Borden v. VA ( 1994 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                             


                             


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        No. 94-1620 

                                  RONALD L. BORDEN,

                                Plaintiff, Appellant,

                                          v.

                               VETERANS ADMINISTRATION,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
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                                 ____________________

                                        Before

                                  Cyr, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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                                 ____________________

            Ronald L. Borden on brief pro se.
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            Donald K.  Stern, United  States Attorney,  Charlene A.  Stawicki,
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        Special Assistant United States  Attorney, and Mary Elizabeth Carmody,
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        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
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            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
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            v. United States, 340 U.S. 135 (1950), as well as by Hamilton
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            v. United States, 564  F. Supp. 1146, 1148 (D.  Mass.), aff'd
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            per  curiam, 719 F.2d 1 (1st Cir.  1983).  In Feres the Court
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            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.
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                      Plaintiff argues on appeal that  the Feres doctrine
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            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
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            (9th  Cir. 1994);  Quintana  v. United  States, 997  F.2d 711
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            (10th  Cir. 1993); Kendrick v.  United States, 877 F.2d 1201,
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            1203 (4th Cir. 1989) (containing additional citations), cert.
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            dismissed, 493  U.S. 1065  (1990).  Plaintiff  was an  active
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            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.
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            United States,  839  F.2d 186,  188  (3d Cir.  1988)  (citing
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            United States v. Johnson, 481 U.S. 681, 690-91 (1987)).
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                      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
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            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.
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                      In light  of this disposition, we  need not address

            the other infirmities in plaintiff's complaint.

                      Affirmed.
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