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,
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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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