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Ritchie v U.S.

Case No. 11-16535 (C.A. 9, Oct. 24, 2013)

In this appeal, we again confront the much-maligned Feres doctrine, which immunizes the United States from liability for tort claims arising out of activities incident to military service. Feres v. United States, 340 U.S. 135 (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.
 

 

Judge(s): Jacqueline H. Nguyen
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Government / Politics , Torts
 
Circuit Court Judge(s)
Jerome Farris
Dorothy Nelson
Jacqueline Nguyen

 
Trial Court Judge(s)
Michael Seabright

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Della Belatti
Ronald Kim
Eric Seitz

 
Defendant Lawyer(s) Defendant Law Firm(s)
Marleigh Dover U.S. Department of Justice
Florence Nakanuki U.S. Department of Justice
Lowell Sturgill Jr. U.S. Department of Justice
Tony West U.S. Department of Justice

 

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Click the maroon box above for a formatted PDF of the decision.
of awe for things military”). exercise and other duties against the advice of her physician ritchie v. united states 19 action for lack of subject-matter jurisdiction, holding it was employed by other circuits, did not apply. alleged that an army surgeon’s negligently-performed considered a part of the military mission. stanley, 483 u.s. and in unfairness and irrationality that [feres] has bred,” johnson, of the military mission.” united states v. johnson, 481 u.s. (invalidating on constitutional grounds the marine corps’ 2006); lewis v. united states, 173 f. supp. 2d 52, 56–57 hawaii. according to the complaint, her supervising officers jurisdictional requirement.”). of health would have been the same whether the physician feres doctrine, which immunizes the united states from ritchie v. united states 9 ritchie v. united states4 pregnancy, the soldier must be provided a 15-minute rest follow its own policies regulating the treatment of pregnant 987 f.2d 1365, 1369–70 (8th cir. 1993); romero v. united feres.”); atkinson v. united states, 825 f.2d 202, 204 (9th active duty likewise cannot escape feres. and, if a claim for states v. shearer, 473 u.s. 52, 57 (1985) (holding that the rationale of feres in a far more immediate sense than cases opinion by judge nguyen; distances. in this appeal, we again confront the much-maligned relying on monaco, we concluded that these claims “must be 290 f. supp. 2d 1 (d.d.c. 2003); mossow v. united states, negligence with respect to kelly persons. see persons, 295 f.2d at 298 from this circuit, e.g., monaco, 661 f.2d at 134; persons, soldier to his superiors, the effects of the maintenance of such service-related death.” id. at 297 (citations omitted).3 ritchie filed this action in district court on behalf of himself that under the court’s own precedent, concerning claims by accord cole v. united states, 755 f.2d 873, 878 (11th cir. not matter if military officers are questioned by counsel for no. 11-16535 case concerns an injury sustained by a soldier while on duty, in contrast to the genesis test applied in our circuit, the were filed after the two-year period set out in 28 u.s.c. § 2401(b). see death claim against the army falls within the reach of the although january protested that she was unable to perform premature birth. following this procedure, january’s doctors costo v. united states, 248 f.3d 863, 869 (9th cir. 2001) (holding that subordinate’s refusal to carry out an order. yet, this does not caused gregory’s death by ordering january to engage in of january’s doctor, richie is alleging that the army failed to the underlying facts of monaco are compelling: during world war ii, relief”). 207 (9th cir. 1987) (noonan, j., concurring), none justify departing from 681, 691 (1987). though, i would note this reasoning is not bar of feres supported by the text of the ftca, which court carved out a judicial exception to the ftca, holding in united states of america, though we hinge our rejection of ritchie’s claims, in part, on webb, 839 f.2d 1357, 1360 (9th cir. 1988) (“indeed, courts merely that denise’s genetic injury derived entirely from under the federal tort claims act for injuries to servicemen dismissed under feres the claim of a military wife who e.g., brown v. united states, 462 f.3d 609, 616 (6th cir. ritchie v. united states 15 feres doctrine barred plaintiff’s wrongful death claim. the under feres.1 principled basis for distinguishing these cases, we must apply which has been criticized so stridently, byso manyjurists, for disregarded the instructions in her pregnancy profile, forcing ritchie v. united states 17 doctrine has been criticized by “countless courts and party, he reasons, officers would be questioned in court only opinion another circuit’s test for our own.7 independently the question whether the feres doctrine is loss of an otherwise healthy pregnancy.” mayo clinic, available at regulations and procedures. this case in particular highlights her supervisors into court. since january is not a named rationales), we have consistently emphasized the third challenging the military’s failure to follow its own mandatory gregory’s injury derived from january’s military service is, pregnant with their son gregory while she was serving as a the claimants alleged that an infant’s cerebral palsy was id. at 671–72; persons v. united states, 925 f.2d 292, 294–95 v. of course, at some level, these alleged wrongful orders circuits, a civilian fetus’s claim may only escape feres if its jonathan ritchie, individually and relatives of military personnel under the “genesis test,” the what mattered to the panel in monaco, however, was not servicewoman on active duty, to perform physical training in estate—either way, adjudication of the claim would “involve consortium and wrongful death. the district court johnson, 481 u.s. at 692 (scalia, j., dissenting) (“the a medical aspect to this case, ritchie’s claim is markedly which derive directly or indirectly from injuries to service fire weapons, move with “fighting loads,” engage in heavy stanley, 483 u.s. at 690 (brennan, j., dissenting) (“an 699 (scalia, j., dissenting) (“i do not think the effect upon periods, adding additional restrictions as the gestation period decisions made in the heat of battle. cf. johnson, 481 u.s. at exercise at the school’s football field. id. at 130. unbeknownst to him, challenging orders given by january’s military supervisors, regulations restricting their duty to medically-set limits, but indemnity for losses due to injury to her cir. 1987) (indicating that the military discipline rationale is servicewomanmothersufferednoinjuryfrom thepurportedly consider ritchie’s factual allegations. the complaint on august 7, 2006, january was forced to undergo an original purpose of feres.”). however, neither congress nor united states, 431 u.s. 666 (1977), to bar third-party claims the decisions are “inextricably intertwined with the conduct for publication contortions from our sister circuits, e.g., romero, 954 f.2d at forced to perform physical tasks which caused her against subjecting the government to liability female soldiers as required byar 600-8-24 or ar 635-200”; servicewomanmothertodiscontinuetakingprenatalvitamins action brought against the united states. here. ritchie alleges that military personnel at fort shafter standards and its own representations. yet, here, our feres the facts of this casearestraightforwardanduncontested. see, e.g., grosinksy, 2 the military exclusion from the ftca.”) (citation omitted). feres barred claims brought by the estates of sailors who drowned during i. a pregnant woman to engage in physical activities such as avoid examining acts of military personnel which were human experience. acts caused injury only to the civilian fetus, or whether both the “feres doctrine”—in stencel aero engineering corp. v. 873 (fed. cir. 1993); see also watkins v. u.s. army, 875 f.2d crawford v. cushman, 531 f.2d 1114 (2d cir. 1976) pregnant women did not always have the right to serve in ritchie v. united states 3 that this case centers on orders given by a military supervisor asking whether the family member’s ftca claim has its ritchie v. united states16 claims act (“ftca”), 28 u.s.c. § 1346(b), for loss of doctrine dooms any claims for compensation for the harms clear: we have “consistently” barred claims under feres “to compensation to servicemembers under the federal tort analysis is governed by monaco and persons. absent a the statute before us.”). on the other hand, however, given states, 833 f.2d 282 (11th cir. 1987). he maintains that the in any event, we are not free to make this judgment call. in any event, given the facts of this case, it is unlikely that standard of review contravention of its own regulations and procedures. see ritchie’s wrongful death claim implicates feres’s concern “determinative”);monacov.unitedstates,661f.2d129,132 even if ritchie could distinguish monaco on the grounds that it risk” condition, she would be unable to perform her normal members—remedies for otherwise judicially-cognizable doctor’s instructions that she remain at “relative rest.” on members incident to military duty. see id. at 673 (“where the her to engage in physical activities such as picking up trash second-guessing military orders, and would [ ] require concurrence by judge farris; ritchie v. united states 21 addition to giving monaco colon cancer, the exposure to atomic radiation 7 tort claims which have their genesis in injuries a instances, we have held the military accountable to its own perhaps recognizingthis, ritchie asserts thatadjudication internal quotation marks omitted). involved a genetic injury, that still would not get him past persons or 287 u.s. 378, 401 (1932) (“what are the allowable limits of judgments and decisions,’ runs the risk of colliding with active duty.”4 seeks relief for an injury to herself rather than a class of victims—servicewomen and their families—based affirm. operation. after all, we are talking about orders commanding inflexible and absolute bar as necessary to prevent “the type similarly, in persons, we held that the widow and child decision-making and instead involves the military’s states, 248 f.3d 863, 875 (9th cir. 2001) (“the articulated she gave birth. to hold that january was not injured at all, as when considering whether claims by relatives of military unwitting exposure to atomic radiation during world war ii.2 monroe, 282 f.3d 1068, 1072 (9th cir. 2002). moreover, the on gregory’s behalf. this argument misses the point. it does already injured; for these victims, it is damages or nothing.”) ritchie urges us to do, requires eschewingcommon sense and armed services.” monaco, 661 f.2d at 134; persons, 925 at requirement broadly in non-third party cases applying feres. see, e.g., ritchie’s tort claims, we are continuing the legal fiction that at issue here are military orders given by military supervisors not bar the ftca claim of melody brown, a child born with military duties against her doctor’s recommendations. that ritchie v. united states 11 holding) that congress did not mean what it plainly said in by justices brennan, marshall, and stevens), johnson, farris, circuit judge, concurring: remedy the injuries here—january’s preterm labor and the decisions of prior three-judge panels could not be more work duties for the remainder of her pregnancy. her immunity, rendering the united states liable “in the same been prepared by court staff for the convenience of the reader. is not feres-barred.” id. at 226. states, 954 f.2d 223, 226 (4th cir. 1992); del rio v. united rationale: “[t]he peculiar and special relationship of the problem now, as then, is that congress not only failed to unfortunately, the deferential reasoning of feres has created pregnant, gave birth to a child, or became a parent by the feres doctrine is rooted in three policy rationales: could not sue the hospital for failing to warn them of kelly’s 295 (“[p]ractically any suit that ‘implicates the military willful blindness at the expense of a woman’s livelihood and “consultwith medicalpersonnelasrequired”;and“establish[] often review cases in which military officials are alleged to absent intervening controlling authority, we are bound bythe limitations on the duties of pregnant soldiers during the term become a guise for denying a selected class—service (9th cir. 1987); schoenfeld v. quamme, 492 f.3d 1016, 1019 conclusion grosinsky v. united states, 947 f.2d 417, 418 (9th cir. 1991) january. during her second trimester of pregnancy, she was kim, honolulu, hawaii, for plaintiff-appellant. high risk. in ritchie’s administrative claim for damages, he subsequently dismissed the action for lack of subject matter jurisdiction, reasoning that ritchie’s claims were barred ritchie v. united states2 i concur in the result. (internal quotation marks omitted). an injunction can never examine the government’s activity in relation ritchie v. united states10 military duty. . . .’” stencel, 431 u.s. at 671–72 (citations on the fiction that judicial review in these cases will upend superior officers. see united states v. stanley, 483 u.s. 669, 28 u.s.c. § 1346(b)(1). in 1950, however, the supreme when weak cervical tissue causes or contributes to premature birth or the other’s decisions and actions.” stencel, 431 u.s. at 673; examination of the army’s activity in relation to military father, but this does not change the “in utero” cases turn on whether the purportedly negligent decisions of prior three-judge panels. see miller v. gammie, third rationale should be considered “controlling”), with barred by feres. conducting atomic experiments as part of the “manhattan project.” id. in military discretion, and whether or not they have been army caused the death of his infant son by ordering his negligence that led to kelly’s demise. as such, it interrupted the causal united states, 925 f.2d 292, 294 (9th cir. 1991) (citation and feres, we reasoned: from a service-related suicide, persons, 925 f.2d at 297, a room, where her cervix was stitched shut. her supervisors monaco, 661 f.2d at 134. and heartily deserves the widespread, almost universal to military personnel on active duty. it is would have a significant, deleterious effect on our military’s these alleged wrongs are part of the military’s discipline physicaltrainingin contraventionofherdoctor’sinstructions, matters the judiciary has jurisdiction to consider. see, e.g., a claim involving an army trainee’s exposure to radiation on 1985) (“[i]t is the need to avoid the inquiry into military plaintiff-appellant, nguyen, circuit judge: 3 specifically informed army personnel that due to her “high ritchie v. united states14 purportedly negligent medical judgment. be overturned one day soon. for the district of hawaii judge farris concurred in the result. 9(b)(3). the regulation then sets forth twelve specific the question before us is whether ritchie’s wrongful considerable pain, even though she told her supervisors that at 709 (o’connor, j., concurring & dissenting). it is a looking remedy cannot make them whole. our current (9th cir. 2007) (internal quotation marks omitted), has affirmed. january was subsequently transferred to fort shafter, servicewomen have a right to have the military abide by its regulation specifically directs commanders to “counsel all pregnant servicewoman are per se judicially unreviewable many cases, to inconsistent results that have no relation to the a football field in chicago would improperly require judicial derivative of injuries to the claimant’s servicemember parent. allegedly negligent with respect to other members of the david monaco was stationed at the university of chicago where, as a persons v. united states, 925 f.2d 292, 295–97 (9th cir. participant in the army specialized training program, he was required to ritchie v. united states20 “genesis in injuries to members of the armed forces.” feres “jurisprudence has been guided by an increasing sense and wrote separately to highlight the questionable validity of this case reveals the injustice caused by the feres servicemembers to bring certain tort claims against their b. 20/us/20general.html. the right a pregnant woman has to precedent, we regretfully conclude that it does. we therefore denise’s case differs from stencel in that she substantive analysis: the court still must 899–900. moreover, ritchie’s claim does not easily map ritchie v. united states 7 feres doctrine. in light of supreme court and our own feres. for instance, in romero, the leading “in utero” case, claim that military orders caused an infant’s wrongful death failure to warn familymembers of impending suicide derived 6 and regulations are judicially reviewable. see wenger v. instructions of january’s doctor as the pregnancy became counseling] after the tragedywas completelyindependent ofthe purported can be viewed as part of “the military discipline structure,” governing pregnant servicewomen. refusing to compensate the bounds of human decency,” i do not believe that it can be she did not feel well enough to carry out their orders. due to underourownprecedent,feres barsritchie’swrongfuldeath different from the medical malpractice claims in romero, circuit judge, joins, concurring: 481 u.s. at 703, we are bound by controlling precedent. we it is not enough that this case, like the “in utero” cases, concerns we can think of no other judicially-created doctrine persons and set in motion a new sequence of events.”). of course, there is some sense in restricting judicial in contrast, we held that the persons’ claim for failure to provide before: jerome farris, dorothy w. nelson, and 1 serves largely if not exclusively as the predicate for the feres elaborates that january “was required to engage in physical subsequently extended this principle—known informally as but that reasoning becomes a fiction in a case such as mean that the responsible superior officers’ decisions to members of its armed forces, which argues adoption or a stepparent); crawford, 531 f.2d 1114. efforts women. judicially-reviewable acts in these cases. cf. wilkins v. intrude into military discipline, courts often review military where the injuries arise out of or are in the course of activity under the ftca for birth defects caused by her father’s orders of military officers, that contravene military policies unlikely that judicial scrutiny of the orders given to january lifting or physical training (“pt”) testing, or run/walk long 699, 705–11 (9th cir. 1989) (en banc) (applying equitable have been [taken] solely for the benefit of the fetus.” id. at ritchie attempts to distinguish monaco on two grounds, which ultimatelyinduced herprematurelaborat five-and-half serve means little if her service requires she put her fetus’s lacked subject-matter jurisdiction. atkinson v. united states, explicitly excludes only “claim[s] arising out of the visited october 16, 2013). in practical terms, this means that the cervix jones v. n.y. state div. of military & naval affairs, 166 f.3d of this matter would not raise the specter of january haling at fort shafter were aware of her pregnancy, but repeatedly in other words, the core theory of his case. if adjudication of condition and for loss of consortium. 925 f.2d at 295–97. judgments made by medical personnel at medical facilities; application of these cases compels the same conclusion 5 (d.d.c. 2001), vacated in part on other grounds, washington, d.c., for defendant-appellee. 335 f.3d 889, 899–900 (9th cir. 2003) (en banc). and here, interview to assess risks to the soldier and fetus.” the orders given or negligent acts committed in the course of attorney, marleigh d. dover, appellate staff attorney, liaison with the occupational health clinic and request[] site ritchie alleges that officers in the united states armycaused grosinsky v. united states, 947 f.2d 417 (9th cir. 1991), we health and well-being at risk. in refusing to recognize even military superiors received no exemption from the ritchie v. united states6 criticism it has received.”) (citation omitted); costo v. united the plaintiff alleged that officers in the united states (1) the distinctively federal nature of the of serviceman kelly persons, who committed suicide while ritchie timely appealed. commentators” across the jurisprudential spectrum. id. at like circumstances . . . .” 28 u.s.c. § 2674; see also so long. the feres doctrine has generatedpained affirmances incident to service.” 340 u.s. 135, 146 (1950). it and gregory’s estate, asserting claims under the federal tort grosinsky, which apply the genesis test in the context of medical contravention of her doctors’ instructions, which ultimately attorney general, florence t. nakanuki, united states regardless of whether the facts actually warrant judicial interference in discretionary military decision-making where adjudication of her claim would require a court to “examine d.c. no. a serviceman, denise monaco, sued to recover damages yet affords them no remedy at law to ensure compliance. feres doctrine precisely this type of examination the feres orders, and not the consequences of the inquiry, that justifies discipline . . . has been identified as the best explanation for women for becoming pregnant, continue to this day. see i write separately because i wish to highlight how this or injunctive relief. see wilkins, 279 f.3d at 787; wenger, chain runningfromthe hospital’s purportedlynegligent treatment of kelly i believe that the third policy rationale underpinning the her pain, she was later taken by ambulance to an emergency the supposed policy rationale that the judiciary should not 698–99 (1987) (brennan, j., dissenting) (“at common law, to his subordinate, it implicates the military discipline doctrine. our jurisprudence allows us to consider claims how this “determinative” and “most persuasive” policy onto the “in utero” dispensation. while there is undeniably jurisprudence, then, acknowledges that pregnant is inapposite here because, as we previously explained, our disregard military policy and regulations amount to to exclude pregnant women from serving, and even to punish physician created a “pregnancy profile” for her, which 224–25; brown, 432 f.3d at 615–16. yet, unless and until injury to her father. rather, the dispositive factor was that reenlistment on the basis of his homosexuality); bledsoe v. party”). feres. ritchie v. united states8 that we are justified in holding (if we can ever be justified in reasoned that melody’s prenatal injuries were “independent” spina bifida after a military doctor told the child’s gregory’s death by ordering his pregnant wife, a with severe birth defects. id. commanding officers, however, continued to disregard her manner and to the same extent as a private individual under resulting in the loss of the pregnancy at twenty-two weeks.” our reasoning in monaco and persons. military service. feres v. united states, 340 u.s. 135 (1950). picking up trash on a military base, not combat command prematurely. he died approximately thirty minutes after whether the suit is brought by the soldier directly or by a third claim. similarly derives from his mother’s military service. see miller, 335 f.3d at doctrine seeks to avoid. cervix of his servicewoman mother during the prenatal quite the contrary, military decisions, carried out through the ritchie’scomplaintallegesthathis wife,januaryritchie, was certain tasks due to her pregnancy, her commanding officers ritchie v. united states 13 “incompetent cervix.” romero, 954 f.2d at 224. this condition “occurs contrary to what ritchie argues, the “in utero” exception pregnant wife, a servicewoman on active duty, to perform ritchie v. united states12 based upon genetic injuries differ from claims based upon neither of which is persuasive. first, he suggests that claims of their pregnancy, including scheduled mandatory rest therefore regretfully hold that ritchie’s suit is barred by id. at 134 (emphasis added). challenging military orders given to a servicewoman on 295; see also united states v. johnson, 481 u.s. 681, 700 january or questioned by counsel representing gregory’s protect pregnant servicewomen—warrant judicial deference (citations omitted). the test originated in monaco v. united regulations, but only when the plaintiff requests declaratory june 2006, while januarywas stationed in missouri, an army feres v. united states that “the government is not liable guidanceabouthowferesshould beapplied,compareunited feres.”) (citations omitted) (emphasis added). accordingly, “officers, members, and/or employees of the united states personnel, monaco, 661 f.2d at 134, a fortiori, a claim have violated their own regulations.”). the feres bar, then, 825 f.2d 202, 204 (9th cir. 1987). further, we “review in contending that our precedents are distinguishable, the panel affirmed the district court’s dismissal under the damaging the military disciplinary structure. unfortunate cases applying the feres doctrine dictate such an concurrence by judge d.w. nelson applicable to the facts reflected in the record.” persons v. profile’s limited duty requirements, as well as the additional ritchie focuses on a line of out-of-circuit cases involving arise from personal tragedy: the premature birth—and mann v. united states, 399 f.2d 672, 673 (9th cir. 1968) (“institution of (9th cir. 1981) (“[t]he protection of military discipline . . . servicemember sustains in the course of her service. see unanticipated child. id. at 418–19. outcome, but i sincerely doubt that the conduct alleged 925 f.2d at 297; a forceful dissent by justice scalia (joined a recreational rafting trip, which had been organized by the navy). of any injury to her mother because prenatal vitamins “would 954 f.2d at 224. in holding that the infant’s ftca estoppel to enjoin the u.s. army from denying plaintiff’s counsel malpractice and loss of consortium claims. induced premature labor. the district court dismissed the background omitted); see costo, 248 f.3d at 866 (“[t]he danger to suits on discipline, and the extreme results that might obtain similarly, in brown, the sixth circuit held that feres did the supreme court has seen fit to reverse course. we can agree with ritchie about one thing, though: it is http://www.mayoclinic.com/health/incompetent-cervix/ds01198 (last time for the judiciary to reconsider its reasons for refusing such a finding here. consider again what happened to as with most of our feres jurisprudence, the claims at issue 19, 2009, available at http://www.nytimes.com/2009/12/ judge d.w. nelson, joined by judge nguyen, concurred, (1987) (scalia, j., dissenting) (“feres was wrongly decided the ftca waives the federal government’s sovereign pregnant g.i.’s could be punished, associated press, dec. united states court of appeals compensation systems; and (3) the fear of 1991); monaco v. united states, 661 f.2d 129, 132–34 (9th the fetus and its servicemember parent were injured. only based on the fortuity of the situs of the injury; and “battle-focused pt . . . even if she did not feel up to it.” the genesis test they expound; we cannot simply substitute we review de novo a district court’s determination that it judicial fallacy which we have created and which i hope will may “begin to open too soon—causing [a woman] to give birth too early.” period.6 specialist on active duty with the united states army. in “[b]ecause no service person was injured [the infant’s] claim d.w. nelson, circuit judge, with whom nguyen, birth. claim was not feres-barred, the fourth circuit reasoned that ritchie v. united states22 j. michael seabright, district judge, presiding authority—it opined that “[p]resumably [the mother’s] state no relevance in cases where the military contravenes its own june 13, 2013—honolulu, hawaii if the sutures had been properly administered, their “sole allegedly negligent prenatal care at military hospitals, in (9th cir. 1991). for the past sixty-three years, the feres about judicial interference in military personnel matters far id. caused by a military doctor’s failure to place sutures on the general rule that officials may be held accountable for their the services permission to discharge a woman if she became “military discipline” perpetuates a grave injustice. it is past the injured parties will have no recourse because a forward- feres, it did not reach the jurisdictional question of whether the claims for the ninth circuit 615–16. decisions that contradict a military regulation. in these the feres doctrine. regulation which mandated the discharge of marines for jms-bmk (“[t]he hospital’s alleged breach of its duty [to provide adequate original)). argued and submitted philosophical considerations, see atkinson v. united states, 825 f.2d 202, rationale, see atkinson v. united states, 825 f.2d 202, 204 pregnancy profile for january, but then failed to follow the members of the armed services to testify in court as to each ignored her pleas. of claims that, if generally permitted, would involve the doctrine”); cf. persons, 925 f.2d at 295 (observing that our here—orders contravening military regulations intended to estate of gregory ritchie, the effect of the action upon military discipline is identical placed the sutures or not.” id. the court thus concluded that progresses. id. at 7-9(d). for instance, “[a]t 28 weeks of feres doctrine, preventing judicial interference with “the in a similar vein, we have construed the “incident to service” i concur. i agree that our caselaw bars family member resulted in genetic abnormalities which caused his daughter to be born more squarely than claims arising from a military doctor’s assess any work place hazards.” ar 40-501, chapter 7- civil division, department of justice, tony west, assistant actions in damages in a civil court of law.”). nor is the broad id. at 133–34. in holding that her claim was barred under 7-9, requires that pregnant soldiers have a “pregnancy wrongs. on a military base. this distinction is important because, by military discipline structure,” persons, 925 f.2d at 295, has involving medical malpractice claims.5 period every 2 hours.” id. thus, when ritchie alleges that prevents compensation for what would otherwise be id. at 225. then—without any citation to legal or medical which ultimately induced premature labor. the panel held defendant-appellee. suit within the two-year period [set forth in 28 u.s.c. § 2401(b)] is a claim even if it did apply. under the test applied by our sister the life of her unborn child. i am resigned that the structure. to hold that these kinds of tortious acts against a ritchie v. united states 5 specifically alleges that the military performed the required since january’s refusal to follow them would have been a order no. 10240, 16 fed. reg. 3689 (may 1, 1951) (giving eric a. seitz (argued), della au belatti, and ronald n.w. states, 661 f.2d 129 (9th cir. 1981), in which the daughter of opinion feres doctrine of a federal tort claims act wrongful death injuries incurred in utero because the former are more purely case reveals the questionable validity of the feres doctrine. because they are part of the military mission is to practice johnson, 481 u.s. at 689–91 (reaffirming all three cir. 1981). underneath the stadium was a laboratory in which the government was continued to disregard her doctor’s instructions, however, appeal from the united states district court where a fetus alone suffers injury can the claim survive vasectomy on her serviceman husband resulted in an if suits under the tort claims act were allowed for negligent reading of the allegations in ritchie’s complaint forecloses abstention. see millang v. united states, 817 f.2d 533, 535 (9th cir. 1987) (per curiam). we have described this united states, 279 f.3d 782, 784 (9th cir. 2002) (holding that discretionary, nonjusticiable acts. see sterling v. constantin, no causal nexus between the alleged injury and the navy’s purported ii. here, the relevant army regulation, ar 40-501, chapter summary* 947 f.2d at 417; persons, 925 f.2d at 294; atkinson, 825 f.2d filed october 24, 2013 liability for tort claims arising out of activities incident to united states v. shearer, 473 u.s. 52, 59 (1985) (emphasis in judiciary in sensitive military affairs at the expense of prenatal injuries. while pregnancy may present unique biological and/or following the denial of administrative claims, jonathan jacqueline h. nguyen, circuit judges. provide such an exemption, but quite plainly excluded it.”). relationship between the government and gregory’s death. in fact, each time the military fails to emergency cerclage procedure in an effort to prevent as the personal representative of the of any kind. where military conduct passes “so far beyond at 203. caused by the military’s failure to follow its own regulations congress or the supreme court choose to “confine the personnel are barred by feres, we employ a “genesis test,” the “in utero” exception could save ritchie’s wrongful death 45, 52 (2d cir. 1999); murphy v. united states, 993 f.2d 871, military discipline is so certain, or so certainly substantial, adequate counseling was not feres-barred, essentially because there was claims act (ftca). overstepped in a particular case, are judicial questions.”). the government’s activity in relation to military personnel on like january ritchie, roxana romero had been diagnosed with an army” disregarded the pregnancyprofile and the instructions viewed as ‘derivative’ claims, having their genesis in kelly’s 481 u.s. at 692–703 (scalia, j., dissenting); and doctrinal visits by the occupational health personnel if necessary to pregnancy). brown, and the like. the “in utero” cases concern medical imposed a number of restrictions on her activities. among off-duty after having been released from a naval hospital, the armed forces; this right was hard-earned. see exec. this, which does not involve discretionary military an almost complete bar to servicemembers’ tort claims, military’s policies and actions towards pregnant panel also held that an “in utero” exception to feres, months. and, worst of all, her baby died half an hour after (2) the availability of alternative a. while trying to conceive. 462 f.3d at 610–11. the court because the district court concluded that this action was barred under profile,” which includes a mandatory “occupational health discussion immediate death—of jonathan ritchie’s infant son, gregory. “the feres bar does not extend to the claims for non-monetary combatant activities of the military or naval forces, or the ‘rational bases’ for the feres doctrine lead in this case, as in lowell v. sturgill jr. (argued), appellate staff attorney, purpose . . . would have been directed at [the infant] joshua.” 282 f.3d at 1072. but that relief is often meaningless. see august 26, 2006, the ritchies’ son gregory was born injunction, however, comes too late for those [soldiers] * servicewomen are not discretionary, but rather, are clearly 1:10-cv-00209- 4 this summary constitutes no part of the opinion of the court. it has military discipline and effectiveness.” id. at 535 (quoting “in utero” exception should apply equallyhere. we disagree. follow regulations that result in harm to the mother and fetus, although the supreme court has offered inconsistent which courts adopted an “in utero” exception to feres. see, ritchie v. united states18 coast guard, during time of war.” 28 u.s.c. § 2680(j); other things, it indicated that january should not carry and negligent acts. see romero, 954 f.2d at 225–26. a plain rooted in the common law tradition that allowed


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