PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KENNETH DAVID BRADLEY; CECILE
BRADLEY, a minor child, by her next
friend and father Kenneth Bradley;
THE ESTATE OF SHARON BRADLEY,
DECEASED, by and through Kenneth
Bradley, as personal representative,
Plaintiffs-Appellants,

                                                                     No. 96-2569
v.

UNITED STATES OF AMERICA,
Defendant-Appellee,

v.

SPECTRUM EMERGENCY CARE,
INCORPORATED, d/b/a Synergon,
Third Party Defendant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-95-3676-JFM)

Argued: October 28, 1998

Decided: November 30, 1998

Before WIDENER and WILKINS, Circuit Judges, and
G. ROSS ANDERSON, JR., United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Reversed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Widener and Judge Anderson joined.
COUNSEL

ARGUED: James Leigh Capps, II, LAW OFFICES OF DOMINICK
J. SALFI, Maitland, Florida, for Appellants. Donna Carol Sanger,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
ON BRIEF: Gerard E. Mitchell, STEIN, MITCHELL & MEZINES,
Washington, D.C., for Appellants. Lynne A. Battaglia, United States
Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Kenneth Bradley brought this action on behalf of the estate of his
deceased wife Sharon Bradley (Bradley), himself, and his minor
daughter1 under the Federal Tort Claims Act (FTCA), see 28
U.S.C.A. §§ 2671-80 (West 1994), claiming that Bradley's death was
the result of medical malpractice by military personnel. The Estate
now appeals a decision by the district court granting summary judg-
ment in favor of the United States on the basis that Bradley's injuries
were incident to service and hence that this action is barred by the
exception to the waiver of sovereign immunity announced in Feres v.
United States, 340 U.S. 135, 146 (1950). We reverse.

I.

Bradley enlisted in the Navy in 1982 and served as a medical labo-
ratory technician. In 1989, while on active duty, Bradley was acciden-
tally punctured with an inoculator loop that was infected with
Staphylococcus Aureus (Staph A) bacteria. Initially, Bradley suffered
a Staph A infection in her left arm, and subsequently the Staph A
infection reoccurred in her right foot. This latter complication
required Bradley's hospitalization from December 1989 to January
1990. Although Bradley's right foot was determined to be free of the
Staph A infection by the end of 1991, Bradley was by then wheelchair
_________________________________________________________________
1 For ease of reference, we refer to this action as having been prose-
cuted by "the Estate."

                    2
bound, able to walk only 15 minutes per day, and able to work only
part-time. In November 1991, Bradley received a disability rating of
30 percent. She was removed from active-duty status and placed on
the Navy's Temporary Disability Retirement List (TDRL).

In February 1992, Bradley had a scheduled appointment at the
National Naval Medical Center (NNMC) in Bethesda, Maryland con-
cerning bone grafting to her foot to repair damage caused by the
Staph A infection. Bradley was flown to NNMC by military transport
from her home in Orlando, Florida via Keesler Air Force Base in Mis-
sissippi. During this trip, on February 14, 1992, Bradley began to
experience high fever and severe chest pain. She notified medical per-
sonnel during her overnight stay at Keesler about her condition. Mili-
tary personnel there took no action and sent her on to NNMC. Once
Bradley arrived at NNMC, she proceeded to the emergency room.
Although Bradley made several trips to the emergency room, she was
not admitted until the evening of February 19. Further, she was not
treated with an antibiotic until February 20. Bradley's condition dete-
riorated quickly, and she died after an eight-day medically induced
coma on March 2. An autopsy report indicated that she died as a
result of a Staph A infection of the heart.

The Estate filed this action in federal district court in Texas alleg-
ing medical malpractice arising from the treatment Bradley received
at Keesler and NNMC. Because litigation relating to this incident was
already pending in Maryland and because the majority of the wit-
nesses were located there, the Texas district court transferred the
action to Maryland. Thereafter, the United States moved to dismiss on
the basis of the Feres doctrine. See Fed. R. Civ. P. 12(b)(1), (6).

The district court considered materials outside the pleadings that
were submitted by both parties, treating the motion as one for sum-
mary judgment, and ruled in favor of the United States. See Fed. R.
Civ. P. 56. For purposes of summary judgment, the district court
accepted that the evidence was sufficient to raise a genuine issue of
material fact concerning whether Bradley's condition was related to
her prior Staph A infection.2 Assuming that Bradley's infection "was
_________________________________________________________________

2 Bradley submitted an expert's affidavit opining:

                    3
an independent medical problem that arose only after she left active
duty status" and was placed on TDRL status, the court reasoned that
the dispositive question was whether Bradley's condition was "inci-
dent to service." J.A. 473 (internal quotation marks omitted). The dis-
trict court recognized that under a line of Fifth Circuit authority "`a
member of the armed forces carried on the Temporary Disability
Retired List is not, as a consequence of that status, prevented by the
Feres exception from bringing an action under the Federal Tort
Claims Act.'" J.A. 474 (quoting Cortez v. United States, 854 F.2d
723, 727 (5th Cir. 1988)). Nevertheless, the district court reasoned
that a decision of this court, Kendrick v. United States, 877 F.2d 1201
(4th Cir. 1989), dictated a different result. The district court also
rejected Bradley's argument that because the case had been trans-
ferred from Texas, the law of the Fifth Circuit should apply.

II.

The Estate contends that the district court erred in concluding that
the Feres doctrine bars this action. In order to apply the Feres doc-
trine properly, it is necessary to understand its development.

In Brooks v. United States, 337 U.S. 49, 52-54 (1949), the Supreme
Court held that servicemen on leave from active duty could sue under
the FTCA to recover for injuries sustained on a public highway
inflicted by a government employee driving a truck belonging to the
United States at least when the injuries were not incident to or caused
by military service. Subsequently, in Feres, another decision address-
ing whether active-duty servicemen could maintain an FTCA action,
_________________________________________________________________

          [T]here is no evidence of any ankle or bony involvement[;] it is
          my opinion to a reasonable medical certainty that there is no
          established etiology for this staphylo[co]ccus aureas endocarditis
          other than the clear evidence of some upper respiratory involve-
          ment that progressed from bacteremia to sepsis, pleurisy and
          eventually endocarditis.

J.A. 292-93. And, the Government conceded that there was a genuine
issue of fact on this point during argument both before this court and the
district court.

                    4
the Supreme Court distinguished Brooks and held "that the Govern-
ment 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 v. United States, 340 U.S. 135, 146
(1950).3

In United States v. Brown, 348 U.S. 110 (1954), the Supreme Court
applied these cases in an action by a discharged veteran who alleged
medical malpractice at a veterans' hospital. The Court wrote:

           The present case is, in our view, governed by Brooks, not
          by Feres. The injury for which suit was brought was not
          incurred while [Brown] was on active duty or subject to mil-
          itary discipline. The injury occurred after his discharge,
          while he enjoyed a civilian status. The damages resulted
          from a defective tourniquet applied in a veterans' hospital.
          [Brown] was there, of course, because he had been in the
          service and because he had received an injury in the service.
          And the causal relation of the injury to the service was suffi-
          cient to bring the claim under the Veterans Act. But, unlike
          the claims in the Feres case, this one is not foreign to the
          broad pattern of liability which the United States undertook
          by the Tort Claims Act.

Id. at 112.
_________________________________________________________________
3 Three rationales support the Feres exception to the broad waiver of
sovereign immunity contained in the FTCA. See United States v.
Johnson, 481 U.S. 681, 688 (1987). "First,`[t]he relationship between
the Government and members of its armed forces is"distinctively federal
in character."'" Id. at 689 (alteration in original) (quoting Feres, 340 U.S.
at 143). "Second, the existence of ... generous statutory disability and
death benefits is an independent reason why the Feres doctrine bars suit
for service-related injuries." Id. And, third, "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 mili-
tary affairs at the expense of military discipline and effectiveness.'" Id.
at 690 (quoting United States v. Shearer, 473 U.S. 52, 59 (1985)).

                    5
In Kendrick v. United States, 877 F.2d 1201 (4th Cir. 1989), a
panel of this court addressed whether the Feres doctrine barred an
FTCA action brought by an individual on TDRL. In that case, an
active-duty serviceman began having seizures, and military physi-
cians prescribed Dilantin, a potentially toxic drug. After the service-
man was placed on TDRL because his disability rendered him unfit
for duty, he began to experience memory loss, difficulty in walking,
and other symptoms consistent with Dilantin toxicity. He was exam-
ined by military physicians who continued him on the same dosage
of Dilantin and allegedly did not properly monitor the level of Dilan-
tin in his blood. He brought suit, alleging that the post-TDRL failure
of the doctors to monitor his blood level constituted a post-service act
of malpractice and that consequently his action was not barred by the
Feres doctrine. This court disagreed, writing:

           We are unpersuaded that [Brooks and Brown] govern the
          case at bar. First, the focus of Feres is not upon when the
          injury occurs or when the claim becomes actionable, rather
          it is concerned with when and under what circumstances the
          negligent act occurs. The alleged negligent act of prescrib-
          ing Dilantin without monitoring the patient's blood level
          commenced while Kendrick was on active duty under the
          care of military physicians. All of Kendrick's medical treat-
          ment arose out of an activity incident to service. Second, the
          Court in Brown placed great emphasis on Brown's "civilian
          status" as one of the distinguishing features between his
          claim and that of the plaintiffs in Feres. Unlike Brown, Ken-
          drick was not a civilian when the alleged negligent act
          occurred, and he has remained subject to military discipline
          throughout his continuing course of medical treatment.

Kendrick, 877 F.2d at 1203-04 (citations omitted). Importantly, in an
accompanying footnote, the panel specifically distinguished the Fifth
Circuit decision in Cortez v. United States, 854 F.2d 723 (5th Cir.
1988), which held that the Feres doctrine did not bar a post-service
medical malpractice suit by an individual on TDRL status at the time
of the complained of actions. See Kendrick, 877 F.2d at 1204 n.2. In
Cortez, the court held that a claim for damages arising from the death
of an individual on TDRL status who committed suicide by jumping
from an eighth-floor window after being left alone in a military hospi-

                    6
tal following a suicide attempt was not barred by the Feres doctrine.
The Kendrick panel distinguished Cortez , writing:

          While the [Cortez] court held that an individual on the
          TDRL, under certain circumstances, could bring a FTCA
          action, Cortez's case can be distinguished from the case at
          bar. Cortez's suicide while in a military hospital was found
          to be an isolated act independent of any service-connected
          injury. Kendrick's claim, in contrast, arose out of a continu-
          ous course of medical treatment commenced while he was
          on active duty.

           We do not hold that the Feres doctrine bars an action
          based upon a truly independent or post-service tort.

Kendrick, 877 F.2d at 1204 n.2. Thus, Kendrick held that the Feres
doctrine bars an action by a TDRL-status individual for post-service
medical malpractice when the acts giving rise to the claim of negli-
gence began while the plaintiff was on active duty.

The Government argues that the reasoning of the Kendrick decision
is controlling here. It contends that this is so because the damages
Bradley suffered while on TDRL status resulted from medical treat-
ment arising from an accident she suffered incident to service while
she was on active duty and that the post-service treatment of which
the Estate complains was merely a continuation of her earlier treat-
ment. In order to understand the Government's argument, however,
we must first examine what the Government does not argue.

The Government does not contend that the condition that led to
Bradley's death and for which she sought emergency medical treat-
ment was a reoccurrence of the Staph A infection she suffered inci-
dent to service. Rather, it is undisputed that the evidence is sufficient
to raise a genuine issue of material fact as to whether the underlying
infection that killed Bradley was a reoccurrence of the Staph A infec-
tion she received during her service. Thus, for purposes of summary
judgment we must accept that the condition for which Bradley
required treatment and of which she ultimately died was not a reoc-
currence of her previously acquired Staph A infection. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (explaining that in

                     7
reviewing appropriateness of summary judgment, the nonmoving
party is entitled to the most favorable inferences that reasonably may
be drawn from the forecasted evidence). Viewed in this light, the
underlying facts here, unlike those in Kendrick , do not present a situa-
tion in which the plaintiff was receiving post-service treatment for a
condition that arose out of military service.

Moreover, even were we to conclude that Bradley's infection was
a reoccurrence of the Staph A infection she received incident to ser-
vice, the present facts would be distinguishable from those found to
be controlling in Kendrick. The conduct giving rise to the action in
Kendrick was "[t]he alleged negligent act of prescribing Dilantin
without monitoring the patient's blood"--an act of medical malprac-
tice that began while Kendrick was on active duty. Kendrick, 877
F.2d at 1203; see Appelhans v. United States, 877 F.2d 309, 311-12
(4th Cir. 1989) (holding that an action to recover for injuries suffered
by a serviceman while on active duty as a result of medical malprac-
tice at base hospital was barred by Feres doctrine because, as a gen-
eral rule, injuries sustained as a result of medical treatments at
military facilities are incident to service). In sharp contrast, the alleg-
edly negligent conduct giving rise to the claims of medical malprac-
tice at issue here cannot be characterized as having begun while
Bradley was on active duty. Rather, the allegedly negligent medical
treatment of which the Estate complains began after Bradley was
placed on TDRL status.

Instead of claiming that the condition for which Bradley sought
emergency medical treatment was a reoccurrence of her Staph A
infection, the Government contends:

          [T]he purpose of the trip to Bethesda was to follow-up on
          the foot condition which was a secondary effect of her initial
          on-duty accidental wound .... Thus, the sole reason Corps-
          man Bradley was already under the care of military physi-
          cians at the time she became ill was her service-related
          injury.

Brief of Appellee at 17. This argument, however, cannot be recon-
ciled with the decision of the Supreme Court in Brown. As explained
above, in Brown the Supreme Court held that the Feres doctrine did

                     8
not bar an action by a discharged veteran alleging negligence in treat-
ment at a veterans' hospital for an injury suffered while a member of
the armed forces. See Brown, 348 U.S. at 112. Accordingly, the fact
that Bradley received allegedly negligent medical treatment at a facil-
ity at which she was entitled to seek other treatment as a result of her
prior active service and the fact that Bradley would not have traveled
to NNMC but for her prior service-related injury have nothing to do
with Bradley's military "service except in the sense that all human
events depend upon what has already transpired." Brooks, 337 U.S.
at 52. Consequently, the fact that Bradley was scheduled for treatment
at NNMC as a result of a service-related injury is not controlling.

The Government also argues that the true distinction between
Brown and the present action is that in Brown the injured serviceman
had been discharged while Bradley was a TDRL-status individual at
the time of the allegedly negligent conduct. Under TDRL, Bradley
was entitled to retirement pay, was not on active duty, and was not
subject to being recalled to active duty. In order to continue to receive
her TDRL benefits, Bradley was required only to present herself for
periodic medical examinations. If she continued to be found unfit for
duty for a period of five years, she would be placed on permanent
retirement status. If she were to be found fit for duty, she would be
given the option to reenlist or lose the benefits attendant to her TDRL
status. While Bradley remained subject to the Uniform Code of Mili-
tary Justice, see 10 U.S.C.A. § 802(a) (West 1998); McCarty v.
McCarty, 453 U.S. 210, 221-22 (1981); Kendrick, 877 F.2d at 1204,
failure to report for a required physical examination would only sub-
ject Bradley to termination of pay and administrative discharge.

The Government contends that because Bradley was subject to mil-
itary discipline while on TDRL status, her medical treatment at a mili-
tary hospital was incident to service. The courts of appeals have
reached varying conclusions with respect to whether an action for
military medical malpractice is barred by the Feres doctrine when the
plaintiff was on TDRL status at the time the alleged tort was commit-
ted. Compare Cortez v. United States, 854 F.2d 723, 726-27 (5th Cir.
1989) (holding Feres doctrine did not bar FTCA suit for alleged med-
ical malpractice committed against TDRL-status individual), with
Ricks v. United States, 842 F.2d 300, 300-01 (11th Cir. 1988) (per
curiam) (holding that because TDRL-status individual is entitled to

                     9
military benefits, injuries incurred in connection with those benefits
are incident to service).4 However, this court has suggested that the
Feres doctrine does not bar an action by a TDRL-status individual
"based upon a truly independent or post-service tort." Kendrick, 877
F.2d at 1204 n.2. And, we agree that although Bradley's status is not
a full discharge, it is comparable to permanent retirement status,
which has been held not to bar an FTCA claim under the Feres doc-
trine. See McGowan v. Scoggins, 890 F.2d 128, 137-39 (9th Cir.
1989) (holding that Feres doctrine did not bar a retired Army officer
from suing for injuries suffered in an attack by military personnel
while he was on the base to obtain a parking sticker). Thus, we con-
clude that Bradley's TDRL status is not a bar to suit, and accordingly,
the district court erred in holding the Estate's action to be barred by
the Feres doctrine.
_________________________________________________________________

4 Relying on Ferens v. John Deere Co., 494 U.S. 516, 519 (1990), the
Estate argues that we should apply the law of the Fifth Circuit because
this action was transferred from that circuit and because the Government
acted improperly in having the case transferred in order to take advan-
tage of what it perceived to be the more favorable law of this circuit. We
disagree. First, nothing in the record supports a conclusion that the Gov-
ernment had any improper motive in seeking the transfer. And, second,
this court cannot and does not apply the law of another circuit simply
because the case was transferred from the other circuit. The Ferens deci-
sion, on which Bradley relies, applied the doctrine announced in Erie
R.R. Co. v. Tompkins, 304 U.S. 64 (1938), to hold that when a case that
is governed by state law is transferred from one jurisdiction to another,
the governing law remains the same notwithstanding the transfer. See
Ferens, 494 U.S. at 519. But, unlike state law, federal law is presumed
to be consistent and any inconsistency is to be resolved by the Supreme
Court. See In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d
1171, 1175-76 (D.C. Cir. 1987) (holding that transferee court should
decide federal claim based on its own view of law without deference to
law of transferor circuit); see also Clayton v. Warlick, 232 F.2d 699, 706
(4th Cir. 1956) (holding that "the same law, the federal ... law, will be
applied wherever [the case] is tried" and thus choice of law questions
should not influence a decision to transfer under 28 U.S.C.A. § 1404(a)
(West 1993)). We, of course, apply the law of the Fourth Circuit, not the
Fifth Circuit. However, as noted in text, the law of our circuit does not
conflict with that of the Fifth Circuit in this instance.

                    10
III.

We reverse the grant of summary judgment in favor of the United
States, concluding that the district court erred in ruling that Bradley's
injuries were incident to service. The Estate's action is not barred by
the Feres doctrine.

REVERSED

                     11
