Jonathan Ritchie v. United States

In this appeal, we again confront the much-maligned Feres doctrine, which im *873 munizes the United States from liability for tort claims arising out of activities incident to military service. Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed. 152 (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,…

with whom NGUYEN, Circuit Judge, joins, concurring:

I concur. I agree that our caselaw bars family member tort claims which have their genesis in injuries a servicemember sustains in the course of her service. See Persons v. United States, 925 F.2d 292, 295-97 (9th Cir.1991); Monaco v. United States, 661 F.2d 129, 132-34 (9th Cir.1981).

I write separately because I wish 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. Refusing to compensate a class of victims — servicewomen and their families — based on the fiction that judicial review in these cases will upend “military discipline” perpetuates a grave injustice. It is past time for the…

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.

On August 7, 2006, January was forced to undergo an emergency cerclage…