10 U.S.C. 2735 ("Notwithstanding any other provision of law, the settlement of a claim under section 2733 ... is final and conclusive."); see Hata v. United States, 23 F.3d 230, 235 (9th Cir. 1994) ("Absent a cognizable constitutional claim, section 2735 of the Military Claims Act expressly precludes judicial review of administrative rulings by the Air Force.").

Every circuit that has addressed the language of section 2735 has concluded that it precludes judicial review of the military's disallowance of a claim under the Act, absent a constitutional claim. See Hata v. United States, 23 F.3d 230, 232 (9th Cir. 1994); Rodrigue, 968 F.2d at 1432-34; Poindexter v. United States, 777 F.2d 231, 233-37 (5th Cir. 1985); Broadnax v. United States Army, 710 F.2d 865, 867 (D.C. Cir. 1983); LaBash v. United States Dept. of the Army, 668 F.2d 1153, 1155-56 (10th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2299, 73 L.Ed.2d 1303 (1982). But see Welch v. United States, 446 F. Supp. 75, 77-78 (D.Conn. 1978) (suggesting broad judicial review).

The finality provision of the MCA contains identical language to that of the NGCA: “Notwithstanding any other provision of law, the settlement of a claim under . . . this title is final and conclusive.” 10 U.S.C. § 2735. The Ninth Circuit held “in accord with the First, Fifth, Tenth and District of Columbia Circuits, that the MCA's finality provision generally precludes federal courts from reviewing administrative decisions by the Secretary, ” but recognized that “review of constitutional claims may still be available upon a sufficiently pleaded allegation of a serious constitutional violation ‘going to the heart of the administrative determination.'” Hata v. United States, 23 F.3d 230, 233 (9th Cir. 1994) (quoting Lindahl v. Office of Personnel Management, 470 U.S. 768, 791 (1985)).

The Ninth Circuit has repeatedly found that injury due to medical malpractice in military hospitals is "incident to service." See, e.g., Jackson v. United States, 110 F.3d 1484, 1489 (9th Cir. 1997) (hand injury); Hata v. United States, 23 F.3d 230, 235 (9th Cir. 1994) (heart attack); Estate of McAllister v. United States, 942 F.2d 1473, 1477-79 (9th Cir. 1991) (negligent supervision of mentally ill service member);Persons, 925 F.2d at 296 (suicide); Atkinson v. United States, 825 F.2d 202, 206 (9th Cir. 1987) (pre-natal care); Veillette v. United States, 615 F.2d 505, 507 (9th Cir. 1980) (motorcycle accident). This is true even when the underlying injury did not occur during active duty.See Jackson, 110 F.3d 1484, 1489 (9th Cir. 1997) ("[W]e have held that Feres bars suits for medical malpractice even when the treatment was not for military-related injuries.").

In fact, it appears that courts considering this issue after Welch have unanimously rejected its holding and have concluded that § 2735 precludes judicial review of settlements of MCA claims. See, e.g., Collins v. United States, 67 F.3d 284 (Fed. Cir. 1995); Schneider v. United States, 27 F.3d 1327 (8th Cir. 1994); Hata v. United States, 23 F.3d 230 (9th Cir. 1994); Rodrigue v. United States, 968 F.2d 1430 (1st Cir. 1992); Broadnax v. United States Army, 710 F.2d 865 (D.C. Cir. 1983); Duncan v. West, 965 F. Supp. 796 (E.D. Va. 1997); Minns v. United States, 974 F. Supp. 500 (D. Md. 1997). As one judge has noted, "the overwhelming weight of judicial authority, indeed seven circuits and numerous district courts, persuasively holds that § 2735 rebuts the presumption in favor of judicial review of an adverse administrative decision."

But that interpretation of § 2735 is unpersuasive in light of the MCA's plain and unambiguous language to the contrary. See, e.g., Collins v. United States, 67 F.3d 284, 288 (Fed. Cir. 1995); Schneider v. United States, 27 F.3d 1327, 1332 (8th Cir. 1994), cert. denied, 513 U.S. 1077, 115 S.Ct. 723, 130 L.Ed.2d 628 (1995); Hata v. United States, 23 F.3d 230, 233 (9th Cir. 1994); Rodrigue v. United States, 968 F.2d 1430, 1434 (1st Cir. 1992); Poindexter v. United States, 777 F.2d 231, 233 (5th Cir. 1985); Broadnax v. United States Army, 710 F.2d 865, 867 (D.C. Cir. 1983); Labash v. United States Dept. of the Army, 668 F.2d 1153, 1156 (10th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2299, 73 L.Ed.2d 1303 (1982). Further, numerous district courts have held that § 2735 precludes judicial review of MCA claim settlements by disallowance.

( Taber v Maine, 67 F.3d 1029, 1032 [2d Cir 1995], supra.) See, e.g., Taber v Maine, 67 F.3d 1029, 1032 (2d Cir 1995); Verma v United States, 19 F.3d 646 (DC Cir 1994); Kelly v Panama Canal Commn., 26 F.3d 597 (5th Cir 1994); Stephenson v Stone, 21 F.3d 159 (7th Cir 1994); Hata v United States, 23 F.3d 230 (9th Cir 1994); Hinkie v United States, 715 F.2d 96, 97 (3d Cir 1983), cert denied 465 U.S. 1023; Scales v United States, 685 F.2d 970, 974 (5th Cir 1982), cert denied 460 U.S. 1082. Plaintiff argues that in the instant case his injuries did not arise out of or in the course of military duty.

See Schoenfeld v. Quamme , 492 F.3d 1016, 1023–26 (9th Cir. 2007) (no Feres bar for claim regarding injury sustained in auto accident on base road, accessible to public, that occurred while the plaintiff was "on liberty"); Johnson v. United States , 704 F.2d 1431, 1436–39 (9th Cir. 1983) (no Feres bar for claim regarding injury sustained due to negligence at on-base club where the plaintiff worked in essentially civilian capacity while off duty).See Jackson v. United States , 110 F.3d 1484, 1489 (9th Cir. 1997) (hand injury); Hata v. United States , 23 F.3d 230, 235 (9th Cir. 1994) (heart attack); Grosinsky v. United States , 947 F.2d 417, 418 (9th Cir. 1991) (per curiam) (vasectomy ); Persons v. United States , 925 F.2d 292, 296 (9th Cir. 1991) (treatment following suicide attempt); Atkinson v. United States , 825 F.2d 202, 206 (9th Cir. 1987) (preeclampsia ); Veillette v. United States , 615 F.2d 505, 507 (9th Cir. 1980) (injuries sustained in motorcycle accident). Feres itself also involved medical malpractice claims for treatment of active duty service members at military hospitals.

Where, as here, we resolve a question of statutory interpretation by examining the plain language of the statute, its structure, and purpose, our "judicial inquiry is complete," and we need not consult a statute's legislative history. Campbell v. Allied Van Lines, Inc., 410 F.3d 618, 622 (9th Cir. 2005) (internal quotation marks omitted); see also Hata v. United States, 23 F.3d 230, 233 n. 3 (9th Cir. 1994). This principle of statutory construction is especially true when, as here, "legislators' published statements do not squarely address the question presented."

All of the circuits which have interpreted these provisions agree, concluding that the "final and conclusive" language of § 2735 bars judicial review in all but cases of constitutional error. See Collins v. United States, 67 F.3d 284, 286-88 (Fed. Cir. 1995); Schneider v. United States, 27 F.3d 1327, 1331-32 (8th Cir. 1994); Hata v. United States, 23 F.3d 230, 232-33 (9th Cir. 1994); Rodrigue v. United States, 968 F.2d 1430, 1432-34 (1st Cir. 1992); Poindexter v. United States, 777 F.2d 231, 233-37 (5th Cir. 1985); Broadnax v. United States Army, 710 F.2d 865, 867 (D.C. Cir. 1983) (barring judicial review except in limited circumstances); Labash v. United States Dep't of Army, 668 F.2d 1153, 1155-56 (10th Cir. 1982). Because the plaintiffs assert no question of constitutional magnitude, we must affirm the court's dismissal of the plaintiffs' claims under the Military Claims Act.