Atkinson's appeal from the district court's
grant of summary judgment
[Factual and Procedural History, Standard of Review, Discussion]
804 F.2d 561
55 USLW 2302
(Cite as: 804 F.2d 561)
United States Court of Appeals,
Joyce ATKINSON, Plaintiff/Appellant,
UNITED STATES of America, Defendant/Appellee.
Argued and Submitted May 13, 1986.
Decided Nov. 14, 1986.
Servicewoman brought negligence action against United States for prenatal
medical treatment received at military hospital while servicewoman was on active
duty status. The United States District Court for the District of Hawaii, Harold
M. Fong, Chief Judge, entered summary judgment in favor of United States based
on Federal Tort Claims Act. Servicewoman appealed. The Court of Appeals, Nelson,
Circuit Judge, held that claim was not barred by Feres doctrine which
grants immunity to United States under Act for injuries arising out of or in
course of activity incident to service.
*561 Allan S. Haley, Nevada City, Cal., for plaintiff/appellant.
Mark J. Bennett, Asst. U.S. Atty., Honolulu, Hawaii, for defendant/appellee.
Appeal from the United States District Court for the District of Hawaii.
Before NELSON, CANBY and NOONAN, Circuit Judges.
NELSON, Circuit Judge:
Plaintiff-appellant Joyce Atkinson appeals from the district court's grant of
summary judgment to the defendant-appellee United States. Atkinson argues that
the court erred in finding the United States immune from liability under the
Federal Tort Claims Act for malpractice incident to pre-natal care she received
from military personnel. We have jurisdiction under 28 U.S.C. § 1291 (1982), and
FACTUAL AND PROCEDURAL HISTORY
In March 1982, Joyce Atkinson was serving as a Specialist (4th Class) with
the United States Army in Hawaii. On March *562 26, during the second
trimester of her pregnancy, she reported to Tripler Army Medical Center
("Tripler"), complaining of blurred vision, hypertension and edema. The staff at
Tripler did not treat her, and told her to go home. Three days later, Atkinson
returned to Tripler, complaining of dizziness, nausea and hypertension. Again,
the Tripler staff merely told her to go home. Two weeks later, Atkinson returned
to Tripler complaining of severe abdominal pain and hypertension. Finally, she
was hospitalized for pre-eclampsia, a condition occurring in pregnancy which is
life-threatening to both mother and fetus because of associated kidney failure,
high blood pressure, stroke and premature birth. She claims that as a result of
this negligent medical treatment, she delivered a stillborn child and suffered
physical and emotional injuries of her own.
 Atkinson filed a malpractice suit against the government under the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674 (1982), alleging that she
"suffered great pain of body and mind and sustained serious and permanent bodily
injuries as a result of the negligence of defendant's agents, employees and/or
representatives in failing to properly diagnose her condition and hospitalize,
treat, monitor and care for her." The United States filed a motion to dismiss
for failure to state a claim upon which relief may be granted, for judgment on
the pleadings, and for summary judgment. The district court, finding that
Atkinson was injured in the course of activity incident to service, held that
the United States was immune from malpractice liability. Thus, the district
judge granted the motion for summary judgment in a judgment filed April 23,
1985, from which Atkinson filed this timely appeal. [FN1]
FN1. The district judge's order was incorrect procedurally. When a court
determines that the United States is immune from liability under the FTCA, the
proper disposition is a dismissal for lack of subject matter jurisdiction, not
a grant of summary judgment. Broudy v. United States, 661 F.2d 125, 128
n. 5 (9th Cir.1981). In light of our holding, however, this error is of no
consequence. Since properly viewed, this case involves an appeal from an order
dismissing the action for want of jurisdiction, we accept as true, for
purposes of appeal, the factual allegations contained in Atkinson's complaint.
Id. at 126 n. 1.
Determination of the district court's subject matter jurisdiction is a
question of law reviewable de novo on appeal. Redding Ford v.
California State Board of Equalization, 722 F.2d 496, 497 (9th Cir.1983),
469 U.S. 817, cert. denied, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984).
The FTCA, passed by Congress in 1946, represents the culmination of a long
effort to mitigate the unjust consequences of the common law sovereign immunity
doctrine which protected the United States from tort liability. Feres v.
United States, 340 U.S. 135, 139, 71 S.Ct. 153, 156, 95 L.Ed. 152 (1950).
Reacting against the notion that the sovereign could do no wrong, Congress
provided in the FTCA that the United States is liable in tort "in the same
manner and to the same extent as a private individual under like
circumstances...." 28 U.S.C. § 2674 (1982). Congress did not exclude military
personnel from FTCA coverage. The statute "provide[s] for District Court
jurisdiction over any claim founded on negligence brought against the
United States.... '[A]ny claim' [does not] mean[ ] 'any claim but that of
servicemen.' " Brooks v. United States, 337 U.S. 49, 51, 69 S.Ct. 918,
919, 93 L.Ed. 1200 (1949) (emphasis in original).
Despite this "sweeping" legislatively-established waiver of immunity,
United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95
L.Ed. 523 (1951), in Feres v. United States, 340 U.S. 135, 146, 71 S.Ct.
153, 159, 95 L.Ed. 152 (1950), the Supreme Court created a judicial exception to
Congress's general rule of governmental liability. As originally formulated,
this exception, informally known as the Feres doctrine, immunized the
Government from liability under the FTCA "for injuries *563 to servicemen
where the injuries arise out of or are in the course of activity incident to
service." Id. at 146, 71 S.Ct. at 159. The three concerns later
identified as the foundation for this doctrine were: (1) the distinctively
federal nature of the relationship between the Government and members of its
armed forces; (2) the availability of alternative compensation systems; and (3)
the fear of damaging the military disciplinary structure. See Stencel Aero
Engineering Corp. v. United States, 431 U.S. 666, 671-72, 97 S.Ct. 2054,
2057-58, 52 L.Ed.2d 665 (1977).
 It now is clear, however, that the third concern of the three listed
above is determinative:
"[T]he protection of military discipline ... serves largely if not
exclusively as the predicate for the Feres doctrine. Although the
[Supreme] Court has woven a tangled web in its discussion of the 'distinctly
federal' notion and of the alternative compensation system, it has not wavered
on the importance of maintaining discipline within the armed forces. The Court
has found it unseemly to have military personnel, injured incident to their
service, asserting claims that question the propriety of decisions or conduct
by fellow members of the military. Only this factor can truly explain the
Feres doctrine and the crucial line it draws...."
Monaco v. United States, 661 F.2d 129, 132 (9th Cir.1981) (quoting
Hunt v. United States, 636 F.2d 580, 599 (D.C.Cir.1980)), cert. denied,
456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). See also Johnson v.
United States, 704 F.2d 1431, 1436 (9th Cir.1983) (safeguarding military
discipline is fundamental rationale for immunity). Indeed, in its latest word on
the Feres doctrine, the Supreme Court confirmed that the overriding
concerns of the doctrine are with the effect of a tort suit in the
second-guessing of military decisions or in the impairment of military
discipline. Shearer v. United States, 473 U.S. 52, ----, 105 S.Ct. 3039,
3043, 87 L.Ed.2d 38 (1985). The Court specifically stated that the other factors
enumerated in Feres no longer are controlling. Id. at 105 S.Ct. at
3043 n. 4. Thus, the Feres doctrine bars suit only where a civilian court
would be called upon to second-guess military decisions or where the plaintiff's
admitted activities are of the sort that would directly implicate the need to
safeguard military discipline. See Johnson, 704 F.2d at 1436.
In Shearer, the Supreme Court also confirmed that courts should take a
case-by-case, rather than per se, approach to claims of immunity. "The
Feres doctrine cannot be reduced to a few bright-line rules; each case must
be examined in light of the statute as it has been construed in Feres and
subsequent cases." 105 S.Ct. at 3043. Because Shearer makes clear that
the paramount concern is with military decisions or discipline, in each case, we
must determine the effect of a particular suit on military decisions or
discipline. See Johnson, 704 F.2d at 1436 (in each case we must determine
whether interests protected by Feres doctrine are implicated). "[W]here
there is no relevant relationship between the service member's behavior and the
military interests that might be jeopardized by civil suits, the Feres
doctrine cannot bar recovery." Id. at 1440. See also Stanley v. United
States, 786 F.2d 1490, 1499 (11th Cir.1986) (Shearer requires
case-by-case analysis of whether barring claim serves purposes of Feres
doctrine); Bozeman v. United States, 780 F.2d 198, 201 (2d Cir.1985) (Shearer
rejects bright-line tests and requires that each case be analyzed for
applicability of Feres doctrine).
In light of the Supreme Court's unequivocal instruction to look at each case
independently, we reject prior decisions to the extent they establish a per
se rule prohibiting the medical malpractice claims of military personnel. In
Henninger v. United States, 473 F.2d 814, 815 (9th Cir.), cert. denied,
414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973), we held that Feres
barred a military plaintiff's malpractice claim, which was based upon the
negligent performance of an elective procedure, because it would be too
difficult to determine *564 "the effect that a particular type of suit
would have upon military discipline...." We reasoned that "[t]his is a classic
situation where the drawing of a clear line is more important than being able to
justify in every conceivable case, the exact point at which it is drawn." Id.
at 816. Similarly, in Veillette v. United States, 615 F.2d 505, 507 (9th
Cir.1980), we refused to determine the effect of a particular malpractice suit
on military discipline and morale, relying instead on the conclusory statement
that "allegations of medical malpractice ... have consistently been held to fall
within the bounds of the [Feres ] doctrine when the plaintiff was a
serviceman on active duty at the time of the alleged malpractice." In light of
Shearer's command to the contrary, the per se approach exhibited
in Henninger and Veilette is improper. Thus, we are not bound by
those cases, or any others applying a per se rule, to hold that Feres
bars Atkinson's suit for negligent care received incident to her pregnancy.
 Given Shearer 's command that in each case we determine the effect
of a suit on military decisions or discipline, we cannot rely on any particular
factor or factors as a "substitute for analysis" of whether the suit would
threaten military discipline. [FN2] See Troglia v. United States, 602
F.2d 1334, 1338 (9th Cir.1979). Thus, that Atkinson would not have been entitled
to care but for her military status is not sufficient to bar her suit. To hold
otherwise "would overlook the foundation of Feres, that the Government's
liability turns not on the reasons for the treatment from which the claim
arises, but on the effect of a suit for damages on the military system."
Bankston v. United States, 480 F.2d 495, 497-98 (5th Cir.1973). See also
Parker v. United States, 611 F.2d 1007, 1011 (5th Cir.1980) ("The test is
not a purely causal one: one cannot merely state that but for the individual's
military service, the injury would not occur."). Nor is it dispositive that the
government's alleged negligence took place on-base; even where the negligence
takes place on-base, we must "explore the nature of the 'function the soldier
was performing at the time of the injury in order to ascertain the totality of
the circumstances.' " Johnson, 704 F.2d at 1437 (quoting Parker,
611 F.2d at 1014). Similarly, that Atkinson was on active duty status when
negligently treated is significant only if she was "engaging in an activity that
[was] related in some relevant way to [her] military duties." Johnson,
704 F.2d at 1438. Thus, while these factors may aid our inquiry, they are by no
means dispositive. Id. at 1436 (cannot blindly apply rigid rules).
Instead, we must ask whether "[t]he facts of this case, viewed in light of the
Feres doctrine's underlying disciplinary rationale, lead us to conclude
that the FTCA does permit [Atkinson's] cause of action." Id.
FN2. We have noted previously the anomalous results obtained through
reliance on these factors. See Troglia v. United States, 602 F.2d 1334,
1337-38 (9th Cir.1979). For example, military personnel may sue in tort where
military aircraft fall on their houses located off-base. Sapp v. United
States, 153 F.Supp. 496 (W.D.La.1957). Military personnel may not sue,
however, where the aircraft fall on homes located on-base. Preferred
Insurance Co. v. United States, 222 F.2d 942 (9th Cir.), cert. denied,
350 U.S. 837, 76 S.Ct. 94, 100 L.Ed. 747 (1955). See also Veillette v.
United States, 615 F.2d 505, 507 (9th Cir.1980) (that civilians, as well
as military personnel, are admitted to military hospital draws attention to
"the anomalies created by the court- made exception to the Tort Claims Act)."
Making this inquiry, we find that the Feres doctrine does not bar
Atkinson's claim. We first note that pregnant servicewomen did not serve on
active duty in 1950 when Feres was decided. Thus, the Supreme Court, in
barring the two malpractice claims involved in Feres, could not have had
in mind the unique facts involved in Atkinson's claim. Confronting this novel
situation, we fail to see how Atkinson's suit for negligent care administered in
a non-field military hospital incident to her pregnancy can possibly undermine
"the need for unhesitating and decisive action by military officers and equally
disciplined responses by enlisted personnel...." Chappell v. Wallace, 462
U.S. 296, 304, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983). At *565 the
time Atkinson sought treatment, she was "not subject in any real way to the
compulsion of military orders or performing any sort of military mission."
Johnson, 704 F.2d at 1439. No command relationship exists between Atkinson
and her attending physician. No military considerations govern the treatment in
a non-field hospital of a woman who seeks to have a healthy baby. No military
discipline applies to the care a conscientious physician will provide in this
situation. Thus, in seeking treatment for complications of her pregnancy,
Atkinson "was subject to military discipline only in the very remotest sense."
Id. at 1440. Cf. United States v. Lee, 400 F.2d 558, 564 (9th
Cir.1968) ("The necessity of maintaining discipline while a soldier is ... on an
operating table is far less clear than the necessity for maintaining discipline
among soldiers being transported for military service in military aircraft under
control of military authorities."), cert. denied, 393 U.S. 1053, 89 S.Ct.
691, 21 L.Ed.2d 695 (1969).
Moreover, the circumstances of this case simply "do not involve the sort of
close military judgment calls that the Feres doctrine was designed to
insulate from judicial review." Johnson, 704 F.2d at 1440. We are not
dealing with a case "where the government's negligence occurred because of a
decision requiring military expertise or judgment." Id. Thus, a court
hearing Atkinson's claim will not have to inquire into "complex, subtle, and
professional decisions as to composition, training, equipping and control of a
military force." Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446,
37 L.Ed.2d 407 (1973). The care provided a pregnant woman hardly can be
considered to be distinctively military in character. In short, Atkinson's
injuries have nothing to do with her army career "except in the sense that all
human events depend upon what has already transpired." Brooks, 337 U.S.
at 52, 69 S.Ct. at 920. There is simply no connection between Atkinson's medical
treatment and the decisional or disciplinary interest protected by the Feres
Because Atkinson's claim is not the type that "would involve the judiciary in
sensitive military affairs at the expense of military discipline and
effectiveness," Shearer, 105 S.Ct. at 3044, we hold that the district
court had subject matter jurisdiction.
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