                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 WALTER DANIEL, individually and as                No. 16-35203
 personal representative of the estate
 of Rebekah Daniel,                                  D.C. No.
                   Plaintiff-Appellant,           3:15-cv-05748-
                                                       RJB
                      v.

 UNITED STATES OF AMERICA,                            OPINION
               Defendant-Appellee.



       Appeal from the United States District Court
          for the Western District of Washington
      Robert J. Bryan, Senior District Judge, Presiding

             Argued and Submitted April 11, 2018
                     Seattle, Washington

                           Filed May 7, 2018

  Before: Michael Daly Hawkins and Susan P. Graber,
  Circuit Judges, and James A. Teilborg, * District Judge.

                   Opinion by Judge Hawkins


    *
      The Honorable James A. Teilborg, United States District Judge for
the District of Arizona, sitting by designation.
2                  DANIEL V. UNITED STATES

                          SUMMARY **


                          Feres Doctrine

    The panel affirmed the district court’s Fed. R. Civ. P.
12(b)(1) dismissal of plaintiff’s tort action brought against
the United States for the tragic death of his wife, who was
serving in the Navy, as barred by the jurisdictional bar
recognized in Feres v. United States, 340 U.S. 135 (1950).

    The Federal Tort Claims Act effected a broad waiver of
sovereign immunity, rendering the United States liable for
the tortious acts of its employees as a private individual
would be under like circumstances. The Feres doctrine
limits the Act’s waiver of sovereign immunity, and provides
governmental immunity from tort claims involving injuries
to service members that were “incident to military service.”

    The panel followed the holding in Atkinson v. United
States, 825 F.2d 202 (9th Cir. 1987), which similarly
involved medical treatment of an active duty service person
at a domestic military hospital for a condition of pregnancy
unrelated to military service. The panel concluded that
plaintiff’s medical malpractice claims were barred by 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.
                    DANIEL V. UNITED STATES                            3

                             COUNSEL

J. Andrew Hoyal II (argued), Luvera Law Firm, Seattle,
Washington, for Plaintiff-Appellant.

Lowell Sturgill Jr. (argued), Appellate Staff, Civil Division,
United States Department of Justice, Washington, D.C.;
Sarah K. Morehead and Patricia D. Gugin, Assistant United
States Attorneys; Annette L. Hayes, United States Attorney;
United States Attorney’s Office, Seattle, Washington; for
Defendant-Appellee.


                             OPINION

HAWKINS, Circuit Judge:

    We must determine whether the oft-criticized
jurisdictional bar recognized in Feres v. United States,
340 U.S. 135 (1950) 1 (commonly known as the “Feres
doctrine”)—providing governmental immunity from tort
claims involving injuries to service members that are
“incident to military service”—bars Walter Daniel’s tort
action against the United States for the tragic death of his
wife, Navy Lieutenant Rebekah Daniel, due to a
complication following childbirth. As we have done many
times before, we regretfully reach the conclusion that his
claims are barred by the Feres doctrine and, therefore,
affirm.



    1
      See 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.” (internal
quotation marks omitted)).
4                DANIEL V. UNITED STATES

                     BACKGROUND

    Like most cases implicating the Feres doctrine, the
claims at issue here arise out of personal tragedy. See, e.g.,
Ritchie v. United States, 733 F.3d 871, 873 (9th Cir. 2013);
Costo v. United States, 248 F.3d 863, 864 (9th Cir. 2001).
Rebekah Daniel served honorably as a Lieutenant in the
United States Navy, and she worked as a labor and delivery
nurse stationed at the Naval Hospital in Bremerton,
Washington. Walter Daniel is a Lieutenant Commander in
the United States Coast Guard.

    In 2013, Rebekah and Walter learned that they were
expecting a daughter. Rebekah made arrangements to resign
from her post, and with the family leave she planned to take
following the birth of her daughter, she did not expect to
resume her duties prior to her anticipated detachment from
service in May 2014. On March 9, 2014, while still on active
duty status, Rebekah was admitted to Naval Hospital
Bremerton as a patient and gave birth to her daughter.
Although her pregnancy had been considered low-risk,
Rebekah experienced postpartum hemorrhaging and died
approximately four hours after delivery.

    Following Rebekah’s sudden death, Walter initiated the
proceedings giving rise to this appeal. In his complaint,
Walter, individually and acting as the personal
representative of Rebekah’s estate, asserted claims of
medical malpractice and wrongful death premised on
allegations that Rebekah’s death resulted from the
negligence of the medical staff at Naval Hospital Bremerton.
On a motion by the Government under Federal Rule of Civil
Procedure 12(b)(1), the district court dismissed the
complaint on the ground that the Feres doctrine barred the
claims.
                 DANIEL V. UNITED STATES                     5

   JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction under 28 U.S.C. § 1291. We
review de novo issues regarding subject matter jurisdiction
and regarding the applicability of the Feres doctrine.
Ritchie, 733 F.3d at 874.

                       DISCUSSION

    The Federal Tort Claims Act (“FTCA”) effected a broad
waiver of sovereign immunity, rendering the United States
liable for the tortious acts of its employees “in the same
manner and to the same extent as a private individual under
like circumstances.” 28 U.S.C. § 2674. Shortly after the
FTCA’s enactment, however, the Supreme Court held that
the Act’s 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.

    Over time, the Supreme Court has articulated three
policy rationales supporting the Feres doctrine: “1) the
distinctively federal nature of the relationship between the
Government and the armed forces requires a uniform system
of compensation for soldiers stationed around the country
and around the world; 2) a generous compensation scheme
for soldiers (the Veterans’ Benefits Act) serves as an ample
alternative to tort recovery; and 3) permitting military
personnel to sue the armed forces would endanger
discipline.” Costo, 248 F.3d at 866 (citing Johnson,
481 U.S. at 684 n.2).

    Because of extensive criticism of the doctrine and its
underlying justifications, we have “shied away from
attempts to apply these policy rationales.” Id. at 867 (citing
Taber v. Maine, 67 F.3d 1029, 1043 (2d Cir. 1995)). Instead,
6                   DANIEL V. UNITED STATES

when determining whether an injury occurred “incident to
service,” thereby implicating the Feres doctrine, we engage
in a case-specific analysis focusing on four factors:

        (1) the place where the negligent act
        occurred, (2) the duty status of the plaintiff
        when the negligent act occurred, (3) the
        benefits accruing to the plaintiff because of
        the plaintiff’s status as a service member, and
        (4) the nature of the plaintiff’s activities at the
        time the negligent act occurred.

McConnell v. United States, 478 F.3d 1092, 1095 (9th Cir.
2007) (internal quotation marks omitted). Yet, no factor is
dispositive, and we must consider the totality of the
circumstances. Id.

    Recognizing that our cases have consistently applied the
Feres doctrine to bar medical malpractice claims predicated
on treatment provided at military hospitals to active duty
service members, 2 Walter nevertheless argues that
application of the doctrine to the facts of this case runs
contrary to precedent suggesting that the military discipline
rationale is the most important justification for the doctrine.
See, e.g., Ritchie, 733 F.3d at 874–75. He emphasizes that

     2
       See Jackson v. United States, 110 F.3d 1484, 1489 (9th Cir. 1997)
(hand injury); Hata v. United States, 23 F.3d 230, 235 (9th Cir. 1994)
(heart attack); Grosinsky v. United States, 947 F.2d 417, 418 (9th Cir.
1991) (per curiam) (vasectomy); Persons v. United States, 925 F.2d 292,
296 (9th Cir. 1991) (treatment following suicide attempt); Atkinson v.
United States, 825 F.2d 202, 206 (9th Cir. 1987) (preeclampsia);
Veillette v. United States, 615 F.2d 505, 507 (9th Cir. 1980) (injuries
sustained in motorcycle accident). Feres itself also involved medical
malpractice claims for treatment of active duty service members at
military hospitals. See 340 U.S. at 137.
                 DANIEL V. UNITED STATES                    7

the claims at issue involve medical care for a condition
unrelated to military service, rendered at a domestic military
hospital, indistinguishable from treatment that any civilian
spouse might seek at that same facility. Walter argues that
application of the Feres doctrine in this medical malpractice
case cannot be reconciled with caselaw finding it
inapplicable in certain non-medical malpractice cases. See
Schoenfeld v. Quamme, 492 F.3d 1016, 1023–26 (9th Cir.
2007) (no Feres bar for claim regarding injury sustained in
auto accident on base road, accessible to public, that
occurred while the plaintiff was “on liberty”); Johnson v.
United States, 704 F.2d 1431, 1436–39 (9th Cir. 1983) (no
Feres bar for claim regarding injury sustained due to
negligence at on-base club where the plaintiff worked in
essentially civilian capacity while off duty).

    We, too, previously “have reached the unhappy
conclusion that the cases applying the Feres doctrine are
irreconcilable.” Costo, 248 F.3d at 867. Because “the
various cases applying the Feres doctrine may defy
reconciliation,” McConnell, 478 F.3d at 1095, our precedent
dictates that “comparison of fact patterns to outcomes in
cases that have applied the Feres doctrine is the most
appropriate way to resolve Feres doctrine cases,” Costo,
248 F.3d at 867 (quoting Dreier v. United States, 106 F.3d
844, 848 (9th Cir. 1997)). And, here, that analysis begins
and ends with Atkinson, 825 F.2d 202.

    Atkinson held that the Feres doctrine barred a medical
malpractice claim by a servicewoman who alleged that she
received negligent prenatal treatment at a domestic military
hospital. Id. at 205–06. There, the plaintiff, who was an
active duty U.S. Army Specialist, went to Tripler Army
Medical Center during the second trimester of her pregnancy
complaining of multiple symptoms. Id. at 203. She was sent
8                DANIEL V. UNITED STATES

home twice without treatment, but after her third visit, she
was hospitalized for preeclampsia and delivered a stillborn
child. Id. She alleged that the medical center’s failure to
diagnose and treat her condition resulted in the stillbirth of
her child and caused her permanent bodily injuries and
emotional distress. Id.

    As here, Atkinson involved medical treatment of an
active duty servicewoman at a domestic military hospital for
a condition of pregnancy unrelated to military service.
Moreover, Atkinson held specifically that the claim was
barred despite the court’s belief “that the military discipline
rationale [did] not support application of the Feres doctrine”
in the circumstances. Id. at 206. We must follow Atkinson’s
holding here.

                      CONCLUSION

    Lieutenant Daniel served honorably and well, ironically
professionally trained to render the same type of care that led
to her death. If ever there were a case to carve out an
exception to the Feres doctrine, this is it. But only the
Supreme Court has the tools to do so.

    AFFIRMED.
