Atkinson v. U.S., 85-2200

Decision Date14 November 1986
Docket NumberNo. 85-2200,85-2200
Citation804 F.2d 561
PartiesJoyce ATKINSON, Plaintiff/Appellant, v. UNITED STATES of America, Defendant/Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Allan S. Haley, Nevada City, Cal., for plaintiff/appellant.

Mark J. Bennett, Asst. U.S. Atty., Honolulu, Hawaii, for defendant/appellee.

Appeal from the United States District Court for the District of Hawaii.

Before NELSON, CANBY and NOONAN, Circuit Judges.

NELSON, Circuit Judge:

Plaintiff-appellant Joyce Atkinson appeals from the district court's grant of summary judgment to the defendant-appellee United States. Atkinson argues that the court erred in finding the United States immune from liability under the Federal Tort Claims Act for malpractice incident to pre-natal care she received from military personnel. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982), and we reverse.

FACTUAL AND PROCEDURAL HISTORY

In March 1982, Joyce Atkinson was serving as a Specialist (4th Class) with the United States Army in Hawaii. On March Atkinson filed a malpractice suit against the government under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2674 (1982), alleging that she "suffered great pain of body and mind and sustained serious and permanent bodily injuries as a result of the negligence of defendant's agents, employees and/or representatives in failing to properly diagnose her condition and hospitalize, treat, monitor and care for her." The United States filed a motion to dismiss for failure to state a claim upon which relief may be granted, for judgment on the pleadings, and for summary judgment. The district court, finding that Atkinson was injured in the course of activity incident to service, held that the United States was immune from malpractice liability. Thus, the district judge granted the motion for summary judgment in a judgment filed April 23, 1985, from which Atkinson filed this timely appeal. 1

26, during the second trimester of her pregnancy, she reported to Tripler Army Medical Center ("Tripler"), complaining of blurred vision, hypertension and edema. The staff at Tripler did not treat her, and told her to go home. Three days later, Atkinson returned to Tripler, complaining of dizziness, nausea and hypertension. Again, the Tripler staff merely told her to go home. Two weeks later, Atkinson returned to Tripler complaining of severe abdominal pain and hypertension. Finally, she was hospitalized for pre-eclampsia, a condition occurring in pregnancy which is life-threatening to both mother and fetus because of associated kidney failure, high blood pressure, stroke and premature birth. She claims that as a result of this negligent medical treatment, she delivered a stillborn child and suffered physical and emotional injuries of her own.

STANDARD OF REVIEW

Determination of the district court's subject matter jurisdiction is a question of law reviewable de novo on appeal. Redding Ford v. California State Board of Equalization, 722 F.2d 496, 497 (9th Cir.1983), 469 U.S. 817, cert. denied, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984).

DISCUSSION

The FTCA, passed by Congress in 1946, represents the culmination of a long effort to mitigate the unjust consequences of the common law sovereign immunity doctrine which protected the United States from tort liability. Feres v. United States, 340 U.S. 135, 139, 71 S.Ct. 153, 156, 95 L.Ed. 152 (1950). Reacting against the notion that the sovereign could do no wrong, Congress provided in the FTCA that the United States is liable in tort "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. Sec. 2674 (1982). Congress did not exclude military personnel from FTCA coverage. The statute "provide[s] for District Court jurisdiction over any claim founded on negligence brought against the United States.... '[A]ny claim' [does not] mean[ ] 'any claim but that of servicemen.' " Brooks v. United States, 337 U.S. 49, 51, 69 S.Ct. 918, 919, 93 L.Ed. 1200 (1949) (emphasis in original).

Despite this "sweeping" legislatively-established waiver of immunity, United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95 L.Ed. 523 (1951), in Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950), the Supreme Court created a judicial exception to Congress's general rule of governmental liability. As originally formulated, this exception, informally known as the Feres doctrine, immunized the Government from liability under the FTCA "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. at 159. The three concerns later identified as the foundation for this doctrine were: (1) the distinctively federal nature of the relationship between the Government and members of its armed forces; (2) the availability of alternative compensation systems; and (3) the fear of damaging the military disciplinary structure. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977).

It now is clear, however, that the third concern of the three listed above is determinative:

"[T]he protection of military discipline ... serves largely if not exclusively as the predicate for the Feres doctrine. Although the [Supreme] Court has woven a tangled web in its discussion of the 'distinctly federal' notion and of the alternative compensation system, it has not wavered on the importance of maintaining discipline within the armed forces. The Court has found it unseemly to have military personnel, injured incident to their service, asserting claims that question the propriety of decisions or conduct by fellow members of the military. Only this factor can truly explain the Feres doctrine and the crucial line it draws...."

Monaco v. United States, 661 F.2d 129, 132 (9th Cir.1981) (quoting Hunt v. United States, 636 F.2d 580, 599 (D.C.Cir.1980)), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). See also Johnson v. United States, 704 F.2d 1431, 1436 (9th Cir.1983) (safeguarding military discipline is fundamental rationale for immunity). Indeed, in its latest word on the Feres doctrine, the Supreme Court confirmed that the overriding concerns of the doctrine are with the effect of a tort suit in the second-guessing of military decisions or in the impairment of military discipline. Shearer v. United States, 473 U.S. 52, ----, 105 S.Ct. 3039, 3043, 87 L.Ed.2d 38 (1985). The Court specifically stated that the other factors enumerated in Feres no longer are controlling. Id. at 105 S.Ct. at 3043 n. 4. Thus, the Feres doctrine bars suit only where a civilian court would be called upon to second-guess military decisions or where the plaintiff's admitted activities are of the sort that would directly implicate the need to safeguard military discipline. See Johnson, 704 F.2d at 1436.

In Shearer, the Supreme Court also confirmed that courts should take a case-by-case, rather than per se, approach to claims of immunity. "The Feres doctrine cannot be reduced to a few bright-line rules; each case must be examined in light of the statute as it has been construed in Feres and subsequent cases." 105 S.Ct. at 3043. Because Shearer makes clear that the paramount concern is with military decisions or discipline, in each case, we must determine the effect of a particular suit on military decisions or discipline. See Johnson, 704 F.2d at 1436 (in each case we must determine whether interests protected by Feres doctrine are implicated). "[W]here there is no relevant relationship between the service member's behavior and the military interests that might be jeopardized by civil suits, the Feres doctrine cannot bar recovery." Id. at 1440. See also Stanley v. United States, 786 F.2d 1490, 1499 (11th Cir.1986) (Shearer requires case-by-case analysis of whether barring claim serves purposes of Feres doctrine); Bozeman v. United States, 780 F.2d 198, 201 (2d Cir.1985) (Shearer rejects bright-line tests and requires that each case be analyzed for applicability of Feres doctrine).

In light of the Supreme Court's unequivocal instruction to look at each case independently, we reject prior decisions to the extent they establish a per se rule prohibiting the medical malpractice claims of military personnel. In Henninger v. United States, 473 F.2d 814, 815 (9th Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973), we held that Feres barred a military plaintiff's malpractice claim, which was based upon the negligent performance of an elective procedure, because it would be too difficult to determine "the effect that a particular type of suit would have upon military discipline...." We reasoned that "[t]his is a classic situation where the drawing of a clear line is more important than being able to justify in every conceivable case, the exact point at which it is drawn." Id. at 816. Similarly, in Veillette v. United States, 615 F.2d 505, 507 (9th Cir.1980), we refused to determine the effect of a particular malpractice suit on military discipline and morale, relying instead on the conclusory statement that "allegations of medical malpractice ... have consistently been held to fall within the bounds of the [Feres ] doctrine when the plaintiff was a serviceman on active duty at the time of the alleged malpractice." In light of Shearer's command to the contrary, the per se approach exhibited in Henninger and Veilette is improper. Thus, we are not bound by those cases, or any others applying a per se rule, to hold that Feres bars Atkinson's suit for negligent care received incident to her pregnancy.

Given Shearer 's command that in each case we determine the effect of a suit on military decisions or discipline, we cannot rely on any particular factor or factors as a "substitute for analysis" of whether the suit would threaten military...

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