Appeals court reluctantly tosses suit over death of soldier's baby
The Honolulu Star-Advertiser
HONOLULU — A federal appeals court reluctantly upheld the dismissal of a lawsuit Thursday by a man who contended his newborn son died because his pregnant Army wife had been ordered to perform physical activities in violation of her doctor's instructions.
The 9th U.S. Circuit Court of Appeals said it was bound by the highly controversial "Feres Doctrine" established by a 1950 U.S. Supreme Court ruling prohibiting personal injury lawsuits related to military service against the federal government.
Jonathan Ritchie's lawsuit alleged that an Army doctor's pregnancy profile restricted the activities of his wife, January Ritchie, and her doctor told the Army that she was in a "high risk"condition and would not be able to perform her normal duties.
But her commanding officers repeatedly disregarded the instructions, the lawsuit alleged.
January Ritchie gave birth prematurely to her son, Gregory, after a 5½-month pregnancy in August 2006. The infant died about 30 minutes later.
"We can think of no other judicially created doctrine which has been criticized so stridently, by so many jurists, for so long," the appeals court said.
But until Congress or the Supreme Court restricts the doctrine, the appeals judges must follow the precedent, the appeals court said in the opinion written by Judge Jacqueline Nguyen.
"We therefore regretfully hold that Ritchie's suit is barred by Feres," the court concluded.
Eric Seitz, Honolulu attorney for the Ritchies now living in Washington state, said he plans to appeal to the U.S. Supreme Court.
He said he didn't think the appeals court would overturn the Supreme Court's ruling, but said he applauded the decision as a "good signal" to review the doctrine.
"I think the analysis they employed was absolutely correct, and I'm hoping the Supreme Court will look seriously at their opinion," he said.
January Ritchie remains in the Army, Seitz said.
The couple has three children, including one born after Gregory's death, according to Seitz.
Elliott Enoki, first assistant U.S. attorney in Hawaii, said the office has not yet reviewed the ruling had no immediate comment.
Ritchie, an Army specialist, was pregnant when she was transferred from Missouri to Fort Shafter in 2006.
Her superiors knew about the pregnancy but didn't follow the instructions in her pregnancy profile, the lawsuit alleged.
She was assigned to a military police company at Helemano Military Reservation and at one point was ordered to walk around and pick up trash, according to her husband's court documents.
Her military superior yelled at her when she was not keeping up with other soldiers, the documents said.
When she said she was not feeling well and in pain, the superior allegedly told her he didn't care and she "needed to get out there," the documents said.
Later that day she was taken to the hospital where she underwent a cervical cerclage to help prevent preterm labor.
She returned to the hospital 19 days later and gave birth to her son prematurely.
The rationale for the 63-year-old Feres Doctrine includes the fear that permitting lawsuits alleging wrongdoing by commanding officers might undermine military discipline.
Appeals Judge Dorothy Nelson agreed that the doctrine bars Ritchie's lawsuit, but wrote a stinging separate opinion.
"This case reveals the injustice caused by the Feres Doctrine," she said.
"Efforts to exclude pregnant women from serving, and even to punish women for becoming pregnant, continue to this day," she said.
"The right a pregnant woman has to serve means little if her service requires she put her fetus's health and well-being at risk.
"In refusing to recognize Ritchie's tort claims, we are continuing the legal fiction that these alleged wrongs are part of the military's discipline structure."
She said in Ritchie's case the Feres Doctrine "dooms any claims for compensation for the harms caused by the military's failure to follow its own regulations governing pregnant servicewomen."
Refusing to compensate military servicewomen and their families based on the "fiction" that the court cases will jeopardize military discipline "perpetuates a grave injustice," she said.
Nguyen said she agrees with Nelson's opinion.
Jerome Farris, the third member of the three-judge panel of the appeals court, agreed with the dismissal of the suit.