FOR PUBLICATION



### UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

W ALTER D ANIEL , individually and as personal representative of the estate of Rebekah Daniel, Plaintiff

- Appellant

,

v.

U NITED S TATES O F A MERICA

, Defendant

- Appellee. No. 16

- 35203

D.C. No.

3:15

- cv

- 05748

- RJB

OPINION

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, Senior District Judge, Presiding

Argued and Submitted April 11, 2018 Seattle, Washington

Filed May 7, 2018

Before: Michael Daly Hawkins and Susan P. Graber, Circuit Judges, and James A. Teilborg, * District Judge.

Opinion by Judge Hawkins

* The Honorable James A. Teilborg, United States District Judge for the District of Arizona, sitting by designation.2 D ANIEL V

. U NITED S TATES

SUMMARY **

Feres Doctrine

The panel affirmed the district court’s Fed. R. Civ. P. 12(b)(1) dismissal of plaintiff’s tort action brought against the United States for the tragic death of his wife, who was serving in the Navy, as barred by the jurisdictional bar recognized in Feres v. United States , 340 U.S. 135 (1950).

The Federal Tort Claims Act effected a broad waiver of sovereign immunity, rendering the United States liable for the tortious acts of its employees as a private individual

would be under like circumstances. The Feres doctrine

limits the Act’s waiver of s overeign immunity, and provides governmental immunity from tort claims involving injuries to service members that were “incident to military service.”

The panel followed the holding in Atkinson v. United

States , 825 F.2d 202 (9th Cir. 1987), which similar ly involved medical treatment of an active duty service person at a domestic military hospital for a condition of pregnancy unrelated to military service. The panel concluded that plaintiff’s medical malpractice claims were barred by the

Feres doctrine.

** This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.D ANIEL V

. U NITED S TATES 3

COUNSEL

J. Andrew Hoyal II (argued), Luvera Law Firm, Seattle, Washington, for Plaintiff

- Appellant.

Lowell Sturgill Jr. (argued) , Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C.;

Sarah K. Morehead and Patricia D. Gugin, Assistant United States Attorneys; Annette L. Hayes, United States Attorney; United States Attorney’s Office, Seattle, Washington ; for

Defendant

- Appellee.

OPINION

HAWKINS, Circuit Judge:

We must determine whether the oft

- criticized jurisdictional bar recognized in Feres v. United States

, 340 U.S. 135 (1950) 1 (commonly known as the “ Feres doctrine”)

— providing governmental immunity from tort claims involving injuries to service members that are “incident to military service”

— bars Walter Daniel’s tor t action against the United States for the tragic death of his wife, Navy Lieutenant Rebekah Daniel, due to a complication following childbirth. As we have done many times before, we regretfully reach the conclusion that his claims are barred by the Feres doctrine and, therefore,

affirm.

1 See United States v. Johnson , 481 U.S. 681, 700 (1987) (Scalia, J., dissenting) (“ Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” (internal quotation marks omitted)).4 D ANIEL V

. U NITED S TATES

BACKGROUND

Like most cases implicating the Feres doctrine, the claims at issue here arise out of personal tragedy. See, e.g.

, Ritchie v. United States , 733 F.3d 871, 873 (9th Cir. 2013);

Costo v. United States , 248 F.3d 863, 864 (9th Cir. 2001). Rebekah Daniel served honorably as a Lieutenant in the United States Navy, and she worked as a labor and delivery nurse stationed at the Naval Hospital in Bremerton, Washington. Walter Daniel is a Lieutenant Commander in

the United States Coast Guard.

In 2013, Rebekah and Walter learned that they were expecting a daughter. Rebekah made arrangements to resign from her post, and with the family leave she planned to take following the birth of her daughter, she did not e xpect to resume her duties prior to her anticipated detachment from service in May 2014. On March 9, 2014, while still on active duty status, Rebekah was admitted to Naval Hospital Bremerton as a patient and gave birth to her daughter. Although her pregn ancy had been considered low

- risk, Rebekah experienced postpartum hemorrhaging and died approximately four hours after delivery.

Following Rebekah’s sudden death, Walter initiated the proceedings giving rise to this appeal. In his complaint, Walter, indiv idually and acting as the personal representative of Rebekah’s estate, asserted claims of medical malpractice and wrongful death premised on allegations that Rebekah’s death resulted from the negligence of the medical staff at Naval Hospital Bremerton.

On a motion by the Government under Federal Rule of Civil Procedure 12(b)(1), the district court dismissed the complaint on the ground that the Feres doctrine barred the

claims.D ANIEL V

. U NITED S TATES 5

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review de novo issues regarding subject matter jurisdiction and regarding the applicability of the Feres doctrine.

Ritchie , 733 F.3d at 874.

DISCUSSION

The Federal Tort Claims Act (“FTCA”) effected a broad waiver of sovereign immunity, rendering the United States liable for the tortious acts of its employees “in the same manner and to the same extent as a private individual under

like circumstances.” 28 U.S.C. § 2674. Shortly after the FTCA’s enactment, however, the Supreme Court held that

the Act’s waiver of sovereign immunity does not extend to “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.

Over time, the Supreme Court has articulated three policy rational es supporting the Feres doctrine: “1) the distinctively federal nature of the relationship between the Government and the armed forces requires a uniform system of compensation for soldiers stationed around the country and around the world; 2) a generous compensation scheme for soldiers (the Veterans’ Benefits Act) serves as an ample alternative to tort recovery; and 3) permitting military personnel to sue the armed forces would endanger discipline.” Costo , 248 F.3d at 866 (citing Johnson

, 481 U.S. at 684 n.2)

.

Because of extensive criticism of the doctrine and its underlying justifications, we have “shied away from attempts to apply these policy rationales.” Id. at 867 (citing

Taber v. Maine , 67 F.3d 1029, 1043 (2d Cir. 1995)). Instead,6 D ANIEL V

. U NITED S TATES

when determining whether an injury occurred “incident to service,” thereby implicating the Feres doctrine, we engage

in a case

- specific analysis focusing on four factors:

(1) the place where the negligent act occurred, (2) the duty status of the plaintiff when the neglige nt act occurred, (3) the benefits accruing to the plaintiff because of the plaintiff’s status as a service member, and (4) the nature of the plaintiff’s activities at the time the negligent act occurred.

McConnell v. United States , 478 F.3d 1092, 1095 (9th Cir. 2007) (internal quotation marks omitted). Yet, no factor is dispositive, and we must consider the totality of the

circumstances. Id.

Recognizing that our cases have consistently applied the

Feres doctrine to bar medical malpractice claims predicate d on treatment provided at military hospitals to active duty service members, 2 Walter nevertheless argues that application of the doctrine to the facts of this case runs contrary to precedent suggesting that the military discipline

rationale is the most im portant justification for the doctrine. See, e.g.

, Ritchie , 733 F.3d at 874

– 75. He emphasizes that

2 See Jackson v. United States , 110 F.3d 1484, 1489 (9th Cir. 1997) (hand injury); Hata v. United States , 23 F.3d 230, 235 (9th Cir. 1994) (heart attack); Grosinsky v. United States , 947 F.2d 417, 418 (9th Cir. 1991) ( per curiam) (vasectomy); Persons v. United States , 925 F.2d 292, 296 (9th Cir. 1991) (treatment following suicide attempt); Atkinson v.

United States , 825 F.2d 202, 206 (9th Cir. 1987) (preeclampsia);

Veillette v. United States , 615 F.2d 505, 507 (9th Cir. 1980) (injuries sustained in motorcycle accident). Feres itself also involved medical malpractice claims for treatment of active duty service members at military hospitals. See 340 U.S. at 137.D ANIEL V

. U NITED S TATES 7

the claims at issue involve medical care for a condition unrelated to military service, rendered at a domestic military hospital, indistinguishable from tr eatment that any civilian spouse might seek at that same facility. Walter argues that application of the Feres doctrine in this medical malpractice case cannot be reconciled with caselaw finding it inapplicable in certain non

- medical malpractice cases. S ee Schoenfeld v. Quamme , 492 F.3d 1016, 1023

– 26 (9th Cir. 2007) (no Feres bar for claim regarding injury sustained in auto accident on base road, accessible to public, that occurred while the plaintiff was “on liberty”); Johnson v.

United States , 704 F.2d 1431, 1436

– 39 (9th Cir. 1983) (no

Feres bar for claim regarding injury sustained due to negligence at on

- base club where the plaintiff worked in essentially civilian capacity while off duty).

We, too, previously “have reached the unhappy

conclusion that th e cases applying the Feres doctrine are

irreconcilable.” Costo , 248 F.3d at 867. Because “the various cases applying the Feres doctrine may defy reconciliation,” McConnell , 478 F.3d at 1095, our precedent dictates that “comparison of fact patterns to out comes in cases that have applied the Feres doctrine is the most appropriate way to resolve Feres doctrine cases,” Costo

, 248 F.3d at 867 (quoting Dreier v. United States , 106 F.3d 844, 848 (9th Cir. 1997)). And, here, that analysis begins

and ends with Atkinson , 825 F.2d 202.

Atkinson held that the Feres doctrine barred a medical malpractice claim by a servicewoman who alleged that she received negligent prenatal treatment at a domestic military hospital. Id. at 205

– 06. There, the plaintiff, who was an active duty U.S. Army Specialist, went to Tripler Army Medical Center during the second trimester of her pregnancy complaining of multiple symptoms. Id. at 203. She was sent8 D ANIEL V

. U NITED S TATES

home twice without treatment, but after her third visit, she was hospitalized f or preeclampsia and delivered a stillborn

child. Id. She alleged that the medical center’s failure to diagnose and treat her condition resulted in the stillbirth of her child and caused her permanent bodily injuries and

emotional distress. Id.

As here, Atkinson involved medical treatment of an active duty servicewoman at a domestic military hospital for a condition of pregnancy unrelated to military service.
Moreover, Atkinson held specifically that the claim was barred despite the court’s belief “that the military discipline rationale [did] not support application of the Feres doctrine”

in the circumstances. Id. at 206. We must follow Atkinson ’s holding here.

CONCLUSION

Lieutenant Daniel served honorably and well, ironically professionally trained to render the same type of care that led

to her death. If ever there were a case to carve out an exception to the Feres doctrine, this is it. But only the Supreme Court has the tools to do so.

AFFIRMED.