Ritchie v. United States

The Feres doctrine will bar third-party wrongful death claims arising out of military service activities, and the “in utero” exception does not apply when the servicewoman mother has been injured by the purported negligent acts.

Jonathan Ritchie’s wife, January, was pregnant while on active duty in the United States Army. In 2006, a doctor restricted January from participating in strenuous activity. January’s supervising officers knew that January was pregnant, but consistently disregarded the doctor’s orders. Even after January had an emergency procedure to prevent a premature birth and the physicians specifically told Army personnel that January “high risk,” her commanding officers ignored the doctors’ orders. January’s son, Gregory, was born prematurely and died. After Jonathan’s administrative claims were denied, he brought suit against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), for wrongful death and loss of consortium. The district court dismissed his action, finding that the Feres doctrine, which provides immunity to the United States for “tort claims arising out of activities incident to military service,” barred his claims. The Ninth Circuit reviewed the district court’s determination de novo, noting that Feres v. United States has been roundly criticized. In considering whether Feres bars FTCA claims made by the relatives of military personnel, the panel applied the “genesis test.” This test asks whether the FTCA claim by the relative has its “genesis in injuries to members of the armed forces.” The panel found that Gregory’s injury did derive from his mother’s military service and thus fell under Feres. The panel also noted its reluctance to apply Feres as well as its lack of discretion in the matter because of Ninth Circuit and Supreme Court precedent. Jonathan tried to invoke the “in utero” exception used in other circuits, which eliminates the applicability of Feres where injury befell on only the child. However, the panel concluded that it could not “simply substitute another circuit’s test for [its] own.” Thus, the panel held that Feres barred Jonathan’s suit. AFFIRMED.