “Hornet” aircraft. Robert Gandt, a prominent aviation writer who used the evaluation in his book on flight training for the Hornet, said he received it in a plain envelope in the mail.

In February, a panel of the U.S. Court of Appeals in Washington, D.C., in a split decision, extended the reach of the Privacy Act, ruling in Cummings’ case that military personnel can recover damages against the government for revelations about themselves just as civilians do. This decision comes even though the government is protected by the Feres Doctrine from liability to military personnel for wrongs that befall them during service.

The federal Privacy Act protects information about named individuals who are the subject of government files. But the act has become a far more powerful block against the public’s learning about what goes on in government than it was when it was first enacted in 1974. The government, with increasing frequency, has determined that information about the individuals it touches is off limits to the public.

The Department of Defense generally has followed Privacy Act mandates since the enactment of the law, but it was not clear that individuals could sue and recover damages for Privacy Act violations.

The Cummings case surfaced after Gandt released “Bogeys and Bandits: The Making of a Fighter Pilot,” a chronicle made possible after the Navy allowed the author to follow the training of fighter pilots at Cecil Field in Jacksonville, Fla. Gandt, himself a former Navy fighter pilot, writes aviation fiction and nonfiction.

“Bogeys and Bandits” chronicles the lives of several trainees aspiring to fly the Hornet, a $30 million plane described as one of the “fastest, sleekest and deadliest” aircraft in the world. In the book, one of two female trainees dies in a flying accident while carrying out an assignment too difficult for her. The other woman struggles to retain her wings.

Among the book’s few criticisms of the rigorous training process is that the Navy adopted a dangerous double standard for accepting and retaining female trainees in its haste to distance itself from the Tailhook scandals.

Seven months into Cummings’ Hornet training, the Navy convened a Field Naval Aviator Evaluation Board to rate her abilities. The board heard testimony and reviewed the records of four of her training flights and issued a report and recommendation that the Navy terminate her flying status.

Cummings’ commanding officer rejected the recommendation, urging instead that she retain her flight status and be transferred to a different administrative command, a recommendation endorsed by the commander of the Navy’s Atlantic Fleet, who also rejected the findings of the board.

Gandt’s book, in which trainee “Sally Hopkins” faces an unfavorable recommendation, includes some of the actual language in the report on Cummings.

Cummings said the Hopkins character was a transparent disguise of herself, and that Gandt’s publication of specific details and direct quotations from her evaluation severely damaged her military and civilian career prospects. She also claimed the book caused her personal and professional mental distress, embarrassment and humiliation.

Cummings offers her own assessment of her treatment as a trainee in her book, “Hornet’s Nest,” about her 10-year tour with the Navy.

Highly qualified at the outset for her assignment, she is a graduate of the U.S. Naval Academy with a masters of science from the Naval Post-Graduate School. She speaks extensively to veterans’ and women’s groups about her experiences.

Nowhere in the appeals court decision or in the briefs do the courts or the attorneys address the public’s interest in issues raised by both Gandt and Cummings. Neither does it consider an interest in knowing if there is a “double standard” easing the rigorous training requirements so that women can pass.

It also does not consider how the evaluation fits into a public dialogue on the way the Navy perceives women and whether it discriminates against them.

In his book, Gandt raises the question of a “double standard,” referring to the leaked document for support. In her book, Cummings addresses the way women are perceived in the Navy.

Cummings also sued Gandt for defamation in the U.S. District Court in Harrisburg, Pa. The public’s interest might have been a consideration in that case, but the case was settled.

Judge Karen LeCraft Henderson wrote for the D.C. Circuit majority that the Feres Doctrine does not extend to the Privacy Act. Under Feres, the government is not liable under the Federal Tort Claims Act for injuries to servicemen, where the injuries arise during service.

In its 1950 ruling in Feres v. U.S., the U.S. Supreme Court decided that the government was not liable in three cases involving servicemen. In the first, a serviceman died in a barracks fire caused by a faulty heater. The second and third cases involved negligent medical treatment — in one case, surgeons recovered a 30-inch towel accidentally sewed up in the abdomen of a patient.

In each case, the servicemen’s troubles were brought on “incident to service,” the Court said.

The Feres court reasoned that the Federal Torts Claims Act in which Congress allowed citizens to sue the government would not apply to these servicemen. It said private citizens would not have similar claims against the government; that there was a “distinctly federal” relationship between servicemen and the government; and that Congress would not have intended servicemen, already entitled to veterans benefits, to be compensated under two statutory provisions.

Four years later, the Supreme Court offered another reason for military immunity: Because of the “peculiar and special relationship of the soldier to his superiors,” lawsuits could have an effect on discipline. (United States v. Brown)

The appeals panel noted that the Privacy Act specifically applies to military personnel, rejecting the Navy’s argument that this did not mean it specifically authorized liability.

The Privacy Act, like the Federal Torts Claims Act, allows citizens to sue the government. But the panel ruled that unlike the torts claims law, the Privacy Act also allows suit by military personnel. The leak of the evaluation report of a serviceperson, unlike the negligence visited upon servicemen in Feres, makes the government vulnerable to claims for damages, the appeals panel ruled.

In dissent, Judge Stephen Williams said there is no evidence that suits for damages under the Privacy Act would cause any less risk of interference in command relations than suits for tort damages. The Privacy Act can apply to the military without allowing damage suits, he said, and that is what Congress intended.

The appeals panel reversed the Sept. 2000 decision of U.S. District Judge Joyce Hens Green who found that release of the report occurred incident to Cummings’ service and her damage claims would be barred. (Cummings v. Department of the Navy) — RD