By Brenda L. Mooney
SAN FRANCISCO — A panel of the 9th U.S. Circuit Court of Appeals upheld a lower court opinion that a case involving a newborn’s death cannot go forward because of the Feres doctrine but said it came to that conclusion “regretfully.”
Plaintiff Jonathan Ritchie claimed that Army officers caused the death of his infant son by ordering his pregnant wife, January, an active-duty soldier, to perform physical training against her military doctor’s instructions.
“The question before us is whether Ritchie’s wrongful death claim against the Army falls within the reach of the Feres doctrine,” the court opinion stated. “In light of Supreme Court and our own precedent, we regretfully conclude that it does.”
The Feres doctrine, derived from three federal cases in 1950, says the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces.
In June 2006, while January Ritchie was stationed in Missouri, an Army physician created a “pregnancy profile” for her, which imposed several restrictions on her activities, according to the opinion. The pregnant woman was told not to carry and fire weapons, move with “fighting loads,” engage in heavy lifting or physical training testing or run/walk long distances. After she was transferred to Fort Shafter, HI, however, her supervising officers “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,” the complaint stated.
After she underwent an emergency cerclage procedure to help prevent premature birth, her commanding officers continued to disregard her condition, even after being specifically informed by Army personnel that her pregnancy was “high risk,” according to the case.
That August, the child, Gregory, was born prematurely and died about 30 minutes later.
Ritchie filed the action in district court on behalf of himself and his child’s estate, but the district court dismissed the action, saying it was barred by the Feres doctrine.
The appeals court noted that the Feres doctrine is rooted in three “policy rationales:”
- 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;
- The availability of alternative compensation systems; and
- The fear of damaging the military disciplinary structure.
The panel’s opinion also noted that the doctrine has been criticized by courts for the last 63 years, but “neither Congress nor the Supreme Court has seen fit to reverse course.”
“We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long,” according to the unanimous opinion written by Judge Jacqueline H. Nguyen.
Judge Dorothy W. Nelson concurred with the opinion but said she wanted to write separately “to highlight how this case reveals the questionable validity of the Feres doctrine. Though we hinge our rejection of Ritchie’s claims, in part, on the supposed policy rationale that the judiciary should not intrude into military discipline, courts often review military decisions that contradict a military regulation. In these instances, we have held the military accountable to its own standards and its own representations. Yet, here, our Feres doctrine dooms any claims for compensation for the harms caused by the military’s failure to follow its own regulations governing pregnant servicewomen.”
Nelson called the situation a “grave injustice,” noting that Army regulation, AR 40-501, Chapter 7-9, requires that pregnant soldiers have a “pregnancy profile,” which includes a mandatory “occupational health interview to assess risks to the Soldier and fetus.” That regulation also mandates limitations on what pregnant soldiers can do, “Thus, when Ritchie alleges that ‘Officers, members, and/or employees of the United States Army’ disregarded the pregnancy profile and the instructions of January’s doctor, Richie is alleging that the Army failed to follow its own policies regulating the treatment of pregnant women.”
The judge wrote that refusing to recognize the plaintiff’s claims means the court is “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.”