Brown v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0349p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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TIMOTHY BROWN, individually and as next friend of X

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Plaintiff-Appellant, -

MELODY BROWN, his minor daughter,

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No. 04-5171

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v. >

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Defendant-Appellee. -

UNITED STATES OF AMERICA,

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Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 03-02282—Jon Phipps McCalla, District Judge.

Argued: March 17, 2005

Decided and Filed: September 8, 2006

Before: DAUGHTREY and CLAY, Circuit Judges; GRAHAM, District Judge.*

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COUNSEL

ARGUED: Jamal K. Alsaffar, THE MICHAEL ARCHULETA LAW FIRM, Austin, Texas, for

Appellant. Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee. ON BRIEF: Jamal K. Alsaffar, George J. Hanko, III, Michael E.J. Archuleta,

THE MICHAEL ARCHULETA LAW FIRM, Austin, Texas, for Appellant. Robert S. Greenspan,

Lowell V. Sturgill, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Appellee.

DAUGHTREY, J., delivered the opinion of the court, in which CLAY, J., joined.

GRAHAM, D. J. (pp. 8-11), delivered a separate dissenting opinion.

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The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by

designation.

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No. 04-5171 Brown v. United States Page 2

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OPINION

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MARTHA CRAIG DAUGHTREY, Circuit Judge. In this appeal, brought by plaintiff

Timothy Brown on behalf of his minor child, Melody, we are asked to reinstate the plaintiff’s

medical malpractice complaint against the United States, filed pursuant to the Federal Tort Claims

Act, 28 U.S.C. § 1346(b). That complaint was dismissed by the district court for lack of subject

matter jurisdiction, under Feres v. United States, 340 U.S. 135 (1950), as applied to prenatal injuries

by this court in Irvin v. United States, 845 F.2d 126 (6th Cir. 1988). Because the facts in this case

are readily distinguishable from those in Irvin and do not implicate the rationales underlying the

decision in Feres, we conclude that the district court does have subject matter jurisdiction over the

plaintiff’s complaint. We therefore reverse the judgment entered below and remand the case for

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Despite the district judge’s entry of an order of dismissal under Federal Rule of Civil

Procedure 12(b)(6), there can be no doubt that he was fully sympathetic to the Brown family,

especially to young Melody, who was born with spina bifida, allegedly as the result of malpractice

on the part of a military doctor who provided prenatal care to Melody’s mother, Deborah Brown,

while Deborah was on active duty with the United States Navy. In April 2000, in an effort to

conceive a child, Deborah had sought pre-conception counseling at her branch medical clinic.

Dr. Danjoyeb Mukherjee, a Navy Lieutenant there, prescribed prenatal vitamins to Deborah, and she

began taking them in anticipation of achieving a pregnancy.

The vitamins contained folic acid, which the plaintiff alleges is intended solely to prevent

neural tube defects in a developing fetus. Neural tube defects can cause serious spinal cord and

brain injury during the first 28 days of gestation, after which the fetal neural tube closes. Deborah’s

husband, plaintiff Timothy Brown, later alleged in the complaint that prenatal doses of folic acid

offer no scientific benefits to an expectant mother but are prescribed to ensure that there is adequate

folic acid for the baby from the moment of conception onward.

In June 2000, some two months after she began taking the prenatal vitamins, Deborah Brown

returned to the clinic for a regularly scheduled physical exam. She indicated on a medical history

form that she and her husband were trying to conceive and that she was currently taking prenatal

vitamins. Captain Leland Mills, then the senior medical officer at the clinic, purportedly

recommended that she discontinue taking the prenatal vitamins. In response to this advice, her

husband alleged, Deborah stopped taking the vitamins that day.

About four weeks later, Deborah conceived. After approximately one month of gestation,

Deborah returned to the clinic, where she received a new prescription for prenatal vitamins

containing folic acid. According to the complaint, however, the critical time period for taking folic

acid had passed, and the fetus that Deborah was carrying had already suffered a neural tube defect

from lack of folic acid. Melody Brown was born on March 28, 2001, and was diagnosed as having

spina bifida and its neurological sequelae. Deborah Brown sustained no physical injury whatever

from the effects of the negligent prenatal treatment, from her pregnancy, or from Melody’s birth.

Timothy Brown brought this action against the United States on behalf of himself and his

infant daughter, alleging that Dr. Mills was negligent in recommending that prenatal vitamins be

discontinued and thereby failing to assure that folic acid was available for Melody’s benefit from

the time of her conception. In response, the United States filed a motion to dismiss the action for

want of subject matter jurisdiction, contending that the Feres doctrine had created an applicable

No. 04-5171 Brown v. United States Page 3

exception to the government’s waiver of sovereign immunity in the Federal Tort Claims Act, one

that barred Timothy Brown’s suit because the injury stemmed from allegedly negligent acts by and

against military personnel. The district court granted the government’s motion to dismiss, and

Timothy Brown now appeals.

DISCUSSION

We emphasize that in resolving the legal question presented by this appeal, we are reviewing

only the district court’s order of dismissal under Rule 12(b)(1). We must, therefore, treat the

allegations in the complaint as true. See Evans v. Pearson Enters., Inc., 434 F.3d 839, 843 (6th Cir.

2006).

The legal background of this case is well-plowed territory. The Federal Tort Claims Act

permits the government to be sued for injuries caused by the negligence of government employees,

acting within the scope of their employment, to the same extent that a private individual would be

liable for such negligence. See 28 U.S.C. § 1346(b). This statutory provision is, nevertheless,

subject to a judicially-created exception carved out in Feres v. United States, 340 U.S. 135 (1950).

In Feres, the Supreme Court held that the broad waiver of sovereign immunity found in the Federal

Tort Claims Act does not apply to negligence actions brought by military personnel. Specifically,

the Court ruled, the government “is not liable under [the Act] for injuries to servicemen where the

injuries arise out of or are in the course of activity incident to service.” Id. at 146. The Court has

since identified three rationales for the Feres exception: first, the distinctly federal nature of the

relationship between the government and members of its armed forces; second, the existence of the

Veterans’ Benefits Act, which provides a form of no-fault compensation for injured members of the

military; and, third, the special relationship of a service member to his or her superiors and “the

effects of the maintenance of such suits on discipline, and the extreme results that might obtain if

suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed

in the course of military duty.”1 United States v. Shearer, 473 U.S. 52, 57 (1985) (citations and

internal quotation marks omitted).

After Feres, the Court held that the doctrine also precludes suits by third parties for claims

that derive – directly or indirectly – from injuries to service members incident to military duty. See

Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 673 (1977) (“where the case concerns an

injury sustained by a soldier while on duty, the effect of the action upon military discipline is

identical whether the suit is brought by the soldier directly or by a third party”). See also Mondelli

v. United States, 711 F.2d 567 (3d Cir. 1983) (child’s suit for genetic injuries caused by her father’s

exposure to radiation during active duty in the military barred because the injury derived from injury

to her father); Lombard v. United States, 690 F.2d 215 (D.C. Cir. 1982) (same).

Despite the plaintiff’s argument that, in contrast to the situations in Stencel, Mondelli, and

Lombard, the Feres doctrine is inapplicable in this case because Melody’s injury was not derivative

of any injury to her mother but was, rather, the result of negligence affecting Melody directly (albeit

in utero), the district court held that it lacked jurisdiction under our ruling in Irvin v. United States,

845 F.2d 126 (1988). There we dismissed an action for negligent prenatal care given to a mother

enlisted in the Army that allegedly resulted in the death of her child four days after birth. Relying

on the Fifth Circuit’s analysis in Scales v. United States, 685 F.2d 970, 974 (5th Cir. 1982), we held

in Irvin that the treatment accorded to a pregnant member of the military on active duty is inherently

1

In Shearer, the Court held that this third rationale should be considered “controlling” and seemingly undercut

the basis for consideration of the first two Feres bases. See 473 U.S. at 57. However, in a 5-4 decision only two years

after Shearer, the Court reaffirmed the full three-part analysis in holding that Feres applied to injuries suffered by

military personnel at the hands of civilian employees of the federal government. See United States v. Johnson, 481 U.S.

681 (1987).

No. 04-5171 Brown v. United States Page 4

inseparable from that accorded to the fetus and that such a claim would therefore force a judge to

question the propriety of decisions or conduct of fellow members of the military. See Irvin, 845 F.2d

at 131. The district court found the Browns’ case factually indistinguishable from Irvin and,

therefore, dismissed the action.

But the district court did so with great reluctance, engaging in the following, highly

persuasive, analysis:

Plaintiffs attempt to distinguish Irvin and Scales in two ways. First, Plaintiffs

argue that the treatment (i.e. the failure to provide prenatal vitamins with folic acid)

injured only Melody Brown, rather than her mother. Therefore, Plaintiffs maintain

that Melody Brown’s injury does not have its genesis in a service member’s injury.

Second, Plaintiffs argue that prenatal folic acid supplementation should have been

provided specifically for the benefit of Melody Brown, a civilian, rather than her

mother, an active duty military servicewoman, for whom the folic acid offered no

benefit. Therefore, Plaintiffs argue that Melody Brown sustained a direct injury that

is independent of the medical treatment her mother received.

In support of their arguments, Plaintiffs cite to a number of circuit and district

courts permitting civilian dependents of military personnel to proceed with claims

under the [Federal Tort Claims Act (FTCA)] for negligent prenatal care. See, e.g.,

Romero v. United States, 954 F.2d 223 (4th Cir. 1992) (finding that child’s claim for

prenatal injuries was not Feres barred); Del Rio v. United States, 833 F.2d 282 (11th

Cir. 1987) (finding that children’s claim for prenatal injuries was not barred by Feres

because their claims did not derive from their mother’s injury, but were

independent); Lewis v. United States, 173 F. Supp.2d 52 (D. D.C. 2001) (holding that

the Feres doctrine did not bar claims for negligent prenatal care where medical

treatment was allegedly directed at only the child, rather than the service member);

Graham v. United States, 753 F. Supp. 994 (D. Me. 1990) (permitting child’s suit

under the FTCA for prenatal injuries suffered at the time of her delivery); Utley v.

United States, 624 F. Supp. 641 (S.D. Ind. 1985) (allowing child’s FTCA claim for

negligent prenatal care).

In each of the cases cited by Plaintiffs, the court permitted recovery for the

child’s injuries. Admittedly, none of these cases addressed negligence allegedly

occurring early in gestation as the Fifth Circuit did in Scales. Indeed, most of

Plaintiffs’ cases concern negligence at the time of labor and delivery. However,

some of the cases are factually similar to the case before this Court in that they allege

a negligent injury only to the child, rather than an injury to both the child and the

service member. Romero, 954 F.2d at 225 (“Joshua, the civilian child, was injured,

not a military patient. Admittedly, in satisfying its duty of care to Joshua, proper

prenatal treatment would have involved his mother’s body. The sole purpose of the

treatment, however, would have been directed at Joshua.”); Lewis, 173 F. Supp.2d

at 57 (“Plaintiffs’ amended complaint is consistent in its allegations: while both

Regina and Clayton received medical care at Walter Reed, only Clayton’s medical

treatment was negligent.”); Graham, 753 F. Supp. at 999 (“[I]t is the injury to [the

child] and not one to the serviceperson which is at issue.”); Utley, 624 F. Supp. at

645 (“The only party injured by the alleged malpractice is a civilian infant who has

no federal relationship with the government and no remedy if his suit is barred.”).

Therefore, each of these courts concluded that the child’s FTCA claim was not

barred by Feres because the child had sustained an independent injury at the hands

of military personnel. That is precisely the argument Plaintiffs assert here.

No. 04-5171 Brown v. United States Page 5

Moreover, as noted in many of the cases cited by Plaintiffs, none of the three

considerations typically invoked to support application of the Feres doctrine seems

to apply with particular force in the case of a servicewoman seeking prenatal care in

anticipation of or during a pregnancy. In this case, the relationship between the

civilian child, Melody Brown, and the government is not distinctly federal in nature.

Moreover, the Court has no indication that Melody Brown could recover benefits

under the Veteran’s Benefits Act for her injuries. Finally, the question of whether

a doctor should recommend that an expectant mother take prenatal vitamins with

folic acid seems to have little, if any, bearing upon military discipline and would not

require judicial scrutiny of the operations of the armed services.

Despite this cogent analysis of relevant case law pointing to a finding of non-immunity based

on the facts before the district court, the court came to the conclusion that it was bound by Irvin to

hold that no recovery was available to Tim Brown on behalf of Melody. Unlike the district court,

however, we are not convinced that the end result of this analysis requires slavish adherence to Irvin,

principally because the facts of the two cases can be distinguished, but also because the Irvin

opinion’s analysis rests on shaky ground, as indicated below, and because its reliance on the then-

recent decision by the Fifth Circuit in Scales has since been undercut by subsequent decisions in the

Fifth Circuit and elsewhere.

The complaint in Irvin sought recovery for injury to the plaintiff mother, at that time on

active duty with the United States Army, that had resulted in the death of her newborn infant, caused

by the defendants’ malpractice in “prescribing contraindicated medication” and in failing both “to

aggressively treat, evaluate and properly diagnose the [resulting] pregnancy condition” and “to

reclassify Mildred Irvin’s medical condition as urgent.” 845 F.2d at 127. In other words, the death

of the Irvin infant was caused by (and was therefore derivative of) an injury suffered by the child’s

mother. By contrast, the facts here indicate that the medical treatment at issue caused no injury to

Deborah Brown, as opposed to her fetus. And, although it is true that the Irvin opinion relied on the

Fifth Circuit’s dictum in Scales that the claim of a fetus cannot be considered ”an independent

ground of recovery,” 685 F.2d at 973, in a subsequent Fifth Circuit case, Dickerson v. United States,

280 F.3d 470 (5th Cir. 2002), the government conceded liability, and the Fifth Circuit permitted a

claim to proceed for negligent prenatal care when the care was offered solely for the benefit of the

active duty mother’s unborn child. Thus, the Fifth Circuit appears to have joined the other courts

that have distinguished claims involving injury to a child that derives from an injury to a service-

member parent, such as a birth defect caused by a parent’s exposure to radiation, see, e.g., Mondelli,

711 F.2d at 568, from those claims for negligent medical care administered solely to the detriment

of a civilian child. See, e.g., Romero, 954 F.2d at 226; cf. Mossow v. United States, 987 F.2d 1365,

1369-70 (8th Cir. 1993) (recovery permitted in legal malpractice action against military lawyer who

informed an injured child’s father that he could not sue for negligent prenatal care provided by the

military to his wife, who was on active duty with the Air Force at the time).

Doubtless, we would be obliged by Irvin to apply the Feres doctrine to bar the plaintiff’s

claim on his daughter’s behalf had the injury to the child been caused by an injury to her mother,

who was on active duty with the military at the time of the alleged negligence. However, the injury

to the fetus in this case was direct and not derivative. Moreover, as the district court correctly noted,

the three rationales underlying the Feres doctrine, i.e., the distinctly federal relationship between

service members and the military, the administrative compensation scheme available to service

members, and the need for military discipline, are simply inapplicable to suits for negligent prenatal

care affecting only the health of the fetus.

In Shearer, the Supreme Court noted that an action by a member of the armed forces against

the government for an injury sustained incident to military service is Feres-barred because it is “the

type of claim[ ] that, if generally permitted, would involve the judiciary in sensitive military affairs

No. 04-5171 Brown v. United States Page 6

at the expense of military discipline and effectiveness.” Shearer, 473 U.S. at 59. But a negligence

action for medical malpractice in the prenatal care or birth of a child is a matter that courts can and

do handle on a routine basis, and it is one that clearly cannot be said to invite judicial interference

in “sensitive military affairs.” More to the point is the indication in Shearer that courts should take

a flexible approach to government claims of immunity in actions brought under the Federal Tort

Claims Act. See id. at 57 (“The Feres doctrine cannot be reduced to a few bright-line rules: each

case must be examined in light of the statute as it has been construed in Feres and subsequent

cases.”). We thus conclude that the holding in Irvin, eroded by the decisions in subsequent cases,

should be confined to its facts and does not foreclose a contrary result in a clearly distinguishable

set of facts such as the one now before us.

One of the most persuasive of those subsequent cases is Romero, in which the Fourth Circuit

held that Feres did not bar recovery for injuries to the child of active members of the United States

Navy who was born with cerebral palsy, alleged to have been caused by inadequate prenatal care

by military doctors. The mother, Roxanna Romero, was known to have a condition known as

“incompetent cervix,” which, when left untreated, resulted in Joshua Romero’s premature birth and

resulting cerebral palsy. The government argued that if “reasonable medical measures had been

undertaken to prevent Joshua’s injuries, the treatment [suturing of the cervix until the beginning of

labor] would have been directed solely to Joshua’s mother” and, therefore, that Joshua’s injury was

“incident to military service.” Romero, 954 F.2d at 225. The court rejected this argument – virtually

the same contention as the government made here – and, after noting that “claims brought by

civilians and civilian dependents of service members who have directly sustained injuries from

military personnel are not Feres-barred,” id., held as follows:

We believe the precedent governing injuries by the military to civilians applies here.

Joshua, the civilian child, was injured, not a military patient. Admittedly, in

satisfying its duty of care to Joshua, proper prenatal treatment would have involved

his mother’s body. The sole purpose of the treatment, however, would have been

directed at Joshua.

Mrs. Romero suffered from a congenital cervical weakness. This condition

apparently placed Joshua at risk of injury. It did not, however, affect Mrs. Romero’s

health. Presumably her state of health would have been the same whether the

physician placed the sutures or not. If the treatment had been administered, its sole

purpose would have been directed at preventing injury to Joshua . . . . Because the

purpose of the treatment was to insure the health of a civilian, not a service member,

Feres does not apply.

We note that the situation in this case directly parallels that in Romero, in that the allegedly

inadequate treatment produced no injury whatever to Deborah Brown. Indeed, had the proper

prenatal care been provided, it would have been solely for the benefit of the fetus and would not

have affected the mother’s health in any way. We conclude that this set of facts should be governed

by cases such as Romero, rather than by cases like Mondelli, involving derivative genetic injuries

to children resulting from a parent’s exposure to radioactivity while on military duty. See Mondelli,

711 F.2d at 569. The latter clearly “arise[s] out of or [is] in the course of activity incident to

service.” Feres, 340 U.S. at 146. The former just as clearly is not.

Because the underlying rationales supporting the Feres doctrine are not applicable in the

situation before us, and because the case is readily distinguishable from prior circuit precedent, we

decline to adopt the government’s contention that we are bound in this matter by our decision in

Irvin. Instead, we elect to join those circuits holding that the Federal Tort Claims Act does not

preclude recovery for negligent prenatal injuries to the child of a military service person that are

independent of any injury to the child’s parent.

No. 04-5171 Brown v. United States Page 7

CONCLUSION

For the reasons set out above, we reverse the judgment of the district court and remand the

case to the district court for further proceedings.

No. 04-5171 Brown v. United States Page 8

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DISSENT

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GRAHAM, District Judge, dissenting. The majority has decided that the medical

malpractice claims asserted against the United States by plaintiff Timothy Brown on behalf of

himself and his minor child, Melody Brown, were improperly dismissed by the district court for lack

of subject matter jurisdiction. Because I would conclude that plaintiff’s action is barred under Feres

v. United States, 340 U.S. 135 (1950) and Sixth Circuit precedent, I respectfully dissent.

In Feres, the Supreme Court held that the government is not liable under the Federal Torts

Claims Act for injuries to military personnel for injuries that “arise out of or are in the course of

activity incident to service.” Feres, 340 U.S. at 146. The Feres doctrine is not limited to those

situations where a service member is injured or killed in the course of military duty or while subject

to a direct command relationship. Woodside v. United States, 606 F.2d 134, 140 (6th Cir. 1979).

The Supreme Court in Feres disallowed two claims of medical malpractice asserted against military

doctors, and courts have consistently applied the Feres doctrine in barring suits for the alleged

negligent medical treatment of active service members at a military hospital. See Skees v. United

States By and Through Dept. of Army, 107 F.3d 421, 424 (6th Cir. 1997); Sidley v. United States

Dept. of Navy, 861 F.2d 988 (6th Cir. 1988)(treatment of service member at naval hospital incident

to military service); Woodside, 606 F.2d at 142 (injury to active duty service member while

receiving treatment at military hospital or medical facility deemed to be incident to military service).

The Feres holding has also been extended to bar non-military third-party claims based on

injuries sustained by service persons. See Stencel Aero Engineering Corp. v. United States, 431 U.S.

666 (1977)(claim asserted by third party seeking indemnity for damages paid to injured service

member barred).

Courts have construed Feres as barring the derivative claims of family members of service

persons where the claim has its “genesis” in an injury to an active duty service person incident to

military service. Under the “genesis” test, if the non-serviceman’s suit is based on essentially the

same facts as the potential serviceman’s suit or the non-serviceman’s suit could not have happened

“but for” the serviceman’s cause of action, then the Feres doctrine precludes suit. Minns v. United

States, 155 F.3d 445, 449 (4th Cir. 1998).

Cases applying the “genesis” test include: Minns, 155 F.3d at 449-51 (claims of children of

servicemen given investigational and defective drugs, causing children to be born with birth defects,

properly dismissed because the exposure of servicemen to chemicals was the genesis of children’s

alleged contact with chemicals); Skees, 107 F.3d at 424-25 (claim of widow of serviceman who

committed suicide due to allegedly negligent treatment at military hospital barred); West v. United

States, 744 F.2d 1317 (7th Cir. 1984)(vacating opinion reported at 729 F.2d 1120 which held that

there was a cause of action for health problems suffered by children due to parents’ incompatible

blood types where parents allegedly relied on negligent typing of father’s blood at time of

induction); Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983)(barring claims of children born with

birth defects caused by father’s exposure to radiation); Mondelli v. United States, 711 F.2d 567 (3d

Cir. 1983)(claim for child’s cancer caused by father’s exposure to radiation while on active duty

barred); Lombard v. United States, 690 F.2d 215, 223-26 (D.C.Cir. 1982)(damage claim for genetic

injuries to children allegedly caused by father’s exposure to radiation while in the service barred);

Scales v. United States, 685 F.2d 970 (5th Cir. 1982)(claim asserted on behalf of child for birth

defects allegedly caused by rubella vaccination given to child’s mother barred); Laswell v. Brown,

683 F.2d 261 (8th Cir. 1982)(claims of children for genetic injuries caused by father’s exposure to

No. 04-5171 Brown v. United States Page 9

radiation barred); Monaco v. United States, 661 F.2d 129 (9th Cir. 1981)(claim of child for injuries

caused by father’s exposure to radiation barred).

In Scales, the Fifth Circuit addressed the viability of claims asserted on behalf of a child

allegedly born with birth defects due to a rubella vaccination given to his service member mother

during her pregnancy. The court distinguished cases which have permitted the dependents of

servicemen to sue the government based on negligent conduct directed to the dependent alone which

did not involve any decisions by the military toward enlisted personnel. Scales, 685 F.2d at 974.

In contrast, the court noted, the allegations of negligence of the child in Scales focused entirely on

the medical treatment that military physicians gave the mother. Id. The court stated:

The treatment accorded his mother is inherently inseparable from the treatment

accorded Charles as a fetus in his mother’s body. Consequently, the district court’s

analysis is the same whether the suit is brought by Charles or Ms. Scales. In either

instance, the judge is placed in the position of questioning the propriety of decisions

or conduct of fellow members of the Armed Forces. This is precisely the type of

examination that Feres seeks to avoid.

Id.

A minority of courts have adopted a position contrary to Scales. For example, in Del Rio v.

United States, 833 F.2d 282 (11th Cir. 1987), the court held that a claim asserted on behalf of twin

infants who were allegedly injured due to negligent prenatal care given to their service person

mother was not precluded under Feres. In Romero by Romero v. United States, 954 F.2d 223, 225

(4th Cir. 1992), the court reversed the dismissal of claims brought on behalf of a child born

prematurely with cerebral palsy due to the doctors’ failure to implement a medical treatment plan

made necessary by his service person mother’s incompetent cervix, concluding that the genesis test

only applied to civilian injuries derived from an actual injury to the service person.

In Irvin v. United States, 845 F.2d 126 (6th Cir. 1988), the Sixth Circuit considered the case

of a service member who became pregnant while on active duty in the United States Army. The

complaint alleged that the child died due to negligent prenatal medical care, including prescribing

contraindicated medication during pregnancy. The Irvin court addressed whether the claim brought

on behalf of the deceased infant by her parents was barred, and concluded that it was. The court

“decline[d] appellants’ invitation to reject the genesis test.” Id. at 130. The Irvin court also relied

on the above-quoted language from Scales, stating, “This is the position which we adopt today.”

Id. at 131. The court also noted the different approach taken by the court in Del Rio and declined

to follow that reasoning. Id.

The decision in Irvin was subsequently followed in an unreported decision in France v.

United States, 225 F.3d 658 (table), 2000 WL 1033020 (6th Cir. 2000). In France, a wrongful birth

claim was asserted on behalf of an infant born with birth defects whose service member mother

alleged that the failure to perform adequate ultrasound examinations deprived her of the opportunity

to terminate her pregnancy. The France panel concluded that plaintiff’s case was indistinguishable

from Irvin, and affirmed the dismissal of plaintiff’s claims. Id. at **3.

The claims in the instant case also fall within the scope of Irvin. Any prenatal treatment

involving Melody Brown also involved her mother; in fact, at the time the treatment decision was

made, Melody had not been conceived. Irvin involved negligence in prenatal care during pregnancy.

This case involved the failure to prescribe prenatal vitamins both before and during the early stages

of pregnancy. However, this distinction is not critical to the Feres analysis. If anything, the fact that

the allegedly negligent treatment decision instructing Deborah Brown to stop taking prenatal

vitamins was made prior to Melody Brown’s conception makes the application of the Feres doctrine

No. 04-5171 Brown v. United States Page 10

even more compelling, because the decision at that point impacted only the physical condition of

Deborah Brown, a service member. Once Melody was conceived, the treatment decision involved

both Melody and her mother.

The majority states that Irvin is distinguishable because the alleged negligent treatment in

this case caused no injury to the mother, and therefore, the “genesis” theory is inapplicable in this

case. However, plaintiff’s claim on behalf of Melody Brown depends on a showing that the decision

to stop prescribing prenatal vitamins allegedly resulted in Deborah Brown being physiologically less

capable of delivering a healthy child. Any woman wanting a healthy child would argue that a

negligent medical decision impairing her ability to do so, resulting in the birth of a child with health

problems, would constitute an actionable injury. If plaintiff’s theory of liability is correct, the

medical decision to cease prescribing prenatal vitamins had a significant impact on Deborah

Brown’s body chemistry by depriving her body of the nutrients needed to create a healthy baby,

allegedly resulting in injury to Melody. This situation is analogous to the cases cited above

involving servicemen who suffered chromosomal damage due to exposure to radiation, thereby

impairing their ability to father healthy children. If the medical decision to stop prenatal vitamins

was negligent, then Deborah Brown suffered an injury which was also the “genesis” of the injury

to her child, and the alleged injury to Melody Brown was derivative of the alleged injury caused to

Deborah Brown.

Even if it is assumed that no injury occurred to Deborah Brown, neither that fact nor the fact

that no claim of injury has been asserted by Deborah Brown alters the Feres analysis. The plaintiffs

in Minns also argued that their claims were not barred because they only alleged an injury

themselves, not to the parent service member. The court found that the omission of this allegation

was not critical to the Feres analysis, stating:

We conclude that the plaintiffs cannot escape the fact that the negligent acts alleged

in their complaint find their basis in the military’s decision to inoculate its soldiers

with drugs and to expose them to pesticides, and the issue of whether they can allege

or demonstrate injury is irrelevant to the analysis. See e.g., Monaco, 661 F.2d at 134

(holding that the fact that a plaintiff may seek relief from injury not based on the

injury of the serviceman “does not change the substantive analysis [because] the

court must still examine the Government’s activity in relation to military personnel

on active duty”).... Because the servicemen’s exposure to the chemicals is the

genesis of the plaintiffs’ alleged contact with the chemicals, Feres bars the claims.

Minns, 155 F.3d at 450. Similarly, there was no indication in West that the serviceman father was

injured in any way due to the negligent recording of his blood type, yet the Ninth Circuit vacated

its prior opinion recognizing the right of the serviceman’s children to assert claims based on the

erroneous blood typing. West, 744 F.2d at 1317.

The majority seeks to discredit Irvin by noting the post-Scales opinion of the Fifth Circuit

in Dickerson ex rel. Dickerson v. United States, 280 F.3d 470 (5th Cir. 2002). However, the Feres

doctrine was not at issue in Dickerson, because the government in that case did not contest liability.

Id. at 474. Neither Feres nor Scales was cited in the opinion. In addition, Dickerson involved

claims alleging negligence in the actual delivery of the infant plaintiff, including the failure to

perform a caesarean section which resulted in brain damage, not negligence in prenatal treatment,

and thus it is distinguishable from Scales on its facts.

The majority also reasons that the three rationales underlying the Feres doctrine do not apply

in this case, those being: (1) the distinctly federal character of the relationship between the

government and members of the armed forces; (2) the existence of generous statutory disability and

death benefits provided to service members; and (3) the fact that claims for injuries incurred incident

No. 04-5171 Brown v. United States Page 11

to military service would involve the judiciary in sensitive military affairs at the expense of military

discipline and effectiveness. United States v. Johnson, 481 U.S. 681, 688-691 (1987). However,

the defining standard under Feres has always been whether the injury arose out of or occurred in the

course of activity incident to service. See id. at 686 (“In Feres, this Court held that service members

cannot bring tort suits against the Government for injuries that ‘arise out of or are in the course of

activity incident to service.’ [Feres,] 340 U.S., at 146. This Court has never deviated from this

characterization of the Feres bar.”)(footnote omitted). Although Johnson included a general

discussion of the three rationales, the Court referred solely to the fact that the alleged injury arose

directly out of and was incident to military service in analyzing claim at issue in that case. Id. at

688-91.

In United States v. Stanley, 483 U.S. 669 (1987), the Supreme Court did not mention the first

two factors, and specifically rejected a “special factors” analysis which would consider how military

discipline would actually be affected in a particular case, stating that it would be appropriate to

disallow actions “whenever the injury arises out of activity ‘incident to service.’” Id. at 681. This

led the Tenth Circuit to conclude that “Stanley thus effectively merged the ‘special factors’ analysis

with the incident to service test.” Ricks v. Nickels, 295 F.3d 1124, 1130 (10th Cir. 2002).

In Minns, the plaintiffs argued that two of the underlying rationales for the Feres doctrine

did not apply to them, because the children of servicemen did not have a distinctively federal

relationship to government or an effective remedy for their claims. The Fourth Circuit nonetheless

concluded that because the children’s claims were derivative of the military’s alleged negligent acts

directed at its servicemen, their claims were barred by the genesis test because “their suits would

require the judiciary to enmesh itself deeply into military decisions, a consequence that implicates

the primary justification for the Feres doctrine.” Minns, 155 F.3d at 450-51. Similarly, in Scales,

the Fifth Circuit addressed the question of whether a suit filed on behalf of the service person’s child

would have the same disruptive effect on military discipline as a suit brought by his service person

mother. The court concluded, “If the court must second-guess the judgment of military officers in

assessing their treatment of a member of the armed services, the claim will be deemed to have a

disruptive effect on discipline and will be dismissed.” Scales, 685 F.2d at 973.

The record in this case is silent as to why the military physician instructed Deborah Brown

to stop taking prenatal vitamins. Any inquiry as to why this decision was made would necessarily

involve the district court in questioning the decision of a military doctor in the treatment of an active

service member, implicating the third Feres factor. This is sufficient to invoke the Feres bar.

Regardless of whether this panel agrees or disagrees with the reasoning in Irvin, the genesis

test adopted in Irvin remains the law in this circuit. This court has long adhered to the “venerable

principle” that a prior published decision remains controlling unless overturned by an inconsistent

decision of the United States Supreme Court or by this court itself sitting en banc. Schoenberger

v. Russell, 290 F.3d 831, 841 (6th Cir. 2002); United States v. Smith, 73 F.3d 1414, 1418 (6th Cir.

1996); 6 Cir. R. 206(c). The facts of the instant case fall within the scope of the holding in Irvin,

and that holding mandates the dismissal of plaintiff’s claims. I would affirm the judgment of the

district court dismissing the complaint for lack of subject matter jurisdiction.