Eric Juergens

Document Type




This Note contends that Uhl and Cummings are actually in harmony, and therefore, the Feres doctrine should apply to bar some claims under the Privacy Act, but not others. Claims by military personnel under the Privacy Act should be barred when the records are released solely within the military structure because the release is truly “incident to service” and invokes the rationales of the Feres doctrine. In cases where the military releases a serviceperson’s records to persons outside the military, however, the rationales of Feres are not applicable and should not bar recovery. Part I explores the background of the Feres doctrine and its progeny and discusses the Privacy Act in general. Part II highlights the two circuit court decisions, Uhl v. Swanstrom and Cummings v. Department of the Navy and their apparent conflict. This Part also analyzes the rationales that underlie the doctrine and the normative arguments for and against the continued use of the doctrine and its expansion to Privacy Act claims. Part III proposes that the Supreme Court consider a new test. First, the Court should look at whether the release of records occurs incident to service and should focus on the recipient of the released information. If the information protected by the Privacy Act was released within the military command structure, and thus subject to the rules and regulations of the military, the claims should be barred. But, if the release is made to an outside civilian party, then the claims should be allowed. This approach would protect military discipline and decision-making while still giving plaintiffs a remedy in appropriate cases.



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