Jonathan RITCHIE, Individually and as the Personal Representative of the Estate of Gregory Ritchie, Plaintiff-Appellant,
UNITED STATES of America, Defendant-Appellee.
Argued and Submitted June 13, 2013.
Eric A. Seitz (argued), Della Au Belatti, and Ronald N.W. Kim, Honolulu, HI, for Plaintiff-Appellant.
Lowell V. Sturgill Jr. (argued), Appellate Staff Attorney, Civil Division, Department of Justice, Tony West, Assistant Attorney General, Florence T. Nakanuki, United States Attorney, Marleigh D. Dover, Appellate Staff Attorney, Washington, D.C., for Defendant-Appellee.
Appeal from the United States District Court for the District of Hawaii, J. Michael Seabright, District Judge, Presiding. D.C. No. 1: 10-cv-00209-JMS-BMK.
Before: JEROME FARRIS, DOROTHY W. NELSON, and JACQUELINE H. NGUYEN, Circuit Judges.
NGUYEN, Circuit Judge:
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, 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.
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 procedure in an effort to prevent premature birth. Following this procedure, January's doctors specifically informed Army personnel that due to her " high risk" condition, she would be unable to perform her normal work duties for the remainder of her pregnancy. Her commanding officers, however, continued to disregard her doctor's instructions that she remain at " relative rest." On August 26, 2006, the Ritchies' son Gregory was born prematurely. He died approximately thirty minutes after birth.
Following the denial of administrative claims, Jonathan Ritchie filed this action in district court on behalf of himself and Gregory's estate, asserting claims under the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § 1346(b), for loss of consortium and wrongful death. The district court subsequently dismissed the action for lack of subject matter jurisdiction, reasoning that Ritchie's claims were barred under Feres.  Ritchie timely appealed.
STANDARD OF REVIEW
We review de novo a district court's determination that it lacked subject-matter jurisdiction. Atkinson v. United States, 825 F.2d 202, 204 (9th Cir.1987). Further, we " review independently the question whether the Feres doctrine is applicable to the facts reflected in the record." Persons v. United States, 925 F.2d 292, 294 (9th Cir.1991) (citation and internal quotation marks omitted).