FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WALTER DANIEL, individually and as 

personal representative of the estate 

of Rebekah Daniel,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

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 DANIEL V. UNITED STATES

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 sovereign 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 similarly 

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.
DANIEL V. UNITED STATES 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 tort 

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 DANIEL V. UNITED STATES

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 expect 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 pregnancy 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, individually 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.
DANIEL V. UNITED STATES 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 rationales 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 DANIEL V. UNITED STATES

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 negligent 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 predicated 

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 important 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.
DANIEL V. UNITED STATES 7

the claims at issue involve medical care for a condition 

unrelated to military service, rendered at a domestic military 

hospital, indistinguishable from treatment 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. See

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 the 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 outcomes 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 sent 
8 DANIEL V. UNITED STATES

home twice without treatment, but after her third visit, she 

was hospitalized for 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.