Unpublished Disposition, 846 F.2d 1383 (9th Cir. 1986)

MEMORANDUM^* 

Plaintiff Terrell Smith brought a medical malpractice action against the United States under the Federal Tort Claims Act (FTCA) for failure of Army doctors to diagnose his kidney disease. The claimed misdiagnosis occurred while Smith was engaged in basic training at Fort Jackson, South Carolina.

The district court granted defendant's motion to dismiss on April 30, 1986, based on the "Feres doctrine," which immunizes the government from FTCA liability for torts arising incident to the plaintiff's military service. Eleven months later, plaintiff brought a Rule 60(b) motion for relief from the dismissal, based on a change in the law underlying the dismissal.

DISCUSSION

Fed. R. Civ. P. 60(b) gives the district court discretion to order relief from its judgment on various grounds, including the reversal of a prior judgment on which the judgment in question was based, Fed. R. Civ. P. 60(b) (5); or "any other reason justifying relief." Rule 60(b) (6). Denials of relief under Rule 60(b) are reviewed for an abuse of discretion. Plotkin v. Pacific Telephone and Telegraph Co., 688 F.2d 1291, 1292 (9th Cir. 1982).

Smith argues that a change in the law eleven months after the district court's judgment justifies relief under one of these subsections of Rule 60(b). Smith relies on Atkinson v. United States, 804 F.2d 561 (9th Cir. 1986), modified, 813 F.2d 1006 (1987) (Atkinson I) . There, this court held that the Feres doctrine, which bars government FTCA liability for torts against members of the armed forces, did not apply to a medical malpractice claim by a service member. Atkinson I relied on language in United States v. Schearer, 473 U.S. 52, 58 n. 4 (1985), stating that the only viable rationale for the Feres doctrine was the protection of discipline and military "judgments," and that Feres immunity should be applied on a case-by-case basis with that rationale in mind. See also Johnson v. United States, 704 F.2d 1431, 1440 (9th Cir. 1983).

However, the Supreme Court subsequently reaffirmed the rationales of Feres based on other policies than simply the maintenance of discipline in United States v. Johnson, 107 S. Ct. 2063, 2065 n. 2, 2068-69 (1987) (relying, in part, on (1) the special "federal relationship"; and (2) the availability of alternative compensation). The Atkinson panel reheard its case in light of Johnson and reversed its earlier holding. Atkinson v. United States, 825 F.2d 202 (9th Cir. 1987) (Atkinson II), cert. denied, 108 S.Ct 1288 (1988). Atkinson II holds that, under Johnson, medical malpractice claims arising from incidents which occur during plaintiff's active duty are barred by Feres. 825 F.2d at 205-06.

Smith now argues that Atkinson II does not bar recovery in this case, because he is not eligible for veterans' benefits, so that the only applicable prong of the Feres rationale is the "federal relationship" between the service member and the military. According to Smith, this rationale is too insignificant to erect a Feres bar to his claim.

While this argument is not without merit, we do not find it appropriate for consideration in this appeal. This argument could have been made on the basis of Schearer, 473 U.S. at 58 n. 4, which was in circulation well before the district court's dismissal of this case. We also note that Atkinson I was decided five months before Smith finally brought his Rule 60(b) motion. Under these circumstances we cannot say the district court abused its discretion in denying Rule 60(b) relief.

The government maintains that, in light of Atkinson II, Smith's appeal was "clearly frivolous." This court has discretion under 28 U.S.C. § 1912 and Fed. R. App. P. 38 to award costs and attorneys' fees as sanctions for a frivolous appeal--an appeal brought notwithstanding that the result is obvious or that the appellant's arguments are meritless. Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir. 1984). Smith's argument that we should discount the "federal relationship" prong of the Feres rationale was not meritless. We therefore find that an award of sanctions against Smith is not called for.

AFFIRMED.