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U.S. Navy may be liable for its revelations to author

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    NMU         D.C. CIRCUIT         Freedom of Information         Feb 19, 2002    

U.S. Navy may be liable for its revelations to author

  • Navy openness with an author of a book on fighter pilots may have violated a former pilot’s rights, said a federal appellate court panel in ruling that military personnel may bring suit under the federal Privacy Act.

A former pilot can bring a federal Privacy Act claim against the U.S. Navy for giving an evaluation board’s negative report on her flying skills to the author of a book on training fighter pilots, according to a divided panel of the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.)

Mary Louise Cummings filed the lawsuit after Robert Gandt published “Bogeys and Bandits: Making of a Fighter Pilot” in 1997. The Navy allowed Gandt to observe training in Jacksonville, Fla., for the Strike Fighter Attack aircraft commonly known as the “Hornet.” Cummings said that “Sally Hopkins,” a character in Gandt’s book, resembled her in recognizable detail and that the book included quotes from her own board evaluation which she said should not have been available to him.

The appeals panel on Feb. 15 reversed the finding of a district court which said the U.S. Supreme Court decision in Feres v. United States in 1950 prohibits service personnel from bringing lawsuits against the government for injuries sustained during active duty. The district court had found that the Navy’s policy of openness toward the author was incidental to service.

Two members of the appeals panel said the Feres doctrine does not extend to the Privacy Act and that military people are entitled to sue for violations of the act. A dissenting judge said the decision to set aside the Feres doctrine and allow Privacy Act suits by military personnel should be made by the Supreme Court.

Neither the appeals court nor the district court considered whether the public has any interest in knowing how pilots are trained by the Navy and in learning whether Navy aviators who receive negative evaluations are still allowed to fly.

The district court will now decide if the Navy violated Cummings’ rights under the Privacy Act and if she is entitled to damages.

In 1994, an evaluation board convened to assess Cummings’ flying skills and potential and recommended that her flying status be terminated. However, Vice Admiral Richard Allen, commander of the Navy’s Atlantic Fleet, directed that she resume Hornet training under the same administrative command.

Cummings, who is a graduate of the U.S. Naval Academy and holds a master of science degree from the Naval Post-Graduate School, has written her own book, “Hornet’s Nest,” describing her experiences as one of the Navy’s first female fighter pilots. In it, she says that her tour of duty was marred by discrimination and sabotage.

(Cummings v. Department of the Navy) RD

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