Metropolitan News-Enterprise


Friday, October 25, 2013


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Court Rejects Claim U.S. to Blame for Death of Soldier’s Son

Panel Majority Criticizes Feres Doctrine, but Says It Is Controlling and Bars Suit by Child’s Father




The federal government’s immunity from suits for inter-military torts bar’s a father’s claim that his newborn child died because of the Army’s mistreatment of the plaintiff’s soldier wife, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

All three members of the panel agreed that Jonathan Ritchie’s claim for the death of his son, Gregory, is barred by the Feres doctrine. Two of the judges, however, joined the longstanding criticism of the doctrine by judges, legal scholars, and members of Congress, while saying they were nonetheless bound by the rule they found iniquitous.

Ritchie alleged in his complaint that his wife, January Ritchie, was pregnant with their son while she was serving on active duty, and that her Army physician created a “pregnancy profile” for her in June 2006. The profile indicated that she should not carry or fire weapons, move with “fighting loads,” engage in heavy lifting or physical training—PT, in military parlance—or run or walk long distances.

After she was transferred to Hawaii later that year, however, those directions were ignored, her husband alleged, even though her superiors were aware of her condition, and even though she had to undergo a cerclage procedure to prevent premature birth. She was, according to the complaint, forced to pick up trash and engage in “battle-focused PT . . . even if she did not feel up to it,” and her complaints that her ability to perform her tasks due to the pregnancy were ignored.

She gave birth prematurely in August 2006, and her son died about 30 minutes later. Her husband exhausted administrative remedies, then sued—in his personal capacity and on behalf of his son’s estate—under the Federal Tort Claims Act.

Suit Dismissed

U.S. District Judge J. Michael Seabright of the District of Hawaii granted the government’s motion to dismiss, based on Feres v. United States, 340 U.S. 135 (1950). The case holds that the government is not liable for torts suffered by members of the military if they arise from military activities, and the doctrine has been expanded to bar claims by third parties where the immediate injury was to a service member.

Critics, she noted, include Supreme Court Justice Antonin Scalia, who wrote in a dissenting opinion that “Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.”

In determining whether a claim by a service member’s relative is service-related and therefore barred by the expanded doctrine, Nguyen explained, the Ninth Circuit employs a “genesis test”—if the injury arises out of the relationship between the service member and the government, the claim is barred.

Earlier Cases

Thus, the judge noted, the court rejected a claim for birth defects caused by the plaintiff’s father’s unwitting exposure to atomic radiation while serving in World War II;  a claim by the family of a sailor who committed suicide while off-duty after having been released from a naval hospital, alleging the hospital failed to warn them of his condition; and the claim of a military wife who alleged that an Army surgeon’s negligently-performed vasectomy on her husband resulted in an unanticipated child.

The rationale of those cases applies equally to Ritchie’s case, Nguyen said, writing:

“Ritchie alleges that military personnel at Fort Shafter caused Gregory’s death by ordering January to engage in military duties against her doctor’s recommendations. That Gregory’s injury derived from January’s military service is, in other words, the core theory of his case. If adjudication of a claim involving an Army trainee’s exposure to radiation on a football field in Chicago would improperly require judicial examination of the Army’s activity in relation to military personnel…a claim challenging military orders given to a servicewoman on active duty likewise cannot escape Feres.”

Nguyen agreed with the plaintiff that holding the government liable for the conduct at issue would not harm the military. “After all, we are talking about orders commanding a pregnant woman to engage in physical activities such as picking up trash on a military base, not combat command decisions made in the heat of battle,” she said, but acknowledged this was “a call we are not free to make” because the court is bound by the prior cases’ application of the genesis test.

Concurring Opinion

Senior Judge Dorothy W. Nelson concurred in the opinion, but also wrote separately—in an opinion joined by Nguyen—to elaborate on the “questionable validity” of the doctrine.

Saying the alleged treatment of January Ritchie violated military regulations, and that there is no reason for courts to shield the government from accountability for such violations, Nelson wrote:

“The right a pregnant woman has to serve means little if her service requires she put her fetus’s health and well-being at risk. In refusing to recognize Ritchie’s tort claims, we are continuing the legal fiction that these alleged wrongs are part of the military’s discipline structure. To hold that these kinds of tortious acts against a pregnant servicewoman are per se judicially unreviewable because they are part of the military mission is to practice willful blindness at the expense of a woman’s livelihood and the life of her unborn child. I am resigned that the unfortunate cases applying the Feres doctrine dictate such an outcome, but I sincerely doubt that the conduct alleged here—orders contravening military regulations intended to protect pregnant servicewomen—warrant judicial deference of any kind.”

Senior Judge Joseph Farris concurred in the result and did not join in the discussion of the doctrine.

The case is Ritchie v. United States, 11-16535.


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