Petition for Writ of Certiorari — Adkins v. United States

NO.

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IN THE ee

Supreme Court of the United States

October, 1989 Term

GALA ADKINS; GALA ADKINS, as Administratrix of

the Estate of Timothy J. Adkins,

Petitioners.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

H. Fred Kuhn, Jr., Esquire

MOSS, DORE, KUHN & MCINTYRE, P.A.

Post Office Drawer 507

Beaufort, South Carolina 29901-0507

(803) 524-3373

Counsel of Record for Petitioners

QUESTION PRESENTED FOR REVIEW

L. SHOULD THE FERES DOCTRINE

BE OVERTURNED, MODIFIED, OR AT LEAST

LIMITED, SO AS TO ALLOW CLAIMS

AGAINST THE UNITED STATES OF AMERICA

BY AN ACTIVE DUTY SERVICEMAN FOR HIS

PERSONAL INJURIES AND DEATH, WHERE

HIS PERSONAL INJURIES AND DEATH ARE

THE RESULT OF MEDICAL MALPRACTICE OR

NEGLIGENCE BY MILITARY MEDICAL OR

HEALTH CARE PROVIDERS UNDER

DOMESTIC, PEACE-TIME CONDITIONS, AND

WHERE THE INJURED SERVICEMAN WAS NOT

PERFORMING ANY OF HIS~ MILITARY

DUTIES, AND WAS NOT EVEN ON DUTY AT

THE TIME OF HIS INJURY, AND WHERE

NONE OF THE TORTFEASORS OR HEALTH

CARE PROVIDERS WERE IN THE

SERVICEMAN'S CHAIN OF COMMAND?

TABLE OF CONTENTS

Question Presented For Review. .. i

EE ge ag hob tS re o % 4

Beterence to Opinions ...... kl

Statement of Grounds for

4

Statutues Involved 3

Statement of the Case 6

Procedural Background... . 6

Factual Background 9

Argument for Allowance of Writ . 13

ee ee a a

Sse 5 5 & 6 as ek se we SF

District Court Opinion. . . 30

Court of Appeals Decision . 44

11

TABLE OF AUTHORITIES

STATUTES

a0 U.0eGs 269 40 5 5 a 8 we Se ee Se ee

CASES

Atkinson v. United States, 804 F.2d 561 (9th

Cir. 1986) ny ra tg ee £7, 20408

Atkinson v. United States, 825 F.2d 202

(9th Cir. 1987) lee Ce. le eee 22

Brooks v. United States, 337 U.S. 49

CROs rut ee ha il eg ra ee a alae th

Feres v. United States, 340 U.S. 135

$07) rr re oe oe ee en ke

Johonson v. United States, 704 F.2d

1431 (9th Cir. 1983) _ « * «& Soe

Stanley v. United States, 786 F.2d

$490 (Lich Cir. 8906) us) se Se eee

Stencel Aero Engineering Corp. v.

United States, 431 U.S. 666 (1977). . I7

United States v. Johnson, 107 S.Ct. 2063

(iver) sok US Ue ee 14, 21-23

United States v. Muniz, 374 U.S. 150

CE9GS) a a ek te eh a ee

United States v. Shearer, 473 U.S. 52

(SSRDS a. ee ae Sa

- 111i -

REPORTS OF OPINIONS

Neither the Order of the

District Court nor the Opinion of

the Court of Appeals has_ been

published.

The Order of the District Court

was issued by the Honorable Falcon

B. Hawkins, United States District

Judge for the District of South

Carolina, Beaufort Division, on July

11, 1988 in Civil Actions Nos.

D:88-0137-1. The Opinion of the

Court of Appeals was issued by the

United States Court of Appeals for

the Fourth Circuit on February 2,

1989, in Appeal No. 88-2573. Both

the Order and Opinion have been

reproduced in the Appendix contained

herein, at pp. 30 - 50.

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the Order LSoOoUCAU UY Wits eG te t

District Court for the District ot

South Carolina on July l

The statutory provision

believed to confer on this Court

jurisdiction to review the judgment

by writ of certiorari is 28 U.S.C. §

1254(1).

5

STATUTE INVOLVED

FEDERAL TORT CLAIMS ACT:

268 U.S.C. § 2674. Liability of

United States. The United States

shall be liable, respecting the

provisions of this title relating to

tort claims, in the same manner and

to the same extent as a private

individual under like circumstances,

but shall not be liable for interest

prior to judgment or for punitive

damages.

26 U.S.C. § 2671. Definitions

ve

of

As used in this chapter [28 USCS §§

2671 et seq.] and sections. 1346(b)

and 2401(b) of this title [28 USCS

§§ 1346(b) and 2401(b)] the term

"Federal agency" includes the

executive departments, the military

departments, independent

establishments of the United States,

and corporations primarily acting

as, or agencies of the United States

but does not include any contractor

with the United States.

"Employee of the government"

includes officers or employees of

any federal agency, members of any

federal agency, members of the

military or naval forces of the

United States, and persons acting on

behalf of a federal agency in an

official capacity, temporarily or

permanently in the service of the

United States, whether with or

without compensation.

"Acting within the scope of his

office or employment," in the case

of a member of the military or naval

forces of the United States, means

acting in line of duty.

STATEMENT OF THE CASE

A. PROCEDURAL BACKGROUND

On January 21, 1988 Gala Adkins

caused three suits to be _ filed

against the United States of America

in the United States District Court

for the District of South Carolina,

Beaufort Division. Each of these

suits was filed pursuant to the

Federal Tort Claims Act, 28 U.S.C. §

2674. Federal Court jurisdiction is

based upon 28 U.S.C. § 1346(b).

Two of these cases -- one for

the wrongful death of Timothy J.

Adkins and one for the conscious

pain and suffering undergone by

Timothy J. Adkins prior to his death

-- were commenced by Gala Adkins in

her representative capacity as the

Personal Representative of Timothy

J. Adkins' Estate on behalf of his

statutory beneficiaries and heirs at

law, being herself as his widow and

their two minor. sons. The third

action was commenced by Gala Adkins

individually for her own personal

and emotional injuries.

In response to the Complaints,

the United States filed a motion to

dismiss all three actions pursuant

to Rule 12€b)(6) of the Federal

Rules of Civil Procedure for failure

to state a claim upon which relief

can be granted, asserting that these

suits were barred by the doctrine

set forth in Feres v. United States,

340 U.S. 135 (1950). The

District Court consolidated the

three cases and tien granted, albeit

reluctantly, the government's motion

to dismiss.

Upon appeal of the consolidated

cases by Gala Adkins, the United

States Court of Appeals for the

Fourth Circuit affirmed the

dismissal by the District Court.

Gala Adkins is now petitioning

this Court to review these decisions

pursuant to a writ of certiorari.

B. FACTUAL BACKGROUND

"That an apparently healthy Marine

dies after a routine dental

procedure gives me great pause."

Pike Kelley

Commandant of the Marine Corps

The "healthy Marine" to which

General Kelley is referring was Sgt.

Timothy J. Adkins. While the fact

that St. Adkins died from a "routine

dental procedure’ caused the

Commandant to "pause" others were

willing to put it much more bluntly.

Rear Admiral John H. Fetterman, Jr.,

Inspector General for the United

States Navy, in response to an

inquiry by Senator John Glenn,

summed it up as follows:'

"Based upon the investigdtion, I

have concluded that the care

rendered Sgt. Adkins was

substandard. The ultimate

responsibility must be borne by a

system which allowed non-physician

health care providers (i.e., an oral

surgeon and a nurse anesthetist) to

admit a patient on the serious list

and schedule and perform subsequent

surgery without a medical evaluation

by a credentialed physician. When

the patient was placed on_ the

serious list and intubated, the

focus of care should have shifted

from the dental arena to the medical

specialty arena. Sgt. Adkins was

transferred to Naval Hospital,

Charleston, so that a more

sophisticated level of care could be

delivered and this did not occur.

His primary provider remained an

oral surgeon and nurse anesthetist.

This is the salient issue in this

tragic case."

Sgt. Adkins' death caused the Navy

and Marine Corps to launch three

separate investigations into’ the

circumstances surrounding his care

and treatment. His death was the

- 10 -

example cited in the Journal of the

American Bar Association in an

article showing the Feres Doctrine

under attack in Congress:

"No matter how poor the care you

receive from a military doctor or

hospital and no matter what harm you

suffer as a result of that care, you

must accept whatever compensation

the military decides to offer.

The current system is unfair....It

treats our (military) personnel as

second-class citizens."

ABA Journal, pg. 26 (ouay. 3;

1987)(quoting Sen. Jim Sasser,

D-Tenn.).

ae 48, CO Bay the least, not

easy to kill someone by pulling

their tooth. The sequence of events

flowing from the removal of Set.

Adkins' tooth and culminating in his

paralysis, coma and eventual death,

- 1] -

required the malfeasance,

misfeasance and nonfeasance of

medical health care providers from

three separate military

installations.

A detailed recitation of the

facts of this case is contained in

the briefs filed with the Court of

Appeals.

ARGUMENT FOR ALLOWANCE OF WRIT

"The King can do no wrong."

Anonymous.

Petitioner respectfully submits

that her petition for writ of

certiorari should be allowed

because, quite frankly, the doctrine

set forth in Feres v. United States,

340 U.S. 135 (1950) is unjust,

treating the men and women who have

dedicated their lives to the service

of our country as_ second-class

citizens by denying them access to

the judicial system.

Petitioner respectfully submits

that her petition for writ of

certiorari should be allowed because

- 13-

the judiciary, the bar and_ the

public need to know how today's

Supreme Court stands on the

viability and scope of application

of the Feres doctrine. inact is,

will this Court insist upon a blind

application of Feres, barring all

cases which fall within its original

scope, as the majority did in United

States v. Jonnson, i107: 8.Ct. - 2863

(1987); or will this Court allow

each case to be examined on its own

merits, barring only those civil

suits which would jeopardize

military interests, as it did in

Shearer v. United States, 105 S.Ct.

3039 (1985).

Tort claims against the United

« ihe

States are governed by the Federal

Tort Claims Act, 28 U.S.C. § 2674

(1982). This act was passed by

Congress in 1946 in recognition of

the unfair and unjust consequences

of the common law doctrine of

Sovereign Immunity which insulated

the United States from tort

liability. The Act provides that

the United States is liable for

damages in tort "in the same manner

and to the same extent as a private

individual under like

circumstances." Ze U.8.6.° 4. 2674

(1982). It is important to note

that the act contains no express

exclusion or limitation on the right

of military personnel to bring such

claims.

- 15 -

The United States Supreme

Court, however, has judicially

amended the Federal Tort Claims Act

to provide an exclusion or

limitation upon the~ rights of

military personnel to bring a claim

under the Act. In Brooks v. United

States, 33/7 U.S. 49 (1949) =the

Supreme Court held that servicemen

may recover under the Tort Claims

Act on claims which have no

relationship to their military

service. Shortly thereafter, in

Feres v. United States,supra, the

Court held that servicemen may not

recover under the Act on claims

which arise out of or in the course

of activity incident to their

im ihe

tena

TE a a

; 7 By

a

: a a = oe

Pee Se

military service. This exclusion

has commonly become known as_ the

'Feres Doctrine."

Three rationales are commonly

advanced in support of this judicial

amendment to the Federal Tort Claims

Act. These rationales are as

follows:

"(1) the distinctively federal

nature of the relationship between

the government and members of its

armed forces; (2) the availability

of alternative compensation systems;

and (3) the fear of damaging the

military disciplinary

structure. "Atkinson Vv. United

States, 804 F.2d 561, 563, (9th Cir.

1986), citing Stencel Aero

48 =

Engineering Corp. v. United States,

431 U.S.-666, 671-72 (1977).

The first two rationals

gradually fell into disfavor, with

the courts placing more and more

emphasis upon the third rational as

the best justification for the Feres

Doctrine. See United States v.

muniz, 3/4 U.S. 150, 162 (1963).

Finally, in United States Vv.

Shearer, 473 U.S. 59, (1985), the

Supreme Court expressly acknowledged

that the first two rationals were

"no longer controlling." id. at 58,

fn4. In Shearer the court

emphasized that the Feres Doctrine

was best justified by 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.” - id. at 37: The

court stated that “each case must be

examined in light of the statute as

it has been construed in Feres and

subsequent cases." Id. The court

noted that in examining each case

the court should look to_- see

"whether the suit requires’ the

civilian court to second’ guess

military decisions, or whether the

suit "calls into question basic

choices about the discipline,

supervision and control of a

- 19 -

serviceman."' Id. 57-58.

After Shearer, it appeared that

the Supreme Court was limiting the

application of the Feres Doctrine.

See, Stanley v. United States, 786

F2d 1490, 1499 (llth Cir. 1986)

(Shearer rejects "bright line test"

and requires that each case be

analyzed for applicability of the

Feres Doctrine.

In particular, the Ninth

Circuit Court of Appeals, in

Atkinson v. United States, 804 F2d

561 (9th Cir. 1986) interpreted

Shearer to require the courts to

take a case by case, rather than per

se, approach to claims of immunity

| by the United States based on the

« 90 «

Feres Doctrine. The Ninth Circuit

accordingly held that "the Feres

Doctrine bars a suit only where a

civilian court would be called upon

to second guess military decisions

or where the plaintiff's admitted

activities are of the sort that

would directly implicate the need to

safeguard military discipline." 804

F2d at 563.

The United States Supreme

Court, however, in USA v. Johnson,

107 S.Ct 2063 (1987) back tracked

from its decision in Shearer and,

over a strong dissent, reaffirmed

the per se validity of the Feres

Doctrine and its prohibition on tort

suits brought by service members

o. Mite

against the United States for

injuries that arise out of or are in

the course of activity incident to

service.

107 §.Ct. 2066-67.

The Ninth Circuit reacted to

Johnson _ v. USA, by rehearing

Atkinson v. USA. The Ninth Circuit

found that "Johnson appears’ to

breathe new light into the first

two Feres rationals, which until

that time had been largely

discredited and abandoned."

Atkinson v. USA, 825 F2d 202, 205-06

(9th Cir. 1987). The Ninth Circuit

accordingly applied the blanket bar

of the Feres Doctrine to the case

before it. 206 F2d at 825.

USA iv. Johnson was a 5-4

decision. The majority opinion

confirmed that Feres bars "all suits

on behalf of service members against

the government based upon

service-related injuries." 107

o.GC. at 2067. This majority

opinion was written Justice Powell.

The dissenting opinion, written by

Justice Scalia and joined in by

Justices Brennan, Marshall and

Stevens, bluntly states that Feres

was "wrongly decided and hardily

deserves the "widespread, almost

universal criticisn” oe has

received." 107 S.Ct. at 2074.

Justice Powell has now retired.

He leaves behind him eight justices

ee

a ce

who are evenly split on_- the

viability of Feres. Justice

Powell's successor, and the man who

will be the tie breaker, is Justice

Kennedy. Justice Kennedy comes to

the Supreme Court after serving

twelve years on the Ninth Circuit

Court of Appeals. The Ninth Circuit

has been one of the leaders in

attempting to limit the unjust

application of the Feres Doctrine.

As already noted, in Atkinson v.

USA, 804 F2d 561, 564-65 (9th Cir.

1986) the court held that’ the

medical malpractice -action before it

was not barred by Feres, since it

did not involve military decisions

or discipline. The Ninth Circuit

- 24 -

had also earlier held “where there

is no relevant relationship between

the service members' behavior and

the military interest that might be

jeopardized by civil suits, the

Feres Doctrine cannot bar recovery."

Johnson v. USA, 704 F2d 1431, 1440

(9th Cir. 1983).

=.

CONCLUSION

The facts of this case are

horrifying. A perfectly healthy

young Marine was killed as a result

of a routine dental check.

Petitioner respectfully submits that

this case presents an appropriate

vehicle to Overrule, or limit the

application of, the Feres Doctrine.

In this regard, it should be noted

that this case involves dental and

medical care identical to that found

in the civilian setting, rendered by

military medical and health care

Providers under domestic, peace-time

conditions. Further, the United

States has admitted, pursuant to

Requests for Admissions, that Sgt.

Adkins was not performing any of his

military duties at any of the times

referred to in the complaint; that

Sgt. Adkins was not in an "on-duty"

status at any of the times referred

to in the complaint; that Sgt.

Adkins was on sick leave at all

times referred to in the complaint;

and that none of the health care

providers referred to in the

Complaint were in Sgt. Adkins' chain

of command. App., pp. 66-71

(Requests Nos. 8-11). In short,

there is no reason, in justice or

fairness, why the claims for the

wrongful death of and conscious pain

and suffering of Sgt. Adkins should

be barred by the Feres Doctrine.

Petitioner accordingly respectfully

requests that her Petition for Writ

of Certiorari be granted.

Respectfully submitted,

MOSS, DORE, KUHN & MCI

LEZ /

qt Fred Kuhn, Jr/

Attorneys for the Plaintiff

By:

i)

April 257. 1989

“oy: eee

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

BEAUFORT DIVISION

GALA ADKINS, ) C.A. #D:88-0135-1

)(Loss of Consortium)

Plaintiff,

vs.

UNITED STATES OF AMERICA,

Defendant.

C.A. #D:88-013601

(Pain & Suffering)

)

)

)

)

)

)

)

)

GALA ADKINS, AS )

Administratrix of the )

Estate of TIMOTHY J. )

ADKINS, )

)

Plaintiff, )

)

vs. )

)

)

)

)

)

UNITED STATES OF AMERICA,

Defendant.

«30.

GALA ADKINS, As

Administratrix of the

Estate of TIMOTHY J.

ADKINS,

C.A. #D:88-0137-1

(Wrongful Death)

Plaintiff,

vs.

UNITED STATES OF AMERICA,

Defendant.

)

)

)

)

)

)

)

)

)

)

)

)

)

ORDER

These three consolidated cases are

before the court on the government's

motion to dismiss and the plaintiff's

motion to compel responses tc requests

for admission. Since the court finds

that the government's motion must _ be

granted, however, the plaintiff's motion

to compel is moot.

In June 1985, Timothy Adkins was a

Sergeant in the United States Marine

Corps. As a result of having his wisdom

-3l-

tooth pulled by personnel at the Branch

Dental Clinic of the Marine Corps Air

Station in Beaufort, South Carolina,

Seargeant Adkins died on August 8, 1985.

The plaintiff alleges in the complaints

that the technician who assisted in the

extraction of the tooth failed to

realize that the autoclave which

sterilized the instruments' used in

Sergeant Adkins' surgery was not working

properly. After the extraction,

Sergeant Adkins developed an infection

which was initially treated with

penicillin. The penicillin proved

ineffective, and, after several return

trips to the Clinic, Sergeant Adkins was

hospitalized. The decision was made to

transport the Sergeant from the Beaufort

3?

Naval Hospital to the Charleston (S.C.)

Naval Hospital. Because the Sergeant

twice entered respiratory arrest, a

nasoendotracheal tube was inserted to

assist his breathing prior to transfer.

After arriving at the Charleston

Naval Hospital, the Sergeant was placed

in intensive care, and the decision was

made to drain an abscess in his’- neck.

Prior to this procedure, an attendant at

the hospital decided to change the

nasoendotracheal tube. While attempting

to insert the new tube, the attendant

punctured the abscess. Sergeant Adkins

aspirated the discharge and, as a

result, developed inoperative pulmonary

edema, which resulted in adult

respiratorty distress syndrome from

which the Sergeant died on August 8,

1985. Sergeant Adkins was’ twenty-six

(26) years old.

These three consolidated cases

were filed by Sergeant Adkins' wife in

her personal capacity and in her capacity

as Bw erstrix of Sergeant Adkins'

estate. The government has moved to

dismiss the complaints, and, perhaps the

most incredible aspect of this whole

scenario is that the motion must be

granted.

In 1950, the United states Supreme

Court decided three consolidated cases

in Feres v. United States, 7a Usb. 432

(1950), and held that "the Government is

not liable under the Federal Tort Claims

Act for injuries to servicemen where

the injuries arise out of or are in the

-34-

course of activity incident to service."

Id. at 146. It is clear from the facts

of the three cases decided in Feres that

the Court meant to preclude suits

brought to recover for injuries to

servicemen which injuries resulted from

the negligent acts of other servicemen.

This doctrine, now commonly known

as the Feres doctrine, has received much

deserved criticism, but the Supreme

Court recently affirmed its vitality in

United States v. Johnson, 107 S.Ct. 2063

(1987). The Court affirmed the

application of the Feres doctrine to

the facts of the case by a five-to-four

vote, but Justice Scalia issued a

scathing dissent criticizing the

apparent inequity in the rule.

Recognizing the injustice wrought by the

5G.

Court's interpretation of the Federal

Tort Claims Act in Feres, Justice Scalia

observed:

Had Lieutenant Commander

Johnson [the plaintiff's

decendent ] been piloting a

commercial helicopter when he

crashed into the side of a

mountain, his widow and

children could have sued _ and

recovered for their loss, but

because Johnson devoted his

life to serving his country's

armed forces, the Court’ today

limits his family to a fraction

of the recovery they might

otherwise have received. & 4

our imposition of that

sacrifice bore the legitimacy

of ‘having been prescribed by

the people's elected

representatives, it would

(insofar as we are permitted to

inquire into such things) be

just. But it has not been, and

is not.

Id. at 2075-76.

Justice Scalia's observations are

equally applicable to the case at bar.

«Sips

Had Sergeant Adkins sought relief from a

private dentist, his family would at

least have the comfort of recovering

their total loss insofar as money could

bring about that result. However, since

Sergeant Adkins chose to serve in the

United States Marines, not only his wife

suffered the loss of her twenty-six year

Old husband, but she must also shoulder

the financial burdens which his’ death

has placed on her.

If this court wrote on a clean

slate, the result we reach today would

undoubtedly be different. It is

difficult to imagine a case less- ripe

for dismissal than one in which the

Plaintiff's decedent died after having a

tooth pulled; but Feres and its progeny

tie the court's hands. It 1s clear that

the two cases brought by Mrs. Adkins in

her capacity as administratrix of the

estate of Sergeant Adkins’ must be

dismissed because they are barred by

the Feres doctrine.

Plaintiff points out that the

decision in Johnson occurred prior to

the retirement of Justice Powell who

voted with the majority, and, in effect,

asks the court to anticipate a

different result when the Feres doctrine

is again reviewed by the Court with

Justice Kennedy participating rather

than Justice Powell. While the

invitation to anticipate a rejection of

the Feres doctrine is tempting, the

Supreme Court has made clear that the

lower courts have a duty to apply the

a

law as interpreted by the Supreme Court,

not to change L & a

Jaffree v. Board of School Com'rs of

Mobile County, 459 U.S. 1314, 1316

(1983), Thurston Motor Lines, Inc. v-

gorgqen K. Rand, Ltda... S60 0.8: 333, 332

(1983).

In the case brought by Ms. Adkins

in her personal capacity, the plaintiff

tries to fit within an exeption to Feres

by alleging an independent tort. She

claims that the defendant's conduct was

Te) outrageous as to constitute

intentional infliction of emotional

distress. Ms. Adkins also alleges that

she contemporaneously witnessed the

negligent acts toward her husband _ and

thereby suffered a direct injury as a

result of the defendant's negligence.

= Be

The case law applying the Feres

doctrine makes clear that Ms. Adkins'

claim must also be dismissed. In

Kohn v. United States, 680 F.2d 922 (2d

Ci. 1982), the court allowed the

parents of a deceased serviceman to

maintain Fs cause of action for

intentional infliction of emotional

distress. In that case, the conduct

| which the court found outrageouS was

conduct which occurred after the death

of the plaintiff's decedent. The court

held that "the Feres doctrine does not

preclude recovery for independant, post-

service negligent acts by the military,

whether the plaintiff be a serviceman or

a civilian." Id. at 926.

In Lombard v. United States, 6°r

- 4f}-

F.2d 215 (D.C. CIr. 1982), cert. denied,

462 U.S. 138 (1983), the court was

faced with a case brought by the birth-

defected children of a serviceman who

was exposed to radiation while on duty

in the military. In finding ae case

barred by the Feres doctrine, the court

concluded that Feres barred all claims

which have their genesis in an injury to

a serviceman incident to military

service.

Finally, in West v. United States,

fawn see aiav- (7th Cir. 11984), cert.

denied, ai2. U.S; 1013 (1985). the

Seventh Circuit Court of Appeals cited

Lombard with approval and declined to

dismiss the claims of the birth-defected

children of a serviceman whose blood

type was erroneously determined at his

eats

pre-induction physical. The court did

not rely on the fact that the blood

typing occurred prior to the father's

actual induction into the military.

Rather, the court concluded that the

father was not injured by the erroneous

blood typing, and that the claims of the

children, therefore, did on have their

genesis in an injury to a serviceman

incident to military service.

In the case at the bar, it is clear

despite artfu pleading by the

plaintiff, that her claims do have their

genesis in the injury to Sergeant Adkins

incident to his military service.

Therefore, the government's motion to

dismiss must also be granted with

respect to Civil Action #D:88-0135-1.

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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 88-2573

Gala Adkins: Gala Adkins, as

Administratrix of the Estate of

Timothy J. Adkins,

Plaintiffs-Appellant,

versus

United States of America,

Defendant-Appellee,

Appeal from the United States

District Court for the District of

South Carolina, at Beaufort. Falcon

B. Hawkins, District Court Judge.

(CA-88-135)

Argued: January Ll, 1989

Decided: February 2, 1989

Before RUSSELL, Circuit Judge,

BUTZNER, Senior Circuit Judge and

HENDERSON, United States District

Judge for the District of South

Carolina, sitting by designation.

Harold Fred Kuhn, Jr. (Moss, Dore,

Kuhn & McIntyre, P.A., on brief) for

Appellant. John Harris Douglas,

Assistant United States Attorney

(Vinton D. Lide, United States

Attorney on brief for Appellee.

-44-

PER CURIAM:

This consolidated appeal arose

from three actions brought by the

spouse of a deceased serviceman

whose death allegedly resulted from

improper treatment given by Navy

dental and medical personnel. The

district court reluctantly dismissed

the claims under Fed. R. Civ. P.

12(b) because the claims were barred

under the Feres doctrine.

Accordingly, we affirm.

In Feres v. United States, 340

U.8. 235, 146 (1950), the .Vaited

States Supreme Court held that "the

Government is not liable under the

Federal Tort Claims Act for injuries

to servicemen where the injuries

~4S-

arise out of or are in the course of

activity incident to service."

lthough the Supreme Court has

indicated at times a willingness to

part with the per se application of

this rule, see United States v.

Shearer. 473 U.S. 52, 57 (¢1985)

("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

cased.) the Court recently

affirmed such a per se approach in

United States v. Johnson, 481 U.S.

681 (1987). This court is not free

to ignore a recent and clear

affirmation of the Feres doctrine,

==

—s

and therefore, must hold the

plaintiff's wrongful death and

survivorship actions barred.

The appellant also argues that,

if this court refuses to overturn

the Feres doctrine, then it should

hold the doctrine inapplicable to

claims for outrage or for emotional

distress to bystanders. The

appellant argues that Feres bars

only actions derivative of a

serviceman's injury, and that the

appellant's emotional distress is

not derivative. This argument is

not persuasive.

Feres' broad proscription bars

suits seeking redress for injuries

derivative of harm done to a

-47-

serviceman. Hinckie Vv. United

peeces, si2 F.2d 96 (3rd Cir. 1983),

cert. denied, 465 U.S. 1053 (1984);

Scales _v. United States, 685 U.S.

970 (5th Cir. 1982), cert. denied,

460 U.S. 1082 (1983); Monaco v.

United States, 661 F.2d 129 (9th

Cir. 1981), cert. denied, 456 U.S.

989 (1982); Van Sickel v. United

seeces, 255 F.2d 87 (9th Cir. 1960).

Emotional distress suffered by an

injured serviceman's family as a

result of the serviceman's condition

derives from the serviceman's

injury. Lombard v. United States,

960 F.2d 215 ip .c. Cir. 1982)

(wife's emotional distress

derivative), cert. denied, 462 U.S.

-48-

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the appellant's outrage and

bystander claims derive from the

serviceman's injury, the district

court's dismissal of these causes of

action is affirmed.

° AFFIRMED