Petition for Writ of Certiorari — Ratcliff v. United States

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In The

Supreme Court of the Gnited States

THOMAS J. RATCLIFF,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court of

Appeals For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

with Appendix

*MICHAEL S. MILLER

ROBERT G. PALMER

Palmer Volkema Thomas

140 E. Town Street, Suite 1100

Columbus, Ohio 43215

(614) 221-4400

Attorneys for Petitioner

*Counsel of Record

January, 2000

LEGAL ADVANTAGE © 432 Walnut Street + Cincinnati, OH 45202

(800) 581-2252

QUESTIONS PRESENTED FOR REVIEW

Should this Court overrule its decision in Feres v.

United States, 340 U.S. 135 (1950), which held that injuries

sustained by a service person as the result of the negligence

of an employee of the government are not compensable

under the Federal Tort Claims Act, 28 U.S.C. §§2671-

2680, if those injuries are deemed to have been sustained

“incident to service?”

Assuming that there is an exception under the

Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, for

injuries that are sustained “incident to service,” what are the

relevant factors in determining whether the exception

applies?

Assuming that there is an exception under the

Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, for

injuries that are sustained “incident to service,” does it

apply to a claim by a service person that he or she was

injured as a result of medical negligence in the treatment of

a non-service related illness or condition?

Assuming that there is an exception under the

Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, for

injuries sustained by members of the armed services that

are sustained “incident to service,” should the applicability

of that exception be limited to claims by service persons for

injuries that were sustained in the course and scope of their

employment?

TK es

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TABLE OF CONTENTS

Description Page

Questions Presented For Review........................ I

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Table Of Authorities....0.00.0......c.ccccccsssssosoeoeseses.., IV

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Appendix

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TABLE OF AUTHORITIES

CASES

Brooks v. United States, 337 U.S. 49,

Ep , Seen eat RIE DONE TER

Complete Family Care v. Sprinkle, 638

ee | RR SeRNneon meee

Dreier v. United States, 106 F.3d 844,

ee, 5 Sen een eenen ne

Feres v. United States, 340 U.S. 135

fo ERRNO Pn Papeete pe ROOT r

In re “Agent Orange” Product Liability

Litigation, 580 F. Supp. 1242, 1246

(EDNY), appeal dism’d, 745 F.2d 161

Indian Towing Co. v. United States, 350

SF tb OE CE esectacicdincnickkactbcebeasecsiethincdsns

Irwin v. United States, 845 F.2d 126

COA, Sree eis siatecatecncicstciecintaniie

Johnson v. United States, 704 F.2d 143

CRETE, Fo eb sccidciastekibtlinedatans

Page

7, 11, 14-16,

24n 5, 27

6n.2

24, 25

3-6, 7 n.3, 8,

10-18, 18 n.4,

21, 22, 24-29,

24 n.5

19n.4

Major v. United States, 835 F.2d 641

(6th Cir. 1987)

Rainier v. United States, 352 U.S. 315

PPPTTTTITITT TT aed

Sidley v. United States, 861 F.2d 988

(6th Cir. 1988).......cccccccecerereeesseeseeeeeeeenees

Starcher v. Byrne, 687 So.2d 737

(Miss. 1997).......csscessceresssssesersseeseseenenes

Taber v. Maine, 67 F.3d 1029

(2d Cir. 1995)

United States v. Brown, 348 U.S. 110

POU TTTITITI TT ee

United States v. Johnson, 481 U.S. 681,

693 (1986)

OOOO SESE EEE HEHE OEE EESESE EES EESEHOEHESOHOSESESD

United States v. Muniz, 374 U.S. 150,

162 (1963).....cccsecsscsccoceecsecseresrsossecseoosses

United States v. Shearer, 473 U.S. 52,

57 (1984)

28 U.S.C. § 1291

19 n.4

24 n.5

7n.2

25-30

14-18

9,10 19 n.4,

20-22,25

18, 19n.4

17-19, 19 n.4,

21, 24, 25

BB BAG U0 Dissssuntcscacstuscksteinisbapiattinas 3, 4, 6,9

BO Gian © OEE U vtctntrcavscinssisenvicpininoaniann 3, 4, 8

2B UO. BAcs B BP Orisinncxinvecnsvenaicinaiae 3

BO UB An § LO isriccinariieenceinaniialdiaan 3, 8, 10-12

OTHER AUTHORITIES

Comment, “Military Medical Malpractice

and the Feres Doctrine,” 20 Georgia L.

Rev. 497, SHO CIPI vcscevsndeneiianedeicinsntis 20

Comment, “Providing New Relief to

the Victims of Military Medicine: A

New Challenge to the Application of

the Feres Doctrine in Military Medical

Malpractice Cases,” 32 Duquesne L.Rev.

SD. ECB Pixincsisacisninhinaravedinginnedhion 20

Hornbrook & Kirschbaum, “‘The Feres

Doctrine: Here Today —- Gone Tomorrow?”’,

33 The Air Force L.Rev. 1,2 (1990)....... 9, 20, 29

Seidelson, “From Feres v. United States

to Boyle v. United Technologies Corp..,:

An Examination of Supreme Court

Jurisprudence and a Couple of Suggestions”;

32 Duquesne L.Rev. 219, 221-21 (1994).... 9

‘

;

}

‘

. 3

OPINIONS BELOW

The United States District Court for the Southern

District of Ohio filed its OPINION AND ORDER on May

29, 1998 (Appendix E), and entered its JUDGMENT IN A

CIVIL CASE on the same day (Appendix D).

The United States Court of Appeals for the Sixth

Circuit affirmed the judgment rendered in the District Court

in an opinion filed on July 22, 1999, and indicated that its

opinion was “not recommended for full-text publication.”

(Appendix A). The Petitioner, on September 3, 1999, filed

a Petition for Rehearing en banc, which was denied in an

ORDER filed on October 26, 1999. (Appendix B).

JURISDICTION

The Court of Appeals rendered its opinion affirming

the decision of the District Court on July 22, 1999, and the

Petitioner filed, on September 3, 1999, a Petition for

Rehearing en banc, which was denied in an ORDER filed

on October 26, 1999. (Appendix B) The instant Petition

for a Writ of Certiorari is being filed within ninety (90)

days of the denial of the Petition for Rehearing en banc.

Accordingly, this Court has jurisdiction pursuant to 28

U.S.C. §1254(A). (Appendix G.)!

| It should be noted that Rules 35 and 41 of the Federal

Rules of Appellate Procedure and the Rules of this Court

were recently amended to make clear that, when a rehearing

en banc is sought, the time for seeking review in this Court

is tolled:

Pursuant to Rule 29.4(a), service is made, in

addition to counsel of record for the Respondent in the

Court of Appeals below, on the following:

Solicitor General of the United States

Room 5614

Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530-0001

One of the purposes of the substantive

amendments is to treat a request for

rehearing en banc like a petition for panel

rehearing so that a request for a rehearing en

banc will suspend the finality of the court of

appeals’ judgment and delay the running of

the period for filing a petition for writ of

certiorari. Companion amendments are

made to Rule 41.

Fed.R.App.Proc. 35, Advisory Committee Notes, 1998

Amendments. Similarly, Rule 13 of this Court, as adopted

January 11, 1999 (effective May 3, 1999), omits the

following language which was set forth in the prior version

of the Rule: “A suggestion . . . for a rehearing in banc

pursuant to Rule 35(b), Federal Rules of Appellate

Procedure, is not a petition for rehearing within the

meaning of this Rule.”

STATUTES INVOLVED IN THE CASE

The statutes involved in this case are: 28 U.S.C. §

1346(b); 28 U.S.C. § 2671; 28 U.S.C. § 2674; and; 28

U.S.C. § 2680. The pertinent language of these statutes is

set forth verbatim in the appendix. (Appendix G).

STATEMENT OF THE CASE

This case involves the claim of the Petitioner

Thomas J. Ratcliff, a service person, against the

Respondent United States of America, for compensatory

damages he allegedly sustained as a result of medical

negligence committed by employees of the Respondent in

the treatment of kidney stones, directly and proximately

resulting in permanent injuries. The Respondent United

States of America filed, on March 10, 1998, a “Motion to

Dismiss,” asserting that the District Court lacked subject

matter jurisdiction “because plaintiff's claims of alleged

medical malpractice are incident to his military service and

are thus barred pursuant to Feres v. United States, 340 US.

135 (1950).” The District agreed, and granted the Motion

to Dismiss. (Appendix E)

Although the District Court, based upon its

conclusion that the Petitioner’s claim was not compensable

under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-

2680 [hereinafter “FTCA”], held that it did not have subject

matter jurisdiction over the Petitioner’s claim, it is the

Petitioner’s position that his claim is compensable under

the FTCA, such that the District Court did have

jurisdiction, pursuant to 28 U.S.C. § 1346(b). (Appendix

eae eerie aati meneame

G) The Sixth Circuit Court of Appeals had jurisdiction to

review the final judgment of the District Court pursuant to

28 U S.C. § 1291. (Appendix G).

Because this case was decided pursuant to a motion

to dismiss, the lower courts were required to, and did,

accept as true the allegations set forth in the Complaint,

which asserts that the Petitioner Ratcliff, who was on active

duty as a first lieutenant in the United States Army, was

admitted to Lyster Army Hospital, in Alabama, from May

4, 1995 to May 10, 1995, and to the Kessler Medical

Center, in Mississippi, from May 10, 1995 to June 11,

1995, for treatment of a non-service related condition, i.e.,

kidney stones, and that, as a result of negligent medical

treatment rendered by employees of the Respondent United

States of America [hereinafter referred to as “Respondent

U.S.”], he sustained permanent injuries. The Complaint

also alleges that the Petitioner Ratcliff’s injury was not

sustained “incident td service.” (Appendix F).

ARGUMENT

A. Reasons Why This Court Should Allow The Writ

This Court should allow the writ sought herein for

either of the following two alternative reasons: (1) to

overrule its prior holding, in Feres v. U.S., 340 U.S. 135

(1950), to the effect that claims by service persons for

injuries sustained “incident to service” are not compensable

under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-

2680, or; (2) in the event that this Court determines that

Feres was correctly decided, to resolve conflict among the

United States Circuit Courts of Appeals regarding when an

injury is sustained “incident to service,” which conflict

flows from the fact that this Court’s jurisprudence in this

area is confusing and contradictory, and to hold that this

exception applies only to injuries sustained by members of

the armed services in the course and scope of their military

employment.

B. The Holding Of This Court In Feres v. United

States, 340 U.S. 135 (1950), Should Be Overruled

The Respondent United States argued in the Courts

below that the mere fact that Petitioner Ratcliff was an

active duty serviceman at the time that he received the

negligent medical care established that his injury was

sustained “incident to service,” such that the District Court

below lacked jurisdiction, and the District Court, pursuant

to “binding Sixth Circuit precedent,” agreed, although it

characterized that result as “harsh”:

Plaintiffs injuries are the result of treatment

he received in Defendant’s military hospital.

Although. ..the reason he was in the hospital

was not related to military activity, it is

nonetheless deemed as a matter of law to be

incident to service under the Feres doctrine

because he was on active duty status. The

result may seem harsh, but under binding

Sixth Circuit precedent, defendant is entitled

tc dismissal of plaintiff's claims as a matter

of law.

Appendix E. The Sixth Circuit agreed with the District

Court, including the characterization of this result as

“harsh”:

As stated by the district court, “[t]he result

may seem harsh, but under binding Sixth

Circuit precedent, defendant is entitled to

dismissal of plaintiff's claims as a matter of

law.”

Appendix A. As will be shown below, however, the

Federal Tort Claims Act [“FTCA”’] contains no “incident to

service” exception to the liability it created on the part of

the United States, such that this Court’s decision in Feres

should be overruled, and the Respondent’s motion to

dismiss should have been denied.

28 U.S.C. §1346(b) provides that federal district

courts shall have exclusive jurisdiction of civil actions

against the United States, for damages for injury or death

caused by the negligence of any employee of the

Government under circumstances where the United States,

if a private person, would be liable to the claimant pursuant

to the law of the place where the negligence occurred. ”

Importantly, this statutory language does not except claims

2 In the instant case, the negligence occurred in Alabama

and Mississippi, and the law of both of these states

recognizes claims for medical negligence. See Complete

Family Care v. Sprinkle, 638 So.2d 774 (Ala. 1994)

(physician had duty to exercise ordinary care in treatment

of patient); and Starcher v. Byrne, 687 So.2d 737 (Miss.

1997) (physician had duty to exercise ordinary care in

treatment of patient).

asserted by service persons from its grant of jurisdiction, as

was recognized by this Court the first time it was called

upon to decide a case arising under the FTCA:

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.”

Brooks v. United States, 337 U.S. 49, 51 (1949) (emphasis

added).? The fact that the Petitioner Ratcliff herein was a

member of the armed forces, therefore, did not deprive the

District Court of jurisdiction to hear his claims. Similarly,

as will be shown below, the fact that the negligent

governmental employee was also a member of the armed

services does not render the FTCA inapplicable.

The fact that the allegedly negligent “employee(s]

of the Government” herein were, like the Petitioner

Ratcliff, members of the armed services, does not deprive

the District Court of jurisdiction, because the FTCA

specifically includes members of the military within its

definition of those “employee[s] of the Government” upon

whose negligent conduct FTCA liability may be premised:

3 Although the language of the FTCA was later changed,

such that the specific words “any claim” no longer appear in

the statute, this Court has held that the “change in language

[effected] no substantive change in the law.” See Feres v.

United States, 340 U.S. 135, 140 n. 9.

“Employee of the government’ includes...members of the

military or naval forces of the United States....”” 28 U.S.C.

§ 2671. This Court has explicitly agreed with this

conclusion: “The Act...does contemplate that the

Government will sometimes [be required to] respond for

negligence of military personnel....” Feres, 340 U.S. at p.

138. The plain and express language of the FTCA,

therefore, provided the District Court with jurisdiction to

hear the Petitioner Ratcliff’s claims, despite the fact that the

Petitioner Ratcliff, as well as the Respondent United

States’s allegedly negligent employees, were members of

the armed services, which conclusion is also supported, as

will be discussed below, by the fact that the FTCA, in its

enumeration of those claims for which FTCA compensation

may not be sought, did not include claims for injuries that

are sustained “incident to service”.

The FTCA, in recognition of the unique character of

military service, provides that the United States may not be

held liable for “claims 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()).

Significantly absent from the list of exceptions set forth in

28 U.S.C. § 2680, therefore, is any exception for injuries

sustained by service persons that are “incident to service”.

Thus, as has been concluded by legal commentators, the

plain language of the FTCA provides that the District Court

did have jurisdiction to hear the Petitioner Ratcliff's claim

that he was injured by the negligence of a physician

employed by the Respondent United States, even if those

injuries were sustained “incident to service”:

Reading these [statutory] provisions, one

might infer that the FTCA was intended to

apply to injuries [sustained] incident to

military service where such injuries were the

result of negligence on the part of military

personnel, if the injuries were

noncombatant....

Seidelson, “From Feres v. United States to Boyle v. United

Technologies Corp.,: An Examination of Supreme Court

Jurisprudence and a Couple of Suggestions,” 32 Duquesne

L.Rev. 219, 221-21 (1994). See also Hornbrook &

Kirschbaum, “The Feres Doctrine: Here Today — Gone

Tomorrow?”, 33 The Air Force L.Rev. 1, 2 (1990)

(“‘Conspicuously, the FTCA contains no specific peacetime

exclusion for military personnel[, and, s]imilarly, it fails to

mention the phrase ‘incident to service”). Justice Scalia,

in his dissent United States v. Johnson, 481 U.S. 681, 693

(1986), reached the same conclusion:

Read as it is written, this language [in 28

U.S.C. §1346(b)] renders the United States

liable to all persons, including servicemen,

injured by the negligence of Government

employees. Other provisions of the [FTCA]

set forth a number of exceptions, but none

generally precludes FTCA suits brought by

servicemen. One, in fact, excludes “[a]ny

claim arising out of the combatant activities

of the military or naval forces, the Coast

Guard, during times of war,” §2680(j)

(emphasis added), demonstrating that

Congress specifically considered, and

provided what it thought needful for, the

special requirements of the military. There

Was no proper basis for us to supplement to -

- .¢., revise -- that congressional disposition

[by also excluding claims by service persons

that are “incident to service”’]. [Emphasis in

original. ]

Justice Scalia concluded, therefore, that “Feres was

wrongly decided and heartily deserves the ‘widespread,

almost universal criticism’ it has received.” Johnson, 481

U.S. at p. 700 (quoting /n re “Agent Orange” Product

Liability Litigation, 580 F. Supp. 1242, 1246 (EDNY),

appeal dism’d, 745 F.2d 161 (1984) [extensive citations of

other authorities criticizing Feres omitted].

It is respectfully submitted that this Court should

allow the writ sought herein and overrule its holding in

Feres. Even if this Court has no desire to overrule Feres,

however, the writ should nonetheless be allowed to resolve

conflict among the United States Circuit Courts of Appeals

regarding the proper interpretation of the phrase “incident

to service,” which conflict flows from the fact that this

Court’s jurisprudence in this area is confusing and

contradictory.

C. This Court’s Jurisprudence In This Area Is

Confusing And Contradictory, Which Has Lead

To Conflicting Decisions In The United States

Circuit Courts Of Appeals Regarding When An

Injury Is Sustained “Incident To Service”

Feres was not the first time that this Court

addressed the issue whether a service person could bring a

claim under the FTCA -- in Brooks v. United States, 337

U.S. 49, 50 (1949), a serviceman, while on furlough, was

struck by a United States Army truck operated by a civilian

employee of the Army, and this Court, based upon the plain

language of the FTCA, held that the injury was

compensable. This Court also examined the statutory

exceptions set forth in 28 U.S.C. § 2680, and indicated that

the failure of Congress to exclude claims by servicemen,

other than claims based upon injuries sustained in combat

or in foreign countries, showed that such claims were

intended by Congress to be covered by the FTCA, and

indicated that to believe otherwise would be “absurd.”

The statute does contain twelve exceptions.

[Citation omitted.] None exclude

petitioner’s claims. One is for claims arising

in a foreign country. A second excludes

claims arising out of combatant activities...

during times of war. [S]uch exceptions

make it clear that Congress knew what it

was about when it used the term “‘any

claim.” [Further, i]t would be absurd to

believe that Congress did not have

servicemen in mind in 1946 when this

statute [i.e., the FTCA] was passed. The

overseas and combatant activities exceptions

make this plain.

Id., at p. 51.

This Court also examined the legislative history,

and noted that, prior to the enactment of the FTCA, there

“were eighteen tort claims bills introduced in Congress

between 1925 and 1935 [,and that a]ll but two [of these

bills] contained exceptions denying recovery to members of

the armed forces [, but that w]hen the present Tort Claims

Act was...introduced...the exception concerning

servicemen had been dropped.” Id., at pp. 51-52. This

legislative history, therefore, was deemed to support the

conclusion that claims by members of the armed forces,

subject to the specific exceptions set forth in 28 U.S.C. §

2680, were intended to be covered by the FTCA.

It is important to note that this Court also held that

the recovery of other statutory benefits by the injured

service person did not constitute the exclusive remedy

available to him, because the statutes providing for such

benefits did not indicate any intent to preclude FTCA

claims, although any such benefits would act as an offset

from any liability the government would have under the

FTCA:

Provisions in other statutes for disability

payments to servicemen...indicate no

purpose to forbid tort actions under the Tort

Claims Act.... [T]here is nothing in the Tort

Ciaims Act or the veterans’ laws which

provides for exclusiveness of remedy....

We will not call either remedy. ..exclusive

nor pronounce a doctrine of election of

remedies, when Congress has not done so....

But this does not mean that the amount

payable under servicemen’s benefit laws

should not be deducted, or taken into

consideration, when the serviceman obtains

judgment under the Tort Claims Act.

Id., at p. 53.

Finally, this Court rejected the argument that,

simply because the claimant was in the military, “dire

consequences” would flow from allowing a claim to be

made, because the facts in that case implicated no military

issues:

[The injury] had nothing to do with [his]

Army career, [and the] injuries [were] not

caused by their service except in the sense

that all human events depend upon what

has already transpired.

Id. at p. 52 (emphasis added). This Court, therefore,

expressly rejected the argument that the mere fact that an

injury can be traced back, in some sense, to the fact that the

claimant was in the armed services, was insufficient to bar

the claim.

The next relevant case decided by this Court, Feres,

presented three separate cases, two of which presented the

issue whether recovery could be had under the FTCA by

servicemen who allegedly sustained injury and/or death as

a result of medical negligence by Army physicians -- the

third case presented a serviceman’s claim that he was

injured as the result of a faulty heating plant which serviced

Army barracks -- and this Court held that all three claims

were noncompensable, on the ground that the injuries were

sustained “incident to service”. In reaching this conclusion,

this Court first held that the fact that Congress failed to

provide for any coordination of other statutory benefits to

which a serviceman would be entitled with any damages

recoverable under the FTCA showed that Congress did not

intend to allow a serviceman to recover both statutory

benefits and FTCA damages:

This Court, in declining claims for wrongs

incident to service under the Tort Claims

Act, cannot escape attributing some bearing

upon it to enactments by Congress which

provide systems of simple, certain, and

uniform compensation for injuries or death

of those in armed services. ... If Congress

had contemplated that this Tort Act would

be held to apply in cases of this kind, it is

difficult to see why it should have omitted

any provision to adjust these two types of

remedy to each other. The absence of any

such adjustment is persuasive that there was

no awareness that the Act might be

interpreted to permit recovery for injuries

incident to military service.

Feres, 340 US. at p. 144. The problem with this

justification, i.¢., that the receipt of other statutory benefits

defeats a claim under the FTCA is, of course, that it had

just been, as shown above, explicitly rejected by this Court

in Brooks, supra.

Subsequently, in United States v. Brown, 348 U.S.

110, 111-12 (1954) (emphasis added), a veteran alleged that

he received substandard medical care of a service-related

injury, i.¢., an injury which, unlike the Petitioner Ratcliff’s

kidney stones, was sustained in the course and scope of the

performance of military duties, ata VA hospital, and this

Court allowed the claim to proceed even though the veteran

had received statutory benefits:

The Brooks case held that servicemen

were covered by the Tort Claims Act where

the injury was not incident to or caused by

their military service.... The fact that

compensation was sought and paid under

the Veteran’s Act was held not to bar

recovery under the Tort Claims Act....

In Brown, therefore, this Court concluded that the

injury complained of was not sustained “incident to

service”, even though other statutory benefits had been

recovered, even though the condition being treated was

service related, and even though the plaintiff's entitlement

to the medical treatment flowed from his or her status as a

service person:

[Plaintiff] was there [i.e., was in the hospital

and received the medical treatment,] of

course, because he had been in the service

and because he had received an injury in the

service.... We adhere to the line drawn in

the Feres case between injuries that did and

did not arise out of or in the course of

military duty. Since the negligent act giving

rise to the injury [,i.e., negligent medical

treatment,] in the present case was not

incident to military service, the Brooks case

{,and not the Feres case,] governs....

Brown, 348 U.S. at pp. 112-113. The majority in Brown,

therefore, rejected the following argument of Justice Black,

in his dissent, to the effect that the fact that the plaintiff was

entitled to the medical treatment he received as a result of

his membership in the armed services is sufficient, in and

of itself, to establish that any injury resultant from

negligence in the rendition of that medical treatment was

sustained “incident to service”:

In this case...the injury is inseparably

related to military service and the Brooks

case should not be held controlling. But for

his army service this veteran could not have

been injured in the veterans hospital as he

was eligible and admitted for treatment there

solely because of war service which gave

him veteran status. Moreover, he was

actually being treated for an army service

injury.

Brown, 348 U.S. at p. 114 (Justice Black dissenting).

This Court, in recognition of the fact that its

decision in Brown conflicted with Feres, offered the

following alternative “military discipline” justification for

its holding in Feres:

[T]he Tort Claims Act does not cover

“injuries to servicemen where the injuries

arise out of or are in the course of activity

incident to service.” [Citing Feres.] The

peculiar and special relationship of the

solider to his superiors, the effects of the

maintenance of such suits on discipline, and

the extreme results that might obtain if suits

under the Tort Claims Act were allowed for

negligent orders given or negligent acts

committed in the course of military duty, led

the Court [in Feres] to read that Act as

excluding claims of that character.

Brown, 348 U.S. at p. 112. Pursuant to the holding in

Brown, the determination whether a claim by a service

person is covered by the FTCA, i.e., whether the injury

upon which the claim is based was sustained “incident to

service,” seemed straightforward -- it depended upon

whether the claim somehow implicated issues of “military

discipline.” In fact, this “military discipline” rationale for

the result in Feres, first articulated in Brown, was

subsequently posited by this Court, in United States v.

Shearer, 473 U.S. 52, 57 (1984), as the sole criteria and

justification for the Feres doctrine:

“(Tn the last analysis Feres seems best

explained by the peculiar and special

relationship of the solider to his superiors,

the effects of discipline, and the extreme

results that might obtain if suits under the

Tort Claims Act were allowed for negligent

orders given on negligent acts committed in

the course of military duty.”” United States

v. Muniz, 374 U.S. 150, 162 (1963), quoting

United States v. Brown, 348 U.S. 110, 112

(1954).

This Court then concluded as follows:

The Feres doctrine cannot be reduced to

a few bright-line rules; each case must be

examined in light of Feres and subsequent

cases. Here the Court of Appeals placed

great weight on the fact that [the

serviceman] was off duty and away from the

base when he was [injured]. But the situs

of the [injury] is not nearly as important

as whether the suit requires the civilian

court to second-guess military decisions

[citations omitted], and whether the suit

might impair essential military discipline

[citation omitted].

Shearer, 473 U.S. at p. 57 (emphasis added). This Court,

therefore, held that the “‘other factors in Feres”’ were “no

longer controlling.” Id., at p. 58 n. 4.4

* This Court, in Feres, offered three justifications for the

“incident to service” exception. First, the fact that other

disability benefits had been received, which factor, as

shown above, is not dispositive. Second, the “federal”

nature of the relationship between the Government and

service persons. Although these two factors were relegated

to the status of “no longer controlling” in Shearer, and were

replaced with the military discipline justification, they were

then resurrected, at least to some extent, as will be

discussed below, by this Court in United States v. Johnson,

481 U.S. 681 (1986). A third factor relied upon by this

Court in Feres was that, because a private person could not

raise an army, the FTCA, which only allowed the

government to be held liable under circumstances where a

Had the decision in Shearer been this Court’s last

word, it may have served to settle this area of law by

providing that the FTCA covers claims by service persons

unless the resolution of that claim would somehow

implicate issues of military discipline, in which case the

claim of the Petitioner herein would be covered, because it

cannot be seriously contended that allowing a suit for

medical negligence will somehow disrupt military

discipline:

Because of its importance to our national

security, deterioration of military discipline

is a major concern.... On one end of the

spectrum, Feres can be rationalized because

permitting soldiers to make claims against

battlefield commanders for “negligently”

employing “unsound” tactics could create

hesitant commanders and argumentative

soldiers. On the other end of the

spectrum, Feres may be difficult to

private person would be liable, could not apply to claims by

servicemen. This factor, however, has been soundly

rejected, and was not resurrected in Johnson. See e.g.,

Indian Towing Co. v. United States, 350 U.S. 61 (1955),

and Rainier v. United States, 352 U.S. 315 (1957), which

allowed recoveries under the FTCA despite the fact that the

injury producing activity was not of the sort in which

private persons also engaged, i.e., the operation of a Coast

Guard lighthouse, and fire fighting. See also, United States

v. Muniz, 374 U.S. 150 (1963).

explain because it may not be clear how

discipline will deteriorate if tank drivers

are permitted to recover for medical

malpractice occurring while they are

unconscious in the operating room.

Hornbrook & Kirschbaum, “The Feres Doctrine: Here

Today, Gone Tomorrow?” 33 Air Force L.Rev. 1, 9-10

(emphasis added). See also Comment, “Military Medical

Malpractice and the Feres Doctrine,” 20 Georgia L.Rev.

497, 520 (1986), (“[w]hile it is possible to foresee the

problems that might occur if officers were held liable for

negligent orders given during combat, it seems highly

unlikely that medical malpractice claims would jeopardize

military discipline....’”); and Comment, “Providing New

Relief to the Victims of Military Medicine: A New

Challenge to the Application of the Feres Doctrine in

Military Medical Malpractice Cases,” 32 Duquesne L.Rev.

109,. 126 (1993) (“The military discipline rationale loses its

credence as it applies to medical malpractice’’).

Unfortunately, however, this Court’s subsequent decision

in United States v. Johnson, 481 U.S. 681 (1986), by

rejecting military discipline as the sole criteria for

determining whether a claim is covered by the FTCA,

injected confusion and uncertainty into the law, which has

lead the United States Circuit Courts of Appeals to employ

conflicting standards for determining whether an injury was

sustained “incident to service.”

In Johnson, which is this Court’s most recent

decision concerning the viability of a service person’s

claim under the FTCA, this Court held that intrusion into

military discipline was not the only reason to apply the

Feres “incident to service” doctrine, and indicated that the

lower courts were also to consider the two other factors set

_ forth in Feres, i.e., the receipt of other statutory benefits

and the federal nature of the relationship. First, this Court

noted that the nature of the relationship between the

Government and members of the military service is

“distinctively federal in character.” Johnson, 481 U.S. at p.

689. Although this factor is somewhat ambiguous, and had

been previously relegated, in Shearer, to the status of “no

longer controlling,” this Court indicated that this “federal

relationship is implicated to the greatest degree when a

service member is performing [military] activities incident

to his federal service”:

Where a service member is injured incident

to service — that is, because of his military

relationship with the government — it

“makes no sense to [allow recovery under

the FTCA]. Instead, application of the

underlying federal [statutory benefits]

remedy that provides “simple, certain, and

uniform compensation for injuries or death

of those in the armed services.”

Johnson, 481 at p. 689 (emphasis added). Thus, in this

Court’s most recent pronouncement, it defined the “federal

relationship” component of the Feres doctrine as relating to

the “[p]erformance of the military function in diverse parts

of the country,” because “[p]erformance of the military

function...entails a ‘[s]ignificant risk of accidents and

injuries.” Johnson, 481 U.S. at p. 689 (emphasis added).

The “federal relationship” component of the Feres doctrine,

therefore, although characterized by this Court as

constituting a factor separate from the issue of military

discipline, is implicated only when the service person’s

claim involves “military” activities, thereby creating

confusion regarding whether it is, in fact, a separate and

distinct consideration.

This Court, in Johnson, also referred to the fact that

the service person in that case had received other statutory

benefits. It is important to remember, however, as

demonstrated above, that this Court has previously, and

repeatedly, held that the mere receipt of other statutory

benefits does not, in and of itself, establish that a claim is

not within the reach of the FTCA.

The third, and final, factor referred to in Johnson,

481 U.S. at p. 690, was the military discipline justification

set forth in Shearer:

Third, Feres, and its progeny indicates

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 “type[s] of

claims that, if generally permitted, would

involve the judiciary in sensitive military

affairs at the expense of military discipline

and effectiveness.”

As will be shown below, as a result of the confusion

regarding just what factors should be considered in

determining whether an injury was sustained “incident to

service,” the United States Circuit Courts of Appeals have

reached conflicting decisions, which conflict needs to be

resolved by this Court.

As noted in the opinion of the Court below, Sixth

Circuit law provides that the “incident to service” exception

is not limited to military activities, and therefore includes,

for example, injuries sustained from the negligent medical

care of non-service related medical conditions:

This rule of law is now called the Feres

doctrine. The term “incident to service” is

not limited to military training and

combat, but rather encompasses “all injuries

suffered by military personnel that are even

remotely related to an individual’s status as

a member of the military.” Major v. United

States, 835 F.2d 641, 644-45 (6th Cir. 1987).

Under the law of this [circuit], the medical

treatment received by Ratcliff is included in

the term “incident to service.”

Appendix A (emphasis added). Thus, in the Sixth Circuit,

a “bright-line rule” exists -- “We have held numerous times

that the Feres doctrine bars medical malpractice claims. . .

regardless of the source of the original illness or injury”

(Appendix A) -- despite the fact that this Court has held

that the “eres doctrine cannot be reduced to a few bright-

line rules. . . .” Shearer, 437 U.S. at p. 57.°

5 This failure to appropriately limit Feres to conduct that

can be fairly described as “military” in nature has led the

Sixth Circuit to reach absurd conclusions, such as the

In Dreier v. United States, 106 F.3d 844, 850 (9th

Cir. 1997) (quoting Johnson v. United States, 704 F.2d

1431 (8th Cir. 1983), on the other hand, the Court of

Appeals for the Ninth Circuit held that Feres has no

application when there is no relationship between the

manner in which the injury was sustained and military

interests:

Where...there is “no relevant relationship

between the service member’s behavior, and

the military interests that might be

jeopardized by civil suits, the Feres doctrine

cannot bar recovery.”

conclusion, in /rwin v. United States, 845 F.2d 126 (6th

Cir. 1988), that the prenatal care of a pregnant service

woman was somehow “incident to service,” and the

conclusion, in Sidley v. United States, 861 F.2d 988 (6th

Cir. 1988), that the negligent treatment of a broken leg

sustained in a motorcycle accident was “incident to

service.” Such results are well-founded only if it can be

concluded that the mere fact that the service person was

provided the medical treatment because he or she was a

member of the armed services is sufficient to mandate the

conclusion that any injuries resultant from negligence in the

rendition of that medical care are, therefore, “incident to

service.” As shown above, however, this Court, in Brooks,

held that the mere fact that the treatment complained of was

received because the person was in the service does not,

ipso facto, mandate the conclusion that any injury resultant

from that treatment is, therefore, “incident to service.”

Thus, Ninth Circuit law provides that the “key inquiry in

determining whether an injury was suffered ‘incident to

service’ is ‘whether the suit requires the civilian court to

second-guess military decisions, . . . and whether the suit

might impair essential military discipline.”” Dreier, at p.

852 (quoting Shearer, 473 U.S. at p. 57 (1985)). The court

held that these principles of law were “not undermined by

United States v. Johnson, 481 U.S. 681... .” Dreier, 106

F.3d at p. 854.

The Second Circuit, in Taber v. Maine, 67 F.3d

1029 (2d Cir. 1995), in a valiant and convincing effort to

explain and harmonize the decisions of this Court with

regard to the proper resolution of the issue whether a

service person’s claim against the United States is or is not

allowed by the FTCA, has set forth yet another standard,

which flows from that court’s recognition that the statutory

benefits available to a service person are best viewed as

comprising the following two different kinds of benefits --

benefits analogous to state workers’ compensation benefits,

which cover only injuries sustained in the course and scope

of the employment, and benefits analogous to employer

provided private health and disability insurance, which

cover injuries which were not sustained in the course and

scope of the employment. Once this distinction is

recognized, this Court’s jurisprudence, which, as shown

above, is in conflict regarding the significance of the fact

that the service person received other benefits, can be

harmonized — the receipt of benefits akin to workers’

compensation benefits will preclude an FTCA claim, while

the receipt of benefits akin to private health and disability

insurance will not:

There is a fundamental difference

between the government’s compensation

scheme for its military “employees” and

workers’ compensation laws. The

government’s compensation scheme is not

limited to compensating military

“employees’ who are injured in ways that

“arise out of or in the scope of

employment.” It covers servicemembers’

injuries, as well as diseases, that are

completely unrelated to a military

enterprise.... Workers’ compensation laws

[on the other hand] only compensate

employees for injuries that rise out of or in

the course of their employment. And under

these laws, it is only this limited class of

injuries that give rise to a Feres-like

prohibition of suits by employees against

their employers.

Taber, 67 F.3d at p. 1044. In this regard, the Court noted

that it is well-established that, although the receipt of state

workers’ compensation benefits will preclude an employee

from bringing a civil action against his or her employer, the

receipt of benefits under employer provided private health

insurance will not. Zaber, 67 F.3d at p. 1045. This

distinction satisfactorily harmonizes the different outcomes

in Brooks and Feres:

Brooks and Feres make the same

distinction. Feres bars suits where

compensation is given under a military

analogue to workers’ compensation. Brooks

allows suits when compensation occurs for

non-work related injuries, i.e., those that

would not be covered by workers’

compensation. Read this way, Brooks,

Feres, and their respective progeny are not

only substantially consistent with each other,

but they also achieve a rough parity with

workers’ compensation laws[ and]

accomplish the very result that the Court

sought in Feres.

Taber, 67 F.3d at p. 1045.

Moreover, this test obviates the need to examine, as

a separate factor, whether the maintenance of the suit will

interfere with considerations of military discipline, because,

if it will, then the injury must have been incurred “incident

to service”:

In other words, Feres’ bar on claims

“aris[ing] out of or in the course of activity

incident to service,” 340 U.S. at 146, 71

S.Ct. at 159, understood in the light of its

workers’ compensation rationale, will

almost inevitably keep the judiciary out of

matters of military discipline.

Taber, 67 F.3d at p. 1046. With regard to the issue of

military discipline vis-a-vis the tortfeasor-government

employee, Taber, 67 F.2d at p. 1047, noted that the Feres

doctrine only applies when the claimant, not the tortfeasor,

is a service person, such that a private individual is not

precluded from bringing a claim under the FTCA

ae Ce

regardless whether the tortfeasor-government employee’s

misconduct somehow implicates issues of military

discipline, such that, logically, precluding claims by service

persons cannot be justified on that basis.

The court in Jaber, however, in recognition of what

has been described as this Court’s “almost mystical regard

for military discipline” (see Hornbrook & Kirschbaum,

“The Feres Doctrine: Here Today -- Gone Tomorrow?”’, 33

Air Force L.Rev. 1, 9), left open the possibility that a claim

may be barred under the FTCA on the basis of military

discipline vis-a-vis the tortfeasor-government employee,

although the court found it difficult to envision when such

action would be necessary. See Taber, 67 F.3d at p. 1048

(‘“‘[s]till, there [may be] some very rare cases in which

military discipline is crucial.’’).

In sum, this Court’s precedent in this area of law,

which is conflicting and confusing, can be simplified and

harmonized by following Taber, which held that when the

service person’s injuries would be covered by the

equivalent of state workers’ compensation, rather than

employer-provided health or disability insurance, i.e., when

the injury is sustained in the course and scope of the service

person’s employment, Feres will apply and bar the claim —

otherwise, the claim may be made:

Because Feres bars a claim for injuries that

‘arise out of or in the course of activity

incident to service,” Feres, 340 U.S. at 146,

71 S.Ct. at 159, we conclude that in

assessing whether a military plaintiffs

FTCA claim is barred, the court should

proceed by considering the same question

that would determine whether the plaintiff

would be entitled to receive standard

workers’ compensation payments for his

injury: was the plaintiff engaged in

activities that fell within the scope of the

plaintiff's military employment? Where the

answer is “yes,” so that the plaintiff would

] be entitled to receive standard workers’

compensation payments, this will mean that

the Feres doctrine applies, barring recovery

under the FTCA. Conversely, if the answer

is “no,” so that the plaintiff would have no

entitlement to recover standard workers’

compensation payments, there should be no

Feres bar, absent unusual circumstances that

would call into play the Feres discipline

rationale.

Taber, 67 F.3d at p. 1050.

CONCLUSION

For the foregoing reasons, Petitioner Ratcliff

respectfully requests this Court to allow the writ sought

herein and accept jurisdiction in this case to either overrule

Feres or to resolve conflict in the Circuit Courts of Appeals

regarding what standard is to be utilized in determining

whether an injury was sustained “incident to service”.

Michael S. Miller (0009398)

Robert G. Palmer (0022152)

Palmer Volkema Thomas LPA

140 E. Town Street, Suite 1100

Columbus, Ohio 43215

(614) 221-4400/(614) 221-6010 [fax]

Attorneys for Petitioner

6TH CIRCUIT FILINGS:

Final Opinion,

NN MEE 550 SoG hase bib aie ni © OS ae Al-A3

Order Denying Peitition En Banc,

NE I age gi a a kv wn bc ee we ees B1-B2

__ Mandate,

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SOUTHERN DISTRICT OF OHIO FILINGS:

Judgment,

a ais WS a A ong ga GRA ah D1-D2

Opinion and Order,

DEE faces te de ee oe Oe ew ets E1-E5

Complaint,

I i hin he kag ianacerg a ¥ are Mam a F1-F6

STATUTES:

Title 28: §1254, §1291, §1346,

RO hg REIT «Fos Goa. 614 0-00 S09 G1-G6

NOT RECOMMENDED FOR PUBLICATION

No. 98-3745

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THOMAS J. RATCLIFF

) 6th Circuit

Plaintiff- Court of = |

me Filed 7122199

Appellant,

)

V. ) ON APPEAL FROM THE

) UNITED STATES UNITED

UNITED STATES ) DISTRICT COURT FOR

OF AMERICA, ) THE SOUTHERN

) DISTRICT OF OHIO

Defendant- )

Appellee, )

Before: WELLFORD, SILER, and GILMAN,

Circuite Judges.

PER CURIAM. Plaintiff Thoma J. Ratcliff filed this

action under the Federal Tort Claims Act ("FTCA"). 28

U.S.C. §§ 1346(b) and 2671 ef seq., claiming injury as a

result of medical malpractice committed by the Departments

of the Army and Air Force. Ratcliff appeals the district

Appx. A - |

court’s dismissal of the action for lack of subject matter

jurisdiction under the Feres doctrine. We affirm.

While Ratcliff was on active duty in the Army, he

was seen in an Army hospital emergency room and

diagnosed with kidney stones. he was transferred to an Air

Force hospital for further treatment. Ratcliff claims that the

negligence of the health care professionals employed by the

United States at the two hospitals caused him permanent

injury by damaging his lumbar and sacral nerves, thus

confirning him to a wheelchair with some bowel and

bladder dysfunction.

The sole issue presented by this case is whether to

doctrine of Feres v. United States, 340 U.S. 135 (1950),

bars Ratcliff’s claim against the Untied States. We review

de novo the dismissal of a complaint for lack of subject

matter jurisdiction. See Skees v. United States, 107 F.3d

421, 422-23 (6th Cir. 1997).

We have held numerous times that the Feres

doctrine bars medical malpractice claims against the United

States under the FTCA, regardless of the source of the

original illness or injury. See Skees, 107 F.3d at 424

(Discussing cases). The FTCA contains a general waiver of

sovereign immunity for tort claims, but excepts those claims

arising out of wartime combatant activities of the military

forces. See 28 U.S.C. §§ 2674 & 2680(j). The armed

Appx. A - 2

forces exception was broadened by the Supreme Court in

Feres, where the Court held that "the Government is not

liable under the Federal Tort Claims Act for injuries to

servicemen where the injuries arise out of or are in the

course of activity incident to service." Feres. 340 U.S. at

146. This rule of law is now called the Feres doctrine.

The term "incident to service" is not limited to military

training and combat, but rather encompasses "all injuries

suffered by military personnel that are even remotely related

to individual’s status as a member of the military." Major

v. United States. 835 F.2d 641, 644-45 (6th Cir. 1987).

Under the law of this court, the medical treatment

received by Ratcliff is included in thhe term "incident to

service." See Skees, 107 F.3d at 424-25; Sidley v. United

States, 861 F.2d 988, 990 (6th Cir. 1988); /rvin v. United

States, 845 F.2d 126, 129-30 (6th Cir. 1988). Although

Ratcliff urges this court to examine Feres and its Supreme

Court progeny to find that Skees and its predecessor cases

misinterpret the FTCA and Feres, a panel of this court is in

no position to do so. As stated by the district court, "[t]he

result may seem harsh, but under binding Sixth Circuit

precedent, defendant is entitled to dismissal of plaintiff's

claims as a matter of law."

AFFIRMED.

Appx. A - 3

98-3745

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

THOMAS J. RATCLIFF, )

)

Plaintiff- )

Appellant, )

)

a. ) ORDER

)

UNITED STATES OF )

AMERICA, )

)

Defendant- )

Appellee, )

BEFORE: WELLFORD, SILER, and

GILMAN, Circuit Judges.

The Court having received a petition for rehearing

en banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this court, and no judge of this court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

panel.

Appx. B - |

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered uponthe original submission and

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

s/ Leonard Green

Leonard Green, Clerk

Appx. B - 2

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

98-3745

Filed: November 3, 1999

THOMAS J. RATCLIFF

Plaintiff - Appellant

UNITED STATES OF AMERICA

Defendant - Appelle

MANDATE

Pursuant to the court’s disposition that was filed

7/22/99, the mandate for this case hereby issues today.

A True Copy.

No cost taxed Attest:

Filing Fee........... $

Printing.............. $

/s/ Debra Cook

BO as kccnats ss eehsas $ Deputy Clerk

Appx. C - |

_— oS in,

UNITED STATES DISTRICT COURT

Southern District of Ohio

Eastern Division

JUDGMENT IN A CIVIL CASE

THOMAS J. RATCLIFF,

Plaintiff, \

vs Case No. C2-97-1341

UNITED STATES

OF AMERICA, Judge Smith

Magistrate Judge King

Defendants, |

| | Jury Verdict. This action came before the Court for a

trial by jury . The issues have been tried and the jury has

rendered its verdict.

|X] Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard and

= a decision has been rendered.

| | Decision by Court. This action was decided by the Court

. without a trial or hearing.

If IS ORDERED AND ADJUDGED that pursuant

Appx. D - |

to the Court’s Opinion and Order filed May 29,

1998, FINAL JUDGMENT is hereby entered in this

case, in favor of defendant, and against plaintiff,

dismissing this action for lack of subject matter

jurisdiction.

Date: May 29, 1998 KENNETH J. MURPHY, CLERK

's/ G. Wellman

By /Deputy Clerk

Appx. D - 2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Thomas J. Ratcliff,

Plaintiff,

V. Case No. C-2-97-1341

JUDGE SMITH

United States Magistrate Judge King

of America,

Defendant,

OPINION AND ORDER

Plaintiff brings this action under the Federal Tort

Claims Act, 28 U.S.C. §1346(b) and § 2671 ef seq.,

asserting that defendant is liable for damages plaintiff

sustained as a result of allegedly negligent medical

treatment at defendant’s hospitals, Lyster Army Hospital in

Alabama and Kessler Medical Center in Mississippi.

Defendant moves to dismiss for lack of subject

matter jurisdiction. For the reasons that follow, the Court

grants defendant’s motion.

Appx. E - 1

Plaintiff was on active duty in the United States

Army when he suffered from pain and blood in his urine.

He was admitted on May 4, 1995 to Lyster Army Hospital

and diagnosed with kidney stones which were surgically

removed. Plaintiff alleges that this treatment was negligently

performed.

After removal of the stones, plaintiff developed

tower back spasms and numbness, and has since been

unable to walk due to pain. Consequently, he was removed

from active duty after a review of his condition by Medical

Evaluation Board July 1, 1995 .

Plaintiff was placed on the Temporary Disability

Retirement on January 26, 1996, and was permanently

retired on June 10, 1997. Plaintiff filed administrative

actions for relief with the Army and the Air Force, both of

which were denied.

Plaintiff commenced this action on December

10,1997, alleging that he has and will sustain pain and

suffering, mental anguish, and confinement to a wheelchair

on March 19, 1998, defendant moved to dismiss this action

for lack of subject matter jurisdiction.

Appx. E - 2

Defendant’s motion to dismiss for lack of subject

matter jurisdiction is based upon Feres v. United States, 340

U.S. 135 (1950) .In Feres, the Court held that the United

States was not liable for injuries to servicemen under the

Federal Tort Claims Act when those injuries were not

incident to service

The Sixth Circuit Court of Appeals has indicated

that injuries from medical treatment while on active

duty.status are incident to service. For example, in /rvin v.

United States, 8450 F. 2d. 126 (6th Cir.1988), the court

held that negligence during the prenatal care of a

servicewoman on active duty "arose out of or were in the

course of activity incident to service." Id. at 130.

Alleged psychiatric malpractice by a military hospital was

also held to be barred by the Feres doctrine. Skees v.

United States, 107 F.3d. 421 (6th Cir 1997). In Skees, the

military hospital discharged a man after he was diagnosed

by hospital staff to not be a threat to himself. he tater

committed suicide.

Plaintiff argues, however, that his injuries were not

incident to service because they were sustained outside of

his military activity. Plaintiff's mem. contr2 (Doc. 9) at 13.

Plaintiff admits, however, that the Sixth Circuit has

Appx. E - 3

indicated that Keres applies regardless of whether the

conduct in question relates to military matters. Plaintiff's

mem. contra (Doc. 9) at 12 n. 2. The Feres doctrine

"extends beyond situations where the soldier is acting

pursuant to orders or while subject to direct military

command or discipline." Sidley v. United States Dept. of

the Navy, 861 F.2d. 988, 990 (6th Cir. 1988). Specifically,

the Keres doctrine applies to "alleged negligent medical

treatment at a military hospital or medical facility." Id.

Plaintiff's injuries are the result of treatment he

received in Defendant’s military hospitals. Aithough, as in

Skees and /rvin, the reason he was in the hospital was not

related to military activity, it is nonetheless deemed as a

matter of law to be incident to service under the Feres

doctrine because he was on active duty status. The result

may seem harsh, but under binding Sixth circuit precedent,

defendant is entitled to dismissal of plaintiff's claims as a

matter of law.

Il.

For the above reasons, the Court GRANTS

defendant's motion to dismiss (Doc. 7).

The Clerk shall enter a final judgment in this case,

in favor of defendant, and against plaintiff, dismissing this

action for lack of subject matter jurisdiction.

Appx. E - 4

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babes bac ip te ete 9S "

SMe SEES ALS ay CPF I

ibn eRe ited tease b ‘

(

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The Clerk shall remove this case from the Court’s

pending cases and motions lists.

IT IS SO ORDERED.

/s/_ George C. Smith

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT

COURT

Appx. E - 5

SRI SOCAN SADLY IED IESE E Na at

SECON AWS RAVAN

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

THOMAS J. RATCLIFF

1966 Waterbrook Ln

Columbus, OH 43209, :

Plaintiff, :

vs. : Civil Action No.

: C2 97-1341

UNITED STATES

OF AMERICA : Judge Smith

: Magistrate Judge King

Defendant,

COMPLAINT

CLAIM FOR RELIEF OF PLAINTIFF

AGAINST DEFENDANT

l. This action arises under Federal Tort Claims

Act, 28 USC 1346(b), 2671 et seg., as hereinafter more

fully appears. Pursuant to 28 USC 2675(a), before this

action was instituted, the claim set forth herein was

presented to, and jointly denied by, the Defendant's

agencies, the Department of the Air Force and the

Appx F - |

Department of the Army, bycertified letter dated June 19,

1997. This suit was commenced within six months of the

denial of said claim.

a Plaintiff Thomas J. Ratcliff, a resident of the

State of Ohio, resides at 1966 Waterbrook Lane, Columbus,

Ohio, within the jurisdiction of this court. Venue is proper

in this district pursuant to 28USC 1402(b).

8 Defendant, by and through its agencies, the

Department of the Armyand the Department of the Air

Force, owned, operated, managed and _ controlled,

respectively, theLyster Army Hospital at Ft. Rucker,

Alabama, and Keesler Medical Center at Keesler Air Force

Base, Mississippi.

4. Defendant, through these agencies, and

specifically at these hospitals, employed physicians,

surgeons, nurses and other allied health care physicians to

provide medical care and treatment to Defendant’s

militarymembers, including Plaintiff.

5. If Defendant were a private person, it would

be liable to Plaintiff in accordance with the law of

Mississippi and Alabama.

6. Service of process may be accomplished

upon the United States of America by delivering by

Appx F - 2 °

certified mail, return receipt requested, a copy of Summons

and Complaint to the United States Attorney for the

Southern District of Ohio, Eatern Division, as follows:

Sharon J. Zealey

United States Attorney

280 North High Street

Columbus, Ohio 43215

Additionally, service may be accomplished upon the United

States of America by delivering, by certified mail, return

receipt requested, a copy of the Summons and Complaint to

the Attorney General of the United States, as follows:

Janet Reno, United States

Attorney General

Office of the Attorney General

Room 511

Main Justice Building

Tenth & Constitution Avenue, N.W.

Washington, D.C. 20530

1 3 On or about May 4, 1995, Plaintiff was on

active duty as a first lieutenant in the United States Army.

Plaintiff, not incident to his service in the United States

Army, was admitted to Lyster Army Hospital, Ft. Rucker,

Alabama, and diagnosed with kidney stones. Plaintiff

continued under the care of Defendant’s physicians,

Appx F - 3

surgeons, nurses and other allied health care professionals

at Lyster Army Hospital through May 10, 1995. The

physicians,surgeons, nurses and other allied health care

professionals at Lyster Army Hospital were amployees of

the Defendant and were acting within the scope of their

office or employment.

8. On May 10, 1995, Plaintiff was admitted to

Keesler Medical Center, Keesler Air Force Base,

Mississippi. Plaintiff continued under the care of the

Defendant’s physicians, surgeons, nurses and other allied

health care professionals at Keesler medical Center through

June 11, 1995. The Defendant’s physicians, surgeons,

nurses and other allied health care professionals at Keesler

Medical Center were employees of the Defendant and were

acting within the scope of their office or employment.

9. Defendant, through its employees acting

within the scope of their office, employment and duties,

were professionallynegligent and failed to meet the

applicable standard of care of resonably careful and skillful

physicians, surgeons, nurses and other allied health care

professionals in that they failed to provide proper medical

care and treatment to Plaintiff.

10. As a direct and proximate result of

Defendant's negligence and failure to meet the applicable

standard of care, Plaintiff sustained compartment syndrome

Appx F - 4_

®.

;

ras

a0 gos See

causing necrosis of the paraspinous muscles, and a

secondary injury to L2-3 and 4 nerves and sacral nerves

resulting in some bowel and bladder dysfunction. Plaintiff

is now confined to a wheelchair. Plaintiff has suffered, and

will continue to suffer, pain, mental anguish, permanent

injury and has been denied a normal way of life.

11. Asa further direct and proximate resultof the

Defendant’s negligence, Plaintiff has incurred medical and

hospital expenses in and amount not yet determined and

expects to continue to incur such medical and hospital

expenses.

12. Asa further direct and proximate result of

the Defendant’s negligence, Plaintiff has lost earnings in an

amount not yet determined, and expects to lost future

earnings, and has had his earning capacity permanently

impaired.

13. As a result of Defendant’s negligence,

Plaintiff has been damaged in the amount of

$25,000,000.00,

WHEREFORE, Plaintiff prays that Defendant be

cited to appear and answer herein, and that upon final

hearing, Plaintiff has judgment against the Defendant in the

amount of $25,000,000.00 together with the cost of suit and

Appx F - 5

for such other and further relief to which Plaintiff may be

justly entitled. }

/s/_ Robert G. Palmer

Robert G. Palmer (0022152)

Trial Attorney for Plaintiff

140E. Town Street, Suite 1100

Columbus, Ohio 43215

(614) 221-4400

(614) 221-6040 [fax]

Of Counsel:

McCarthy, Palmer Volkema, Boyd & Thomas

140 E. Town Street, Suite 1100

Columbus, Ohio 43215

Appx F - 6

Title 28

Judiciary and Judicial Procedure

Sec. 1254. Courts of appeals; certiorari; certified

questions

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods: 5

(1) By writ of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition

of judgment or decree;

(2) By certification at any time by a court of appeals of any

question of law in any civil or criminal case as to which

instructions are desired, and upon such certification the

Supreme Court may give binding instructions or require the

entire record to be sent up for decision of the entire matter

in controversy.

Sec. 1291. Final decisions of district courts

The courts of appeals (other than the United States Court of

Appeals for the Federal Circuit) shall have jurisdiction of

appeals from all final decisions of the district courts of the

United States, the United States District Court for the

District of the Canal Zone, the District Court of Guam, and

the District Court of the Virgin Islands, except where a

direct review may be had in the Supreme Court. The

jurisdiction of the United States Court of Appeals for the

Appx. G - 1

Federal Circuit shall be limited to the jurisdiction described

Sec. 1346. United States as defendant

** *

(b) (1) 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 t, 1945, for

injury or loss of property, or personal injury or death

caused by the negligent or wrong 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 ....

Sec. 2671. Definitions

As used in this chapter and sections 1346(b) and 2401(b) of

this title, the ten-n "Federal agency" includes the executive

departments, the judicial and legislative branches, the

military departments, independent establishments of the

United States, and corporations primarily acting as

instrumentalities or agencies of the United States, but does

Appx. G - 2

not include any contractor with the United States.

"Employee of the government’ includes officers or

employees of any federal agency, members of the military

or naval forces of the United States, members of the

National Guard while engaged in training or duty under

section 316, 502, 503, 504, or 505 of title 32, and persons

acting on behalf of a federal agency in an official capacity,

temporarily or permanently in the service of the United

States, whether with or without compensation.

"Acting within the scope of his office or employment", in

the case of a member of the military or naval forces of the

United States or a member of the National Guard as defined

in section 101(3) of title 32, means acting in line of duty.

Sec. 2674. Liability of United States

The United States shall be liable, respecting the provisions

of this title relating to tort claims, in the same manner and

to the same extent as a private individual under like

circumstances, but shall not be liable for interest prior to

judgment or for punitive damages.

If, however, in any case wherein death was caused, the law

of the place where the act or omission complained of

occurred provides, or has been construed to provide, for

damages only punitive in nature, the United States shall be

liable for actual or compensatory damages, measured by the

Appx. G - 3

pecuniary injuries resulting from such death to the persons

respectively, for whose benefit the action was brought, in

lieu thereof.

With respect to any claim under this chapter, the United

States shall be entitled to assert any defense based upon

judicial or legisiative immunity which otherwise would have

been available to the employee of the United States whose

act Or Omission gave rise to the claim, as well as any other

defenses to which the United States is entitled. With respect

to any claim to which this section applies, the Tennessee

Valley Authority shall be entitled to assert any defense

which otherwise would have been available to the employee

based upon judicial or legislative immunity, which

otherwise would have been available to the employee of the

Tennessee Valley Authority whose act or omission gave rise

to the claim as well as any other defenses to which the

Tennessee Valley Authority is entitled under this chapter.

Sec. 2680. Exceptions

The provisions of this chapter and section 1346(b) of this

title shall not apply to -

(a) Any claim based upon an act or omission of an

employee of the Government, exercising due care, in the

execution of a statute or regulation, whether or not such

statute or regulation be valid, or based upon the exercise or

performance or the failure to exercise or perform a

Appx. G - 4

discretionary function or duty on the part of a federal

agency or an employee of the Government, whether or not

the discretion involved be abused.

(b) Any claim arising out of the loss, miscarriage, oF

negligent transmission of letters or postal matter.

collection of any tax or customs duty, or the detention of

any goods or merchandise by any officer of customs or

excise or any other law-enforcement officer.

(d) Any claim for which a remedy is provided by sections

741-752, 781-790 of Title 46, relating to claims or suits in

admiralty against the United States.

(e) Any claim arising out of an act or omission of any

employee of the Government in administering — the

provisions of sections 1-31 of Title 50, Appendix.

(f) Any claim for damages caused by the imposition or

establishment of a quarantine by the United States.

(g) Repealed. Sept. 26. 1950, ch. 1049, Sec. 13 (5), 64 Stat.

1043.)

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of

process, libel, slander, misrepresentation, deceit, or

interference with contract rights: Provided, That, with

regard to acts of omissions of investigative oF law

enforcement officers of the United States Government, the

provisions of this chapter and section 1346(b) of this title

shall apply to any claim arising, on or after the date of the

enactment of this proviso, out of assault, battery, false

Appx. G - 5

imprisonment, false arrest, abuse of process; or malicious

prosecution. For the purpose of this subsection,

"investigative or law enforcement officer" means any officer

of the United States who is empowered by law to execute

searches, to seize evidence, or to make arrests for violations

of Federal law.

(1) Any claim for damages caused by the fiscal operations

of the Treasury or by the regulation of the monetary

system.

(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.

(1) Any claim arising from the activities of the Tennessee

Valley Authority.

(m) Any claim arising from the activities of the Panama

Canal Company.

(n) Any claim arising from the activities of a Federal land

bank, a Federal intermediate credit bank, or a bank for

cooperatives.

Appx. G - 6

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.