Persons v. U.S.

Decision Date30 January 1991
Docket NumberNo. 89-55387,89-55387
Citation925 F.2d 292
PartiesRobin E. PERSONS; Estate of Kelly Persons; and Timothy Persons, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas J. Massey, Massey & Feldman, San Diego, Cal., for plaintiffs-appellants.

John F. Cordes and Lowell V. Sturgill, Jr., U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of California.

Before NELSON and REINHARDT, Circuit Judges, and SINGLETON, * District Judge.

D.W. NELSON, Circuit Judge:


Robin E. Persons and her four-year-old son Timothy appeal from the entry of a judgment dismissing their action against Balboa Naval Hospital and the United States Navy. The complaint alleges that as a result of the hospital's negligence, Petty Officer Kelly Persons (Robin's husband and Timothy's father) committed suicide. Appellants seek damages for the serviceman's wrongful death and for the Navy's alleged negligent failure both to warn them of Kelly Persons' condition and to provide them with adequate counseling. The district court entered a judgment dismissing the action for lack of subject-matter jurisdiction under the Feres doctrine. Appellants then filed this timely appeal. In what has now become a well trodden tradition, we reluctantly affirm the district court's disposition as to the wrongful death claim and the failure to warn. However, we reverse and remand with respect to the claim arising from the hospital's failure to provide adequate counseling.


The facts in this case are essentially uncontested. 1 In September 1987 Kelly Persons, a petty officer in the United States Navy, presented himself to the Balboa Naval Hospital's emergency room. His seven deep slash marks on each of his wrists bore witness to his deeply distressed emotional state and attested to his attempted suicide. Appellants claim that despite these clear symptoms, the physicians and staff members at the hospital failed to provide him with adequate counseling or treatment. After a few hours, and without being admitted to the hospital for observation, he was released. Some three months later, on December 23, 1987, Kelly Persons committed suicide.

He was survived by his wife, Robin Persons, and a four-year old son, Timothy. According to appellants, neither of them received any warning regarding Kelly's state prior to his suicide. Nor did they receive any psychological counseling after his attempted suicide or his actual one.

Appellants argue that the Navy has a legal obligation to provide free and adequate medical care both to its servicemembers and to their dependents. They claim that the Hospital's failure to warn or to provide adequate treatment resulted in Kelly Persons' suicide and in their own irreparable harm and mental anguish.

Appellants filed a malpractice and wrongful death suit against Balboa Naval Hospital and the United States Navy under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2671 et seq. 2 The United States filed a motion to dismiss for lack of subject-matter jurisdiction. On April 13, 1989, the district court granted the Government's motion on the ground that the Feres doctrine, Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), immunized the United States from claims arising out of activity incident to service. In reaching its decision, the district court relied on two Ninth Circuit precedents, Atkinson v. United States, 825 F.2d 202 (9th Cir.1987), cert. denied, 485 U.S. 987, 108 S.Ct. 1288, 99 L.Ed.2d 499 (1988), and Monaco v. United States, 661 F.2d 129 (9th Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). Appellants filed a timely appeal on April 13, 1989.

a. Standard of Review

Determination of the district court's subject-matter jurisdiction is a question of law reviewed de novo. Atkinson, 825 F.2d at 204. In particular, this court must "review independently the question whether the Feres doctrine is applicable to the facts reflected in the record." McGowan v. Scoggins, 890 F.2d 128, 129 (9th Cir.1989).

b. Application of the Feres doctrine to the medical malpractice claim

The FTCA waives traditional sovereign immunity for the tortious conduct of any Government employee. The Act renders the Government 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. Although the FTCA does not on its face exempt military personnel, Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), the Supreme Court has carved out an exception for "injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146, 71 S.Ct. at 159. As Feres and subsequent cases suggest, the rationales for this doctrine are:

(1) the distinctively federal nature of the relationship between the government and members of its armed forces, which argues against subjecting the government Atkinson, 825 F.2d at 204 (citing Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665 (1977)). See also United States v. Johnson, 481 U.S. 681, 689, 107 S.Ct. 2063, 2068, 95 L.Ed.2d 648 (1987). 3

to liability based on the fortuity of the situs of the injury; (2) the availability of alternative compensation systems; and (3) the fear of damaging the military disciplinary structure.

Aside from expressing a general distaste for the Feres doctrine (shared, one might add, by countless courts and commentators), appellants seek to distinguish this case from relevant precedent by arguing that Kelly "was at liberty at the time of the incident." In addition, they contend that regardless of Feres ' overall validity, it has no place in the medical malpractice field. 4 Because Feres is concerned above all with questions of military discipline, they argue, it should not apply to the "personal" medical needs of an "off-duty" sailor. Military considerations per se do not enter every minute treatment decision by the Naval hospital; therefore, appellants contend, Feres is inapposite.

As for fears concerning the lawsuit's impact on military discipline, appellants note that the Department of Defense prohibits its personnel from offering expert testimony concerning official information. In short, they reason that there is no justification whatsoever for importing Feres into this arena.

Alas, the doctrine has been imported long ago, and over similar objections. It is true that over the years, confusion has spread over its intricacies. See Monaco, 661 F.2d at 132 (stating that "the basis for the exception has recently become the subject of some confusion"). Thus, the notion of "incident to service" is a repository of ambiguity, see Millang v. United States, 817 F.2d 533, 535 (9th Cir.1987) (per curiam) (evoking the "somewhat elusive 'incident to service' standard"), cert. denied, 485 U.S. 987, 108 S.Ct. 1290, 99 L.Ed.2d 500 (1988), and it is entirely unclear which of the doctrine's original justifications survive. Compare United States v. Shearer, 473 U.S. 52, 58 n. 4, 105 S.Ct. 3039, 3043 n. 4, 87 L.Ed.2d 38 (1985) (characterizing the geographic uniformity and alternative benefits rationales as "no longer controlling") and Monaco, 661 F.2d at 132 (stating that "the protection of military discipline ... serves largely if not exclusively as the predicate for the Feres doctrine") with United States v. Johnson, 481 U.S. 681, 686-91, 107 S.Ct. 2063, 2066-69, 95 L.Ed.2d 648 (1987) (approvingly mentioning the three rationales associated with the Feres doctrine).

For all the complexity of the evolution of the doctrine, however, what is not unclear and escapes all current confusion is its overall trend. From Brooks, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 the first Supreme Court case addressing an FTCA suit brought by a service person, to United States v. Johnson, supra, jurisprudence has been guided by an increasing sense of awe for things military. As a result, practically any suit that "implicates the military judgments and decisions," id. 481 U.S. at 691, 107 S.Ct. at 2069, runs the risk of colliding with Feres. See also Stencel, 431 U.S. 666, 674, 97 S.Ct. 2054, 2059, 52 L.Ed.2d 665 (Marshall, J., dissenting) (criticizing the premise that "in any case involving a member of the military on active duty Feres ... displaces the plain language of the Tort Claims Act."). 5

In view of these circumstances, appellants' first claim must necessarily fail. Although he was off-duty, Kelly Persons enjoyed the use of the naval hospital "solely by virtue of his status as a serviceman," Millang, 817 F.2d at 535, and the doctors who treated him were subject to military orders. 6 Courts have consistently accorded these factors decisive weight in determining whether activity was "incident to service." In Millang, an off-duty officer was run over by a military police vehicle while attending a picnic. The court found that the accident "arose out of activity incident to service" because use of the picnic area hinged on Millang's military status and because the vehicle's driver was an officer subject to military command. Id. at 534-35. See also Bon v. United States, 802 F.2d 1092, 1095 (9th Cir.1986) (noting that "use of the Special Services Center [where the accident originated] was restricted to members of the military"). 7 This is especially true in cases alleging medical malpractice in a military facility. In this Circuit, Atkinson, 825 F.2d 202 (barring suit by servicewoman alleging that negligent medical treatment caused her child to be stillborn), and Veillette v. United States, 615 F.2d 505 (9th Cir.1980) (wrongful death suit on behalf of serviceman for alleged negligence by employees of naval hospital barred, even though...

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