The U.S. Army cannot be held to account for ignoring doctors and forcing a pregnant soldier to engage in physical training, causing the death of her son, born prematurely. The 9th U.S. Circuit Court of Appeals said Thursday it regretted the 1950s precedent, known as the Feres, which bars injury claims against the military by soldiers hurt during their service.
In this case, the soldier’s husband sued for the wrongful death of his son.
But the appeals court dismissed claim and said that the “much maligned” legal standard could not be applied to the father’s effort to get around the Feres doctrine by asserting his claim for injuries to a “civilian fetus.”
The panel also rejected the exception to Feres used in other circuits for “in utero” injuries. That exception does not apply because those cases applied when only the fetus, and not the mother, were injured, according to Judge Jacqueline Nguyen.
Judge Dorothy Nelson wrote in a separate concurrence to highlight to questionable validity of the Feres doctrine. “This case reveals the injustice caused by the Feres doctrine,” she said.
Jonathan Ritchie sued the U.S. Army for allegedly causing his son Gregory’s death by ordering his pregnant wife, an active duty servicewoman, to perform physical training on two occasions, against doctor’s instructions.
Their son died in 2007 just 30 minutes after his birth. The trial court and now the appeals court dismissed the case based on the Feres doctrine. The basis for the doctrine was to created by the Supreme Court in 1950 to protect the government from liability when service members are injured in the course of military duty. This would prevent thousands of lawsuits after soldiers are injured in wartime, for example.
But it has been interpreted broadly to protect against almost any injury. As a result it has been criticized repeatedly in courts for 63 years.
The Ritchie case now adds to that mountain of opposition.
In the case of his wife, “We are talking about orders commanding a pregnant woman to engage in physical activities such as picking up trash on a military base, not combat command decisions made in the heat of battle,” wrote Nguyen.
In her separate concurrence, Nelson questioned the validity of the Feres doctrine, based as it is on the rationale that the judiciary should not intrude into military discipline.
But she said, “Courts often review military decisions that contradict a military regulation.”
Case: Ritchie v. United States, No. 11-16535