
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                           ____________________        No. 94-1620                                   RONALD L. BORDEN,                                Plaintiff, Appellant,                                          v.                               VETERANS ADMINISTRATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Ronald L. Borden on brief pro se.            ________________            Donald K.  Stern, United  States Attorney,  Charlene A.  Stawicki,            ________________                            _____________________        Special Assistant United States  Attorney, and Mary Elizabeth Carmody,                                                       ______________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                   December 8, 1994                                 ____________________                      Per  Curiam.   This  is an  appeal from  a district                      ___________            court order dismissing plaintiff's medical malpractice action            brought under the Federal  Tort Claims Act, 28 U.S.C.    2674            [FTCA].  The alleged malpractice involved treatment of a knee            injury which plaintiff sustained while  he was on active duty            in  the United States Army.  The district court dismissed the            complaint as barred  by the Supreme Court's decision in Feres                                                                    _____            v. United States, 340 U.S. 135 (1950), as well as by Hamilton               _____________                                     ________            v. United States, 564  F. Supp. 1146, 1148 (D.  Mass.), aff'd               _____________                                        _____            per  curiam, 719 F.2d 1 (1st Cir.  1983).  In Feres the Court            ___________                                   _____            held  that the  FTCA's limited  waiver of  sovereign immunity            does not extend to "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.                          _____                      Plaintiff argues on appeal that  the Feres doctrine                                                           _____            does not  apply  because:  (1) he  was  "off  duty,"  playing            basketball, when he suffered his  first knee injury, and  (2)            the  medical  care  he  received in  military  hospitals  was            rendered in  part by  civilian employees.   A straightforward            application  of  the  "incident to  service"  test,  however,            depends  on  plaintiff's  military   status  in  relation  to            defendant's   allegedly   negligent   provision  of   medical            treatment.   Accord Hata v.  United States, 23  F.3d 230, 235                         ______ ____     _____________            (9th  Cir. 1994);  Quintana  v. United  States, 997  F.2d 711                               ________     ______________            (10th  Cir. 1993); Kendrick v.  United States, 877 F.2d 1201,                               ________     _____________                                          2            1203 (4th Cir. 1989) (containing additional citations), cert.                                                                    _____            dismissed, 493  U.S. 1065  (1990).  Plaintiff  was an  active            _________            servicemember  who was  entitled  to medical  treatment at  a            military hospital precisely  because of his  military status.            Accordingly, his  claim is  barred regardless of  the medical            condition treated  or the  civilian status of  the government            employees who allegedly  participated in it.  See Loughney v.                                                          ___ ________            United States,  839  F.2d 186,  188  (3d Cir.  1988)  (citing            _____________            United States v. Johnson, 481 U.S. 681, 690-91 (1987)).            _____________    _______                      Plaintiff also argues that his tort claim should go            forward because he  believes that the  compensation otherwise            available  to him  is inadequate  (he is  currently receiving            veteran's  benefits), and  his suit  will not  interfere with            military discipline.  In essence, he challenges the wisdom of            the Feres  doctrine.   This court is  fundamentally precluded                _____            from   deviating   from   the   doctrine,   which  has   been            consistently, and recently, reaffirmed by the Supreme  Court.            See Johnson, 481 U.S. at 688-90 & n.5.                  ___ _______                      In light  of this disposition, we  need not address            the other infirmities in plaintiff's complaint.                      Affirmed.                      ________                                          3
