                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


JONATHAN RITCHIE, Individually and        No. 11-16535
as the Personal Representative of the
Estate of Gregory Ritchie,                   D.C. No.
                  Plaintiff-Appellant,    1:10-cv-00209-
                                            JMS-BMK
                  v.

UNITED STATES OF AMERICA,                   OPINION
              Defendant-Appellee.


      Appeal from the United States District Court
               for the District of Hawaii
     J. Michael Seabright, District Judge, Presiding

                 Argued and Submitted
           June 13, 2013—Honolulu, Hawaii

                 Filed October 24, 2013

     Before: Jerome Farris, Dorothy W. Nelson, and
         Jacqueline H. Nguyen, Circuit Judges.

              Opinion by Judge Nguyen;
             Concurrence by Judge Farris;
           Concurrence by Judge D.W. Nelson
2                  RITCHIE V. UNITED STATES

                           SUMMARY*


                          Feres Doctrine

    The panel affirmed the district court’s dismissal under the
Feres doctrine of a Federal Tort Claims Act wrongful death
action brought against the United States.

    The plaintiff alleged that officers in the United States
Army caused the death of his infant son by ordering his
pregnant wife, a servicewoman on active duty, to perform
physical training in contravention of her doctor’s instructions,
which ultimately induced premature labor. The panel held
that under the court’s own precedent, concerning claims by
relatives of military personnel under the “genesis test,” the
Feres doctrine barred plaintiff’s wrongful death claim. The
panel also held that an “in utero” exception to Feres,
employed by other circuits, did not apply.

    Judge Farris concurred in the result.

    Judge D.W. Nelson, joined by Judge Nguyen, concurred,
and wrote separately to highlight the questionable validity of
the Feres doctrine.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 RITCHIE V. UNITED STATES                    3

                         COUNSEL

Eric A. Seitz (argued), Della Au Belatti, and Ronald N.W.
Kim, Honolulu, Hawaii, for Plaintiff-Appellant.

Lowell V. Sturgill Jr. (argued), Appellate Staff Attorney,
Civil Division, Department of Justice, Tony West, Assistant
Attorney General, Florence T. Nakanuki, United States
Attorney, Marleigh D. Dover, Appellate Staff Attorney,
Washington, D.C., for Defendant-Appellee.


                         OPINION

NGUYEN, Circuit Judge:

    In this appeal, we again confront the much-maligned
Feres doctrine, which immunizes the United States from
liability for tort claims arising out of activities incident to
military service. Feres v. United States, 340 U.S. 135 (1950).
As with most of our Feres jurisprudence, the claims at issue
arise from personal tragedy: the premature birth—and
immediate death—of Jonathan Ritchie’s infant son, Gregory.
Ritchie alleges that officers in the United States Army caused
Gregory’s death by ordering his pregnant wife, a
servicewoman on active duty, to perform physical training in
contravention of her doctors’ instructions, which ultimately
induced premature labor. The district court dismissed the
action for lack of subject-matter jurisdiction, holding it was
barred by Feres.

   The question before us is whether Ritchie’s wrongful
death claim against the Army falls within the reach of the
Feres doctrine. In light of Supreme Court and our own
4                RITCHIE V. UNITED STATES

precedent, we regretfully conclude that it does. We therefore
affirm.

                       BACKGROUND

     The facts of this case are straightforward and uncontested.
Ritchie’s complaint alleges that his wife, January Ritchie, was
pregnant with their son Gregory while she was serving as a
specialist on active duty with the United States Army. In
June 2006, while January was stationed in Missouri, an Army
physician created a “pregnancy profile” for her, which
imposed a number of restrictions on her activities. Among
other things, it indicated that January should not carry and
fire weapons, move with “fighting loads,” engage in heavy
lifting or physical training (“PT”) testing, or run/walk long
distances.

    January was subsequently transferred to Fort Shafter,
Hawaii. According to the complaint, her supervising officers
at Fort Shafter were aware of her pregnancy, but repeatedly
disregarded the instructions in her pregnancy profile, forcing
her to engage in physical activities such as picking up trash
and “battle-focused PT . . . even if she did not feel up to it.”
Although January protested that she was unable to perform
certain tasks due to her pregnancy, her commanding officers
ignored her pleas.

    On August 7, 2006, January was forced to undergo an
emergency cerclage procedure in an effort to prevent
premature birth. Following this procedure, January’s doctors
specifically informed Army personnel that due to her “high
risk” condition, she would be unable to perform her normal
work duties for the remainder of her pregnancy. Her
commanding officers, however, continued to disregard her
                   RITCHIE V. UNITED STATES                            5

doctor’s instructions that she remain at “relative rest.” On
August 26, 2006, the Ritchies’ son Gregory was born
prematurely. He died approximately thirty minutes after
birth.

    Following the denial of administrative claims, Jonathan
Ritchie filed this action in district court on behalf of himself
and Gregory’s estate, asserting claims under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346(b), for loss of
consortium and wrongful death.              The district court
subsequently dismissed the action for lack of subject matter
jurisdiction, reasoning that Ritchie’s claims were barred
under Feres.1 Ritchie timely appealed.

                      STANDARD OF REVIEW

    We review de novo a district court’s determination that it
lacked subject-matter jurisdiction. Atkinson v. United States,
825 F.2d 202, 204 (9th Cir. 1987). Further, we “review
independently the question whether the Feres doctrine is
applicable to the facts reflected in the record.” Persons v.
United States, 925 F.2d 292, 294 (9th Cir. 1991) (citation and
internal quotation marks omitted).




 1
   Because the district court concluded that this action was barred under
Feres, it did not reach the jurisdictional question of whether the claims
were filed after the two-year period set out in 28 U.S.C. § 2401(b). See
Mann v. United States, 399 F.2d 672, 673 (9th Cir. 1968) (“Institution of
suit within the two-year period [set forth in 28 U.S.C. § 2401(b)] is a
jurisdictional requirement.”).
6                RITCHIE V. UNITED STATES

                         DISCUSSION

                               I.

    The FTCA waives the federal government’s sovereign
immunity, rendering the United States liable “in the same
manner and to the same extent as a private individual under
like circumstances . . . .” 28 U.S.C. § 2674; see also
28 U.S.C. § 1346(b)(1). In 1950, however, the Supreme
Court carved out a judicial exception to the FTCA, holding in
Feres v. United States 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.” 340 U.S. 135, 146 (1950). It
subsequently extended this principle—known informally as
the “Feres doctrine”—in Stencel Aero Engineering Corp. v.
United States, 431 U.S. 666 (1977), to bar third-party claims
which derive directly or indirectly from injuries to service
members incident to military duty. See id. at 673 (“where the
case concerns an injury sustained by a soldier while on duty,
the effect of the action upon military discipline is identical
whether the suit is brought by the soldier directly or by a third
party”).

    The Feres doctrine is rooted in three policy rationales:

        (1) the distinctively federal nature of the
        relationship between the government and
        members of its armed forces, which argues
        against subjecting the government to liability
        based on the fortuity of the situs of the injury;
        (2) the availability of alternative
        compensation systems; and (3) the fear of
        damaging the military disciplinary structure.
                 RITCHIE V. UNITED STATES                     7

Id. at 671–72; Persons v. United States, 925 F.2d 292, 294–95
(9th Cir. 1991). For the past sixty-three years, the Feres
doctrine has been criticized by “countless courts and
commentators” across the jurisprudential spectrum. Id. at
295; see also United States v. Johnson, 481 U.S. 681, 700
(1987) (Scalia, J., dissenting) (“Feres was wrongly decided
and heartily deserves the widespread, almost universal
criticism it has received.”) (citation omitted); Costo v. United
States, 248 F.3d 863, 875 (9th Cir. 2001) (“The articulated
‘rational bases’ for the Feres doctrine lead in this case, as in
many cases, to inconsistent results that have no relation to the
original purpose of Feres.”). However, neither Congress nor
the Supreme Court has seen fit to reverse course.

                              II.

                              A.

     Although the Supreme Court has offered inconsistent
guidance about how Feres should be applied, compare United
States v. Shearer, 473 U.S. 52, 57 (1985) (holding that the
third rationale should be considered “controlling”), with
Johnson, 481 U.S. at 689–91 (reaffirming all three
rationales), we have consistently emphasized the third
rationale: “[t]he peculiar and special relationship of the
soldier 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. . . .’” Stencel, 431 U.S. at 671–72 (citations
omitted); see Costo, 248 F.3d at 866 (“[T]he danger to
discipline . . . has been identified as the best explanation for
Feres.”); Atkinson v. United States, 825 F.2d 202, 204 (9th
Cir. 1987) (indicating that the military discipline rationale is
8                  RITCHIE V. UNITED STATES

“determinative”); Monaco v. United States, 661 F.2d 129, 132
(9th Cir. 1981) (“[T]he protection of military discipline . . .
serves largely if not exclusively as the predicate for the Feres
doctrine”); cf. Persons, 925 F.2d at 295 (observing that our
Feres “jurisprudence has been guided by an increasing sense
of awe for things military”).

    When considering whether claims by relatives of military
personnel are barred by Feres, we employ a “genesis test,”
asking whether the family member’s FTCA claim has its
“genesis in injuries to members of the armed forces.”
Grosinsky v. United States, 947 F.2d 417, 418 (9th Cir. 1991)
(citations omitted). The test originated in Monaco v. United
States, 661 F.2d 129 (9th Cir. 1981), in which the daughter of
a serviceman, Denise Monaco, sued to recover damages
under the FTCA for birth defects caused by her father’s
unwitting exposure to atomic radiation during World War II.2
Id. at 133–34. In holding that her claim was barred under
Feres, we reasoned:

         Denise’s case differs from Stencel in that she
         seeks relief for an injury to herself rather than
         indemnity for losses due to injury to her
         father, but this does not change the
         substantive analysis: the court still must


  2
    The underlying facts of Monaco are compelling: During World War II,
David Monaco was stationed at the University of Chicago where, as a
participant in the Army Specialized Training Program, he was required to
exercise at the school’s football field. Id. at 130. Unbeknownst to him,
underneath the stadium was a laboratory in which the government was
conducting atomic experiments as part of the “Manhattan Project.” Id. In
addition to giving Monaco colon cancer, the exposure to atomic radiation
resulted in genetic abnormalities which caused his daughter to be born
with severe birth defects. Id.
                    RITCHIE V. UNITED STATES                            9

         examine the Government’s activity in relation
         to military personnel on active duty. It is
         precisely this type of examination the Feres
         doctrine seeks to avoid.

Id. at 134 (emphasis added).

    Similarly, in Persons, we held that the widow and child
of serviceman Kelly Persons, who committed suicide while
off-duty after having been released from a naval hospital,
could not sue the hospital for failing to warn them of Kelly’s
condition and for loss of consortium. 925 F.2d at 295–97.
Relying on Monaco, we concluded that these claims “must be
viewed as ‘derivative’ claims, having their genesis in Kelly’s
service-related death.” Id. at 297 (citations omitted).3 And in
Grosinsky v. United States, 947 F.2d 417 (9th Cir. 1991), we
dismissed under Feres the claim of a military wife who
alleged that an Army surgeon’s negligently-performed
vasectomy on her serviceman husband resulted in an
unanticipated child. Id. at 418–19.

    Application of these cases compels the same conclusion
here. Ritchie alleges that military personnel at Fort Shafter
caused Gregory’s death by ordering January to engage in
military duties against her doctor’s recommendations. That


   3
     In contrast, we held that the Persons’ claim for failure to provide
adequate counseling was not Feres-barred, essentially because there was
no causal nexus between the alleged injury and the Navy’s purported
negligence with respect to Kelly Persons. See Persons, 295 F.2d at 298
(“[T]he hospital’s alleged breach of its duty [to provide adequate
counseling] after the tragedy was completely independent of the purported
negligence that led to Kelly’s demise. As such, it interrupted the causal
chain running from the hospital’s purportedly negligent treatment of Kelly
Persons and set in motion a new sequence of events.”).
10                 RITCHIE V. UNITED STATES

Gregory’s injury derived from January’s military service is,
in other words, the core theory of his case. If adjudication of
a claim involving an Army trainee’s exposure to radiation on
a football field in Chicago would improperly require judicial
examination of the Army’s activity in relation to military
personnel, Monaco, 661 F.2d at 134, a fortiori, a claim
challenging military orders given to a servicewoman on
active duty likewise cannot escape Feres. And, if a claim for
failure to warn family members of impending suicide derived
from a service-related suicide, Persons, 925 F.2d at 297, a
claim that military orders caused an infant’s wrongful death
similarly derives from his mother’s military service.

    Ritchie attempts to distinguish Monaco on two grounds,
neither of which is persuasive. First, he suggests that claims
based upon genetic injuries differ from claims based upon
injuries incurred in utero because the former are more purely
derivative of injuries to the claimant’s servicemember parent.
What mattered to the panel in Monaco, however, was not
merely that Denise’s genetic injury derived entirely from
injury to her father. Rather, the dispositive factor was that
adjudication of her claim would require a court to “examine
the government’s activity in relation to military personnel on
active duty.”4 Monaco, 661 F.2d at 134.

    Perhaps recognizing this, Ritchie asserts that adjudication
of this matter would not raise the specter of January haling
her supervisors into court. Since January is not a named
party, he reasons, officers would be questioned in court only


  4
    Even if Ritchie could distinguish Monaco on the grounds that it
involved a genetic injury, that still would not get him past Persons or
Grosinsky, which apply the genesis test in the context of medical
malpractice and loss of consortium claims.
                   RITCHIE V. UNITED STATES                          11

on Gregory’s behalf. This argument misses the point. It does
not matter if military officers are questioned by counsel for
January or questioned by counsel representing Gregory’s
estate—either way, adjudication of the claim would “involve
second-guessing military orders, and would [ ] require
members of the Armed Services to testify in court as to each
other’s decisions and actions.” Stencel, 431 U.S. at 673;
accord Cole v. United States, 755 F.2d 873, 878 (11th Cir.
1985) (“[I]t is the need to avoid the inquiry into military
orders, and not the consequences of the inquiry, that justifies
the military exclusion from the FTCA.”) (citation omitted).

    We can agree with Ritchie about one thing, though: it is
unlikely that judicial scrutiny of the orders given to January
would have a significant, deleterious effect on our military’s
operation. After all, we are talking about orders commanding
a pregnant woman to engage in physical activities such as
picking up trash on a military base, not combat command
decisions made in the heat of battle. Cf. Johnson, 481 U.S. at
699 (Scalia, J., dissenting) (“I do not think the effect upon
military discipline is so certain, or so certainly substantial,
that we are justified in holding (if we can ever be justified in
holding) that Congress did not mean what it plainly said in
the statute before us.”). On the other hand, however, given
that this case centers on orders given by a military supervisor
to his subordinate, it implicates the military discipline
rationale of Feres in a far more immediate sense than cases
involving medical malpractice claims.5 See, e.g., Grosinksy,


   5
      In a similar vein, we have construed the “incident to service”
requirement broadly in non-third party cases applying Feres. See, e.g.,
Costo v. United States, 248 F.3d 863, 869 (9th Cir. 2001) (holding that
Feres barred claims brought by the estates of sailors who drowned during
a recreational rafting trip, which had been organized by the Navy).
12              RITCHIE V. UNITED STATES

947 F.2d at 417; Persons, 925 F.2d at 294; Atkinson, 825 F.2d
at 203.

    In any event, we are not free to make this judgment call.
Absent intervening controlling authority, we are bound by the
decisions of prior three-judge panels. See Miller v. Gammie,
335 F.3d 889, 899–900 (9th Cir. 2003) (en banc). And here,
the decisions of prior three-judge panels could not be more
clear: we have “consistently” barred claims under Feres “to
avoid examining acts of military personnel which were
allegedly negligent with respect to other members of the
armed services.” Monaco, 661 F.2d at 134; Persons, 925 at
295 (“[P]ractically any suit that ‘implicates the military
judgments and decisions,’ runs the risk of colliding with
Feres.”) (citations omitted) (emphasis added). Accordingly,
under our own precedent, Feres bars Ritchie’s wrongful death
claim.

                             B.

     In contending that our precedents are distinguishable,
Ritchie focuses on a line of out-of-circuit cases involving
allegedly negligent prenatal care at military hospitals, in
which courts adopted an “in utero” exception to Feres. See,
e.g., Brown v. United States, 462 F.3d 609, 616 (6th Cir.
2006); Lewis v. United States, 173 F. Supp. 2d 52, 56–57
(D.D.C. 2001), vacated in part on other grounds,
290 F. Supp. 2d 1 (D.D.C. 2003); Mossow v. United States,
987 F.2d 1365, 1369–70 (8th Cir. 1993); Romero v. United
States, 954 F.2d 223, 226 (4th Cir. 1992); Del Rio v. United
States, 833 F.2d 282 (11th Cir. 1987). He maintains that the
“in utero” exception should apply equally here. We disagree.
                   RITCHIE V. UNITED STATES                          13

    In contrast to the genesis test applied in our circuit, the
“in utero” cases turn on whether the purportedly negligent
acts caused injury only to the civilian fetus, or whether both
the fetus and its servicemember parent were injured. Only
where a fetus alone suffers injury can the claim survive
Feres. For instance, in Romero, the leading “in utero” case,
the claimants alleged that an infant’s cerebral palsy was
caused by a military doctor’s failure to place sutures on the
cervix of his servicewoman mother during the prenatal
period.6 954 F.2d at 224. In holding that the infant’s FTCA
claim was not Feres-barred, the Fourth Circuit reasoned that
if the sutures had been properly administered, their “sole
purpose . . . would have been directed at [the infant] Joshua.”
Id. at 225. Then—without any citation to legal or medical
authority—it opined that “[p]resumably [the mother’s] state
of health would have been the same whether the physician
placed the sutures or not.” Id. The court thus concluded that
“[b]ecause no service person was injured [the infant’s] claim
is not Feres-barred.” Id. at 226.

    Similarly, in Brown, the Sixth Circuit held that Feres did
not bar the FTCA claim of Melody Brown, a child born with
spina bifida after a military doctor told the child’s
servicewoman mother to discontinue taking prenatal vitamins
while trying to conceive. 462 F.3d at 610–11. The court
reasoned that Melody’s prenatal injuries were “independent”

  6
     Like January Ritchie, Roxana Romero had been diagnosed with an
“incompetent cervix.” Romero, 954 F.2d at 224. This condition “occurs
when weak cervical tissue causes or contributes to premature birth or the
loss of an otherwise healthy pregnancy.” Mayo Clinic, available at
http://www.mayoclinic.com/health/incompetent-cervix/DS01198 (last
visited October 16, 2013). In practical terms, this means that the cervix
may “begin to open too soon—causing [a woman] to give birth too early.”
Id.
14                  RITCHIE V. UNITED STATES

of any injury to her mother because prenatal vitamins “would
have been [taken] solely for the benefit of the fetus.” Id. at
615–16.

     Contrary to what Ritchie argues, the “in utero” exception
is inapposite here because, as we previously explained, our
analysis is governed by Monaco and Persons. Absent a
principled basis for distinguishing these cases, we must apply
the genesis test they expound; we cannot simply substitute
another circuit’s test for our own.7 See Miller, 335 F.3d at
899–900. Moreover, Ritchie’s claim does not easily map
onto the “in utero” dispensation. While there is undeniably
a medical aspect to this case, Ritchie’s claim is markedly
different from the medical malpractice claims in Romero,
Brown, and the like. The “in utero” cases concern medical
judgments made by medical personnel at medical facilities;
at issue here are military orders given by military supervisors
on a military base. This distinction is important because, by
challenging orders given by January’s military supervisors,
Ritchie’s wrongful death claim implicates Feres’s concern
about judicial interference in military personnel matters far
more squarely than claims arising from a military doctor’s
purportedly negligent medical judgment.

    In any event, given the facts of this case, it is unlikely that
the “in utero” exception could save Ritchie’s wrongful death
claim even if it did apply. Under the test applied by our sister
circuits, a civilian fetus’s claim may only escape Feres if its


  7
    It is not enough that this case, like the “in utero” cases, concerns
prenatal injuries. While pregnancy may present unique biological and/or
philosophical considerations, see Atkinson v. United States, 825 F.2d 202,
207 (9th Cir. 1987) (Noonan, J., concurring), none justify departing from
our reasoning in Monaco and Persons.
                 RITCHIE V. UNITED STATES                    15

servicewoman mother suffered no injury from the purportedly
negligent acts. See Romero, 954 F.2d at 225–26. A plain
reading of the allegations in Ritchie’s complaint forecloses
such a finding here. Consider again what happened to
January. During her second trimester of pregnancy, she was
forced to perform physical tasks which caused her
considerable pain, even though she told her supervisors that
she did not feel well enough to carry out their orders. Due to
her pain, she was later taken by ambulance to an emergency
room, where her cervix was stitched shut. Her supervisors
continued to disregard her doctor’s instructions, however,
which ultimately induced her premature labor at five-and-half
months. And, worst of all, her baby died half an hour after
she gave birth. To hold that January was not injured at all, as
Ritchie urges us to do, requires eschewing common sense and
human experience.

                        CONCLUSION

     We can think of no other judicially-created doctrine
which has been criticized so stridently, by so many jurists, for
so long. The Feres doctrine has generated pained affirmances
from this circuit, e.g., Monaco, 661 F.2d at 134; Persons,
925 F.2d at 297; a forceful dissent by Justice Scalia (joined
by Justices Brennan, Marshall, and Stevens), Johnson,
481 U.S. at 692–703 (Scalia, J., dissenting); and doctrinal
contortions from our sister circuits, e.g., Romero, 954 F.2d at
224–25; Brown, 432 F.3d at 615–16. Yet, unless and until
Congress or the Supreme Court choose to “confine the
unfairness and irrationality that [Feres] has bred,” Johnson,
16                RITCHIE V. UNITED STATES

481 U.S. at 703, we are bound by controlling precedent. We
therefore regretfully hold that Ritchie’s suit is barred by
Feres.

     AFFIRMED.



FARRIS, Circuit Judge, concurring:

     I concur in the result.



D.W. NELSON, Circuit Judge, with whom NGUYEN,
Circuit Judge, joins, concurring:

    I concur. I agree that our caselaw bars family member
tort claims which have their genesis in injuries a
servicemember sustains in the course of her service. See
Persons v. United States, 925 F.2d 292, 295–97 (9th Cir.
1991); Monaco v. United States, 661 F.2d 129, 132–34 (9th
Cir. 1981).

    I write separately because I wish to highlight how this
case reveals the questionable validity of the Feres doctrine.
Though we hinge our rejection of Ritchie’s claims, in part, on
the supposed policy rationale that the judiciary should not
intrude into military discipline, courts often review military
decisions that contradict a military regulation. In these
instances, we have held the military accountable to its own
standards and its own representations. Yet, here, our Feres
doctrine dooms any claims for compensation for the harms
caused by the military’s failure to follow its own regulations
                 RITCHIE V. UNITED STATES                   17

governing pregnant servicewomen. Refusing to compensate
a class of victims—servicewomen and their families—based
on the fiction that judicial review in these cases will upend
“military discipline” perpetuates a grave injustice. It is past
time for the judiciary to reconsider its reasons for refusing
compensation to servicemembers under the Federal Tort
Claims Act (FTCA).

    I believe that the third policy rationale underpinning the
Feres doctrine, preventing judicial interference with “the
military discipline structure,” Persons, 925 F.2d at 295, has
no relevance in cases where the military contravenes its own
regulations and procedures. This case in particular highlights
how this “determinative” and “most persuasive” policy
rationale, see Atkinson v. United States, 825 F.2d 202, 204
(9th Cir. 1987); Schoenfeld v. Quamme, 492 F.3d 1016, 1019
(9th Cir. 2007) (internal quotation marks omitted), has
become a guise for denying a selected class—service
members—remedies for otherwise judicially-cognizable
wrongs.

    Of course, there is some sense in restricting judicial
interference in discretionary military decision-making where
the decisions are “inextricably intertwined with the conduct
of the military mission.” United States v. Johnson, 481 U.S.
681, 691 (1987). Though, I would note this reasoning is not
rooted in the common law tradition that allowed
servicemembers to bring certain tort claims against their
superior officers. See United States v. Stanley, 483 U.S. 669,
698–99 (1987) (Brennan, J., dissenting) (“At common law,
even military superiors received no exemption from the
general rule that officials may be held accountable for their
actions in damages in a civil court of law.”). Nor is the broad
bar of Feres supported by the text of the FTCA, which
18              RITCHIE V. UNITED STATES

explicitly excludes only “claim[s] arising out of the
combatant activities of the military or naval forces, or the
Coast Guard, during time of war.” 28 U.S.C. § 2680(j);
Johnson, 481 U.S. at 692 (Scalia, J., dissenting) (“The
problem now, as then, is that Congress not only failed to
provide such an exemption, but quite plainly excluded it.”).
Unfortunately, the deferential reasoning of Feres has created
an almost complete bar to servicemembers’ tort claims,
regardless of whether the facts actually warrant judicial
abstention. See Millang v. United States, 817 F.2d 533, 535
(9th Cir. 1987) (per curiam). We have described this
inflexible and absolute bar as necessary to prevent “the type
of claims that, if generally permitted, would involve the
judiciary in sensitive military affairs at the expense of
military discipline and effectiveness.” Id. at 535 (quoting
United States v. Shearer, 473 U.S. 52, 59 (1985) (emphasis in
original)).

    But that reasoning becomes a fiction in a case such as
this, which does not involve discretionary military
decision-making and instead involves the military’s
contravention of its own regulations and procedures. See
Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d
45, 52 (2d Cir. 1999); Murphy v. United States, 993 F.2d 871,
873 (Fed. Cir. 1993); see also Watkins v. U.S. Army, 875 F.2d
699, 705–11 (9th Cir. 1989) (en banc) (applying equitable
estoppel to enjoin the U.S. Army from denying plaintiff’s
reenlistment on the basis of his homosexuality); Bledsoe v.
Webb, 839 F.2d 1357, 1360 (9th Cir. 1988) (“Indeed, courts
often review cases in which military officials are alleged to
have violated their own regulations.”). The Feres bar, then,
prevents compensation for what would otherwise be
judicially-reviewable acts in these cases. Cf. Wilkins v.
United States, 279 F.3d 782, 784 (9th Cir. 2002) (holding that
                 RITCHIE V. UNITED STATES                   19

“the Feres bar does not extend to the claims for non-monetary
relief”).

    Consider Ritchie’s factual allegations. The complaint
specifically alleges that the military performed the required
pregnancy profile for January, but then failed to follow the
profile’s limited duty requirements, as well as the additional
instructions of January’s doctor as the pregnancy became
high risk. In Ritchie’s administrative claim for damages, he
elaborates that January “was required to engage in physical
exercise and other duties against the advice of her physician
resulting in the loss of the pregnancy at twenty-two weeks.”

    Of course, at some level, these alleged wrongful orders
can be viewed as part of “the military discipline structure,”
since January’s refusal to follow them would have been a
subordinate’s refusal to carry out an order. Yet, this does not
mean that the responsible superior officers’ decisions to
disregard military policy and regulations amount to
discretionary, nonjusticiable acts. See Sterling v. Constantin,
287 U.S. 378, 401 (1932) (“What are the allowable limits of
military discretion, and whether or not they have been
overstepped in a particular case, are judicial questions.”).
Quite the contrary, military decisions, carried out through the
orders of military officers, that contravene military policies
and regulations are judicially reviewable. See Wenger v.
Monroe, 282 F.3d 1068, 1072 (9th Cir. 2002). Moreover, the
military’s policies and actions towards pregnant
servicewomen are not discretionary, but rather, are clearly
matters the judiciary has jurisdiction to consider. See, e.g.,
Crawford v. Cushman, 531 F.2d 1114 (2d Cir. 1976)
(invalidating on constitutional grounds the Marine Corps’
regulation which mandated the discharge of Marines for
pregnancy).
20               RITCHIE V. UNITED STATES

     Here, the relevant Army regulation, AR 40-501, Chapter
7-9, requires that pregnant soldiers have a “pregnancy
profile,” which includes a mandatory “occupational health
interview to assess risks to the Soldier and fetus.” The
regulation specifically directs commanders to “counsel all
female Soldiers as required by AR 600-8-24 or AR 635-200”;
“consult with medical personnel as required”; and “establish[]
liaison with the occupational health clinic and request[] site
visits by the occupational health personnel if necessary to
assess any work place hazards.” AR 40-501, Chapter 7-
9(b)(3). The regulation then sets forth twelve specific
limitations on the duties of pregnant soldiers during the term
of their pregnancy, including scheduled mandatory rest
periods, adding additional restrictions as the gestation period
progresses. Id. at 7-9(d). For instance, “[a]t 28 weeks of
pregnancy, the Soldier must be provided a 15-minute rest
period every 2 hours.” Id. Thus, when Ritchie alleges that
“Officers, members, and/or employees of the United States
Army” disregarded the pregnancy profile and the instructions
of January’s doctor, Richie is alleging that the Army failed to
follow its own policies regulating the treatment of pregnant
women.

    This case reveals the injustice caused by the Feres
doctrine. Our jurisprudence allows us to consider claims
challenging the military’s failure to follow its own mandatory
regulations, but only when the plaintiff requests declaratory
or injunctive relief. See Wilkins, 279 F.3d at 787; Wenger,
282 F.3d at 1072. But that relief is often meaningless. See
Stanley, 483 U.S. at 690 (Brennan, J., dissenting) (“An
injunction, however, comes too late for those [soldiers]
already injured; for these victims, it is damages or nothing.”)
(internal quotation marks omitted). An injunction can never
remedy the injuries here—January’s preterm labor and
                 RITCHIE V. UNITED STATES                   21

Gregory’s death. In fact, each time the military fails to
follow regulations that result in harm to the mother and fetus,
the injured parties will have no recourse because a forward-
looking remedy cannot make them whole. Our current
jurisprudence, then, acknowledges that pregnant
servicewomen have a right to have the military abide by its
regulations restricting their duty to medically-set limits, but
yet affords them no remedy at law to ensure compliance.

    Pregnant women did not always have the right to serve in
the Armed Forces; this right was hard-earned. See Exec.
Order No. 10240, 16 Fed. Reg. 3689 (May 1, 1951) (giving
the services permission to discharge a woman if she became
pregnant, gave birth to a child, or became a parent by
adoption or a stepparent); Crawford, 531 F.2d 1114. Efforts
to exclude pregnant women from serving, and even to punish
women for becoming pregnant, continue to this day. See
Pregnant G.I.’s Could Be Punished, Associated Press, Dec.
19, 2009, available at http://www.nytimes.com/2009/12/
20/us/20general.html. The right a pregnant woman has to
serve means little if her service requires she put her fetus’s
health and well-being at risk. In refusing to recognize
Ritchie’s tort claims, we are continuing the legal fiction that
these alleged wrongs are part of the military’s discipline
structure. To hold that these kinds of tortious acts against a
pregnant servicewoman are per se judicially unreviewable
because they are part of the military mission is to practice
willful blindness at the expense of a woman’s livelihood and
the life of her unborn child. I am resigned that the
unfortunate cases applying the Feres doctrine dictate such an
outcome, but I sincerely doubt that the conduct alleged
here—orders contravening military regulations intended to
protect pregnant servicewomen—warrant judicial deference
of any kind. Where military conduct passes “so far beyond
22              RITCHIE V. UNITED STATES

the bounds of human decency,” I do not believe that it can be
considered a part of the military mission. Stanley, 483 U.S.
at 709 (O’Connor, J., concurring & dissenting). It is a
judicial fallacy which we have created and which I hope will
be overturned one day soon.
