# Petition for Writ of Certiorari — Ratcliff v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1004

## Text

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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?

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TABLE OF CONTENTS

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

10

19n.4

24

24

nl

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

23

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

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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

3

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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

4

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

5

“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.

7

“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

8

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

9

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

10

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

11

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

12

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

13

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

14

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....

15

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

16

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:

17

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

18

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).

19

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

20

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

21

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

22

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

23

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.”

24

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:

25

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

26

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

27

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

28

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.

29

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

30

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,

5 oe ng oy ae a ak hS 8 ak C1-Cl

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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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_

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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
in sections 1292 © and (d) and 1295 of this title.

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.

(c) Any claim arising in respect of the assessment of
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0911%3A1. Public record. Not legal advice.