Borden v. Veterans Administration

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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