Ritchie v. United States

• Decision Date: 24 October 2013
• Docket Number: No. 11–16535.,11–16535.
• Parties: Jonathan RITCHIE, Individually and as the Personal Representative of the Estate of Gregory Ritchie, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

733 F.3d 871

Jonathan RITCHIE, Individually and as the Personal Representative of the Estate of Gregory Ritchie, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 11–16535.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 13, 2013.

Filed Oct. 24, 2013.

Eric A. Seitz (argued), Della Au Belatti, and Ronald N.W. Kim, Honolulu, HI, for Plaintiff–Appellant.

Lowell V. Sturgill Jr. (argued), Appellate Staff Attorney, Civil Division, Department of Justice, Tony West, Assistant Attorney General, Florence T. Nakanuki, United States Attorney, Marleigh D. Dover, Appellate Staff Attorney, Washington, D.C., for Defendant–Appellee.

Appeal from the United States District Court for the District of Hawaii, J. Michael Seabright, District Judge, Presiding. D.C. No. 1: 10–cv–00209–JMS–BMK.

Before: JEROME FARRIS, DOROTHY W. NELSON, and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

NGUYEN, Circuit Judge:

In this appeal, we again confront the much-maligned Feres doctrine, which immunizesthe United States from liability for tort claims arising out of activities incident to military service. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). As with most of our Feres jurisprudence, the claims at issue arise from personal tragedy: the premature birth—and immediate death—of Jonathan Ritchie's infant son, Gregory. Ritchie alleges that officers in the United States Army caused Gregory's death by ordering his pregnant wife, a servicewoman on active duty, to perform physical training in contravention of her doctors' instructions, which ultimately induced premature labor. The district court dismissed the action for lack of subject-matter jurisdiction, holding it was barred by Feres.

The question before us is whether Ritchie's wrongful death claim against the Army falls within the reach of the Feres doctrine. In light of Supreme Court and our own precedent, we regretfully conclude that it does. We therefore affirm.

Background

The facts of this case are straightforward and uncontested. Ritchie's complaint alleges that his wife, January Ritchie, was pregnant with their son Gregory while she was serving as a specialist on active duty with the United States Army. In June 2006, while January was stationed in Missouri, an Army physician created a “pregnancy profile” for her, which imposed a number of restrictions on her activities. Among other things, it indicated that January should not carry and fire weapons, move with “fighting loads,” engage in heavy lifting or physical training (“PT”) testing, or run/walk long distances.

January was subsequently transferred to Fort Shafter, Hawaii. According to the complaint, her supervising officers at Fort Shafter were aware of her pregnancy, but repeatedly disregarded the instructions in her pregnancy profile, forcing her to engage in physical activities such as picking up trash and “battle-focused PT ... even if she did not feel up to it.” Although January protested that she was unable to perform certain tasks due to her pregnancy, her commanding officers ignored her pleas.

On August 7, 2006, January was forced to undergo an emergency cerclage procedure in an effort to prevent premature birth. Following this procedure, January's doctors specifically informed Army personnel that due to her “high risk” condition, she would be unable to perform her normal work duties for the remainder of her pregnancy. Her commanding officers, however, continued to disregard her doctor's instructions that she remain at “relative rest.” On August 26, 2006, the Ritchies' son Gregory was born prematurely. He died approximately thirty minutes after birth.

Following the denial of administrative claims, Jonathan Ritchie filed this action in district court on behalf of himself and Gregory's estate, asserting claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), for loss of consortium and wrongful death. The district court subsequently dismissed the action for lack of subject matter jurisdiction, reasoning that Ritchie's claims were barred under Feres.¹ Ritchie timely appealed.

Standard of Review

We review de novo a district court's determination that it lacked subject-matter jurisdiction. Atkinson v. United States, 825 F.2d 202, 204 (9th Cir.1987). Further, we “review independently the question whether the Feres doctrine is applicable to the facts reflected in the record.” Persons v. United States, 925 F.2d 292, 294 (9th Cir.1991) (citation and internal quotation marks omitted).

Discussion

I.

The FTCA waives the federal government's sovereign immunity, rendering the United States liable “in the same manner and to the same extent as a private individual under like circumstances....” 28 U.S.C. § 2674; see also28 U.S.C. § 1346(b)(1). In 1950, however, the Supreme Court carved out a judicial exception to the FTCA, holding in Feres v. United States that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950). It subsequently extended this principle—known informally as the “Feres doctrine”—in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), to bar third-party claims which derive directly or indirectly from injuries to service members incident to military duty. See id. at 673, 97 S.Ct. 2054 (“where the case concerns an injury sustained by a soldier while on duty, the effect of the action upon military discipline is identical whether the suit is brought by the soldier directly or by a third party”).

The Feres doctrine is rooted in three policy rationales:

(1) the distinctively federal nature of the relationship between the government and members of its armed forces, which argues against subjecting the government 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.

Id. at 671–72, 97 S.Ct. 2054;Persons v. United States, 925 F.2d 292, 294–95 (9th Cir.1991). For the past sixty-three years, the Feres doctrine has been criticized by “countless courts and commentators” across the jurisprudential spectrum. Id. at 295;see also United States v. Johnson, 481 U.S. 681, 700, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting) (“Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”) (citation omitted); Costo v. United States, 248 F.3d 863, 875 (9th Cir.2001) (“The articulated ‘rational bases' for the Feres doctrine lead in this case, as in many cases, to inconsistent results that have no relation to the original purpose of Feres.”). However, neither Congress nor the Supreme Court has seen fit to reverse course.

II.

A.

Although the Supreme Court has offered inconsistent guidance about how Feres should be applied, compare United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (holding that the third rationale should be considered “controlling”), with Johnson, 481 U.S. at 689–91, 107 S.Ct. 2063 (reaffirming all three rationales), we have consistently emphasized the third rationale: “[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty....' ” Stencel, 431 U.S. at 671–72, 97 S.Ct. 2054 (citations omitted); see Costo, 248 F.3d at 866 (“[T]he danger to discipline ... has been identified as the best explanation for Feres.”); Atkinson v. United States, 825 F.2d 202, 204 (9th Cir.1987) (indicating that the military discipline rationale is “determinative”); Monaco v. United States, 661 F.2d 129, 132 (9th Cir.1981) (“[T]he protection of military discipline ... serves largely if not exclusively as the predicate for the Feres doctrine”); cf. Persons, 925 F.2d at 295 (observing that our Feres “jurisprudence has been guided by an increasing sense of awe for things military”).

When considering whether claims by relatives of military personnel are barred by Feres, we employ a “genesis test,” asking whether the family member's FTCA claim has its “genesis in injuries to members of the armed forces.” Grosinsky v. United States, 947 F.2d 417, 418 (9th Cir.1991) (citations omitted). The test originated in Monaco v. United States, 661 F.2d 129 (9th Cir.1981), in which the daughter of a serviceman, Denise Monaco, sued to recover damages under the FTCA for birth defects caused by her father's unwitting exposure to atomic radiation during World War II. ²Id. at 133–34. In holding that her claim was barred under Feres, we reasoned:

Denise's case differs from Stencel in that she seeks relief for an injury to herself rather than indemnity for losses due to injury to her father, but this does not change the substantive analysis: the court still must examine the Government's activity in relation to military personnel on active duty. It is precisely this type of examination the Feres doctrine seeks to avoid.

Id. at 134 (emphasis added).

Similarly, in Persons, we held that the widow and child of serviceman Kelly Persons, who committed suicide while off-duty after having been released from a naval hospital, could not sue the hospital for failing to warn them of Kelly's condition and for loss of consortium. 925 F.2d at 295–97. Relying on Monaco, we concluded that these claims “must be viewed as ‘derivative’ claims, having their genesis in Kelly's service-related death.” Id. at 297 (citations omitted).³ And in Grosinsky v. United States, 947 F.2d 417 (9th Cir.1991), we dismissed under Feres the claim of a military wife who alleged that an Army surgeon's negligently-performed vasectomy on her serviceman...