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.
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December 8, 1994
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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, ________ _____________
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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. ________
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