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U.S. Supreme Court building (Photo: Diego M. Radzinschi / LEG)

The decision from the U.S. Court of Appeals for the Ninth Circuit in Ritchie v. United States is uncommonly tragic. Military personnel forced pregnant soldier January Ritchie to exert herself against her doctor’s orders, thereby inducing premature labor and causing her baby, Gregory, to die shortly after birth.

The court reluctantly rejected Gregory’s estate’s wrongful-death claim in its October ruling. The court said its hands were tied by its cases interpreting the U.S. Supreme Court’s Feres rule, which immunizes the government from tort actions that implicate the working relationships of soldiers and their superior officers.

As reported in media outlets ranging from Fox News to Salon.com, the estate’s counsel vowed to take the case directly to the Supreme Court and demand that it overrule Feres. He did just that, and opted to bypass the intermediate step of asking the Ninth Circuit to convene en banc and overrule certain of its precedents interpreting Feres.

That step, however, may have been worth taking. Ritchie was pregnant with Gregory while she was serving as an army specialist. An Army doctor created a “pregnancy profile” for Ritchie. The doctor explained that she should not be forced to carry or fire weapons, run or walk long distances, or lift heavy loads. Military regulations require a pregnant soldier’s superior officers to honor the restrictions provided in the profile.

Yet, according to the estate’s complaint, Ritchie’s superior officers disregarded them. They forced her to participate in “battle-focused physical therapy” and other physical stresses, which, the complaint alleges, led to Gregory’s premature birth — and death 30 minutes later.

Gregory’s estate sued the military for wrongful death under the Federal Tort Claims Act (FTCA). The district court rejected the estate’s claim, and the Ninth Circuit affirmed.

Writing for the panel, Judge Jacqueline Nguyen observed that, according to the FTCA’s text, the United States is liable in tort actions “in the same manner and to the same extent as a private individual under like circumstances.” But, the Supreme Court in the 1950 case Feres v. United States crafted a judicial exception. It held that “the Government is not liable under the [FTCA] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”

The injury for which the estate sought to hold the government liable was an injury to Ritchie’s son. The Ninth Circuit panel explained, however, that its 1981 decision in Monaco v. United States interpreted Feres to immunize the government from any “injury derived from [a soldier's] military service,” even if sustained by someone other than the soldier. Because there is nothing to “justify departing from our reasoning in Monaco,” the panel wrote, “our analysis is governed by Monaco.” And “under our own precedent, Feres bars [the estate's] wrongful death claim.” Thus, “[i]n light of Supreme Court and our own precedent, we regretfully … affirm.”

Judge Dorothy Wright Nelson, joined by Nguyen, filed a concurrence lamenting the decision’s unfairness. She explained that, as a matter of first principles, there is no good reason to read the FTCA to bar the estate’s claim. But, she said, “our caselaw” — “our Feres doctrine,” “a judicial fallacy which we have created” — requires precisely that outcome.


When one loses in the court of appeals, there is always the knee-jerk reaction to try immediately to petition the Supreme Court to take the case. But that is not always the best course. Even when the appellate decision involves important issues and implicates Supreme Court precedent, the court often declines to enter the fray if the case is jurisprudentially a “local” matter. It will not take up the case if it does not create or deepen a circuit split, or if the claimed injustice could be undone by a change in circuit precedent. In that instance, seeking en banc review is often a prudent first step.

That is precisely the case in Ritchie. There does not appear to be a clear circuit split on the issue presented. Indeed, although the panel took pains to say how unfair it thought the result was, it expressly disclaimed such a conflict.

Second, while the result could be undone by overruling Feres, the wrong also could be righted by the less invasive step of overruling the Ninth Circuit’s decision in Monaco. The panel recognized that it was “governed by Monaco” and accordingly attributed the result to “ our reasoning in Monaco” and “ our own precedent.” And Nelson, concurring, expressed her regret that she had to comply with “our caselaw” and as such was bound by “our Feres doctrine,” which she characterized as “a judicial fallacy we have created.” She was practically begging counsel to file a petition challenging her own court’s precedent.

Moreover, certiorari petitions asking the Supreme Court to overrule Feres straightaway have not succeeded. The court has rejected at least four in the past three terms alone.

The estate’s lawyer, however, decided to pursue Supreme Court review in the first instance. He opted not to ask the Ninth Circuit to convene en banc and overrule Monaco.

That decision may be unfortunate, not only because of the strategic considerations, but also because there is a colorable argument on the merits that Monaco was in fact wrongly decided.

In Feres, a soldier died when his barracks caught fire. His estate sued the military under the FTCA for wrongful death, and the court rejected the claim, finding that government was not liable since the injuries arose out of, or were in the course of, activity “incident” to his military duties. Subsequently, in the 1977 case Stencel Aero Engineering Corp. v. United States, a soldier was injured when his fighter plane malfunctioned. He sued the government and the manufacturer under the FTCA, and the manufacturer cross-claimed against the government.

The court held “that the third-party indemnity action in this case is unavailable” because, like Feres, “th[is] case concerns an injury sustained by a soldier while on duty.” Accordingly, as in Feres, entertaining the claim would invite judicial scrutiny of the working relationships between soldiers and their superiors.

In Monaco, however, the Ninth Circuit went further. There, a soldier’s daughter sued the government for birth defects caused by her father’s exposure to atomic radiation during his Army training. The court held that her claim was barred by Feres and Stencel. It recognized that her case “differs from Stencel [and Feres] in that she [a nonservice member] seeks relief for an injury to herself rather than indemnity for losses due to injury to her father [a service member].”

However, the court reasoned that “this does not change the substantive analysis,” because “the court still must examine the Government’s activity in relation to military personnel on active duty.”


Monaco arguably represents an unwarranted expansion of Feres and Stencel. In those cases, the Supreme Court saw the need to carve out a narrow exception to the FTCA and immunize the government from tort suits “for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”

To justify that narrow carve-out, the court observed that permitting such claims could adversely affect working relationships between soldiers and their superiors.

The Ninth Circuit in Monaco, however, took Feres and Stencel as a license to preclude any military-related FTCA lawsuit against the government that could upset soldier-superior working relationships. It permitted the rationale justifying Feres‘ narrow, atextual rule to overtake the rule itself. Feres never contemplated that the government’s military-related FTCA immunity would extend so far. Thus, the argument concludes, Monaco was wrongly decided.

The Supreme Court may well be inter­ested in taking Ritchie to overturn Feres altogether. As the opinion points out, Feres is “much-maligned” by courts nationwide and “has generated … a forceful dissent by Justice Scalia (joined by Justices Brennan, Marshall, and Stevens)” in 1987′s United States v. Johnson.

But the option to seek Supreme Court review would still remain if the en banc process were unsuccessful. And because Ritchie depends so heavily on arguably ill-reasoned Ninth Circuit precedent, en banc review may have been worth pursuing in the first instance.

E. Joshua Rosenkranz is a partner in Orrick, Herrington & Sutcliffe’s Supreme Court and Appellate Litigation Practice Group. Brian D. Ginsberg is an associate in the group.