# Martinez v. Schrock > Court of Appeals for the Third Circuit · June 25, 1976 · 537 F.2d 765 URL: https://www.frixlaw.com/law-library/cases/8899347 ## Case - **Full name:** Raphaela MARTINEZ, Administratrix ad Prosequendum and General Administratrix of the Estate of Miquel Martinez, Jr. v. Lawrence SCHROCK, M.D., and Ankia Chandrasekaran, M.D. - **Court:** Court of Appeals for the Third Circuit - **Decided:** June 25, 1976 - **Citations:** 537 F.2d 765; 1976 U.S. App. LEXIS 8325 - **Precedential status:** Published - **Opinion:** Dissent by Gibbons - **Judges:** Adams, Aldi, Aldisert, Dusen, Garth, Gibbons, Hunter, Rosenn, Seitz, Sert, Weis - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8899347 ## Opinion text GIBBONS, Circuit Judge (dissenting). I join in Chief Judge Seitz’s dissenting opinion, but I believe that one consideration requires clarification and emphasis. In this case we have a state law which provides a rule of decision in the absence of a federal immunity which would supplant it. 1 There is no doubt, of course, that federal law could, subject to due process limitations which need not be explored at this point, immunize all federal employees from state law causes of action for all negligent acts committed in the scope of their federal employment. 2 Heretofore neither Congress *775 nor this Circuit 3 has recognized the absolute immunity claimed by defendants in this case. But Congress, which has previously immunized the medical personnel of the Veterans Administration 4 and the Public Health Service 5 from the very kind of suit that is the subject of this case, now has under active consideration a bill to extend the same immunity to active-duty military medical personnel. 6 Thus, the issue confronting this court is which law-pronouncing branch of the federal government — the federal courts or Congress — should make the immunity determination. In Doe v. McMillan, 412 U.S. 306 , 93 S.Ct. 2018 , 36 L.Ed.2d 912 (1972), the Supreme Court, confronted with a virtually identical choice, declined, in the absence of Congressional action, to supplant a cause of action under local law by absolutely immunizing the Public Printer and the Superintendent of Documents. Indeed, Doe v. McMillan is an a fortiori case since the Speech or Debate Clause of the United States Constitution 7 arguably afforded a constitutional basis for extending immunity to agents of the Congress. In this case there is no such constitutional provision. Moreover, in Crilly v. Southeastern Pa. Transp. Authority, 529 F.2d 1355 (3d Cir. 1976), we were asked to supplant local law when the reasons for applying a uniform law of labor-management relations appeared far more persuasive than those given for the extension of absolute immunity to cover these defendants. But in Crilly we deferred, and properly so I submit, to Congress which, just as in this case, was simultaneously considering proposed legislation covering the same subject matter. 8 Instead of deferring to future Congressional judgment on the creation of absolute immunity in this kind of suit, the majority has chosen to weigh the competing policy considerations and to make an essentially legislative judgment. It has done so, however, without the benefit of the interplay of the various competing interests which, by design, appropriately occurs within the legislative arena. Indeed, I strongly suspect that not all of the relevant factors have even been identified, since the record before us does not even disclose, for example, the extent to which army surgeons are paid proficiency or incentive allowances over and above the military pay authorized for their rank. 9 What principled reasons, I ask, make this case such a strong one for judicial legislation when compared to others in which we have refused to create federal common law? Unless those reasons are at least identified, the plaintiff will be justified in suspecting that they are entirely subjective. . I agree with Judge Adams’ analysis that Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), cert. denied, 389 U.S. 923 , 88 S.Ct. 247 , 19 L.Ed.2d 274 (1967), is certainly not dispositive of the specific immunity issue presented in this case. Instead, like Chief Judge Seitz, I believe that the claimed immunity should not be recognized for the reasons advanced by Judge Bastian in Henderson v. Bluemink, 167 U.S.App.D.C. 161 , 511 F.2d 399 (1974). . 38 U.S.C. § 4116 (Supp. Ill 1973). . 42 U.S.C. § 233 . . See H.R.3954, 94th Cong., 1st Sess. (1975), which has already been approved by the House of Representatives. . Art. I, § 6, cl. 1. . 529 F.2d at 1357, 1363 . . See 37 U.S.C.A. § 313 (Supp.1976). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8899347. Public record. Not legal advice.