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January 8, 1993


This is the second time defendant has moved to dismiss the present action. In a Memorandum Order of April 12, 1990, we denied defendant's prior motion. See Johnson v. United States, 735 F. Supp. 1, 4 (D.D.C. 1990). We now consider defendant's Renewed Motion to Dismiss and Third Motion to Dismiss and plaintiff's Motion for Partial Summary Judgment. For the reasons given below, we grant plaintiff's motion and deny defendant's motions.

I. Background

 The facts of this case are not in dispute and are discussed here only summarily since we reviewed them at length in our prior Memorandum Order. See Johnson, 735 F. Supp. at 2. Briefly, plaintiff Arlene Johnson, a member of the United States Army, brought this suit under the Federal Tort Claims Act, 28 U.S.C. ยงยง 671-2680 (1988) ("FTCA"), alleging negligence on the part of physicians and personnel at the Walter Reed Army Medical Center ("WRAMC"). On September 9, 1986, plaintiff donated blood during a blood drive held at WRAMC. On that date, blood samples were also taken for blood tests. Plaintiff was informed one month later, on October 8, 1986, that her blood tests had shown that she had tested positive for acquired immune deficiency syndrome ("AIDS").

 WRAMC doctors took a second blood sample in October 1986 for further testing. Although the results of the second test came back only weeks later and showed that plaintiff did not, in fact, have the AIDS virus, her test was misfiled and she was not informed of the new results until February 1987. Meanwhile, in November 1986, plaintiff discovered she was pregnant and decided to have an abortion having been previously told by WRAMC physicians that the child would be born with AIDS. After she was informed in February 1987 that she did not in fact have the AIDS virus, plaintiff filed this suit under the FTCA to recover damages for undergoing an unwanted abortion and for other pain and suffering.

 In its prior motion to dismiss, defendant maintained that the present action should be dismissed pursuant to the Feres doctrine. Under that doctrine, claims raised by service members under the FTCA are barred if they "arise out of or are in the course of activity incident to service." Feres v. United States, 340 U.S. 135, 146, 95 L. Ed. 152, 71 S. Ct. 153 (1950). Defendant alleged that plaintiff's claim was barred because she was a member of the United States Army at WRAMC and because the blood drive was "incident to service."

 Since we issued that Order, the parties have conducted discovery and defendant has again moved to dismiss the case based on new facts which defendant alleges warrant dismissal. Specifically, defendant has raised the fact that plaintiff was still subject to military orders and discipline while at the blood drive. See Defendant's Renewed Motion to Dismiss ("Defendant's Motion") at 2-3. Defendant also notes evidence of military involvement: the blood drive was conducted pursuant to an Army regulation which limits donors to "military personnel, their dependents, and civilian Federal employees" and encourages blood drives for the purpose of maintaining blood supplies at military medical facilities. See Defendant's Motion at 3; Appendix to Defendant's Motion ("App.") at 10. Plaintiff subsequently filed a Motion for Partial Summary Judgment, contending that the Feres bar still does not apply.

 Despite the additional evidence, we still agree with plaintiff that her claim is not the type of claim that was intended to be barred by Feres.

 II. Discussion

 As we explained in our prior Order, the Feres doctrine is predicated on three broad rationales: the desire for a uniform, federal compensation system, the availability of statutory veterans' benefits, and the fear of intrusion into military affairs. See Johnson, 735 F. Supp. 2 at 2-3 (citing United States v. Johnson, 481 U.S. 681, 689, 95 L. Ed. 2d 648, 107 S. Ct. 2063 (1987)). Of these, the third factor has been deemed the most important.

 In the last analysis, Feres seems best explained by the 'peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Torts Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.'

 United States v. Muniz, 374 U.S. 150, 162, 10 L. Ed. 2d 805, 83 S. Ct. 1850 (1963) (citing United States v. Brown, 348 U.S. 110, 112, 99 L. Ed. 139, 75 S. Ct. 141 (1954)). See also Hunt v. United states, 636 F.2d 580, 599 (D.C. Cir. 1980) ("the protection of military discipline . . . serves largely if not exclusively as the predicate for the Feres doctrine . . . Only this factor can truly explain the Feres doctrine and the crucial line it draws.").

 The third rationale behind Feres also stems from the concern that permitting service-related claims might "require[] the civilian court to second-guess military decisions." United States v. Shearer, 473 U.S. 52, 57, 87 L. Ed. 2d 38 , 105 S. Ct. 3039 (1985) (citing Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673, 52 L. Ed. 2d 665, 97 S. Ct. 2054 (1977)). Allowing such claims might "involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness." Id. at 59.

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