Petition for Writ of Certiorari — Ryan G. Carter, et al., Petitioners v. United States

Supreme Court briefJun 5, 2024

Ask Donna

What actually matters in this document.

Text

No. 23In the

Supreme Court of the United States

RYAN G. CARTER; KATHLEEN E. COLE,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Christopher T. Casciano

Counsel of Record

Brian S. Brown

Brown & Barron, LLC

Seven St. Paul Street, Suite 800

Baltimore, Maryland 21202

(410) 547-0202

ccasciano@brownbarron.com

Counsel for Petitioners

330333

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

In 1946, Congress enacted the FTCA waiving

sovereign immunity and authorizing tort claims against

the federal government. Yet, for nearly 75 years, the

courthouse doors have been closed to tortiously injured

military service members and their families—a harsh

consequence of the judge-made rule that is Feres v.

United States, 340 U.S. 135 (1950), and its progeny. As

Justice Scalia wrote in his salient U.S. v. Johnson dissent,

“Feres was wrongly decided and heartily deserves the

‘widespread, almost universal criticism’ it has received.”

481 U.S. 681, 700 (1987).

Feres, having evolved with unbridled fortitude for

decades, hardly resembles its former self, with the

federal circuits split on the doctrine’s applicability, scope,

and rationales. Petitioners’ case represents yet another

chilling example of the breadth and injustice of Feres,

where an inactive duty service member, under no military

orders and on no military mission, and whose status

was retroactively altered from inactive to active duty

post medical malpractice, is summarily precluded from

bringing his congressionally authorized FTCA claims in

a civil court of law.

The questions presented are:

1. Should the Feres doctrine be limited and not bar

tort claims brought by service members alleging medical

malpractice where the service member was under no

military orders, not engaged in any military mission,

and whose military status was retroactively altered from

inactive to active duty post medical malpractice?

2. Does the Feres doctrine conflict with the plain

language of the Federal Tort Claims Act and should it be

clarified, limited, or overruled?

iii

RELATED CASES

• Carter v. U.S., No. 1-21-cv-1315, U.S. District Court

for the District of Maryland. Judgment entered

May 24, 2022.

• Carter v. U.S., No. 22-1703, U.S. Court of Appeals

for the Fourth Circuit. Judgment entered Mar. 7,

2024.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . vii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 6

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 7

REASONS FOR GRANTING THE PETITION . . . . 11

A. Petitioners’ Congressionally Authorized

Medical Malpractice Claims Fall Squarely

Within the Historical and Plain Language

Meaning of the Federal Tort Claims Act . . . . . 11

B. Just as this Court Held in Brooks v. United

States and U.S. v. Brown, the Feres Doctrine

is Limited in Scope and Does Not Apply To

Petitioners’ Medical Malpractice Claims . . . . . 18

Table of Contents

Page

C. The Rationales Underpinning the Feres

Doctrine and the Incident-to-Service

Te st Have Been D i sc a rded by t he

Courts and Do Not Apply to Petitioners’

Medical Malpractice Claims . . . . . . . . . . . . . . . . 24

The “Distinctively Federal Relationship”

Rationale Has Been Discarded by the

Courts and No Longer Controls . . . . . . . . .25

Petitioners Benefit From No “Grand

Bargain” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Only One Legitimate Feres Rationale

Remains: The Evolution and Refinement

of the Feres Rationales and the Post Hoc

Rationalization of Military Discipline . . . . 27

Petitioners’ Medical Malpractice

Claims Do Not Impute the Military

Discipline Rationale . . . . . . . . . . . . . . . . . . . 29

D. Feres Was Wrongfully Decided and Should

Be Clarified, Limited, or Overruled . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

F OR T H E F OU RT H CI RCU I T,

FILED MARCH 7, 2024 . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND,

FILED MAY 24, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . 4a

A PPEN DI X C — STAT U T E S OF T H E

CONST I T U T IONA L PROV ISIONS

BOOKMARKED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65a

vii

TABLE OF CITED AUTHORITIES

Page

Cases

Appelhans v. United States,

877 F.2d 309 (4th Cir. 1989) . . . . . . . . . . . . . . . . . . . . 21

Atkinson v. United States,

825 F.2d 202 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . 30

BedRoc Ltd., LLC v. United States,

541 U.S. 176 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bosh v. United States,

CA S E NO. C19 - 5 616 BH S , 2 019 W L

6728636 (W.D. Wash. Dec. 11, 2019), aff’d,

831 F. App’x 834 (9th Cir. 2020) . . . . . . . . . . . . . . . . 22

Bozeman v. United States,

780 F.2d 198 (2d Cir. 1985) . . . . . . . . . . . . . . . . . . . . 21

Bradley v. United States,

161 F.3d 777 (4th Cir. 1998) . . . . . . . . . . . . . . . . . 24, 31

Brooks v. United States,

337 U.S. 49 (1949) . . . . . . . . . . . . . . . . 17, 18, 21, 26, 27

Chappell v. Wallace,

462 U.S. 296 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 28

Cioca v. Rumsfeld,

720 F.3d 505 (4th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 29

viii

Cited Authorities

Page

Clendening v. United States,

19 F.4th 421 (4th Cir. 2021) . . . . . . . . . . . . . . 21, 29, 30

Connecticut Nat’l Bank v. Germain,

503 U.S. 249 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Cortez v. United States,

854 F.2d 723 (5th Cir. 1988) . . . . . . . . . . . . . . . . 24, 31

Cummings v. Dep’t of Navy,

116 F. Supp. 2d 76 (D.D.C. 2000), rev’d sub nom.,

279 F.3d 1051 (D.C. Cir. 2002) . . . . . . . . . . . . . . . . . . 21

Daniel v. United States,

139 S. Ct. 1713 (2019) . . . . . . . . . . . . . . . . . . . . . . . 5, 32

Davis v. United States,

667 F.2d 822 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . 25

Feres v. United States,

340 U.S. 135 (1950) . . . . . . . . . . . 1, 2, 3, 4, 5, 18, 19, 20,

21, 22, 23, 24, 25, 26,

27, 28, 29, 31, 32

Fianko v. United States,

No. PWG-12-2025, 2013 WL 3873226

(D. Md. July 24, 2013) . . . . . . . . . . . . . . . . . . . . . . . . 22

Gray v. Bell,

712 F.2d 490 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . 16

Cited Authorities

Page

Hillman v. IRS,

263 F.3d 338 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 13

Hunt v. United States,

636 F.2d 580 (D.C. Cir. 1980) . . . . . . . . . . . . 25, 28, 30

In re Sunterra Corp. (RCI Tech. Corp. v.

Sunterra Corp.),

361 F.3d 257 (4th Cir. 2004) . . . . . . . . . . . . . . . . . . . . 13

Jaffee v. United States,

663 F.2d 1226 (3d Cir. 1981) . . . . . . . . . . . . . . . . 29, 30

Jentoft v. United States,

450 F.3d 1342 (Fed. Cir. 2006) . . . . . . . . . . . . . . . . . . 7

Johnson v. United States,

576 U.S. 591 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Kimble v. Marvel Ent., LLC,

135 S. Ct. 2401 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Labash v. U.S. Dep’t of Army,

668 F.2d 1153 (10th Cir. 1982) . . . . . . . . . . . . . . . . . . 21

Lewis v. United States,

663 F.2d 889 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . .25

Loumiet v. United States,

828 F.3d 935 (D.C. Cir. 2016) . . . . . . . . . . . . . . . . . . 15

Cited Authorities

Page

Perez v. Puerto Rico Nat. Guard,

951 F. Supp. 2d 279 (D.P.R. 2013) . . . . . . . . . . . . . . . 21

Scales v. United States,

685 F.2d 970 (5th Cir. 1982), cert. denied,

460 U.S. 1082 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Siddiqui v. United States,

No. 17-13351, 2018 WL 6178983 (E.D. Mich. Nov. 27,

2018), aff’d, 783 F. App’x 484 (6th Cir. 2019) . . . . . . 22

Smith v. Saraf,

148 F. Supp. 2d 504 (D.N.J. 2001) . . . . . . . . . . . . . . . 21

Stencel Aero Engineering Corp. v. United States,

431 U.S. 666 (1977) . . . . . . . . . . . . . . . . . . . . . 25, 29, 30

United States v. Brown,

348 U.S. 110 (1954) . . . 20, 21, 22, 24, 26, 27, 28, 29, 31

United States v. Johnson,

481 U.S. 681 (1987) . . . . . . . 5, 16, 20, 25, 26, 27, 29, 32

United States v. Muniz,

374 U.S. 150 (1963) . . . . . . . . . . . . . . . . . . . . . 25, 26, 28

United States v. Shearer,

473 U.S. 52 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . 25, 28

Cited Authorities

Page

Statutes

10 U.S.C. § 10216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

10 U.S.C. § 12301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

25 U.S.C. § 5321 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

28 U.S.C. § 1346 . . . . . . . . . . . . . . . . . . . . . 6, 10, 14, 15, 25

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. § 2401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

28 U.S.C. § 2671 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10

28 U.S.C. § 2675 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

28 U.S.C. § 2680 . . . . . . . . . . . . . . . . . . . . . . . . 1, 11, 14, 16

32 U.S.C. § 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

38 U.S.C. § 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30

38 U.S.C. § 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

38 U.S.C. § 316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

38 U.S.C. § 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 31

xii

Cited Authorities

Page

38 U.S.C. §§ 2671-2680 . . . . . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 233 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Other Authorities

E. Warren, The Bill of Rights and the Military,

37 N.Y.U. L. Rev. 181 (1962) . . . . . . . . . . . . . . . . . . . . 5

E i g, L . M . , S t a t u t o r y In t e r p r e t a t i o n :

General Pr inciples and Recent Trends

(CRS Report No. 7-5700) (2014) . . . . . . . . . . . . . . . . 12

Indian Health Service, Risk Management Manual,

The Federal Tort Claims Act, Section Seven . . . . . 15

Jennifer L. McMahan and Mimi Vollstedt,

Researching the Legislative History of the

Federal Tort Claims Act, United States

Attorneys’ Bulletin, Vol. 50 Number 1, 2011 . . . . . . 16

INTRODUCTION

The Federal Tort Claims Act (“FTCA”) waives the

historical immunity of the sovereign and authorizes tort

actions against the federal government for the negligence

of its employees, while expressly retaining immunity

for “claim[s] arising out of the combatant activities of

the military…during time of war.” 28 U.S.C. §2680(j)

(emphasis added). Despite the plain language of the FTCA,

this Court in Feres v. United States held that the FTCA

broadly precludes claims by military service members

where the injuries “arise out of or are in the course of

activity incident to service.” 340 U.S. 135, 146 (1950). Over

the ensuing three-quarters of a century, federal courts

have routinely wrestled with the applicability, scope, and

rationales of Feres.

In the case sub judice, Feres neither applies to nor

bars Petitioners’ congressionally authorized medical

malpractice FTCA claims. On April 6, 2018, Petitioner

Ryan Carter, while inactive and under compulsion of no

military orders, walked into the Walter Reed National

Military Medical Center in Bethesda, Maryland where

he underwent an elective orthopedic spine procedure to

surgically correct a degenerative condition in his cervical

spine that was negatively impacting his quality of life.

Tragically, Ryan Carter has not walked again since this

fateful day, having suffered a traumatic and completely

avoidable spinal cord injury. During the placement of a

trial spacer between the C4/C5 disc spaces of his cervical

spine, Ryan Carter’s spinal cord was traumatized—a

permanent cervical spine injury that left Ryan Carter

paralyzed with little function in his arms and legs.

Physically, Ryan Carter requires 24/7 assistance

with all activities of daily living, including bathing,

toileting, dressing, eating, and ambulating. Mentally and

emotionally, Ryan is a shell of his former self, yearning

for the life he once had with his wife and family. Mr.

Carter’s independence has been stolen from him and he

struggles daily with the fear, stress, and anxiety caused

by his dispiriting condition. Mr. Carter’s life has been

unaccountably turned on its head—all due to the allegedly

tortious conduct of government healthcare providers.

As of his April 6, 2018, spine surgery, Mr. Carter

was a 43-year-old inactive duty Air National Guard Staff

Sergeant subject to no military orders—no active duty

orders, no medical orders, nor any other orders. On April

6, 2018, Mr. Carter was not engaged in military duties

or a military mission; he was inactive; his treatment

did not involve any military exigencies, decisions, or

considerations; his role was simply that of a civilian patient

seeking medical and surgical care from trained healthcare

professionals. It was not until after his traumatic spinal

cord injury that Mr. Carter’s military status was

retroactively altered from inactive to active duty. This

retroactive military status change from inactive to active

duty is dispositive and removes Mr. Carter’s claims from

beneath the Feres umbrella.

Mr. Carter’s underlying medical negligence civil

claims, timely filed according to the plain language of the

FTCA, do not involve any military exigencies, decisions,

or considerations; do not intrude upon military affairs;

nor will they impact the military disciplinary structure.

Mr. Carter was not involved in the combatant activities

of the military during time of war, nor were his April

6, 2018, injuries incident to service. Mr. Carter was an

inactive duty serviceman entitled to all the healthcare

benefits of a military veteran. The rationales underpinning

Feres do not apply to Mr. Carter’s claims or, quite

simply, to any medical malpractice claims asserted by

inactive duty service members and their families. The

Feres doctrine has no justification where an inactive

duty service member is simply a patient, and the acts

or omissions at issue are purely medical, not military,

decisions. Mr. Carter’s injuries occurred, not because of

any military exigencies or considerations, but because of

the failure of Mr. Carter’s healthcare providers to follow

and implement basic standards of care, standards which

are national in scope, and which should be followed by any

healthcare provider, military or otherwise, in treating

similarly situated patients. The application of Feres to

the facts of this case, and any medical malpractice case,

lacks justification and acts to license the tortious conduct

of government healthcare providers while mandating

second-class citizenship to those servicemembers (and

their families) who have dedicated their lives to the

defense of our great nation.

Today, an otherwise healthy person—whether a

member of the military, a veteran, or a civilian—should

not be injured and paralyzed by the allegedly negligent

conduct of trained healthcare professionals, without

remedy and recourse. Under Feres, military service

members and their families receive arbitrarily disparate

treatment under the law, as compared to both civilians

and their ex-military, veteran counterparts. If a similarly

situated veteran had sustained comparable injuries at

any government medical facility, that individual could

bring a civil tort claim against the federal government for

medical malpractice under the FTCA, for the same type of

treatment and allegedly negligent conduct inflicted upon

Mr. Carter. The claim would involve the same proof, the

same witnesses, and the same law.

Notwithstanding the inapplicability of Feres to

Petitioners’ medical malpractice claims, should this Court

find that Feres applies in some way to the facts of this

case, which it wholeheartedly should not, this Court should

take action to clarify, limit, or overrule Feres. Because

Feres was engrafted upon the FTCA by this Court, rather

than Congress, only this Court can address the multitude

of problems and inequities arising from the decision.

“Revisiting precedent is particularly appropriate where,

as here, a departure would not upset expectations, the

precedent consists of judge-made rule…and experience

has pointed up the precedent’s shortcomings.” Kimble v.

Marvel Entm’t, LLC, 135 S. Ct. 2401, 2417 (2015) (Alito

J., dissenting) (citations and internal quotation marks

omitted). See also, Johnson v. United States, 576 U.S. 591

(2015) (Scalia, J., joined by Roberts, C.J. and Ginsburg,

Breyer, Kagan, JJ.) (“Decisions…proved to be anything

but evenhanded, predictable, or consistent…underline,

rather than promote, the goals that stare decisis is meant

to serve.”).

The tides are changing and now is the appropriate

time to inspect the underlying rationales and disparate

consequences of Feres under a microscope and reconsider

the practicality and applicability of Feres given the

decades of widespread, universal criticism it has justly

received. As Justice Clarence Thomas noted:

‘Feres was wrongly decided and heartily

deserves the widespread, almost universal

criticism it has received’…. Such unfortunate

repercussions—denial of relief to military

personnel and distortions of other areas of

law to compensate—will continue to ripple

through our jurisprudence as long as the Court

refuses to reconsider Feres. Had Congress

itself determined that servicemembers cannot

recover for the negligence of the country

they serve, the dismissal of their suits ‘would

(insofar as we are permitted to inquire into such

things) be just’…. But it did not.

Daniel v. United States, 139 S.Ct. 1713 (2019) (Thomas,

J., dissenting from denial of certiorari) (internal citations

omitted). Failure to act will only serve to renew and

validate the federal government’s unbridled license for

tortious conduct and otherwise mandate second-class

citizenship to some of our country’s most honored and

revered citizens—our military service members, veterans,

and their families. “Our citizens in uniform may not be

stripped of basic rights simply because they have doffed

their civilian clothes.” Chappell v. Wallace, 462 U.S. 296,

304 (1983) (citing E. Warren, The Bill of Rights and the

Military, 37 N.Y.U.L.Rev. 181, 188 (1962)).

For the reasons detailed herein, and otherwise

articulated in Justice Scalia’s salient U.S. v. Johnson

dissent, this Petition for a Writ of Certiorari should be

granted.

OPINIONS BELOW

The United States Court of Appeals for the Fourth

Circuit’s unreported per curiam opinion is reproduced

at Appendix 1a-3a. Carter v. United States, No. 22-1703,

2024 WL 982282 (4th Cir. Mar. 7, 2024).

The United States District Court for the District

of Maryland’s memorandum opinion is unreported and

reproduced at Appendix 4a-64a. Carter v. United States,

No. 1:21-cv-01315-ELH, 2022 WL 1642260 (D. Md. May

24, 2022).

JURISDICTION

The United States Court of Appeals for the Fourth

Circuit issued its unreported per curiam opinion affirming

the United States District Court for the District of

Maryland on March 7, 2024. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Petitioners brought the underlying action under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C §§ 1346,

2671, et seq., which waives the historical immunity of the

sovereign and authorizes tort actions against the federal

government for the negligence of its employees, while

expressly retaining immunity for, amongst other things,

“claim[s] arising out of the combatant activities of the

military or naval forces, or the Coast Guard, during time

of war.” 28 U.S.C. §2680(j). The pertinent provisions of

the FTCA are reproduced at Appendix 65a-77a.

STATEMENT OF THE CASE

At the time of the alleged medical malpractice and

his resulting catastrophic injuries on April 6, 2018, Ryan

Carter was a 43-year-old inactive duty Air National Guard

Staff Sergeant, a “dual status” military technician, and a

civilian employee of the federal government.1 Mr. Carter

was married to Kathleen Cole. According to orders under

10 U.S.C. 12301(d)2 , Mr. Carter had just completed an

active tour of duty with the Air Force beginning on August

27, 2017, and ending on March 13, 2018. Between March

14 and April 6, 2018, Mr. Carter was inactive and under

compulsion of no military orders. He was not serving on

a military mission, nor was he engaged in military duties.

Mr. Carter’s military status on April 6, 2018, was more

akin to a civilian, retiree, or veteran than an active duty

service member.

1. Pursuant to 10 U.S.C. § 10216, dual-status military

technicians are federal civilian employees required to maintain

membership in the military reserves. See Jentoft v. United States,

450 F.3d 1342, 1348-49 (Fed. Cir. 2006) (holding that “the plain

language of [10 U.S.C.] § 10216(2) makes clear that” dual-status

technicians are civilians).

2. 10 U.S.C. § 12301(d) states as follows: “At any time, an

authority designated by the Secretary concerned may order a

member of a reserve component under his jurisdiction to active

duty, or retain him on active duty, with the consent of that

member. However, a member of the Army National Guard of the

United States or the Air National Guard of the United States

may not be ordered to active duty under this subsection without

the consent of the governor or other appropriate authority of the

State concerned.”

On April 6, 2018, due to a past medical history that

included degenerative cervical disk disease, Mr. Carter

presented to the Walter Reed National Military Medical

Center in Bethesda, Maryland for anterior cervical

diskectomy and fusion surgery 3 in connection with a

diagnosis of cervical spondylotic myelopathy. There

was nothing distinctively military about the surgery or

the care provided to Mr. Carter. Intraoperatively, Mr.

Carter sustained injury to the C4/C5 level of his spinal

cord. Following surgery, Mr. Carter was awoken from

anesthesia and unable to move his arms and legs. Mr.

Carter underwent emergent reoperation that same day.

Postoperatively, Mr. Carter was transferred to the ICU,

intubated, and sedated, with persistent motor and sensory

deficits. Mr. Carter was diagnosed with an ASIA A4

3. Anterior cervical diskectomy and fusion (ACDF) is one

of the most common spinal operations in the United States.

Between 2006-2013, an average of 137,000 ACDF procedures were

performed per year, with a total of 1,059,403 ACDF procedures

performed over the course of 7 years.

4. The extent of a spinal cord injury (SCI) is defined by the

American Spinal Injury Association (ASIA) Impairment Scale

using the following categories:

A = Complete: No sensory or motor function is

preserved in sacral segments S4-S5

B = Incomplete: Sensory, but not motor, function is

preserved below the neurologic level and extends

through sacral segments S4-S5

C = Incomplete: Motor function is preserved below

the neurologic level, and most key muscles below the

neurologic level have a muscle grade of less than 3

D = Incomplete: Motor function is preserved below

the neurologic level, and most key muscles below the

spinal cord injury. Mr. Carter remained admitted to the

Walter Reed surgical ICU under close observation for

approximately three weeks.

On April 25, 2018, Mr. Carter was discharged from

Walter Reed and transferred to the Hunter Holmes

McGuire VA Medical Center in Richmond, Virginia

for comprehensive spinal cord injury rehabilitation and

therapy. In addition to extensive rehabilitation therapy,

Mr. Carter also required ongoing treatment and care for

his neurogenic bladder, neurogenic bowel, oropharyngeal

dysphagia, pressure ulcers of the sacral and gluteal

regions, spasticity, obstructive sleep apnea, obstruction

of the pelvic-ureteric junction, adjustment disorder

with mixed emotions, generalized anxiety disorder, and

depression.

On June 27, 2018, approximately 82 days after his April

6, 2018, surgical misadventure and traumatic spinal cord

injury, Ryan Carter’s military status was retroactively

altered from inactive to active duty by way of a 10 U.S.C.

12301(h)5 Air National Guard Call to Duty Order, with a

neurologic level have a muscle grade that is greater

than or equal to 3

E = Normal: Sensory and motor functions are normal

5. 10 U.S.C. 12301(h) states as follows:

(1) When authorized by the Secretary of Defense, the Secretary

of a military department may, with the consent of the member,

order a member of a reserve component to active duty—

(A) to receive authorized medical care;

(B) to be medically evaluated for disability or other

purposes; or

retroactive start date of March 14, 2018, pre-dating his

April 6, 2018, spine surgery and traumatic cord injury.

On April 8, 2019, Mr. Carter was discharged from

the Hunter Holmes McGuire VA Medical Center and

transferred to CareMeridian Nursing and Rehabilitation

in Littleton, Colorado for continued spinal cord injury

rehabilitation. In April 2021, Mr. Carter relocated with

his wife to Tampa, Florida, where he resides today. Mr.

Carter continues to receive outpatient medical care and

treatment, including rehabilitation therapy, through the

James A. Haley Veterans’ Hospital in Tampa, Florida, in

connection with his paralysis and other related injuries

and damages.

Petitioners, Ryan Carter and his wife, Kathleen Cole,

complied with all provisions of 28 U.S.C. § 2675 of the

FTCA. They each submitted timely administrative claims

to the United States government. Their claims were

denied. Petitioners filed a Complaint in the District Court

on May 27, 2021, under the FTCA, 28 U.S.C. §§ 1346, 2671,

care study, which may include an associated medical evaluation

of the member.

(2) A member ordered to active duty under this subsection

may, with the member›s consent, be retained on active duty, if

the Secretary concerned considers it appropriate, for medical

treatment for a condition associated with the study or evaluation,

if that treatment of the member is otherwise authorized by law.

(3) A member of the Army National Guard of the United States

or the Air National Guard of the United States may be ordered

to active duty under this subsection only with the consent of the

Governor or other appropriate authority of the State concerned.

et seq. On November 24, 2021, the United States moved to

dismiss for lack of subject matter jurisdiction. Petitioners

responded in opposition on February 7, 2022. The United

States replied on March 30, 2022. On March 24, 2022,

the District Court, the Honorable Ellen L. Hollander

presiding, entered an order and judgment dismissing the

case. Petitioners timely filed a notice of appeal on June 28,

2022. The United States Court of Appeals for the Fourth

Circuit heard oral argument on January 25, 2024, before

the Honorable G. Steven Agee, Julius N. Richardson, and

A. Marvin Quattlebaum, Jr. and affirmed the ruling of the

District Court by unpublished per curiam opinion dated

March 7, 2024.

REASONS FOR GRANTING THE PETITION

A. Petitioners’ Congressionally Authorized Medical

Malpractice Claims Fall Squarely Within the

Historical and Plain Language Meaning of the

Federal Tort Claims Act.

The FTCA waives the historical immunity of the

sovereign and authorizes tort actions against the federal

government for the negligence of its employees, while

expressly retaining immunity for “claim[s] arising out of

the combatant activities of the military or naval forces, or

the Coast Guard, during time of war.” 28 U.S.C. §2680(j)

(emphasis added).

At the time of his elective surgery and traumatic spinal

cord injury on April 6, 2018, Ryan Carter’s military duty

status was “inactive,” and he was subject to no military

orders, including no active duty orders, no medical orders,

nor any other orders. Implicitly, and even explicitly, at

the time of his injury, Mr. Carter was not involved in the

combatant activities of the military during time of war,

nor were his April 6, 2018, spinal cord injuries incident

to service in any logical or meaningful way. As of April

2018, Mr. Carter was no different than a military veteran

seeking medical and surgical care from a government

healthcare facility. Mr. Carter’s civil medical malpractice

claims are analogous to the congressionally authorized

claims routinely asserted by ex-military veterans against

government medical centers and providers nationwide

under the FTCA.

The starting point in construing a statute is the

plain language. This Court often recites the “plain

meaning rule,” that, if the statutory language is plain and

unambiguous, it must be applied according to its terms.

Eig, L. M. (2014). Statutory Interpretation: General

Principles and Recent Trends (CRS Report No. 7-5700)

at 3. Under text-based analysis, the cardinal rule of

statutory construction is that the whole statute should

be drawn upon as necessary, with its various parts being

interpreted within their broader statutory context in a

manner that furthers statutory purposes. Id. at 4. Justice

Scalia, who was in the vanguard of efforts to redirect

statutory construction toward statutory text and away

from legislative history, has characterized this general

approach: “Statutory construction...is a holistic endeavor.

A provision that may seem ambiguous in isolation is often

clarified by the remainder of the statutory scheme—

because the same terminology is used elsewhere in a

context that makes its meaning clear, or because only one

of the permissible meanings produces a substantive effect

that is compatible with the rest of the law.” Id.

Accordingly, a proper analysis of the FTCA requires

an application of the principles of statutory interpretation.

When interpreting a statute, courts begin with the

statutory text. The Fourth Circuit has recognized that

“as a settled principle, ‘unless there is some ambiguity in

the language of a statute, a court’s analysis must end with

the statute’s plain language....’” In re Sunterra Corp., 361

F.3d 257, 265 (4th Cir. 2004) (citing Hillman v. I.R.S., 263

F.3d 338, 342 (4th Cir. 2001)). Statutory analysis must end

with the plain language because “[t]he preeminent canon

of statutory interpretation requires [courts] to presume

that the legislature says in a statute what it means and

means in a statute what it says there.” BedRoc Ltd.,

LLC v. United States, 541 U.S. 176, 183 (2004) (quoting

Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54

(1992)) (alterations made).

Here, a simple plain meaning interpretation of the

FTCA works in tandem with Congress in carrying out the

statute’s intended purpose, that is, to permit individuals

like Ryan Carter—civilian, veteran, and military alike—

to pursue civil claims for personal injuries caused by the

negligent or wrongful acts or omissions of a government

employee while acting within the course and scope of his

or her office or employment, under circumstances where

the United States, if a private person, would be liable to

the claimant under the law of the place where the act or

omission occurred. The FTCA reads, in pertinent part,

as follows:

Subject to the provisions of chapter 171 of this

title, the district courts, together with the

United States District Court for the District

of the Canal Zone and the District Court of the

Virgin Islands, shall have exclusive jurisdiction

of civil actions on claims against the United

States, for money damages, accruing on and

after January 1, 1945, for injury or loss of

property, or personal injury or death caused by

the negligent or wrongful act or omission of any

employee of the Government while acting within

the scope of his office or employment, under

circumstances where the United States, if a

private person, would be liable to the claimant

in accordance with the law of the place where

the act or omission occurred.

28 U.S.C. § 1346(b)(1).

The FTCA includes a detailed list of exceptions to its

waiver of government immunity. 28 U.S.C. § 2680. Two

of these exceptions are not only relevant to the instant

calculus but also represent clear and explicit examples of

the considerations and calculations made by Congress,

demonstrating a clear legislative intent regarding the

applicability, scope, breadth, and limitations of the FTCA.

Section 2680 reads, in pertinent part, as follows:

The provisions of this chapter and section

1346(b) of this title shall not apply to…

(j) Any claim arising out of the combatant

activities of the military or naval forces, or the

Coast Guard, during time of war.

(k) Any claim arising in a foreign country.

28 U.S.C. § 2680(j)-(k) (emphasis added).

Congress enacted and codified specific exceptions

to the FTCA’s waiver of government immunity that

contemplate the combatant activities of the military

during times of war, as well as claims arising in a foreign

country. In so doing, Congress specifically excluded from

the FTCA’s waiver of immunity exceptions claims arising

out of the noncombatant activities of the military during

times of peace.

Interpreting the plain language of the FTCA requires

an understanding of the landscape in which the statute sits

and the context in which it was created. Before 1946, the

federal government could not be held liable for tortious

activity based on the doctrine of sovereign immunity.

Indian Health Service, Risk Management Manual, The

Federal Tort Claims Act, Section Seven. (citing 28 U.S.C.

§§ 1346(b), 2401(b), 2671-2680; 25 U.S.C. § 5321(d), 458aaa15; 42 U.S.C. § 233). With sovereign immunity, the United

States Government could not be sued. Id.

In 1946, Congress exacted the FTCA, waiving

sovereign immunity for tortious conduct caused by

government employees acting within the scope of

employment. 28 U.S.C. §§1346(b), 2401(b), 2671-2680.

The purpose of the FTCA was two-fold: first, it provided

compensation for the w rongdoings of government

employees, and, second, the legislation worked to

deter tortious activity on behalf of the government

while incentivizing proper supervision of government

employees. Loumiet v. United States, 828 F.3d 935, 941

(D.C. Cir. 2016).

However, the FTCA was not Congress’ first attempt

to waive sovereign immunity. Beginning in 1887,

Congress waived tort immunity on behalf of the federal

government concerning certain contract claims. See

Jennifer L. McMahan and Mimi Vollstedt, Researching

the Legislative History of the Federal Tort Claims Act,

United States Attorneys’ Bulletin, Vol. 50 Number 1, 2011.

The Tucker Act of 1887 memorialized that change and

was one of the first steps by Congress to move away from

the early practice of hearing private bills and deciding

whether to provide compensation or to allow a case to

escalate to a court. Id. The FTCA would go on to take on

a variety of shapes before its official enactment in 1946.

Congress introduced over thirty tort claims bills between

1925 and 1946 to address tort immunity. Id.

Historians note that when Congress was contemplating

FTCA enactment, there was fear amongst the legislature

of “unwarranted judicial intrusion[s] into areas of

governmental operations and policymaking.” Gray v.

Bell, 712 F.2d 490, 506 (D.C. Cir. 1983). To assuage these

concerns, Congress “opted to explicitly preserve the

United States’ sovereign immunity from more than a

dozen categories of claims.” See generally, 28 U.S.C. §

2680(a)-(n). As stated, these explicitly detailed FTCA

exceptions demonstrate Congress’ clear intent to limit

the waiver of sovereign immunity to some government

torts and not others. These articulate and plainly defined

exceptions illustrate Congress’ thorough contemplation

of what the FTCA would and would not cover. See

Johnson, 481 U.S. at 692 (stating “Congress specifically

considered, and provided what it thought needful for, the

special requirements of the military.”). For Petitioners’

claims, Congress implicitly provided a waiver of sovereign

immunity for stateside, non-combatant (e.g., medical

malpractice) claims brought by active or inactive duty

military service members and their families during times

of peace.

This Court has laid the foundation for the plain

language interpretation of the FTCA with cases like

Brooks v. United States, a case in which an off-duty

military service member was injured by a government

employee in a traffic accident and sought recovery for

personal injury under the FTCA. 337 U.S. 49 (1949). The

Brooks Court, employing a plain language interpretation

of the FTCA, explicitly declined to find that the FTCA’s

immunity exemptions applied to an off-duty military

service member. The Brooks Court concluded that the

FTCA provided the District Court with subject matter

jurisdiction over certain civil claims and, to the extent that

Congress did not waive sovereign immunity for certain

claims, such exemptions were codified and written into

the plain language of the statute:

The [FTCA] statute’s terms are clear. They

provide for District Court jurisdiction over any

claim founded on negligence brought against

the United States. We are not persuaded

that ‘any claim’ means ‘any claim but that of

servicemen.’ The statute [has] exceptions. None

exclude petitioners’ claims. One [exception]

is for claims arising in a foreign country. A

second excludes claims arising out of combatant

activities of the military or naval forces, or

the Coast Guard, during time of war. These

and other exceptions are too lengthy, specific,

and close to the present problem to take away

petitioners’ judgments. [] It would be absurd

to believe that Congress did not have the

servicemen in mind in 1946, when this statute

was passed. The overseas and combatant

activities exceptions make this plain.

Id. at 51 (emphasis added). The Brooks Court concluded

that the FTCA was enacted to address the need for

adjudication of all tort claims, and not just those claims

brought by non-service members. Id.

Abiding by the plain language meaning of the FTCA,

as written, is of the utmost importance as it dictates

whether countless service members (like Ryan Carter)

and their family members (like Kathleen Cole), receive

fair and just recovery from the federal government.

Construing the FTCA statute as written allows not only

for just recovery but also for Congress’ true intent to

be fulfilled. When taking a plain-meaning approach to

statutory interpretation, it is important to recognize what

language is present in writing and what is intentionally

absent. Petitioners do not ask this Court to create a

different meaning for the words it has before it or read

into the FTCA statute what is not there. Petitioners ask

this Court to apply the FTCA to the facts of this case,

consistent with the statute’s plain meaning.

B. Just as this Court Held in Brooks v. United States

and U.S. v. Brown, the Feres Doctrine is Limited in

Scope and Does Not Apply To Petitioners’ Medical

Malpractice Claims.

Shortly after the enactment of the FTCA in 1946, this

Court issued a series of opinions interpreting the Act. In

the first, Brooks v. United States, this Court permitted

a service member to bring a claim against the United

States when the plaintiff was injured in a traffic accident

on a public highway. Id. (“The statute’s terms are clear.

They provide for District Court jurisdiction over any claim

founded on negligence brought against the United States.

We are not persuaded that ‘any claim’ means ‘any claim

but that of servicemen.’” (emphasis added)). This Court

permitted the Brooks’ claims under the FTCA, as they

were “dealing with an accident which had nothing to do

with the Brooks’ army careers, injuries not caused by their

service except in the sense that all human events depend

upon what has already transpired.” Id. at 52.

One year later, in Feres v. United States, 340 U.S.

135 (1950), this Court held that a plaintiff’s decedent’s

estate and his widow were prohibited from bringing a

wrongful death claim under the FTCA when the decedent

perished in a barracks fire. This Court premised its

decision on three rationales: first, unlike the Brooks

plaintiffs, the Feres plaintiff’s injuries arose “in the

course of activity incident to service.” Id. at 146. Second,

according to this Court, aggrieved service people are

generously compensated through the Veterans Affairs

benefits system.6 Id. at 145 (“The compensation system,

which normally requires no litigation, is not negligible…

[t]he recoveries compare extremely favorably with those

provided by most workman’s compensation statutes.”).

This second reason this Court premised on the general

notion underlying any compensation system: service people

enter a “grand bargain” whereby they are guaranteed

benefits in exchange for recourse in the courts. See id.

6. Servicepeople injured or killed in the performance of their

military duties are compensated under the Veterans’ Benefits Act

(“VBA”). 38 U.S.C. § 301, et seq.

Such a “grand bargain” served the additional purpose

of conformity of recourse for peripatetic service people,

who otherwise would be “dependent upon geographic

considerations over which they have no control and to laws

which fluctuate in existence and value.” Id. at 143. Third,

and also concordant with the incident-to-service concept,

is that this Court doubted that Congress intended for

service members to be able to recover under both FTCA

and Veterans Affairs benefits schemes. Id. at 144.

A final reason—apocryphally attributed to Feres by

subsequent decisions yet is nowhere to be found in the

Feres opinion itself—is that tort claims by service people

would be detrimental to military discipline. Cf. Johnson,

481 U.S. at 690 (“Feres and its progeny indicate that suits

brought by service members against the Government

for injuries incurred incident to service are barred by

the Feres doctrine because they are the types of claims

that, if generally permitted, would involve the judiciary

in sensitive military affairs at the expense of military

discipline and effectiveness.” (brackets, quotation marks,

and citation omitted)), with Feres, 340 U.S. 135 (1950);

see also, Johnson, 481 U.S. at 699 (“In sum, neither

of the three original Feres reasons nor the post hoc

rationalization of ‘military discipline’ justifies our failure

to apply the FTCA as written.”).

Four years after Feres, this Court decided United

States v. Brown, and sustained the plaintiff’s medical

negligence claims. 348 U.S. 110 (1954). In Brown, the

plaintiff’s injury occurred after his honorable discharge,

“while he enjoyed a civilian status,” and the “damages

resulted from a defective tourniquet applied in a veterans’

hospital.” Id. at 112. Thus, this Court held that Brooks,

rather than Feres, controlled. Id.

In the decades following Brooks, Feres, and Brown,

the Federal District and Courts of Appeal have dutifully

and broadly applied Feres to preclude suits by military

service members and their families whose injuries arose

incident to service. At the same time, these courts have

plainly stated their regret in applying such draconian

precedent and, near uniformly quoting Justice Scalia’s

Johnson dissent, have unabashedly stated that Feres

“was wrongfully decided and heartily deserves the

widespread, almost universal criticism it has received.”

See, e.g., Clendening v. United States, 19 F.4th 421, 431

(4th Cir. 2021) (“However, despite the rampant criticism,

the Feres doctrine still stands, and this Court is bound

by it.”). See also, Appelhans v. United States, 877 F.2d

309, 313 (4th Cir. 1989) (quoting J. Scalia’s dissent

and concluding that “the fact that the doctrine may in

many cases lead to undeniably harsh results does not

relieve this court of its obligation to apply precedent”);

Bozeman v. United States, 780 F.2d 198, 200 (2d Cir.

1985) (“The Feres doctrine is a blunt instrument; courts

and commentators have often been critical of it”); LaBash

v. U.S. Dep’t of the Army, 668 F.2d 1153, 1156 (10th Cir.

1982) (“Although many courts have expressed reservations

about the continuing validity of the broad Feres doctrine,

only the United States Supreme Court can overrule or

modify Feres.”); Perez v. Puerto Rico Nat. Guard, 951 F.

Supp. 2d 279, 296 (D.P.R. 2013) (quoting J. Scalia’s dissent

and stating “[w]e join the chorus of higher courts and

renowned jurists who have vehemently expressed their

disdain for the unbridled Feres doctrine”); Smith v. Saraf,

148 F. Supp. 2d 504, 508 (D.N.J. 2001) (quoting J. Scalia’s

dissent); Cummings v. Dep’t of Navy, 116 F. Supp. 2d 76,

79 (D.D.C. 2000), rev’d sub nom. Cummings v. Dep’t of the

Navy, 279 F.3d 1051 (D.C. Cir. 2002) (quoting J. Scalia’s

dissent and stating that “this Court agrees” with his

criticism); Siddiqui v. United States, No. 17-13351, 2018

WL 6178983, at *4 (E.D. Mich. Nov. 27, 2018), aff’d, 783

F. App’x 484 (6th Cir. 2019) (quoting J. Scalia’s dissent

and bemoaning that since Feres, a “judicially-engineered

exception to the FTCA[,]” service members “suffering

even the most brutal injuries due to military negligence

have been shut out of the courts”); Bosh v. United States,

No. C19-5616 BHS, 2019 WL 6728636, at *1 (W.D. Wash.

Dec. 11, 2019), aff’d, 831 F. App’x 834 (9th Cir. 2020)

(quoting J. Scalia’s dissent and regretting that “Feres,

however, is the law of the land”); Fianko v. United States,

No. PWG-12-2025, 2013 WL 3873226, at *6 (D. Md. July

24, 2013) (quoting J. Scalia’s dissent).

Here, Feres neither applies to, nor bars Petitioners’

FTCA claims. The three Feres rationales, and the ex post

hoc rationale of military discipline, are not implicated

by the facts of this case. The reasons why are simple

and facially obvious. First, there is no dispute that Mr.

Carter’s active duty period ended on March 13, 2018,

and there is no dispute that, at the time of Mr. Carter’s

surgery on April 6, 2018, and his subsequent injury, he was

inactive, subject to no military orders and on no military

mission. Second, Mr. Carter has not been “generously

compensated” through the Veterans Affairs benefits

system. Third, case law before and after Feres permits

recovery under both the FTCA and VBA. Finally, Mr.

Carter’s medical negligence claims do not impute military

discipline or sensitive military matters. Like the Brown

plaintiff, Mr. Carter’s injuries occurred not in the line

of duty, but in a stateside hospital setting, where Mr.

Carter’s only role was that of a surgical patient. 348 U.S.

at 112. And like the Brooks plaintiff, the negligence in

Mr. Carter’s case “had nothing to do with [his National

Guard] career[, and his], injuries [were] not caused by [his]

service except in the sense that all human events depend

upon what has already transpired.” 337 U.S. at 52.

At the time of his injury on April 6, 2018, Mr. Carter

was an inactive duty, dual-status member of the Air

National Guard, and a civilian employee of the federal

government. As a Guardsman, Mr. Carter was required

to “(1) assemble for drill and instruction, including

indoor target practice, at least 48 times each year; and

(2) participate in training at encampments, maneuvers,

outdoor target practice, or other exercises, at least 15

days each year.” 32 U.S.C. § 502(a); see also 38 U.S.C.

§ 101(23) (defining “inactive duty training…[i]n the case

of the…Air National Guard of any State” as that falling

under section 316 and 502, et seq.).

Critically, Mr. Carter’s April 6, 2018, spinal cord

injury was not suffered while satisfying his Guardsman

responsibilities, at a military base, at a military-sponsored

event, or because of the military’s provision of dangerous

substances. Mr. Carter’s spinal cord injury occurred in

connection with an elective surgical procedure during

which it is alleged that government employees and

healthcare providers deviated from the standards of care

in negligently placing a spinal disc spacer, permanently

traumatizing and injuring Mr. Carter’s cervical spinal

cord. At the time of the negligence and injury, Mr. Carter

was sedated, unconscious, and immobile, lying on an

operating room table, in a surgical suite.

Consistent with Mr. Carter’s argument that his

medical negligence claims were not incident to service,

and therefore not subject to Feres, the Federal Circuits

and this Court have sustained medical negligence claims

brought by inactive duty service members. In the Brown

case, this Court held that a claim for severe nerve

damage resulting “from a defective tourniquet applied in

a veterans’ hospital” was not barred by Feres. 348 U.S.

at 112. In Bradley v. United States, the Fourth Circuit

reversed summary judgment on a wrongful death claim

where the plaintiff alleged an off-duty servicewoman died

of infection after medical staff repeatedly refused her

treatment. 161 F.3d 777, 778-82 (4th Cir. 1998). In Cortez

v. United States, the Fifth Circuit reversed the lower

court’s dismissal under Feres, when the plaintiff alleged

medical negligence against an army medical center

psychiatric facility, where the plaintiff’s decedent, on the

Temporary Disability Retired List—not active duty—was

left unattended on the 8th floor and jumped to his death.

854 F.2d 723, 727 (5th Cir. 1988). Mr. Carter was not on

active duty, he was under no military or medical orders,

and he was not engaged in an activity implicating the

military or military service—as he was fully unconscious

while under the knife—and thus his claims are not barred

under Feres.

C. The Rationales Underpinning the Feres Doctrine

and the Incident-to-Ser vice Test Have Been

Discarded by the Courts and Do Not Apply to

Petitioners’ Medical Malpractice Claims.

This Court in Feres initially articulated several

“rationales” in defense of its judicially engineered

incident-to-service test which were predicated on the

“distinctly federal” relationship between the United

States and its service personnel, on the presence of an

alternative military compensation system, and on the

fear of damaging the military disciplinary structure.

See generally, Stencel Aero Engineering Corp. v. United

States, 431 U.S. 666, 671-72 (1977); see also, Davis v.

United States, 667 F.2d 822, 825 (9th Cir. 1982); Lewis

v. United States, 663 F.2d 889, 890 (9th Cir. 1981); Hunt

v. United States, 636 F.2d 580, 597 (D.C. Cir. 1980). As

this Court will see, the rationales underpinning the Feres

doctrine are not implicated in this case and, in turn, the

Feres doctrine is not applicable.

The “Distinctively Federal Relationship”

Rationale Has Been Discarded by the Courts

and No Longer Controls.

The first reason the Feres Court gave for barring

claims of service members relates to the idea that the

FTCA applies the “law of the place where the act or

omission occurred,” 28 U.S.C. 1346(b) and that Congress

could not have intended for local tort law to control

issues that are federal in nature. 340 U.S. at 142-44.

The Feres Court believed that Congress would have

wanted uniformity of law in situations involving military

service members and was primarily concerned with the

“unfairness to the soldier of making his recovery turn

upon where he was injured, a matter outside of his control.”

Johnson, 481 U.S. at 693 (citations omitted) (emphasis in

original).

This first Feres rationale was discredited and put

to rest years ago in United States v. Shearer when this

Court held that the “distinctively federal” rationale was

“no longer controlling.” 473 U.S. 52, 58, n. 4 (1985). This

rationale has not been a viable rationale for Feres since this

Court discarded it in United States v. Muniz, 374 U.S. 150

(1963). Justice Scalia pointed out in his Johnson dissent

that “[t]he unfairness to servicemen of geographically

varied recovery is...an absurd justification, given that…

nonuniform recovery cannot possibly be worse than (what

Feres provides) uniform nonrecovery.” 481 U.S. at 695-96

(citing Muniz, 374 U.S. 150, 162).

Petitioners Benefit From No “Grand Bargain.”

The second reason the Feres Court gave for exempting

military personnel from the right to bring suit under

the FTCA is that the Veterans Benefits Act (“VBA”)

compensates service members. In so concluding, this

Court violated the maxim “absence of evidence is not

evidence of absence,” as pointed out by Justice Scalia in

his Johnson dissent: “Feres described the absence of any

provision to adjust dual recoveries under the FTCA and

VBA as ‘persuasive evidence that there was no awareness

that the Act might be interpreted to permit recovery for

injuries incident to military service.’” Johnson, 481 U.S.

at 697 (quoting Feres, 340 U.S. at 144-45).

Also pointed out by Justice Scalia, such a prohibition

is inconsistent with the FTCA—the text of which,

among clearly articulated exceptions, does not include an

exception for related VBA claims—as well as prior and

subsequent case law, which has permitted FTCA claims

when the plaintiff also received VBA benefits. In the

Brooks case, this Court plainly stated: “nothing in the

[Federal] Tort Claims Act or the veterans’ laws…provides

for exclusiveness of remedy,” and this Court refused to

“call either remedy…exclusive…when Congress has not

done so.” 337 U.S. at 53; see also, Johnson, 481 U.S. at 697

(stating the same). In Brown, this Court also stated that

“Congress had given no indication that it made the right to

[VBA] compensation the veteran’s exclusive remedy…the

receipt of disability payments…did not preclude recovery

under the [Federal] Tort Claims Act.” 348 U.S. at 111; see

also, Johnson, 481 U.S. at 698 (stating the same). This

Court in Brooks and Brown was not looking to sidestep

the principles of statutory interpretation and followed the

plain language meaning of the FTCA statute.

Petitioner Ryan Carter walked into a government

hospital on April 6, 2018, and never walked again. He

can remember his very last steps—into a government

facility where substandard surgical care robbed him of

his independence—his ability to use his legs, arms, and

hands, to toilet and bathe on his own. The VBA likely

covers certain aspects of Mr. Carter’s medical care. But

well-known systemic problems with the veterans’ health

care system, including quality and access issues, preclude

Mr. Carter from receiving the breadth and quality of care

he so desperately requires and deserves. Further, the

true cost of his traumatic spinal cord injury—the loss of

his livelihood, his independence, and his ability to parent

and to be a husband to his wife—is simply not addressed

by the VBA.

Only One Legitimate Feres Rationale Remains:

The Evolution and Refinement of the Feres

Rationales and the Post Hoc Rationalization

of Military Discipline.

Over the years that followed Feres, lower courts

realized that, when applied, the Feres doctrine is, in

effect, a license for tortious conduct and a mandate of

second-class citizenship for military service members

and their families. This Court did not take the causal

impact of Feres lightly and in subsequent cases refined

the foundations of the doctrine, announcing that the

doctrine “seems best explained” by only one of the initially

articulated rationales—what has now become known as

the “military discipline rationale” and it observed that the

other rationales advanced in the past as support for the

Feres doctrine were “no longer controlling.” Brown, 348

U.S. at 112; Muniz, 374 U.S. at 162; Chappell v. Wallace,

462 U.S. 296, 299 (1983); Shearer, 473 U.S. 52, 87 L.Ed.2d

at 44 n. 4.

This Court further noted that “[t]he Feres doctrine

cannot be reduced to a few bright-line rules” and that the

Feres bar should be erected only where “the suit requires

the civilian court to second-guess military decisions...

and…the suit might impair essential military discipline.”

Id. This Court also stated that the Feres doctrine barred

the “type of claims that, if generally permitted, would

involve the judiciary in sensitive military affairs at the

expense of military discipline and effectiveness.” Id. at

45 (emphasis in original).

With this Court’s lead, lower courts focused on the

reasons underlying the Feres doctrine, declining to erect

the Feres bar when the primary rationale which “serves

largely if not exclusively as the predicate for the Feres

doctrine” was not implicated by the facts of the particular

case. Hunt v. United States, 636 F.2d 580, 599 (D.C. Cir.

1980); see also, Scales v. United States, 685 F.2d 970, 973

(5th Cir. 1982), cert. denied, 460 U.S. 1082 (1983) (“Stencel

and its progeny direct our inquiry to the manner in which

the policies underlying Feres are affected—specifically the

impact on military discipline—rather than to the status of

the claimant”).

Petitioners’ Medical Malpractice Claims Do

Not Impute the Military Discipline Rationale.

Post-dating Feres by decades, yet w rongfully

attributed to the doctrine, “the post hoc rationalization

of military discipline”—even if it were valid—would

not preclude Petitioners’ claims. Johnson, 481 U.S. at

699. This “rationalization” is premised on the notion

that service members’ suits under the FTCA would

undermine military discipline “and civilian courts would

be required to second-guess military decisionmaking.” Id.

Accordingly, to satisfy this dubious test, courts “must ask

whether particular suits would call into question military

discipline and decisionmaking and would require judicial

inquiry into, and hence intrusion upon, military matters.”

Clendening, 19 F.4th at 427 (quoting Cioca v. Rumsfeld,

720 F.3d 505, 515 (4th Cir. 2013)) (brackets and quotation

marks omitted).

In justifying the military discipline rationale, courts

interpreting Feres have endeavored to identify activities

that could harm the military’s disciplinary system if

litigated in a civil action. In doing so, courts identified

two distinct ways in which military discipline could

be impeded by the possibility of civil suits concerning

activities bearing a strong relationship to military

affairs. First, military decision-makers subject to civil

suit “might not be willing to act as quickly and forcefully

as is necessary, especially during battlefield conditions,”

if their actions could be second-guessed in a civilian

court.” Jaffee v. United States, 663 F.2d 1226, 1232 (3rd

Cir. 1981) (emphasis added). See also, Stencel, 431 U.S. at

673. Second, encouraging military personnel to question

decisions by their superiors might have some effect on the

willingness of such personnel to follow orders. See, e.g.,

Jaffee, 663 F.2d at 1232; Hunt, 636 F.2d at 599.

In Atkinson v. United States, 825 F.2d 202 (9th Cir.

1987), a service member was injured by negligent medical

care in the course of giving birth. The Ninth Circuit held

that the military discipline rationale had no application

to these facts:

No militar y considerations gover n 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 treating Atkinson for complications of her

pregnancy, Atkinson’s doctor was implementing

decisions of military judgment only in the

remotest sense….

Atkinson, 825 F.2d at 205 (emphasis added).

Here, Mr. Carter’s elective spine surgery while on

inactive duty, his resulting spinal cord injury, and the civil

medical malpractice tort claims that naturally followed,

do not involve military matters or military discipline, as

“no military discipline applies to the care a conscientious

physician w ill provide.” Id. Mr. Carter’s medical

malpractice claims do not implicate a military decisionmaker’s willingness to “act quickly and forcefully…during

battlefield conditions,” nor will they have any impact on

the “willingness of [military] personnel to follow orders.”

Jaffee, 663 F.2d at 1232; Stencel, 431 U.S. at 673; Hunt,

636 F.2d at 599.

Mr. Carter’s leaders and colleagues in the Air

National Guard had no say and no interest in his elective

surgery. The surgery was not related in any way to his

duties and responsibilities—active, inactive, reservist,

civilian, or otherwise. See 32 U.S.C. § 502(a); see also 38

U.S.C. § 101(23). Mr. Carter was not under any medical

orders to undergo surgery. He elected to have surgery,

after discussion with his medical providers, spouse, and

family. Indeed, his medical records are rife with notes

stating that his practitioners “obtained informed consent”

for his elective and corrective procedure. Mr. Carter

consented to surgery; he was not ordered to undergo

surgery. He was not duty-bound to undergo surgery.

Further, Mr. Carter was not on active duty, but rather,

inactive duty. By definition, his injuries did not occur

“in the course of his day-to-day, active duty service[,]”

and thus his injuries did not “stem from the relationship

between [him] and his service in the military.” Clendening,

19 F.4th at 428 (brackets omitted).

Lastly, Mr. Carter was not injured on a military base.

Unlike the plaintiffs in Feres and Clendening, where

the general functioning of the military, in its provision

of barracks, water, or some other essential element of

military function, was implicated, Mr. Carter was injured

in a government hospital. As discussed, the Federal Courts

and this Court have not considered medical negligence in

a hospital setting as an absolute bar to claims under the

FTCA. See generally, Brown, 348 U.S. at 112; see also,

Bradley v. United States, 161 F.3d 777, 778-82 (4th Cir.

1998); Cortez v. United States, 854 F.2d 723, 727 (5th Cir.

1988).

In short, where there is no relevant relationship

between a service member’s actions or behavior and the

military’s interests that civil suits might jeopardize, the

Feres doctrine should not bar recovery.

D. Feres Was Wrongfully Decided and Should Be

Clarified, Limited, or Overruled.

Feres directly conflicts with the plain language

meaning of the FTCA and has outgrown its purpose and

utility. Even the lone remaining rationale underpinning

Feres—military discipline—is inadequate to justify the

widespread injustice and inequity caused by its arbitrarily

disparate and hazardous application.

For the reasons outlined in Justice Scalia’s U.S. v.

Johnson, 481 U.S. 681, 691-703, dissent, Feres should be

clarified, limited, or overruled. “Feres was wrongfully

decided and heartily deserves the widespread, almost

universal criticism it has received.” Id. at 700; see also,

Daniel v. United States, 139 S.Ct. 1713 (2019) (Thomas,

J., dissenting from denial of certiorari and stating that

“[s]uch unfortunate repercussions—denial of relief to

military personnel and distortions of other areas of

law to compensate—will continue to ripple through our

jurisprudence as long as the Court refuses to reconsider

Feres.”) (internal citations omitted).

CONCLUSION

For the reasons set forth herein, Petitioners

respectfully request that the Supreme Court of the United

States grant their Petition for a Writ of Certiorari.

Respectfully submitted,

Christopher T. Casciano

Counsel of Record

Brian S. Brown

Brown & Barron, LLC

Seven St. Paul Street, Suite 800

Baltimore, Maryland 21202

(410) 547-0202

ccasciano@brownbarron.com

Counsel for Petitioners

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

F OR T H E F OU RT H CI RCU I T,

FILED MARCH 7, 2024 . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND,

FILED MAY 24, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . 4a

A PPEN DI X C — S TAT U T E S OF T H E

CONST I T U T IONA L PROV ISIONS

BOOKMARKED . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH

CIRCUIT, FILED MARCH 7, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1703

RYAN G. CARTER; KATHLEEN E. COLE,

Plaintiffs-Appellants,

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for

the District of Maryland, at Baltimore. Ellen Lipton

Hollander, Senior District Judge. (1:21-cv-01315-ELH).

January 25, 2024, Argued

March 7, 2024, Decided

Before AGEE, RICHARDSON, and QUATTLEBAUM,

Circuit Judges.

Affirmed by unpublished per curiam opinion.

PER CURIAM:

Appendix A

Ryan G. Carter, a reservist in the Air National Guard

and dual-status technician for the military, and his wife,

Kathleen E. Cole, appeal the district court’s judgment

dismissing their Federal Tort Claims Act action for lack

of subject matter jurisdiction under Feres v. United States,

340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950), having

found the injuries arose out of or were in a course of

activity “incident to service.” We have jurisdiction under

28 U.S.C. § 1291, and we review dismissals under Feres

de novo. Clendening v. United States, 19 F.4th 421, 426

(4th Cir. 2021). We affirm the district court’s dismissal.

The district court properly dismissed the claims of

alleged medical malpractice, lack of informed consent and

loss of consortium all stemming from surgery that took

place at Walter Reed National Military Medical Center.

Carter received the surgery at Walter Reed—performed

by military doctors—because he was a member of the

military. And although he was on inactive status as an

Air National Guardsman at the time of the surgery, he

was neither discharged from the military nor on leave

substantially similar to discharged or veteran status.

Under our precedent, that is enough to bar the couple’s

claims under Feres.1 See Appelhans v. United States, 877

F.2d 309, 311 (4th Cir. 1989) (finding Feres applicable to

servicemember on excess leave pending discharge because

“his injury occurred as a result of medical treatment by

military doctors . . . conclusively demonstrat[ing] that that

injury was ‘incident to service’”); see also Clendening, 19

1. A derivative loss of consortium claim is similarly barred by

Feres under our precedent. See Kendrick v. United States, 877 F.2d

1201, 1206-07 (4th Cir. 1989).

Appendix A

F.4th at 428 (noting the current breadth of the doctrine

in the circuit, “encompass[ing], at a minimum, all injuries

suffered by military personnel that are even remotely

related to the individual’s status as a member of the

military” (citation omitted)). Accordingly, we

AFFIRM

APPENDIX B — Appendix

MEMORANDUM

OPINION

OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND,

FILED MAY 24, 2022

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. ELH-21-1315

RYAN G. CARTER, et al.,

Plaintiffs,

UNITED STATES OF AMERICA,

Defendant.

May 24, 2022, Decided

May 24, 2022, Filed

MEMORANDUM OPINION

Plaintiffs Ryan G. Carter and his wife, Kathleen

E. Cole, have filed a tort suit against the United States

of America (the “Government”) (ECF 1), “pursuant to

and in compliance with” the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2671 et seq., and the “National

Defense Authorization Act” (“NDAA”), 10 U.S.C. § 2733

et seq. Id. ¶ 17.1 The suit stems from cervical spine

1. As the Government notes (ECF 18-1 at 15-17), plaintiffs’

reference to the “NDAA” is somewhat confusing. “NDAA” is the

Appendix B

surgery performed on Carter at Walter Reed National

Military Medical Center (“Walter Reed”) on April 6,

2018. Tragically, the surgery left Carter with life altering,

substantial, and permanent injuries. See ECF 1, ¶¶ 24-39.

Plaintiffs lodge three counts against the Government:

“Medical Negligence” (Count I); “Loss of Consortium”

(Count II); and “Informed Consent” (Count III). See ECF

1, ¶¶ 45-62. The Complaint is supported by numerous

exhibits. ECF 2-3 to ECF 2-17. 2

The Government has moved to dismiss pursuant

to Fed. R. Civ. P. 12(b)(1) (ECF 18), supported by a

name given to the defense policy bill annually passed by Congress.

See, e.g., National Defense Authorization for Fiscal Year 2022,

Pub. L. No. 117-81, 135 Stat. 1541 (2021). The provision of law cited

by plaintiffs, 10 U.S.C. § 2733, is contained within the Military

Claims Act (“MCA”), 10 U.S.C. § 2731 et seq., which provides an

administrative mechanism to settle certain claims against the United

States for personal injury, death, or property damage caused by

a DoD civilian employee or service member. See Minns v. United

States, 974 F. Supp. 500, 507-08 (D. Md. 1997), aff’d, 155 F.3d 445

(4th Cir. 1998).

The Government suggests (ECF 18-1 at 16-17) that plaintiffs’

use of the term “NDAA” is a reference to an amendment to the MCA

contained in the National Defense Authorization Act for Fiscal Year

2020. See Pub. L. No. 116-92, Div. A, Title VII, Subtitle C, § 731(a)

(1), 133 Stat. 1198, 1157-60 (2019). Codified at 10 U.S.C. § 2733a, this

amendment permits service members to file administrative claims

for injuries incident to service caused by medical malpractice, in

some contexts. This issue is discussed further, infra.

2. The exhibits were docketed separately from the Complaint.

Appendix B

memorandum (ECF 18-1) (collectively, the “Motion”) and

numerous exhibits. ECF 18-2 to ECF 18-9. According to

the Government, the suit is barred by the doctrine first

articulated by the Supreme Court in Feres v. United

States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950).

Plaintiffs oppose the Motion. ECF 21 (the “Opposition”).

The Government has replied (ECF 28, the “Reply”),

supported by additional exhibits. ECF 28-1 to ECF 28-7.

No hearing is necessary to resolve the Motion. See

Local Rule 105.6. For the reasons that follow, I am

compelled to grant the Motion.

I. Factual Background 3

In April 2018, Carter was a 43-year-old Air National

Guard Staff Sergeant. ECF 1, ¶ 23.4 He is married to

3. As discussed, infra, because the Government mounts a

factual challenge to subject matter jurisdiction, I “may regard the

pleadings as mere evidence on the issue and may consider evidence

outside the pleadings without converting the proceeding to one for

summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392,

398 (4th Cir. 2004)

Throughout the Memorandum Opinion, the Court cites to

the electronic pagination. But, the electronic pagination does not

always correspond to the page number imprinted on the particular

submission.

4. The Complaint and the briefing refer to Carter as a Staff

Sergeant (“SSgt”). However, as the Motion notes (see ECF 18-1 at

Appendix B

Cole. Id. ¶ 9. Carter enlisted in the Maryland Air National

Guard and the Air National Guard of the United States

in 2009. ECF 18-2 (Decl. of Bernard E. Doyle, Associate

General Counsel, National Guard Bureau), ¶ 5. 5 “The

Air National Guard of the United States is a Reserve

Component of the United States Air Force.” Id.

Carter attended “initial active duty training,” which

is “commonly known as ‘basic training,’” in February and

March 2010, at Lackland Air Force Base in San Antonio,

Texas. Id. ¶ 6; see ECF 18-4 (initial active duty training

order). Between April and November 2010, Carter also

completed “‘technical school’ training” at Kessler Air

Force Base in Biloxi, Mississippi, and Sheppard Air Force

Base in Wichita Falls, Texas. ECF 18-2, ¶ 7; see ECF 18-4;

ECF 18-5; ECF 18-6; ECF 18-7 (training orders).

According to the Complaint, as of April 2018, Carter

had “a medical history that included degenerative

cervical disk disease, chronic neck pain, difficulty with

fine motor skills, as well as numbness and tingling in his

fingers.” ECF 1, ¶ 23. The Complaint does not include any

allegations as to the origin of Carter’s medical conditions.

But, materials submitted by the Government reflect that

Carter’s medical conditions derived, at least in part, from

2 n.2), some documents refer to Carter’s rank as Tech Sergeant

(“TSgt”), suggesting he was promoted from Staff Sergeant to Tech

Sergeant “in the final months or years prior to his retirement.” Id.

This issue is not material.

5. Doyle reviewed a number of records relating to Carter’s

employment and service with the Air National Guard. ECF 18-2,

¶¶ 2, 3.

Appendix B

injuries he sustained during basic training. Doyle avers:

“In early 2010 SSgt Carter sustained injuries after falling

from a pull-up bar during his basic training. It is my

understanding that SSgt Carter has experienced ongoing

medical issues since that injury.” ECF 18-2, ¶ 7. Carter

does not contest the government’s assertions.

Similarly, according to Charles P. Franz, Jr., the

Associate General Counsel for the Defense Health

Agency (“DHA”), Carter “sustained injuries after falling

from a pull-up bar during his basic training.” ECF 18-9

(Franz Decl.), ¶ 5.6 “Since that fall, TSgt Carter has

reported a progression of steadily worsening symptoms,

including chronic back pain in his leg, back, shoulder and

neck, increased difficulties with fine motor skills, and

reoccurring numbness and tingling in his fingers and

other extremities.” Id. ¶ 6.

Carter continuously sought and received care for

“these and other symptoms” from Walter Reed and

other military hospitals and medical providers. Id. ¶ 7.

Walter Reed, previously known as the “National Naval

Medical Center,” is located in Bethesda, Maryland, and is

a “military hospital or treatment facility” managed by the

DHA, a “combat support agency within” the Department

of Defense (“DoD”). Id. ¶ 2. Beginning in May 2015,

Carter was seen and evaluated at Walter Reed for these

symptoms, and was diagnosed by Walter Reed physicians

with “cervical spondylotic myelopathy.” Id. ¶ 8.7

6. Franz reviewed medical records and administrative claims

related to Carter. ECF 18-9, ¶¶ 3, 4.

7. The Cour t may take judicial notice that “[c]er vical

spondylotic myelopathy is damage to the spinal cord in the neck.”

Appendix B

An order submitted with the Complaint reflects that

Carter was activated to active duty status for the period

from August 27, 2017, to March 27, 2018, for service with

the 175th Wing of the Maryland Air National Guard in

support of “Operation Freedom’s Sentinel.” ECF 2-16

(the March 23, 2018 Order) at 2. 8 This period was later

shortened to end on March 13, 2018. Id. According to

the order (id. at 2), the legal authority for this activation

was 10 U.S.C. § 12301(d), which provides: “At any time,

an authority designated by the Secretary concerned

may order a member of a reserve component under his

jurisdiction to active duty, or retain him on active duty,

with the consent of that member.”

Colonel Joed I. Carbonell of the United States Air

Force was Carter’s commanding officer for Carter’s active

duty tour that began in August 2017. ECF 28-1 (Carbonell

Decl.), ¶ 2. Materials included by the Government with

the Reply, including a Declaration by Carbonell, provide

more details as to Carter’s active duty service.

Carbonell avers: “In August 2017, I issued the special

orders, which activated SSgt Carter to active duty with

the [Maryland Air National Guard 276 Cyberspace

Operations] Squadron to perform duties, pursuant to 10

Cervical spondylotic myelopathy, Columbia Univ. Irving Med. Ctr.,

https://www.neurosurgery.columbia.edu/patient-care/conditions/

cervical-spondylotic-myelopathy (last visited May 9, 2022); see also

Fed. R. Evid. 201.

8. “The term ‘active duty’ means full-time duty in the active

military service of the United States.” 10 U.S.C. § 101(d)(1).

10a

Appendix B

U.S.C. § 12301(d), in support of Operation Freedoms SE

[sic].” Id. ¶ 7.9 As noted, the active duty period originally

was from August 27, 2017, to March 27, 2018, but the end

date was later changed to March 13, 2018. See ECF 2-16;

ECF 28-2; ECF 28-3; ECF 28-4 (orders). During this

period, Carter worked under Carbonell’s command “as a

Cyber Operations Planner supporting Air Forces Cyber

and the Cyber National Mission Force.” ECF 28-1, ¶ 8.

According to Carbonell, in 2017 Carter was “assigned

to a position as a military technician (dual status).” Id. ¶ 6.

“Military technicians (dual status) are full-time, federal

civilian employees whose employment is conditioned

on maintaining their military position in the National

Guard.” Id. As a dual status military technician, Carter

was required to maintain membership in the Maryland

Air National Guard, meaning he was obligated to attend

“inactive duty training one weekend a month as well

as two weeks of annual training a year.” Id.; see also

32 U.S.C. § 502 (specifying National Guard training

requirements); 32 U.S.C. § 709 (authorizing dual status

military technicians).

Carbonell avers that he “was aware that SSgt Carter

sought and received medical care as an active duty service

member from [Walter Reed] during [Carter’s service in

9. This appears to be a typographical error. The name of the

operation is Operation Freedom’s Sentinel. See ECF 2-16 at 2; ECF

28-2 at 1.

11a

Appendix B

the unit, from August 27, 2017, to March 13, 2018], for a

spinal injury that he sustained while in basic training.”

ECF 28-1, ¶ 8.

According to Franz, during an evaluation of Carter

at Walter Reed on or around March 1, 2018, “it was

recommended” to Carter that he undergo surgery “in

order to alleviate and prevent the worsening of the pain,

radiculopathy, and other symptoms he was experiencing

in his neck.” ECF 18-9, ¶ 9. On or about April 6, 2018,

Carter “presented” to Walter Reed “for anterior cervical

discectomy and fusion (‘ACDF’) surgery in connection with

a diagnosis of cervical spondylotic myelopathy.” ECF 1,

¶ 24.10

The surgery was performed by Bradley A. Dengler,

M.D., “with general endotracheal tube anesthesia

administered and monitored by the anesthesia team.”

ECF 1, ¶ 25.11 Plaintiffs allege that “[i]ntraoperatively, the

procedure was complicated by a loss and/or depression in

neurophysiological signals during the negligent placement

of a trial spacer at the C4/5 level.” Id. ¶ 27. After the

discectomy, Carter awoke from anesthesia and was

“unable to move his extremities.” Id. ¶ 28. “Thereafter,

Mr. Carter was again sedated and sent emergently for an

MRI to evaluate for injury to his cervical cord. The results

10. In general, the Complaint does not define or explain its

medical terminology.

11. In ECF 1, ¶¶ 44, 48, plaintiffs identify 30 health care

providers involved with Carter’s surgical procedure and subsequent

medical care.

12a

Appendix B

of the MRI showed a slight increase in the T2 signal within

the spinal cord at the C4/5 level.” ECF 1, ¶ 29. Given these

“T2 hypersensitivities,” Carter “underwent a posterior

C3-6 laminectomy and fusion that same day.” Id. ¶ 30.

This second procedure was likewise recommended and

performed by Dr. Dengler. Id.

“Postoperatively, Mr. Carter was transferred to the

Surgical ICU, intubated and sedated, and with persistent

motor and sensory deficits.” Id. ¶ 31. Upon admission, he

was reported to have an “ASIA A spinal cord injury with

a motor score of two.” Id. ¶ 32. “In the hours and days

that followed, Mr. Carter underwent examination and

testing, including CT, MRI, and ultrasound imaging to

determine the cause, nature, and extent of his diminished

postoperative neurological function and pain.” Id. ¶ 33.

A postoperative MRI showed “‘persistent severe spinal

canal stenosis from C3-C5’ indicating that the surgery

was unsuccessful.” Id. ¶ 34. Carter was monitored at the

Walter Reed Surgical ICU for approximately three weeks

after the surgery, where he also underwent wound care,

physical therapy, recreational therapy, and occupational

therapy. Id. ¶ 37; see also ECF 18-9, ¶ 13. However, his

hospital treatment was “complicated” by “a left upper

extremity deep vein thrombosis (“DVT”) for which

he was initially anticoagulated with heparin and later

transitioned to Lovenox (enoxaparin).” ECF 1, ¶ 36.

On or about April 25, 2018, Carter was transferred

from Walter Reed to the Hunter Holmes McGuire Veterans

Affairs (“VA”) Medical Center in Richmond, Virginia,

for comprehensive spinal cord injury rehabilitation

therapy. Id. ¶ 38; see also ECF 18-9, ¶ 14. There, Carter

13a

Appendix B

received “continued rehabilitation therapy for ASIA B

tetraplegia due to his April 6, 2018 spinal cord injury,

as well as ongoing treatment for his neurogenic bladder,

neurogenic bowel, oropharyngeal dysphagia, pressure

ulcers of sacral and gluteal regions, spasticity, obstructive

sleep apnea, obstruction of the pelvic-ureteric junction,

adjustment disorder with mixed emotions, generalized

anxiety disorder, and depression.” ECF 1, ¶ 39. And, he

underwent several operative procedures, including “the

debridement of his right buttock wound, cystoscopy with

left retrograde pyelogram, and cystoscopy and suprapubic

catheter placement.” ECF 1, ¶ 40.

“At the time of his surgery on April 6, 2018, and at all

time [sic] when he received care and treatment at [Walter

Reed], TSgt Carter was a member of the Air National

Guard.” ECF 18-9, ¶ 18. However, the specific details are

more complicated.

As noted, Carter’s active duty status ended on March

13, 2018. However, the Complaint alleges that on or about

June 27, 2018, Carter’s duty status was “retroactively

converted from ‘inactive duty’ to ‘active duty’” as of

March 14, 2018. ECF 1, ¶ 41. The Complaint includes a

“Verification of an Air National Guard Call to Duty Order,”

signed by Colonel Carbonell and dated June 27, 2018. ECF

2-17. The document identifies the “Type of Duty/Authority”

as “Active Duty for Operational Support Medical Hold,”

and cites 10 U.S.C. § 12301(h). ECF 2-17 at 2.12 And, the

12. 10 U.S.C. § 12301(h) provides:

(1) When authorized by the Secretary of Defense,

the Secretary of a military department may, with the

14a

Appendix B

document refers to an “Itinerary” beginning March

14, 2018, and ending June 11, 2018. ECF 2-17 at 2. The

Complaint does not include any further allegations as to

this retroactive conversion, including as to the motivation

for doing so. However, the Opposition hypothesizes,

without citation to evidence, that the conversion was

“presumably due to the nature and severity of [Carter’s]

newfound medical situation.” ECF 21-1 at 5.

Materials included with the Reply provide further

details as to these circumstances. Colonel Carbonell

consent of the member, order a member of a reserve

component to active duty—

(A) to receive authorized medical care;

(B) to be medically evaluated for disability or other

purposes; or

health ca re study, which may include an

associated medical evaluation of the member.

(2) A member ordered to active duty under this

subsection may, with the member’s consent, be

retained on active duty, if the Secretary concerned

considers it appropriate, for medical treatment for a

condition associated with the study or evaluation, if

that treatment of the member is otherwise authorized

by law.

(3) A member of the Army National Guard of the

United States or the Air National Guard of the United

States may be ordered to active duty under this

subsection only with the consent of the Governor or

other appropriate authority of the State concerned.

15a

Appendix B

avers that he was aware of Carter’s scheduled surgery,

but not aware that it was to occur after Carter completed

his active duty tour. ECF 28-1, ¶ 8. He asserts: “As a

military technician (dual status) and drilling member

of the Maryland Air National Guard, SSgt Carter

normally would not have been eligible for medical care or

surgery at a military hospital, such as Walter Reed.” Id.

¶ 9. Therefore, he “assumed when [Carter] had left the

Squadron that SSgt Carter had received special orders

extending his active duty to receive medical treatment.”

Id. However, reviewing Carter’s records after the

surgery, he “realized” that Carter “had received medical

treatment after his active duty tour without having first

obtained orders continuing active duty status for medical

treatment. Thus, SSgt. Carter was not qualified to receive

the sought [sic] medical treatment and care at Walter

Reed.” Id. ¶ 10.

Accordingly, Carbonell issued a series of orders

modifying Carter’s status, activating him to active duty

status “so that he could be placed on ‘Medical Hold.’” Id.

¶ 11. First, on April 18, 2018, he issued an order placing

Carter on a “Special Medical Training Hold” under 32

U.S.C. §§ 502(f)(1)(B) and 503. Id.; see ECF 28-5 (the “April

18, 2018 Order”).13 This order specified an “Itinerary”

13. 32 U.S.C. § 502(f)(1)(B) authorizes a member of the National

Guard to be ordered to perform additional training or duty with

his consent, with or without pay. 32 U.S.C. § 503, as relevant here,

authorizes a “limited number of members of the Air National

Guard” to attend service schools except the United States Air Force

Academy, and to “be attached to an organization of the Air Force

corresponding to the organization of the Air National Guard to which

16a

Appendix B

period of March 14, 2018, to June 11, 2018. ECF 28-5 at

1. The order advised: “The purpose of this extension is

to allow additional time to assess the member’s medical

condition and for the medical treatment facility (MTF)

toinitiate [sic] or complete a LOD,14 determine whether

the medical condition renders the member unable to meet

retention or mobility standards, and provide medical

documentation to support a request for MEDCON orders,

if applicable.” ECF Id. This order also states: “The Verbal

Orders of the Commander (VOCO) on 14 Mar 2018 are

confirmed; circumstances prevented written orders in

advance.” Id. at 2. However, the Order apparently did not

place Carter on active duty.

Carbonell subsequently issued two orders placing

Carter on active duty. ECF 28-1, ¶ 11. The first, dated May

30, 2018, placed Carter on active duty for the period from

June 11, 12, 2018, to July 11, 2018. ECF 28-6 (the “May 30,

2018 Order”) at 1. The May 30, 2018 Order identifies the

“Type of Duty/Authority” as “Activation Medical Hold,”

citing to 10 U.S.C. § 12301(h). Id. at 1. It states: “Member

is being extended under this authority pending resolution

of a medical issue.” Id. The May 30, 2018 Order also

describes the “Reserve Active Duty Reason” as “K — 10

USC 12301 (H) Voluntary Tour for Medical Treatment.”

Id. at 2. In addition, it advises: “While performing under

these orders, member is subject to the Uniform Code of

Military Justice.” Id. at 1.

the member belongs, for routine practical instruction at an air base

during field training or other outdoor exercise.”

14. The acronym “LOD” is not defined.

17a

Appendix B

The second order is dated June 27, 2018. ECF 28-7

(the “June 27, 2018 Order”). It is generally similar to the

May 30, 2018 Order. The “Type of Duty/Authority” is given

as “Active Duty for Operational Support Medical Hold,”

citing to 10 U.S.C. § 12301(h). Id. at 1. And, the dates

for duty are March 14, 2018, to June 11, 2018. ECF 28-7

at 1. Similar to the April 18, 2018 Order, but unlike the

May 30, 2018 Order, the June 27, 2018 Order states: “The

Verbal Orders of the Commander (VOCO) on 14 Mar 2018

are confirmed; circumstances prevented written orders

in advance.” Id. at 2. This is the retroactive conversion

order alleged in the Complaint (see ECF 1, ¶ 41), although

the Complaint includes a slightly different “verification”

document. See ECF 2-17.

Carbonell describes being on “medical hold” as a type

of active duty, and explains that someone on medical hold

can still be subject to the same types of military orders as

any other active duty service member. ECF 28-1, ¶ 12. He

concludes his Declaration by stating, id. ¶¶ 13-14:

These orders were issued at SSgt Carter’s

request and in coordination with the 175th

Medical Group—an entity responsible with

administering medical benefits for the Air

National Guard—because if SSgt Carter

had been considered to be in his status as a

military technician and drill status guardsmen

at the time of the surgery, he could not have

been found injured in the line of duty. Had

SSgt. Carter not been injured in the line of

duty, he would not have been eligible for pay

18a

Appendix B

and benefits, continuing medical treatment,

disability and medical retirement benefits, and

veterans’ benefits after he was discharged from

military service. . . .

The decision to issue these orders was

made in light of the foregoing, but particularly

because SSgt. Carter’s [sic] requested it. In

issuing these orders, no consideration was given

to potential administrative claims or litigation.

Although the Carbonell Declaration was included

with the Reply, plaintiffs have not sought to contest the

circumstances described in Carbonell’s Declaration. As

mentioned, the Complaint alleges retroactive conversion

based on an order of June 27, 2018, consistent with the

Declaration. See ECF 1, ¶ 41. However, it does not provide

any further detail.

In particular, Carter has not specified whether he

requested the retroactive conversion to active duty status

in order to obtain medical care through the military.

However, and of import, the authorizing statute, 10

U.S.C. § 12301(h), permits medical activation only with

the “consent of the member.” Furthermore, both the May

30, 2018 Order and the June 27, 2018 Order describe the

reason for activation as a “voluntary tour for medical

treatment.” ECF 28-6 at 2; ECF 28-7 at 2 (emphasis

added).

The Government’s declarants agree that Carter’s

eligibility for surgery at Walter Reed on April 6, 2018,

19a

Appendix B

was premised on his military service. But, there seems to

be some disagreement, or at least a lack of clarity, as to

whether Carter had to be on active duty status to undergo

the surgery. As discussed, Colonel Carbonell apparently

believes that Carter was not eligible for the surgery at

Walter Reed, a military hospital, unless he was on active

duty status. See ECF 28-1, ¶¶ 9-10. For his part, Franz

avers that Carter “was able to receive medical treatment

and evaluation at [Walter Reed], including his April 6,

2018 surgery, because of his service in the Air National

Guard,” but states that Carter “would have received

the same medical treatment and April 6, 2018 surgery,

regardless of whether he was on active or inactive duty

status.” ECF 18-9, ¶ 19.

Doyle asserts: “As a matter of law and regulation,

SSgt Carter would not have been eligible for the medical

care and surgery he received at any of the military

hospitals he visited, including [Walter Reed], unless

he was enrolled in the Defense Enrollment Eligibility

Reporting System (“DEERS”).” ECF 18-2, ¶ 10. But,

Doyle provides no explanation as to what DEERS is, or

its implications in this case.

Doyle directs the Court’s attention to a DoD policy

regarding “Benefits for Members of the Uniformed

Ser v ices, Their Dependents, and Other Elig ible

Individuals,” and specifically to the section covering

“Benefits for National Guard and Reserve Members of the

Uniformed Services.” See ECF 18-3 at 11-12. Doyle does

not highlight any particular part of this section. But, the

policy appears to specify that National Guard members

20a

Appendix B

are only eligible for “direct care” at “military treatment

facilities” if they are on active duty for periods greater

than thirty days. ECF 18-3 at 11; see id. at 8, 54 (defining

abbreviations).

Car ter was discharged from Hunter Holmes

McGuire on or about April 8, 2019, and transferred to

Care Meridian Nursing and Rehabilitation in Littleton,

Colorado, for continued spinal court injury rehabilitation.

ECF 1, ¶ 42; see also ECF 18-9, ¶¶ 15-16. While at Care

Meridian, Carter was enrolled in the VA Eastern Colorado

Health Care System. ECF 1, ¶ 42. In April 2021, Carter

relocated to Tampa, Florida, “to be closer to his family.”

Id. ¶ 43. He receives outpatient care and treatment,

including rehabilitation therapy, through the James A.

Haley Veterans’ Hospital. Id.; see also ECF 18-9, ¶ 17.

On November 1, 2019, an Informal Physical Evaluation

Board (“IPEB”) found that Carter’s “medical condition

prevents him from reasonably performing the duties

of his office, grade, rank or rating,” and recommended

that he be “permanently retired with a disability rating

of 100%.” ECF 18-8 at 3. The IPEB said: “While on

Active Duty orders, the [service member] underwent

cervical neck surgery in Apr 2018 for progressively

worsening neck pain and radiculopathy. Post surgery, [he]

developed quadriplegia and has been receiving supportive/

rehabilitative care since.” Id. (emphasis added). Then, on

November 13, 2019, Carter signed a form indicating he

agreed with the findings and recommended disposition of

21a

Appendix B

the IPEB, and waived his rights for any further appeal.

Id. at 16. By order dated November 21, 2019, and effective

January 27, 2020, Carter received medical retirement, due

to 100 percent physical disability, and was relieved from

active duty. ECF 18-2, ¶ 9; see ECF 18-8 at 1 (November

21, 2019 Order).

Plaintiffs filed a complaint with the Maryland Health

Care Alternative Dispute Resolution Office (the “Office”)

on or about November 25, 2020, together with a Certificate

Report of Qualified Expert and Preliminary Report, and

a Notice of Election to Waive Arbitration. ECF 1, ¶¶ 1-3;

see ECF 2-3; ECF 2-4; ECF 2-5. On December 8, 2020,

the Office issued an “Order of Transfer” to this Court.

ECF 1, ¶ 4; see ECF 2-6. Plaintiffs also assert that they

have “exhausted all administrative remedies and fully

complied with the provisions of” the FTCA and 10 U.S.C.

§ 2733. ECF 1, ¶ 20; see ECF 2-7 to ECF 2-15. And, they

state that under the FTCA, because the Government has

not made a final disposition regarding these claims within

six months of when they were originally filed, plaintiffs’

claims “were effectively denied as of September 24, 2020.”

ECF 1, ¶ 21.

This litigation followed. Plaintiffs allege that Dr.

Dengler and a number of other Walter Reed health care

providers were negligent in their care and treatment of

Carter, breaching the applicable standard of care in a

variety of ways. ECF 1, ¶ 48. As a result, according to the

Complaint, Carter has suffered significant, permanent

injuries. Id. ¶ 49. Carter and Cole, his wife, claim that

they have suffered loss of consortium. Id. ¶¶ 53-54.

22a

Appendix B

Plaintiffs also allege that the Government “failed to

timely, adequately, completely, and appropriately obtain

[Carter’s] informed consent.” Id. ¶ 58.

Additional facts are included in the Discussion, infra.

II. Legal Standards

A. Rule 12(b)(1)

The Motion is premised entirely on the ground that

the Court lacks subject matter jurisdiction. Accordingly,

it is brought under Rule 12(b)(1) of the Federal Rules

of Civil Procedure. Federal district courts are courts

of limited jurisdiction; they possess “‘only that power

authorized by Constitution and statute.’” Gunn v. Minton,

568 U.S. 251, 256, 133 S. Ct. 1059, 185 L. Ed. 2d 72 (2013)

(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994));

see Home Depot U.S.A., Inc. v. Jackson, U.S. , 139 S. Ct.

1743, 1746, 204 L. Ed. 2d 34 (2019); Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S. Ct. 2611,

162 L. Ed. 2d 502 (2005). Simply put, “if Congress has not

empowered the federal judiciary to hear a matter, then

the case must be dismissed.” Home Buyers Warranty

Corp. v. Hanna, 750 F.3d 427, 432 (4th Cir. 2014); see also

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94,

118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998) (“‘Jurisdiction is

power to declare the law, and when it ceases to exist, the

only function remaining to the court is that of announcing

the fact and dismissing the cause.’”) (citation omitted).

“Because jurisdictional limits define the very foundation

23a

Appendix B

of judicial authority, subject matter jurisdiction must,

when questioned, be decided before any other matter.”

United States v. Wilson, 699 F.3d 789, 793 (4th Cir.2012).

Under Rule 12(b)(1), the plaintiff bears the burden of

proving, by a preponderance of evidence, the existence of

subject matter jurisdiction. See Demetres v. E. W. Const.,

Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also The Piney

Run Preservation Ass’n v. Cty. Comm’rs of Carroll Cty.,

523 F.3d 453, 459 (4th Cir. 2008); Evans v. B.F. Perkins

Co., 166 F.3d 642, 647 (4th Cir. 1999). However, a court

should grant a motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1) “‘only if the material

jurisdictional facts are not in dispute and the moving party

is entitled to prevail as a matter of law.’” B.F. Perkins, 166

F.3d at 647 (citation omitted).

A challenge to subject matter jurisdiction under Rule

12(b)(1) may proceed “in one of two ways”: either a facial

challenge or a factual challenge. Kerns v. United States,

585 F.3d 187, 192 (4th Cir. 2009); accord Hutton v. Nat’l

Bd. of Exam’rs Inc., 892 F.3d 613, 620-21 (4th Cir. 2018).

In a facial challenge, “the facts alleged in the complaint

are taken as true, and the motion must be denied if the

complaint alleges sufficient facts to invoke subject matter

jurisdiction.” Kerns, 585 F. d at 192; accord Clear Channel

Outdoor, Inc. v. Mayor and City Council of Baltimore,

22 F. Supp. 3d 519, 524 (D. Md. 2014).

In a factual challenge, on the other hand, “the district

court is entitled to decide disputed issues of fact with

respect to subject matter jurisdiction,” Kerns, 585 F.3d

24a

Appendix B

at 192, “[u]nless ‘the jurisdictional facts are intertwined

with the facts central to the merits of the dispute.’”

United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337,

348 (4th Cir. 2009), cert. denied, 558 U.S. 875, 130 S. Ct.

229, 175 L. Ed. 2d 129 (2009). In a factual challenge, the

court “may regard the pleadings as mere evidence on the

issue and may consider evidence outside the pleadings

without converting the proceeding to one for summary

judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392,

398 (4th Cir. 2004); see also Richmond, Fredericksburg

& Potomac R.R. Co. v. United States, 945 F.2d 765, 768

(4th Cir. 1991). In particular, “the district court may . . .

resolve the jurisdictional facts in dispute by considering

evidence . . . such as affidavits.” Vuyyuru, 555 F.3d at

348. When appropriate, the court may also “hold an

evidentiary hearing to determine whether the facts

support the jurisdictional allegations.” United States v.

North Carolina, 180 F.3d 574, 580 (4th Cir. 1999); see also

Schneider v. Donaldson Funeral Home, P.A., 733 Fed.

App’x 641, 644 (4th Cir. 2018); Kerns, 585 F.3d at 192.

The Government contends that the Motion may

be considered either as a facial or a factual challenge,

and should be granted either way. See ECF 18-1 at 7 &

n.7. It has submitted numerous exhibits. Because the

exhibits are relevant to the resolution of the Motion, I will

construe the Motion as a factual challenge and consider

the submissions.

25a

Appendix B

B. The FTCA

“Absent a statutory waiver, sovereign immunity

shields the United States from a civil tort suit.” Kerns,

585 F.3d at 193-94 (citing United States v. Sherwood, 312

U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941)). But,

to the extent that the United States has expressly waived

sovereign immunity, a plaintiff may recover against

the United States. See, e.g., Welch v. United States, 409

F.3d 646, 650 (4th Cir. 2005) (citation omitted); see also

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95, 111 S.

Ct. 453, 112 L. Ed. 2d 435 (1990) (holding that a waiver

of sovereign immunity “cannot be implied but must be

unequivocally expressed”) (citation and internal quotation

marks omitted).

The Complaint is brought under the FTCA. See ECF 1,

¶¶ 17, 18, 20, 21.15 Under the FTCA, Congress has waived

the sovereign immunity of the United States, exposing it to

tort liability for claims “for money damages . . . for injury

or loss of property, or personal injury or death caused by

the negligent or wrongful act or omission of any employee

of the Government while acting within the scope of his

office or employment,” so long as certain conditions are

satisfied. 28 U.S.C. § 1346(b)(1); see Ali v. Fed. Bureau of

Prisons, 552 U.S. 214, 217-18, 128 S. Ct. 831, 169 L. Ed. 2d

680 (2008). But, “‘the FTCA is strictly construed, and all

ambiguities are resolved in favor of the United States.’”

Lins v. United States, 847 Fed. App’x 159, 162 (4th Cir.

15. To the extent that plaintiffs also seek to invoke the

Military Claims Act, or what they refer to as the NDAA, this issue

is discussed, infra. But, it does not alter the outcome.

26a

Appendix B

2021) (quoting Williams v. United States, 50 F.3d 299,

305 (4th Cir. 1995)). Moreover, the United States may be

liable under the FTCA only to the extent that a “private

person[] would be liable to the claimant in accordance with

the law of the place where the act or omission occurred,”

28 U.S.C. § 1346(b)(1), and only “in the same manner

and to the same extent as a private individual under like

circumstances.” Id. § 2674. Thus, “the substantive law of

each state establishes the cause of action.” Anderson v.

United States, 669 F.3d 161, 164 (4th Cir. 2012).

However, the United States is not liable for all torts

committed by federal employees. Section 1346(b) of Title

28 “grants the federal district courts jurisdiction over a

certain category of claims for which the United States

has waived its sovereign immunity.” F.D.I.C. v. Meyer, 510

U.S. 471, 477, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994). For

a claim to fall within that “certain category,” it must be:

“[1] against the United States, [2] for money

damages, . . . [3] for injury or loss of property,

or personal injury or death [4] caused by the

negligent or wrongful act or omission of any

employee of the Government [5] while acting

within the scope of his office or employment,

[6] under circumstances where the United

States, if a private person, would be liable to

the claimant in accordance with the law of the

place where the act or omission occurred.”

Id. (quoting 28 U.S.C. § 1346(b)(1)) (alterations in original).

27a

Appendix B

In the Fourth Circuit, the plaintiff has the burden

of establishing that an “unequivocal waiver of sovereign

immunity exists and that none of the [FTCA’s] waiver

exceptions apply to his particular claim.” Welch, 409 F.3d

at 651; see also United States v. Clendening, 19 F.4th 421,

426 (4th Cir. 2021) (same, in Feres context).16

C. The Feres Doctrine

The Feres doctrine is an exception to the FTCA’s

waiver of sovereign immunity, although it is not contained

in the text of the FTCA. It was first articulated by the

Supreme Court in 1950, in Feres v. United States, 340

U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152, which was decided a

few years after the enactment of the FTCA. Under Feres,

FTCA claims are barred “for injuries to servicemen where

the injuries arise out of or are in the course of activity

incident to service.” Id. at 146 (emphasis added).

Notably, the Feres doctrine has been the subject of

intense criticism. “Justices, judges, and scholars have

routinely noted the harsh results brought about by the

doctrine, and many have suggested Feres itself was

wrongly decided.” Clendening, 19 F.4th at 431; see also

United States v. Johnson, 481 U.S. 681, 700-01, 107 S.

Ct. 2063, 95 L. Ed. 2d 648 (1987) (Scalia, J., dissenting)

(“Feres was wrongly decided and heartily deserves

the ‘widespread, almost universal criticism’ it has

16. Plaintiff argues that the Government bears the burden of

proving the applicability of a FTCA waiver exception, citing only

Ninth Circuit case law. See ECF 21-1 at 7. The law in the Fourth

Circuit is to the contrary.

28a

Appendix B

received.”) (internal citation omitted). However, as the

Fourth Circuit has remarked, the Supreme Court has,

if anything, broadened the applicability of Feres since it

was first decided. See Clendening, 19 F.4th at 428; Aikens

v. Ingram, 811 F.3d 643, 651 (4th Cir. 2016); Stewart v.

United States, 90 F.3d 102, 105 (4th Cir. 1996). Moreover,

“despite the rampant criticism, the Feres doctrine still

stands, and this Court is bound by it.” Clendening, 19

F.4th at 431; see also Johnson, 481 U.S. at 686. Therefore,

I turn to a discussion of the Feres doctrine.

“[T]he Fourth Circuit has said the sole task of a lower

court deciding whether to apply Feres ‘is to assess whether

appellant’s injuries arose out of activity incident to

service.’” Colon v. United States, 320 F. Supp. 3d 733, 740

(D. Md. 2018) (quoting Stewart, 90 F.3d at 104) (emphasis

in Stewart). “‘In making this determination, [courts

should be] mindful that, since its inception, the Feres

doctrine has been broadly and persuasively applied by

federal courts . . . .’” Colon, 320 F. Supp. 3d at 740 (quoting

Stewart, 90 F.3d at 104) (alteration in Colon).

The Fourth Circuit recently considered the Feres

doctrine in Clendening, 19 F.4th 421. In that case, the

wife of a former active duty Marine officer who had died

brought suit against the government. She claimed her

husband had died due to his exposure to contaminated

water and environmental toxins while he was stationed at

Camp Lejeune, North Carolina. Id. at 425-26. The Court

determined that the suit was barred under the Feres

doctrine. Id. at 425, 431. In reaching that conclusion, the

Court summarized its Feres jurisprudence.

29a

Appendix B

The Court recognized that the Feres doctrine is

“admittedly ‘broad and amorphous.’” Id. at 427 (quoting

Aikens, 811 F.3d at 651). And, the Court observed that it

had “remarked numerous times on the vast coverage of

the Feres doctrine.” Clendening, 19 F.4th at 427. Indeed,

it noted that “‘in recent years the [Supreme] Court has

embarked on a course dedicated to broadening the Feres

doctrine to encompass, at a minimum, all injuries suffered

by military personnel that are even remotely related to

the individual’s status as a member of the military.” Id.

at 427-28 (quoting Stewart, 90 F.3d at 105) (alteration in

Clendening; emphases in Stewart).

Moreover, the Fourth Circuit reiterated: “There

is no ‘specific element-based or bright-line rule’ for

determining whether certain conduct was ‘incident to

service.’” Clendening, 19 F.4th at 427 (quoting Aikens,

811 F.3d at 650); see United States v. Shearer, 473 U.S.

52, 57, 105 S. Ct. 3039, 87 L. Ed. 2d 38 (1985). “Instead,

[the court] must ask whether ‘particular suits would call

into question military discipline and decisionmaking [and

would] require judicial inquiry into, and hence intrusion

upon, military matters.’” Clendening, 19 F.4th at 427

(quoting Cioca v. Rumsfeld, 720 F.3d 505, 515 (4th Cir.

2013)) (second alteration in Cioca); see also United States

v. Stanley, 483 U.S. 669, 682, 107 S. Ct. 3054, 97 L. Ed.

2d 550 (1987). “‘Put another way, where a complaint

asserts injuries that stem from the relationship between

the plaintiff and the plaintiff’s service in the military, the

incident to service test is implicated.’” Clendening, 19

F.4th at 427 (quoting Cioca, 720 F.3d at 515).

30a

Appendix B

Of import here, the Fourth Circuit identified three

“considerations” that are “relevant” as to whether a

particular case falls under the Feres umbrella: “the duty

status of the service member,[] whether the injury took

place on base, and what activity the service member was

engaged in at the time.” Clendening, 19 F.4th at 428.

However, the Court cautioned that these considerations

“are not always determinative.” Id. As to the duty status

of the service member, “courts often examine whether

the service member was on active duty (including while

on liberty), leave, furlough, or entirely discharged at the

time the wrongful act occurred,” with “[t]hese statuses . . .

usually considered on a spectrum.” Id. at 428 n.4.

“Moreover, this test ‘does not inquire whether the

discrete injuries to the victim were committed in support

of the military mission.’” Id. at 428 (quoting Cioca, 720

F.3d at 515). And, “the ‘focus’ of the Feres doctrine

‘is not upon when the injury occurs or when the claim

becomes actionable, rather it is concerned with when

and under what circumstances the negligent act occurs.’”

Clendening, 19 F.4th at 428 (quoting Kendrick v. United

States, 877 F.2d 1201, 1203 (4th Cir. 1989)); see also

Aikens, 811 F.3d at 651 (“[T]he situs of the injury is not as

important as ‘whether the suit requires the civilian court

to second-guess military decisions . . . and whether the

suit might impair essential military discipline.’”) (quoting

Shearer, 473 U.S. at 57).

In a footnote, the Clendening Court also observed:

“‘The Supreme Court has emphasized three broad

rationales underlying the Feres doctrine: (1) the distinctly

31a

Appendix B

federal nature of the relationship between the government

and members of the armed forces, (2) the availability

of existing alternative compensation schemes in the

military, and (3) the fear of damaging military structure

and discipline.’” Clendening, 19 F.4th at 427 n.2 (quoting

Kendrick, 877 F.2d 1201 at 1204).

In Appelhans v. United States, 877 F.2d 309, 311

(4th Cir. 1989), the Fourth Circuit remarked: “In

determining whether particular injuries were in fact

‘incident to service,’ courts typically look to the three

rationales articulated above. Although some courts and

commentators once questioned the continuing vitality

of the first and second rationales, the Supreme Court

recently reaffirmed the importance of all three rationales

in [Johnson].” See Johnson, 481 U.S. at 688-91 (discussing

the three rationales). But, more recent Fourth Circuit

decisions have discussed the three rationales only in a

cursory fashion or not at all. See, e.g., Clendening, 19 F.4th

at 427 n.2 (mentioning the rationales only in a footnote);

Aikens, 811 F.3d at 650-52 (not mentioning the rationales

at all); Cioca, 720 F.3d at 512-17 (same).

In any event, in analyzing a Feres issue, “it is useful

to keep [the three] rationales in mind . . . .” Colon, 320 F.

Supp. 3d at 739. However, “the absence of one or more

of them is no reason to hear an FTCA claim against the

government where Feres immunity would otherwise be

appropriate.” Id. at 739-40. Furthermore, “application of

the Feres test does not depend on the military status of

the alleged offender.” Aikens, 811 F.3d at 651.

32a

Appendix B

The discussion above makes clear that, in analyzing

the applicability of the Feres doctrine, courts have focused

in large part on the rationale as to military structure and

discipline. The Supreme Court has “‘explicitly rejected a

special factors analysis which would consider how military

discipline would actually be affected in a particular case.’”

Id. (quoting Ricks v. Nickels, 295 F.3d 1124, 1130 (10th

Cir. 2002)). Moreover, the rationale of “preserving military

discipline . . . does not arise only when the lawsuit calls

into question the orders of a superior officer.” Stewart,

90 F.3d at 106. “[T]he relevant inquiry is not whether the

particular lawsuit involves a challenge to a military order.

Rather, the proper question is whether the plaintiff’s

claims ‘are the type of claims that, if generally permitted,

would involve the judiciary in sensitive military affairs at

the expense of military discipline and effectiveness.’” Id.

(quoting Shearer, 473 U.S. at 59) (emphasis in Shearer).

Other cases make clear the breadth of the “incident to

service” test. The Fourth Circuit said in Aikens, 811 F.3d

at 651 (quoting Hass for Use & Benefit of U.S. v. United

States, 518 F.2d 1138, 1141 (4th Cir. 1975)):

“‘Incident to service’ is not, of course, a

narrow term restricted to actual military

operations such as field maneuvers or small

arms instruction. It has been held that a member

of the military is engaged in activity incident

to his military service when he is enjoying a

drink in a noncommissioned officers club, and

when he is riding a donkey during a ballgame

sponsored by the Special Services division of

33a

Appendix B

a naval air station, and while swimming in a

swimming pool at an airbase.”

In its Reply, the Government asserts that “Feres and

its progeny have given rise to two discrete lines of defense

for tort suits brought by military servicemembers against

the federal government,” namely a “predominant line”

focusing on the “injured servicemember,” and a “second

body of Feres jurisprudence” looking to “the nature of

the challenged activity.” ECF 28 at 6 n.6. According to

the Government, this second body of jurisprudence has

to do with cases involving judicial intrusion into issues

of military discipline and management. ECF 26 at 6 n.6.

The Government maintains that this case falls within the

first body of law, and so some cases cited by plaintiffs that

spring from the second body are inapposite. Id. at 6 n.6, 11.

But, the Government has offered no case law

supporting its theory of two separate lines of Feres

jurisprudence. Indeed, the three Supreme Court cases

the Government cites in its footnote do not hint at this

division at all. See Stanley, 483 U.S. 669; Johnson, 481

U.S. 681; Shearer, 473 U.S. 52. To the contrary, the cases

suggest a single, unified body of Feres jurisprudence, in

which the issues labelled by the Government as belonging

to the second body of law are considered as part of the

overall analysis of whether an injury is incident to service.

See, e.g., Clendening, 19 F.4th at 427-28; Aikens, 811 F.3d

at 650-51; Cioca, 720 F.3d at 512-13.

34a

Appendix B

III. Discussion

As noted, the sole ground for the Motion is that the

Feres doctrine bars plaintiffs’ suit. Accordingly, I turn to

assess the application of the Feres doctrine to plaintiffs’

claims.

The Government argues that because Carter is a

military service member who received treatment by

military medical professionals in a military hospital, for

conditions stemming from an accident that occurred in

basic training, his injury was “incident to service” and

subject to Feres. ECF 18-1 at 10-11. Although Carter

was retroactively converted to active duty (id. at 12 n.10),

the Government maintains that, even if Carter were on

inactive duty status, the conclusion would be the same.

Id. at 12-14.

Plaintiffs devote much of their Opposition to a

fulsome broadside against the Feres doctrine in general.

They argue that Feres is unsupported by the text of the

FTCA; they challenge its rationale; and they label the

doctrine “a license for tortious conduct and a mandate

of secondclass citizenship for servicemen.” ECF 21-1 at

24. Moreover, they urge the Court, if it determines that

Feres applies, to “inspect the underlying rationales and

disparate implications of Feres under a microscope and

otherwise reconsider the practicality and applicability of

Feres given the decades of widespread, universal criticism

it has justly received.” Id. at 3.

35a

Appendix B

As discussed, plaintiffs are hardly the first to assail

Feres. But, “despite the rampant criticism, the Feres

doctrine still stands, and [this Court] is bound by it.”

Clendening, 19 F.4th at 431. Indeed, over the past several

decades, the Supreme Court and the Fourth Circuit have

consistently affirmed Feres. See, e.g., Johnson, 481 U.S.

at 686; Clendening, 19 F.4th at 428; Aikens, 811 F.3d at

651; Stewart, 90 F.3d at 105. “[T]he fact that the doctrine

may in many cases lead to undeniably harsh results does

not relieve this court of its obligation to apply precedent.”

Appelhans, 877 F.2d at 313 (referring to Feres); see, e.g.,

Lockwood v. Prince George’s Cty., Md., 58 F. Supp. 2d

651, 659 (D. Md. 1999) (“This Court is bound to follow the

precedent of the United States Supreme Court and the

Fourth Circuit.”).

Beyond this criticism, plaintiffs contend that Feres

does not apply here. They argue that Carter’s injuries were

not incident to service because the surgery occurred while

Carter was inactive and off-base; because the surgery was

not related to any military decision and did not implicate

military discipline; and because the Feres rationales do

not apply. ECF 21-1 at 2, 16-27. The Government responds

by asserting that plaintiffs misstate and misapply Feres.

ECF 28 at 6-16. And, it maintains that Carter was, in fact,

on active duty status at the time. Id. at 12-14.

In the Motion, the government argues that Counts

I and III (the medical negligence and informed consent

claims) are directly barred by Feres, and that Count II

(loss of consortium) is derivative of Counts I and III and

therefore it must also be dismissed. ECF 18-1 at 14-15;

36a

Appendix B

see Kendrick, 877 F.2d at 1206-07 (“The limits imposed

by Feres are equally applicable when the claims of a

family member are derivative to the service member’s

cause of action under the applicable state law.”); Rowe v.

United States, 37 F. Supp. 2d 425, 428 (D. Md. 1999) (“In

that [plaintiff] has no viable malpractice claim [because

of Feres], the plaintiffs’ joint consortium claim, which is

entirely dependent upon the existence of a valid underlying

claim, must also be dismissed, under clear Fourth Circuit

case law.”) (citing Minns v. United States, 155 F.3d 445,

448 (4th Cir. 1998)). Plaintiffs do not contest this point.

Therefore, it seems clear that the viability of the entire

suit depends on Feres.

As a general matter, the “duty status of the service

member” is not necessarily “determinative” in the

Feres analysis. Clendening, 19 F.4th at 428. But, it is of

significance.

Plaintiffs contend that Carter was on inactive duty

status. ECF 21-1 at 4, 6-7, 17-21. The Government contends

that, given the June 27, 2018 Order, Carter was on active

duty status. ECF 18-1 at 12 n.10; ECF 28 at 12-14. At first

glance, this issue may appear to be a factual dispute, of

the type that could warrant an evidentiary hearing. See

Kerns, 585 F.3d at 192. But, the parties agree as to the

basic sequence of events.

There is no dispute that Carter’s active duty period

originally ended on March 13, 2018, per his orders. ECF

37a

Appendix B

1, ¶ 41; ECF 2-16; ECF 28-1, ¶¶ 7-10; ECF 28-4. There

is no dispute that, as a result, at the time of Carter’s

surgery on April 6, 2018, he was not on active duty status.

ECF 1, ¶¶ 23-24, 41; ECF 28-1, ¶¶ 7-10. And, there is no

dispute that, pursuant to the June 27, 2018 Order, Colonel

Carbonell retroactively converted Carter to active duty

status for the period from March 14, 2018, to June 11,

2018—a period that included his surgery. ECF 1, ¶ 41;

ECF 2-17; ECF 28-1, ¶ 11; ECF 28-7.17 And, according to

Colonel Carbonell, he did so with Carter’s consent. ECF

28-1, ¶¶ 13-14; see also 10 U.S.C. § 12301(h) (specifying

that active duty under this provision may only occur with

member’s consent). Plaintiffs do not challenge the legality

or validity of the June 27, 2018 Order. The dispute is not

over these facts, but rather over the legal significance of

them under Feres.

If Carter were considered to be on active duty status

for his surgery, it is clear that Feres would bar the claim

as a matter of settled law. This was the Fourth Circuit’s

holding in Appelhans, 877 F.2d 309, which concerned

a medical malpractice suit by a plaintiff relating to

treatment he received while at an Army hospital. Id.

at 310. The plaintiff was on active duty status with the

Army at the time, but because he had been sentenced

to discharge by a court-martial for bad conduct and this

sentence was under review on appeal, he had been placed

on “indefinite excess leave.” Id. In this status, the plaintiff

17. As discussed, Carbonell also issued two orders prior to the

June 27, 2018 Order. But, neither of these orders appears to have

converted Carter to active duty status for the period including April

6, 2018. See ECF 28-1, ¶ 11; ECF 28-5; ECF 28-6.

38a

Appendix B

did not receive pay, could hold civilian employment, and

could travel anywhere in the continental United States

as long as he kept the Army apprised of his whereabouts.

Id. at 312. Nevertheless, he was still considered to be on

active duty status, and so he was entitled to health care at

military facilities, remained subject to the Uniform Code

of Military Justice, and could be recalled at any time. Id.

The Fourth Circuit agreed with the plaintiff that

his “active duty status, standing alone, is insufficient

to invoke the Feres doctrine’s bar.” Id. at 311. But, the

Court held: “The fact that his injury occurred as a result

of medical treatment by military doctors . . . conclusively

demonstrates that that injury was ‘incident to service.’”

Id. And, it rejected the plaintiff’s argument that his

connection to the Army, on indefinite excess leave, was

so “tenuous” as to defeat Feres. Id. at 312-13.

Scheppan v. United States, 810 F.2d 461 (4th Cir.

1987), is also relevant. There, the Fourth Circuit upheld

the application of Feres to block a medical malpractice

suit by a commissioned officer of the United States Public

Health Service, who alleged that she had been injured

during an elective surgery at an Indian Health Service

hospital where she worked. Id. at 462. The plaintiff was

on medical leave at the time of the surgery, and the Public

Health Service, although it is one of the “uniformed

services” of the United States, is not a part of the Armed

Forces. Id. at 462-63. Nevertheless, the Fourth Circuit

affirmed that Feres applied. Id. at 463.

39a

Appendix B

As both the Appelhans Court and the Motion note,

numerous other circuits have reached similar conclusions

as to malpractice claims involving military medical

facilities. Appelhans, 877 F.2d at 312 (collecting cases);

ECF 18-1 at 11 n.9 (collecting cases). Indeed, two of

the three cases that were consolidated into Feres itself

involved medical malpractice claims against Army

surgeons by active duty personnel. See Feres, 340 U.S.

at 137.

If Carter was not on active duty status at the time of

his surgery, however, the analysis is more complicated.

The Government reads Appelhans for the broad assertion

that Feres bars any malpractice suit for injuries sustained

while being treated at a military hospital, regardless of

active duty status. See ECF 18-1 at 11. Although certain

portions of the opinion could be read to stand for such a

proposition, it is clear from the opinion as a whole that

the plaintiff’s active duty status was at least a factor in

the Court’s analysis. This is demonstrated, for example,

in the Court’s examination of whether the plaintiff being

on indefinite excess leave rendered his connection to the

Army so tenuous as to preempt Feres. See Appelhans, 877

F.2d at 312-13. And, regardless, other case law paints a

nuanced picture.

A few years after Feres, the Supreme Court decided

United States v. Brown, 348 U.S. 110, 75 S. Ct. 141,

99 L. Ed. 139 (1954). In that case, the plaintiff was a

“discharged veteran” who sued the Government for

alleged negligence in regard to surgery on his knee at a

Veterans Administration hospital. Id. at 110. The original

40a

Appendix B

injury to the plaintiff’s knee occurred while he was on

active duty, which led to his honorable discharge. But,

the surgery was approximately seven years later. Id. The

Court acknowledged that the plaintiff was at the veterans’

hospital “because he had been in the service and because

he had received an injury in the service.” Id. at 112. It

concluded that the case was not governed by Feres. Id.

The Court said: “The injury for which suit was brought

was not incurred while respondent was on active duty or

subject to military discipline. The injury occurred after

his discharge, while he enjoyed a civilian status.” Id.

Two Fourth Circuit decisions further illustrate the

complexity of this doctrine. They are Kendrick, 877 F.2d

1201, which was decided shortly after Appelhans, 879 F.2d

309, and Bradley v. United States, 161 F.3d 777 (4th Cir.

1998), which was decided nine years later.

In Kendrick, 877 F.2d at 1201- 02, the Fourth

Circuit confronted the application of Feres to a medical

malpractice suit brought by an individual on the Army’s

“Temporary Disability Retired List” (“TDRL”). Disabled

service members are placed on the TDRL while they

are evaluated to determine whether they should be

retired from the military as a result of their disability.

Id. at 1203. As later described by the Fourth Circuit in

Bradley, an individual on the TDRL receives retirement

pay, is not considered to be on active duty, and cannot

be recalled to active duty. Bradley, 161 F.3d at 781. To

receive TDRL benefits, an individual is required only to

present for regular examinations, pending the retirement

determination. Id. A TDRL individual is subject to the

41a

Appendix B

Uniform Code of Military Justice, but “failure to report

for a required physical examination would only subject

[the individual] to termination of pay and administrative

discharge.” Id.

In Kendrick, 877 F.2d at 1202, the plaintiff was

injured in a car accident while on active duty, prescribed a

medication, and two months later was placed on the TDRL.

He alleged that military physicians were negligent for

continuing to prescribe the medication without monitoring

for symptoms of toxicity. Id. The Fourth Circuit noted: “It

is well established that receipt of medical care in military

facilities by members of the military on active duty is

‘activity incident to service’ and thus a lawsuit against the

United States arising from medical treatment of a service

member on active duty is barred under Feres.” Id. at 1203.

The Kendrick Court found that this principle extended

to Kendrick’s case, for a few reasons. First, the initial

“alleged negligent act” of prescribing the medication

commenced while the plaintiff was on active duty, under

the case of military physicians. Id. In other words, “[a]ll

of Kendrick’s medical treatment arose out of an activity

incident to service.” Id. Second, he was not a civilian when

the alleged negligent act occurred, and continued to be

subject to military discipline throughout. Id. at 1204.

Third, it was inappropriate to apply local tort law to a

service member injury, such as this one. Id. Fourth, the

plaintiff was already benefiting from veterans’ benefits. Id.

at 1204-05. Fifth, and finally, “to allow a service member

on TDRL to maintain a tort action against the military

would have a disruptive effect on military discipline,

42a

Appendix B

obedience and commitment, especially if the service

member is later returned to active duty,” as the plaintiff

theoretically could have been. Id. at 1205. Permitting

the suit would have a “chilling effect” on the military’s

decision making regarding disability issues. Id. at 1206.

However, the Court noted: “We do not hold that the Feres

doctrine bars an action based upon a truly independent or

post-service tort. This is not such a case.” Id. at 1204 n.2.

The Fourth Circuit reached a contrary result in

Bradley, 161 F.3d at 778.18 Like Kendrick, Bradley

concerned an individual, Sharon Bradley, who was on

the TDRL. As a Navy medical laboratory technician,

Bradley contracted a Staph A infection, became disabled,

and was placed on the TDRL. Id. After this placement,

Bradley scheduled an appointment at Walter Reed for

bone grafting, to repair damage caused by the infection.

Id. She was flown to Walter Reed in a military transport

plane, during which time she began experiencing a high

fever and severe chest pains. Id. Medical personnel took no

action. Id. She was eventually admitted to the emergency

room at Walter Reed several days later, and her condition

deteriorated quickly. Id. She died of a Staph A infection.

Id.

The Fourth Circuit held that the Feres doctrine did

not bar the suit. The Court noted that the case was at the

summary judgment stage, and it was a disputed fact as

to whether the Staph A infection that killed Bradley was

18. Suit in Bradley was brought by Sharon Bradley’s husband

on behalf of her estate. 161 F.3d at 778.

43a

Appendix B

a reoccurrence of the previous Staph A infection that she

acquired while on active duty. Id. at 780-81. But, the Court

said, id. at 781: “[E]ven were we to conclude that Bradley’s

infection was a reoccurrence of the Staph A infection

she received incident to service, the present facts would

be distinguishable from those found to be controlling in

Kendrick.” Unlike in Kendrick, “the allegedly negligent

conduct giving rise to the claims of medical malpractice

at issue here cannot be characterized as having begun

while Bradley was on active duty,” but rather while she

was on the TDRL. Id. The fact that she received allegedly

negligent treatment at Walter Reed, where she was

entitled to seek treatment because of her prior active

service, and the fact that she would not have travelled to

Walter Reed but for her prior service-related injury, were

“not controlling.” Id.

The Court acknowledged Bradley’s TDRL status,

but found that although it was “not a full discharge, it is

comparable to permanent retirement status, which has

been held not to bar an FTCA claim under the Feres

doctrine.” Id. at 782 (citing McGowan v. Scoggins, 890

F.2d 128, 137-39 (9th Cir. 1989)). Thus, the Court rejected

application of Feres. Bradley, 161 F.3d at 782.19

19. Bradley is not easy to reconcile with Kendrick. The Fourth

Circuit identified as a distinction whether or not the alleged initial

negligent act began while the plaintiff was on active duty. But, much

of the other reasoning in Kendrick, for example the import of TDRL

status and the effect on military discipline, would also seem to apply

to Bradley, and vice versa.

44a

Appendix B

These cases reflect that, notwithstanding the breadth

of the Feres doctrine, there do appear to be some limits

on its application to medical malpractice injuries that

occur when the plaintiff’s relationship to the military is

tenuous, even if the injuries were in some way related

to the plaintiff’s military service. At the same time, the

Government points to several decisions by judges of this

Court that support the idea that Feres applies even if the

individual was on inactive duty status.

Foremost is Rowe, 37 F. Supp. 2d 425. A meaningful

part of the Government’s briefing is premised on Rowe (see

ECF 21-1 at 13-14; ECF 28 at 14-16), and understandably

so, given its similarities to this case.

In Rowe, 37 F. Supp. 2d at 426, the plaintiff was a

member of the United States Naval Reserve. He sustained

an injury to his knee while playing volleyball at the United

States Naval Academy, during his annual active duty

period. The plaintiff was put on “inactive reserve status”

for surgery to repair the knee, which occurred at Walter

Reed some eight months later. Id. He alleged that the

“treatment . . . was negligent” and he was left disabled. Id.

Judge Smalkin held that Feres applied. He reasoned,

id. at 426-27:

It remains well-settled, almost 50 years

after Feres, that a service member cannot

recover for medical malpractice arising out of

care given in a military hospital. The cases are

both legion and unanimous in applying Feres

45a

Appendix B

to bar malpractice actions brought by service

members—even inactive reservists—against

the Government on account of care rendered

in a military medical facility. . . . The fact that

Mr. Rowe was not on active duty while he was

actually being operated upon is inconsequential

in the application of the Feres doctrine’s

“incident to service” rule.

Judge Smalkin noted that “the Feres doctrine was

applicable because the service member was, indeed, only

entitled to treatment at a military medical facility in

the first place because of [his] status as a member—qua

member—of the Armed Forces.” Id. at 427. And, he

emphasized that the actual injury that led to the surgery

was sustained while the plaintiff was on “active reserve

status for training.” Id.

Rowe cited three decisions, all out-of-circuit,

regarding this issue. Id. at 427. In Jackson v. United

States, 110 F.3d 1484 (9th Cir. 1997), the plaintiff lacerated

his hand while at weekend inactive duty training with

the Naval Reserve, and sued for malpractice regarding

treatment received at a naval hospital the next day, when

he was no longer in training. Id. at 1486. The Ninth Circuit

held that although this status was relevant, Feres still

applied, given that the initial injury arose out of activity

incident to service; treatment was at a military facility;

plaintiff received military benefits; and he was a member

of the Naval Reserve throughout. Id. at 1487-89. In Borden

v. Veterans Administration, 41 F.3d 763 (1st Cir. 1994),

plaintiff sustained a knee injury while on active duty, but

46a

Appendix B

“off duty.” Id. at 763. Given that he was on active duty

and received medical treatment at a military facility, the

First Circuit applied Feres to his malpractice claim. Id.

at 763-64. Finally, in Quintana v. United States, 997 F.2d

711 (10th Cir. 1993), the Tenth Circuit applied Feres to a

member of the Army National Guard who injured her knee

while on “inactive duty training,” and then sued for alleged

malpractice stemming from her subsequent knee surgery

at a military facility. Id. at 712. The Tenth Circuit stated

that the plaintiff “is a servicemember who was entitled

to the surgery at [the military facility] precisely because

of her military status and the surgery was performed by

military servicemembers in a military hospital.” Id.

The Government also cites Colon, 320 F. Supp. 3d

733. In Colon, the plaintiff served in the Army from 2004

to 2014, when she was discharged for medical reasons.

Id. at 736. Near the end of her service, and continuing

afterwards, she was involved in a protracted custody

dispute with another Army officer, with whom she had

an affair. Id. at 736-37. She alleged that in 2013 and then

again in 2015, the officer convinced two Army doctors

whom he knew to access the plaintiff’s confidential health

records, which he then attempted to use against her in

the custody dispute in 2015. Id. Judge Hazel held that

Feres barred the plaintiff’s FTCA claims, because the

plaintiff’s injuries “arose out of her treatment by military

doctors at military medical installations—treatment she

received solely because she was a member of the military,”

and while she was on active duty. Id. at 740. Although the

plaintiff’s injury, and one of the alleged access incidents,

did not occur until after the plaintiff was discharged, “the

47a

Appendix B

access was still incident to her service because it related

to the use and management of her active duty medical

records by a military doctor.” Id. at 741.

In addition, a number of out-of-circuit cases confirm

that, as a general matter, suits against reservists may

be barred by Feres even for injuries sustained while not

on active status, if the injuries are incident to service.

See, e.g., Jackson, 110 F.3d at 1486-89 (discussed supra);

Wake v. United States, 89 F.3d 53, 57-62 (2d Cir. 1996)

(Feres barred suit by member of Navy Reserve Officers

Training Corps (“NROTC”), an inactive Naval reserve

member, who was injured in accident while in NROTCowned van returning from “precommissioning physical

examination”); Schoemer v. United States, 59 F.3d 26, 2930 (5th Cir. 1995) (Feres barred malpractice suit stemming

from preenlistment medical exam for Louisiana National

Guard, by enlistee who held inactive status in the Army);

Quintana, 997 F.2d at 712 (discussed supra); Duffy v.

United States, 966 F.2d 307, 311-12 (7th Cir. 1992) (Feres

barred suit by reservist alleging he had been called to

active duty illegally).

Although I am not aware of a ruling by the Fourth

Circuit on this issue, nearly all circuits to have considered

the issue have concluded that Feres applies to suits by dual

status National Guard military technicians if the injury is

otherwise incident to service. These suits have generally

been in the employment discrimination context. See, e.g.,

Wetherill v. Geren, 616 F.3d 789, 792-97 (8th Cir. 2010);

Walch v. Adjutant General’s Dep’t of Texas, 533 F.3d 289,

294-301 (5th Cir. 2008); Overton v. New York State Div.

48a

Appendix B

of Military and Naval Affairs, 373 F.3d 83, 89-93 (2d Cir.

2004); Wright v. Park, 5 F.3d 586, 588-91 (1st Cir. 1993). 20

As noted, as of his surgery, plaintiff was a dual status

technician. ECF 28-1, ¶ 6.

The parties have not cited to any case addressing

the effect of a retroactive change in status on the Feres

analysis, and the Court has not identified one. But, I

am skeptical of the idea that it is appropriate to classify

plaintiff as on active duty, for Feres purposes, when he

was not on active duty at the time of the alleged injury,

and his status was retroactively altered several months

later. The Government has not offered any authority

suggesting that such a retroactive classification is proper

in the context of Feres. And, in Clendening, 19 F.4th at 428

n.4, the Fourth Circuit noted that “courts often examine

whether the service member was on active duty . . . at the

time the wrongful act occurred.” (Emphasis added.) See

also id. at 430 (“By contrast, at the time of Clendening’s

exposure, he was on active-duty status and stationed on

base due to his position as a Marine Corps Officer.”).

Colonel Carbonell asserts that, while Carter was on

active duty “ as a ‘medical hold,’” he could “be subjected

to the same types of military orders as any other active

duty service member.” ECF 28-1, ¶ 12. The June 27, 2018

20. The one exception is a decision by the Federal Circuit

regarding an Equal Pay Act suit. See Jentoft v. United States, 450

F.3d 1342 (Fed. Cir. 2006).

49a

Appendix B

Order also provides that, while performing under the

order, Carter “is subject to the Uniform Code of Military

Justice (UCMJ).” ECF 28-7 at 1. But, in practice, it is

difficult to see how the Government could retroactively

issue an order to Carter directing particular conduct on

April 6, 2018, or attempt to retroactively apply military

discipline. And, an attempt on April 6, 2018, to give Carter

an order, or discipline him, would presumably have been

met with considerable confusion, given that Carter had

not yet been retroactively classified as on active duty.

However, even if I do not embrace the Government’s

argument as to Carter’s active duty status, this does not

lead to denial of the Motion. It simply means that a more

holistic analysis is required. The case law discussed above

does not present an obvious answer. And, it is plaintiffs’

burden to demonstrate that sovereign immunity has been

unequivocally waived. See Clendening, 19 F.4th at 426;

Welch, 409 F.3d at 651. Given the “vast coverage of the

Feres doctrine” that the Fourth Circuit has repeatedly

recognized, Clendening, 19 F.4th at 427, I readily conclude

that this case falls within the ambit of Feres.

The Feres “‘incident to service test is implicated’”

when “‘a complaint asserts injuries that stem from the

relationship between the plaintiff and the plaintiff’s

service in the military.’” Clendening, 19 F.4th at 427

(quoting Cioca, 720 F.3d at 515); see also Clendening, 19

F.4th at 427-28 (noting that “‘in recent years the [Supreme]

Court has embarked on a course dedicated to broadening

the Feres doctrine to encompass, at a minimum, all

injuries suffered by military personnel that are even

50a

Appendix B

remotely related to the individual’s status as a member

of the military”) (quoting Stewart, 90 F.3d at 105) (first

alteration in Clendening; remainder in Stewart).

Such a relationship seems apparent here. Carter was

injured in the context of medical treatment at a military

hospital by military doctors; the treatment was for a

medical condition that occurred during his basic training,

when he was on active duty. Although Carter was not on

active duty at the time of the surgery, he was a member of

the Air National Guard and a full-time dual status military

technician, with substantial connection to the military.

And, his eligibility for his medical treatment at Walter

Reed flowed directly from his military status.

The suit is of the type that would implicate the

judiciary in military discipline and decision making, as it

has been broadly defined for Feres purposes. I canvass

these issues below.

Clendening, 19 F.4th at 428, identified relevant

considerations in the Feres analysis as including “the

duty status of the service member,[ ] whether the injury

took place on base, and what activity the service member

was engaged in at the time.” As to the second and third

considerations, the injuries here took place at a military

hospital, while the plaintiff was undergoing medical

treatment provided by hospital personnel, including

military doctors. See, e.g., ECF 1, ¶¶ 12, 13, 18, 24, 25; ECF

18-9, ¶¶ 2, 11-13. Although these circumstances are not

necessarily dispositive in the way they might be if Carter

had been on active duty status, they clearly are significant

51a

Appendix B

considerations pointing in favor of the application of Feres,

as numerous cases reflect. See, e.g., Jackson, 110 F.3d at

1487-89; Quintana, 997 F.2d at 712; Kendrick, 877 F.2d at

1202-04; Appelhans, 877 F.2d at 311; Scheppan, 810 F.2d

at 462-63; Colon, 320 F. Supp. 3d at 740-41; Rowe, 37 F.

Supp. 2d at 426-27.

In their Opposition, plaintiffs characterize Walter

Reed as merely a “government hospital,” and not a

“military base.” ECF 21-1 at 20, 23, 27. This is not

accurate. Walter Reed is a hospital, to be sure. But it is a

“military hospital,” also known as a military “treatment

facility,” managed by the DHA, an agency within the DoD.

ECF 18-9, ¶ 2. Its full name is the “Walter Reed National

Military Medical Center.” Id. ¶ 1 (emphasis added).

According to Franz, the Associate General Counsel at the

DHA, civilians are generally ineligible for medical care

at Walter Reed as a matter of law and policy; “receiving

treatment at [Walter Reed] is an exclusive benefit to

members of the military and their dependents.” Id. ¶ 19.

The medical professionals on the Walter Reed staff who

performed Carter’s treatment at Walter Reed included

“military doctors.” Id. ¶ 12. And, Walter Reed has been

implicated in numerous claims in which Feres has been

successfully invoked. See, e.g., Colon, 320 F. Supp. 3d at

740-41; Rowe, 37 F. Supp. 2d at 426-27; Davis v. U.S. Dep’t

of the Army, 602 F. Supp. 355, 356-59 (D. Md. 1985).

Plaintiffs also emphasize that Carter’s surgery was

“elective,” and not in support of any military mission or

order. ECF 21-1 at 19-20. It is not clear that the elective

nature of a surgery has been a meaningful factor in

52a

Appendix B

other cases applying Feres to medical malpractice suits

involving military hospitals. See, e.g., Appelhans, 877 F.2d

at 311; Scheppan, 810 F.2d at 462-63; Rowe, 37 F. Supp.

2d at 426-27. Indeed, in Scheppan, 810 F.2d at 462, the

Fourth Circuit explicitly described the plaintiff’s surgery

as “elective,” before going on to hold that Feres precluded

the suit.

In any case, the evidence provided by the Government

in the Motion—which has not been contested by plaintiffs—

reflects that the medical conditions that prompted Carter

to seek surgery stemmed from an injury sustained by

Carter at basic training in 2010. See ECF 18-2, ¶ 8; ECF

18-9, ¶¶ 5-9; ECF 28-1, ¶ 8. This root cause, although again

not dispositive, strengthens the relationship between the

surgery and Carter’s military service and status. In that

respect, it is similar to the other cases discussed above

that applied Feres, in the context of reservists or members

of the National Guard, to treatment for an injury sustained

during active duty service. See, e.g., Jackson, 110 F.3d at

1487-89; Quintana, 997 F.2d at 712; Rowe, 37 F. Supp. 2d

at 426-27.

The other Clendening consideration is the duty status

of the service member. 19 F.4th at 428. As discussed, I

do not agree with the Government that, at the time of

surgery, Carter was on active duty status based on the

retroactive application of the June 27, 2018 Order. See ECF

1, ¶¶ 23, 41; ECF 28-1, ¶¶ 7-11. But, plaintiffs’ attempt to

depict Carter as having minimal connection to military

service also misses the mark. See, e.g., ECF 21-1 at 8

(“As of April 2018, Mr. Carter was, for all intents and

53a

Appendix B

purposes, a military veteran seeking surgical care from

a government health care facility. Mr. Carter’s claims

are no different than the congressionally authorized

medical negligence claims routinely asserted by military

veterans against Veterans Administration medical centers

nationwide in accordance with the FTCA.”).

As stated, at the time of Carter’s surgery, and since at

least 2017, Carter was a member of the Air National Guard,

and a full-time dual status military technician. ECF 189, ¶ 18; ECF 28-1, ¶ 6. Although military technicians

are nominally civilian employees, the Fifth Circuit has

commented that “the military character of their service

is extensive.” Walch, 533 F.3d at 296; see also Wetherill,

616 F.3d at 791 (“[Plaintiff, an Army National Guard

colonel, was] a ‘dual-status’ National Guard technician,

which meant that she was paid as a civilian employee

under the Civil Service system, but her job required her

at all times to be an officer of the National Guard, and

she worked in uniform.”). Under the governing statute,

military technicians may be employed only in support of

certain specified types of work in support of the National

Guard, Armed Forces, or DoD. See 32 U.S.C. § 709(a).

Moreover, Carter’s activities with the Air National

Guard were not confined to the annual and weekend

training required of all inactive duty National Guard

members, as the Opposition implies. See ECF 21-1 at 1920. To the contrary, only weeks before his surgery, Carter

finished a nearly six-month active duty tour, supporting

work on Operation Freedom’s Sentinel. ECF 2-16; ECF

28-1, ¶¶ 7-8; ECF 28-2; ECF 28-3; ECF 28-4. There is

54a

Appendix B

no indication from the materials that Carter was near

retirement, or that this sort of work was an aberration. Cf.

Kendrick, 877 F.2d at 1205 (noting the disruptive effect

on military discipline of permitting a tort suit against

the military by a “service member . . . later returned to

active duty.”).

In short, notwithstanding that Carter was not on

active duty status as of April 6, 2018, his professional

circumstances were marked by a pervasive entanglement

with military service. If duty status is a “spectrum,” as

the Fourth Circuit put it in Clendening, 19 F.4th at 428

n.4, then Carter’s status surely ranks as somewhere in

the middle, as opposed to simply on the inactive side,

as plaintiffs assert. Indeed, this is consistent with the

consensus among the circuit courts that Feres applies, as

a general matter, to suits by reservists, members of the

National Guard, and dual status technicians. See Wetherill,

616 F.3d at 792-97; Walch, 533 F.3d at 294-301; Overton,

373 F.3d at 89-93; Jackson, 110 F.3d at 1487-89; Wake, 89

F.3d at 57-62; Schoemer, 59 F.3d at 29-30; Wright, 5 F.3d

at 588-91; Quintana, 997 F.2d at 712; Duffy, 966 F.2d at

311-12; see also Rowe, 37 F. Supp. 2d at 426-27.

These circumstances, in my view, distinguish Carter’s

case from Brown and Bradley, which present the

strongest arguments for plaintiffs’ position. Both of these

cases featured substantially more tenuous relationships

between the injured party and the military. Brown, 348

U.S. at 110, 112, concerned a “discharged veteran” who

received treatment at a Veterans Administration facility,

and whose injury occurred “while he enjoyed a civilian

55a

Appendix B

status.” Bradley, for its part, involved a service member

on the TDRL, who “was required only to present herself

for periodic medical examinations,” and little more. 161

F.3d at 781. The Fourth Circuit characterized this status

as “not a full discharge, [but] comparable to permanent

retirement status.” Id. at 782. Indeed, in Appelhans,

877 F.2d at 310, 312, the plaintiff’s indefinite excess

leave status, pending review of his court-martial, meant

that he received no pay and could hold full-time civilian

employment. Unlike Carter, the plaintiff in Appelhans was

considered to be on active duty. But, in practice, Carter’s

connection to military service seems, if anything, more

significant than that of the Appelhans plaintiff. In other

words, this is not the “‘truly independent or post-service

tort’” recognized in Bradley. 161 F.3d at 782 (quoting

Kendrick, 877 F.2d at 1204 n.2).

Moreover, although I do not regard Carter as having

active duty status based on his retroactive conversion,

the circumstances of his conversion are noteworthy. The

conversion itself buttresses the overall conclusion that

Carter was more than inactive.

Carter’s conversion was only possible because of his

preexisting, ongoing membership in the Air National

Guard. See 10 U.S.C. § 12301(h); ECF 28-7. The text of

the statute reflects that this activation may only occur

“with the consent of the member,” i.e., Carter. 10 U.S.C.

§ 12301(h)(1). And, the June 27, 2018 Order describes the

activation as “voluntary.” ECF 28-7 at 2. According to

Colonel Carbonell, this retroactive conversion was done

at Carter’s request, in order to ensure his eligibility for

56a

Appendix B

various medical benefits. ECF 28-1, ¶¶ 13-14. Notably,

plaintiffs have not challenged the validity of the retroactive

change.

It is clear that Carter’s eligibility for his medical

treatment stemmed directly from his status as a member

of the Air National Guard. See ECF 18-2, ¶ 10; ECF 18-9,

¶ 19. 21 Indeed, Carter had a history of receiving medical

care from military hospitals such as Walter Reed. ECF

18-9, ¶ 7. At an evaluation at Walter Reed on March 1,

2018, while Carter was on active duty status, the surgery

was recommended. Id. ¶ 9. This circumstance reinforces

the relationship between Carter’s injury and his military

service. See, e.g., Jackson, 110 F.3d at 1488-89 (“[The

plaintiff] received cost-free treatment at the Naval

Hospital . . . as a benefit of service in the Naval Reserve

and pursuant to [his] military benefits.”); Quintana, 997

F.2d at 712 (“[The plaintiff] is a servicemember who was

entitled to the surgery at Kirtland precisely because of her

military status and the surgery was performed by military

servicemembers in a military hospital.”); Appelhans, 877

F.2d at 312 (noting that “excess leave personnel,” such

as the plaintiff, “can obtain free health care at military

facilities”); Bon v. United States, 802 F.2d 1092, 1095 (9th

Cir. 1980) (considering as relevant in Feres analysis if

plaintiff enjoyed a benefit “solely by virtue of her status

as a member of the military”); Colon, 320 F. Supp. at

740 (plaintiff received her treatment “solely because she

21. As noted, there is some confusion as to whether Carter

needed to be on active duty status to be eligible for the medical

treatment that he received at Walter Reed. Compare ECF 18-9, ¶ 19

with ECF 28-1, ¶¶ 9-10. But, this is a separate issue.

57a

Appendix B

was a member of the military”); Rowe, 37 F. Supp. 2d at

427 (“[T]he Feres doctrine was applicable because the

service member was, indeed, only entitled to treatment

at a military medical facility in the first place because of

her status as a member—qua member—of the Armed

Forces.”).

In the Opposition, plaintiffs argue that their claims

do not implicate military discipline or sensitive military

matters, a rationale for Feres they criticize in any case.

ECF 21-1 at 16, 25-27. In particular, they contend that

their claims would not impact the willingness of military

personnel to follow orders, nor the willingness of decision

makers subject to suit to act decisively. Id. at 26.

Plaintiffs’ approach to this analysis is too cramped.

The Feres case law approaches these issues broadly, and

with extreme generality. As discussed, Feres looks to

“whether the plaintiff’s claims ‘are the type of claims

that, if generally permitted, would involve the judiciary

in sensitive military affairs at the expense of military

discipline and effectiveness.’” Stewart, 90 F.3d at 106

(quoting Shearer, 473 U.S. at 59) (emphasis in Shearer).

This rationale “does not arise only when the lawsuit calls

into question the orders of a superior officer,” and “the

relevant inquiry is not whether the particular lawsuit

involves a challenge to a military order.” Stewart, 90 F.3d

at 106. The Supreme Court has “‘explicitly rejected a

special factors analysis which would consider how military

discipline would actually be affected in a particular case.’”

Aikens, 811 F.3d at 651 (quoting Ricks, 295 F.3d at 1130).

58a

Appendix B

Thus, the Fourth Circuit has explained that Feres

bars a vehicle accident tort suit, because litigating suits

alleging “that a service member acted negligently while

discharging his military duties . . . could affect military

discipline and decisions.” Stewart, 90 F.3d at 106. The

Court said, id. (quoting Johnson, 481 U.S. at 691):

This is because “military discipline involves not

only obedience to orders, but more generally

duty and loyalty to one’s service and to one’s

country. Suits brought by service members

against the Government for service-related

injuries could undermine the commitment

essential to effective service and thus have the

potential to disrupt military discipline in the

broadest sense of the word.”

For example, the Stewart Court indicated that the

case would involve an assessment of military vehicle

regulations. Stewart, 90 F.3d at 106. It would also require

“service members involved, any eyewitnesses, and military

medical personnel . . . ‘to testify in court as to each other’s

decisions and actions.’” Id. at 106 (quoting Stencel Aero

Engineering Corp. v. United States, 431 U.S. 666, 673,

97 S. Ct. 2054, 52 L. Ed. 2d 665 (1977)) (ellipsis added).

Similarly, the Fourth Circuit remarked in Kendrick,

877 F.2d at 1205, regarding a medical malpractice suit: “A

tort suit based upon service-related injuries necessarily

implicates military judgments and decisions integral to

the execution of the military mission.” A judgment for the

plaintiff in the case, it said, would imperil the military’s

59a

Appendix B

ability to make effective decisions regarding disability

and compensation, and would undermine “government

authority and discipline.” Id. at 1206.

This logic certainly applies to plaintiffs’ suit. For

similar reasons, the medical malpractice suit here,

involving medical treatment by military personnel at a

military hospital and necessarily questioning the conduct

of those personnel, could affect “military discipline and

decisions.” Stewart, 90 F.3d at 106. Service members,

eyewitnesses, and Walter Reed medical personnel would

more than likely be required to testify at a trial, or at

least be deposed. And, the Court might be required to

scrutinize, and pass judgment on, military policy, such

as procedures for surgery, testing, diagnosis, referral,

and informed consent (see ECF 1, ¶ 48); procedures for

the internal review and discipline of military medical

personnel; and issues relating to status and benefits.

Finally, to the extent that the three rationales

underpinning Feres should be considered, see Colon, 320

F. Supp. 3d at 739-40, they weigh in favor of applying

the doctrine. The issue of military discipline has been

discussed above. The rationale regarding the “distinctly

federal nature of the relationship” between the Government

and service members, which ought to preempt local tort

law, applies here just as much as to any injury incident to

service. Kendrick, 877 F.3d at 1204 (applying this rationale

in a medical malpractice case). And, as to the availability

of existing, alternative compensation schemes, plaintiffs

concede in the Opposition that “[c]ertain aspects of Mr.

Carter’s medical care are likely covered by his [Veterans

60a

Appendix B

Benefits Act] benefits,” although they argue that the “true

cost” of his injury will not be addressed, especially given

problems in the provision of veterans’ health care. ECF

21-1 at 23-24.

Indeed, the record reflects that since April 2018,

Carter has been receiving VA health care to recover from

his injuries. ECF 1, ¶¶ 38-40, 42-43; ECF 18-9, ¶¶ 14-17. In

addition, Carter may also receive disability compensation

as a result of his medical retirement, due to 100 percent

physical disability. ECF 18-2, ¶ 9; ECF 18-8 at 1-5, 11-15. 22

Finally, as noted, Congress recently amended the

Military Claims Act (“MCA”) to permit the payment

of medical malpractice claims against DoD health care

providers, when incident to service. See 10 U.S.C. § 2733a.

This could provide an additional avenue for recovery by

plaintiffs. Indeed, they appear to have submitted such

claims in March 2020. See ECF 1, ¶ 20; ECF 2-8; ECF

2-10; ECF 2-12. This issue is discussed, infra.

Courts must be “‘mindful that, since its inception,

the Feres doctrine has been broadly and persuasively

applied by federal courts . . . .’” Colon, 320 F. Supp. 3d at

740 (quoting Stewart, 90 F.3d at 104) (alteration in Colon).

Consistent with this principle, I conclude that Feres bars

plaintiffs’ tort claims.

22. The potential receipt of such benefits is suggested by the

materials provided by the Government. For example, a letter of

October 28, 2019, from the VA to Carter indicates that he may be

entitled to monthly VA compensation in the amount of $8,919.54,

based on his disability status. ECF 18-8 at 5. However, the parties

do not discuss this specific issue.

61a

Appendix B

As noted, plaintiffs’ Complaint appears to assert

the “NDAA” as a basis for suit. See ECF 1, ¶¶ 17, 19, 20.

Therefore, I briefly examine this issue.

Although the Complaint refers to the NDAA, the

actual provision of law cited in the Complaint—10 U.S.C.

§ 2733—is a portion of the Military Claims Act, 10 U.S.C.

§ 2731 et seq. Conversely, “NDAA” is the name given to

the defense policy bill annually passed by Congress. See,

e.g., National Defense Authorization for Fiscal Year 2022,

Pub. L. No. 117-81, 135 Stat. 1541 (2021).

To the extent that plaintiffs seek to bring suit under

the MCA, they may not do so. The MCA “provides that

the secretaries of the military departments ‘may’ settle

claims against the United States for, inter alia, personal

injury or death caused by a civilian officer or employee

of their departments or a member of the Army, Navy, or

Air Force acting within the scope of their employment,

or otherwise incident to noncombat activities of their

department.” Minns v. United States, 974 F. Supp. 500,

507 (D. Md. 1997) (quoting 10 U.S.C. § 2733(a)), aff’d, 155

F.3d 445. However, a claim may not be “for personal injury

or death of such a member or civilian officer or employee

whose injury or death is incident to his service.” 10 U.S.C.

§ 2733(b)(3) (emphasis added).

Furthermore, “[n]otwithstanding any other provision

of law, the settlement of a claim under [the MCA] is final

and conclusive.” Id. § 2735. “The great weight of authority

62a

Appendix B

addressing the MCA . . . holds that absent a constitutional

violation, the disallowance of an MCA claim is not subject

to judicial review.” Minns, 974 F. Supp. at 507 (collecting

cases). In other words, the MCA does not provide an

alternative cause of action under which plaintiffs may file

suit, apart from the FTCA. 23

The Government suggests (ECF 18-1 at 15-17) that

plaintiffs’ use of the term “NDAA” is a reference to the

amendment to the MCA contained in the National Defense

Authorization Act for Fiscal Year 2020. See Pub. L. No.

116-92, Div. A, Title VII, Subtitle C, § 731(a)(1), 133 Stat.

1198, 1157-60 (2019). Codified at 10 U.S.C. § 2733a, this

new section provides that the Secretary of Defense “may

allow, settle, and pay a claim against the United States

for personal injury o

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.