# Petition — Scales ex rel. Scales v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0306%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 460 U.S. 1082 ## Text 82-1203 NIANLZ 1998 ALEXANDER L. STEVAS NO. . CLERK wae IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 JUDY RENEE SCALES, as next Friend of CHARLES LEWIS SCALES, Petitioner, V. UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT L. TONNETT BYRD BYRD, DAVIS & EISENBERG 707 West 34th Street Austin, Texas 78705 (512) 454-3751 BOB GIBBINS* GIBBINS, BURROW & BRATTON Post Office Box 1452 Austin, Texas 78768 (512) 474-2441 ATTORNEYS FOR PETITIONER *Counsel of Record NO. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 JUDY RENEE SCALES, as next Friend of CHARLES LEWIS SCALES, Petitioner, V. UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT L. TONNETT BYRD BYRD, DAVIS & EISENBERG 707 West 34th Street Austin, Texas 78705 (512) 454-3751 BOB GIBBINS* GIBBINS, BURROW & BRATTON Post Office Box 1452 Austin, Texas 78768 (512) 474-2441 ATTORNEYS FOR PETITIONER *Counsel of Record a de QUESTION PRESENTED FOR REVIEW Whether the judicially created exception to the Federal Tort Claims Act “for injuries to servicemen” incident to mili- tary service, first enunciated in Feres vu. United States, 340 U.S. 135 (1950), will, for the first time, be extended to bar a medical malpractice action against the Government brought by a minor civilian for prenatal injuries he sustained that were in no way derivative of any injury to his servicewoman mother. a TABLE OF CONTENTS PAGE QUESTION PRESENTED FOR REVIEW........... 2 pF fe F\tpy yy A eee 4 EE Wi oP Ak ag wes Vis vows oe wNaee 8 I ss o'5 9 sels: ude Wie bine ¢ «iso 4/0 ve a4 8 eg Bg ee oe eee 8 STATEMENT OF THE CASE.........;.......+5:. 9 REASONS FOR GRANTING THE WRIT........... 11 7S Ee SURE Cee SER eee 22 CERTIFICATE OF SERVICE................5.55. 23 cA eee ere ire Pee er ey eee 24 ae ae TABLE OF AUTHORITIES PAGE Arrendale v. United States, 469 F.Supp. 883 oN RE kay on 14, 20 Bridgeford v. United States, 550 F.2d 978 EC Pe eS Leas Wiad he 14 C.F. Medeira Co. v. Commissioner of Internal Revenue, OE ate SN UMN CUE LOG oioic vib clecciee co ccvcues 16 Costley vu. United States, 181 F.2d 723 I Ss Pirdc 5.5 Sno! ach vie » aire ¥ oe alae 14 Feres uv. United States, 340 U.S. a eo 10-11, 13,15-17, 20-21 Fournier v. United States, 220 F.Supp. 752 I Alas Nb igh oo kaa BOs Fk o Ose a cece We 15 Grigalauskas v. United States, 103 F.Supp. 543 (D. Mass. 1951) aff'd 195 F.2d 494 (1st Cir. 1952)......... 14, 20 Hall v. United States, 451 F.2d 353 (1st Cir. 197])....... 13 Hall vu. United States, 528 F.Supp. 963 (D.N.J. 1981)... . . 20 Harten v. Coons, 502 F.2d 1363 (10th Cir. 1974), cert. denied, 420 U.S. 963 (1975)... ............. 13 Henninger v. United States, 473 F.2d 814 (9th Cir. 1973) cert. denied 414 U.S. 819 (1973). ........... 13 Herring v. United States, 98 F.Supp. 69 ee uh ide bs ip 6 se oud cea'e 13 Hinkie v. United States, 236 F.Supp. 277 Se EN Viva a bard cs kb vee eve yes 18 In Re Agent Orange Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y. 1980).............. 18,21 Jones uv. United States, 236 F.Supp. 756 I i le red ig ee ss aly cig 6 guia ab 15 Kemart Corp. vu. Printing Arts Research Lab, Inc., 232 F.2d 897 (9th Cir. 1956)................ ara Lowe v. United States, 440 F.2d 452 (5th Cir. 1971) . cert, denied, 404 U.S. 833 (1971).............. 13, 14 Means v. United States, 6 F.2d 975 (2nd Cir. 1925)...... 16 Messer v. United States, 95 F.Supp. 612 Se Rs ere or We arg ds o-uua.0'ee aloes 15 Monaco vu. United States, 661 F.2d 129 (9th Cir. 1981), cert. denied, 102 U.S. 2269, (1982)......... 12, 15, 18, 20-21 Parker v. United States, 611 F.2d 1007 PAGE Rayonier, Inc. v. United States, SN RI, RU PEROT: cic css edecesccvccese 21 Rutkin uv. United States, 343 U.S. 180 (1952),.......... 16 Shults v. United States, 421 F.2d 170 Ne wee nee 13, 14 Sigler v. LeVan, 485 F.Supp. 185 (D.Md. 1980)......... 15 Stansberry v. Middendorf, 567 F.2d 617 SIE a 13 Steele v. United States, 463 F.Supp. 321 I as ON a ag bo Sap elece s 00.0 0:2 15, 20 Stencel Aero Engineering Corp. v. United States, OM Ty | a 12, 14, 17, 20, 21 Thomason v. Sanchez, 539 F.2d 955, 957 (3rd Cir. 1976) cert. denied 429 U.S. 1072 (1977). .......... 20 United States v. Brand, 79 F.2d 605 (2d Cir. 1935), cert. denied 296 U.S. 655 (1936)................. 16 United States v. Brown, 348 U.S. 110 (1954)........ 11, 16 United States v. Neifert-White Co., 390 U.S. 228 (1968)... ee eee 16 United States v. Yellow Cab Co., EME MONEED co a ehccceceunaseseeces 17,21 Vallance v. United States, 574 F.2d 1282 ME Waite Gc bedccccccceccccccecees 13, 14 Veillette v. United States, 615 F.2d 505 SED Sood G a's oe wele 6 aie.bia'e see eees 13, 20 W-R C. uv. Sova, 106 F.2d 478 (6th Cir. 1939)........... 16 Williams v. United States, 435 F.2d 804 ER a CE a a 14 Wilson v. United States, 76 F.Supp. 580 NR, Oe hcliclwaeapetacsececccce 15, 20 Woodside v. United States, 606 F.2d 134 (6th Cir. 1979) cert. denied 445 U.S. 904 (1980)................. 13 Yandell v. Delgado, 471 SW2d 569 (Tex. 1971)....... 10, 16 STATUTES AND REGULATIONS: arc ee eM aia ie’ p. e's wee eee 8,9 IE EI, ky vc o's ca ee dialed es tees oie 8,9 I ahs. «Gis App Disa aS ae wince © 0.0.8.0, 9 8e 12 ay Ee OTHER: PAGE The Supreme Court and the Tort Claims Act: End of an Enlightened Era?, 27 Clev.St.L.Rev. 267 (1978). ..... 20 Note, Stencel Aero Engineering Corp. v. United States: An Expansion of the Feres Doctrine to Include Military Contractors, Subcontractors, and Suppliers, 29 Hastings NS Snort ard wheand iia n'a wip @o,le's. ote 4 6. 20 Note, From Feres to Stencel: Should Military Personnel Have Access to FTCA Recovery?, 77 Mich.L.Rev. OR SU irvine Vx hive ee caNi a a olbe Kaee bh es 20 The Effect of the Feres Doctrine on Tort Acts Against the United States by Family Members of Servicemen, 50 Fordham L.Rev. 1241 (May 1982)................. 13 NO. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1982 JUDY RENEE SCALES, as next Friend of CHARLES LEWIS SCALES, Petitioner, V. UNITED STATES OF AMERICA, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Petitioner, Judy Renee Scales, as next friend of Charles Lewis Scales, respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Fifth Circuit entered in this action on September 13, 1982. pen we OPINIONS BELOW The opinion of the Court of Appeals is reported at 685 F.2d 970 (5th Cir. 1982) and is reprinted as Appendix “A” to this Petition. The District Court’s opinions (entered as Mem- orandum of Findings of Fact and Conclusions of Law and Amended Order) are unreported and are reprinted as Appen- dices “B” and “C”. The District Court’s judgment is reprinted as Appendix “D”. The judgment of the Fifth Circuit and its order denying rehearing are reprinted as Appendices “E” and “-. JURISDICTION The Court of Appeals rendered its decision on Septem- ber 13, 1982. A timely suggestion for rehearing en banc, treated also as a petition for panel rehearing, was denied on October 19, 1982, and this Petition has been filed within ninety days of that date. This Court’s jurisdiction is invoked under 28 U.S.C. §1254(1). STATUTES INVOLVED The principal statutes involved in this case are 28 U.S.C. §1346(b) and 28 U.S.C. §2674. 28 U.S.C. §1346(b) provides: “Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclu- sive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Gov- ernment while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claim- ant in accordance with the law of the place where the act or omission occurred.” = Oan 28 U.S.C. §2674 provides in relevant part: “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 indi- vidual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. “eeer STATEMENT OF THE CASE This action was brought under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§1346, 2671-2680, by Petitioner Charles Lewis Scales, an infant, through his mother, Judy Renee Scales, as his next friend. Charles alleged, and the District Court found (App. “B”), the following facts as the basis of his action against the United States: Charles’ mother was inducted into the United States Air Force on June 27, 1977, and was assigned to undergo basic training at Lackland Air Force Base (AFB) in San Antonio, Texas. Ms. Scales was unaware that she was pregnant with Charles at the time of her induction. In the latter part of June or early July, 1977, during the first trimester of this pregnancy, Ms. Scales was given a rubella’ vaccination. Air Force personnel made no effort to determine whether Ms. Scales was pregnant before giving her the rubella shot. On July 25, 1977, Ms. Scales was hospitalized at Lackland AFB with “viral syndrome”, and her symptoms were diagnosed as “probable rubella.” The Air Force physicians neither informed her of this diagnosis at that time nor attempted to determine whether she was pregnant. After the completion of her basic training at the end of August, 1977, Ms. Scales was transferred to Keesler AF'B in Biloxi, Mississippi. Approximately one month later, the Air Force physicians at Keesler determined that she was ap- proximately nineteen weeks pregnant. Those physicians did not request her medical records from Lackland AFB. She was not informed by the medical personnel at either Lackland ‘Rubella, or German measles, is an infectious disease which can cause, particularly during the first trimester of pregnancy, a plethora of tragic and permanent injuries to a fetus, including cataracts, hearing impairment, heart damage, and physical ard mental retardation. tS en AFB or Keesler AFB of the possible effects of rubella on a fetus, and was never counseled about an abortion. Ms. Scales was discharged from the Air Force in Decem- ber, 1977, because of her pregnancy. On March 21, 1978, she gave birth to Charles. He was born with numerous congeni- tal defects, including cataracts, a heart murmur, possible neurological damage, respiratory problems, growth deficien- cies, and possible mental and physical retardation. At trial, medical testimony clearly established that Charles’ defects resulted from his mother’s exposure to ru- bella early in her pregnancy. Ms. Scales testified that if she had been informed of the diagnosis of “probable rubella” and the staggering effects of rubella on an unborn child, she would have aborted the child she was carrying. Charles’ claim is therefore two-fold. First, he has a tradi- tional negligence action? against the Air Force for the acts of its physicians in causing his congenital rubella syndrome, and the defects resulting therefrom, by administering the rubella shot without checking to learn of his existence in his mother’s womb. Second, he has a “wrongful life’ cause of action for the negligence of the physicians in failing to inform his mother of dangers posed to the fetus by the rubella or to counsel her concerning the possibility of an abortion. The District Court concluded that the Feres doctrine was inapplicable in this case and entered judgment against the United States in the amount of $625,000.00, to compen- sate Charles for the damages he will sustain after reaching the age of 18, including the expense of the medical and cus- todial care he was found to require, his lost income, and the pain, suffering and mental anguish he will incur. On appeal, the Fifth Circuit reversed the District Court’s judgment, albeit “reluctantly” (685 F.2d at 974), on the ground that Charles’ claim was barred by the Feres doctrine. From that decision, rehearing of which was denied, this petition has ensued. *Under Texas law, it is well established that a child that is born alive and survives does have a cause of action for prenatal injuries sustained at any prenatal stage. Yandell u Delgado, 471 SW2d 569 (Tex. 1971). nk | ee REASONS FOR GRANTING THE WRIT The decision of the Court of Appeals marks the first time since the passage of the FTCA in 1946 that a civilian’s tort action against the government has been barred under the Feres doctrine even though no military personnel were injured. That decision marks a radical and unjustified exten- sion of Feres that is unsupportable either by the rationale underlying the doctrine or by the language or purpose of the FTCA. While differing rationales have subsequently been proffered to support the Feres doctrine, its essence has remained unchanged and is best stated by this Court: “The Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arose out of or are in the course of activity incident to service.” (Feres, supra, 340 U.S. 146). Two prerequisites to the application of the Feres doc- trine have thus always been maintained, until now: (1) An injury to military personnel, and (2) an injury arising out of or caused by activity incident to military service. In this case, the first requirement is clearly not met, and the second is therefore meaningless and inapplicable. Because the requirements of Feres have thus not been satisfied, it is not surprising that the rationale underlying Feres does not fit this case. This Court in Feres fashioned its exception to the FTCA based on two grounds: the distinctly federal nature of the relationship between the military and its members, and the availability of veterans’ benefits to compensate servicemen for their injuries. (340 U.S. at 142-145). Subsequently, a third rationale, preserving military discipline, was cited as addi- tional support for the Feres doctrine. United States v. Brown, 348 U.S. 110, 112 (1954). In determining that Charles’ claim was barred by Feres, the Court of Appeals considered two of the three factors: i.e., (1) the availability of veterans’ benefits’ and (2) the concern for preserving military discipline.‘ 5685 F.2d at 972. 4685 F.2d at 973. — In application of the rationale of the availability of vet- erans’ benefits, the Fifth Circuit stated: “A tort claim under the FTCA, such as Charles’, see Monaco, supra, 661 F.2c at 138 [sic], could circumvent the limitation established by the act and ‘judicially admit at the back door that which has been legislatively turned away at the front door’. Jd. 431 U.S. at 673, 97 S.Ct. at 2059, quoting Laird u. Nelms, 406 U.S. 797, 802, 92 S.Ct. 1899, 1912, 32 L.Ed. 2d 499 (1972).” (685 F.2d at 972) This statement is simply a misapplication of the ration- ale of availability of veterans’ benefits set forth in Stencel Aero Engineering Corporation uv. United States, 431 US. 666, 673.5 In Stencel, the injured serviceman did receive vet- erans’ benefits.® To allow Stencel’s indemnity action’ under the FTCA would have required the government to pay twice for one injury. That danger is not present in this case. Here, no member of the military was injured,® and no veteran's benefits have been paid as are allowable, because Charles is not covered by the VBA for his own injuries.® Thus, to permit °The Stencel Court noted that one of the essential features of the Veterans’ Benefits Act (VBA) was to provide “an upper limit of liability for the Government as to service-connected injuries.” 431 U.S. at 673. 6431 U.S. at 668. 'The facts of Stencel are these: A serviceman sustained serious inju- ries when the ejection system of his fighter aircraft malfunctioned during a midair emergency. He brought suit against the United States and Stencel Aero Engineering Corp., the manufacturer of the ejection system. Jd. at 668. Because Stencel manufactured the system in accordance with gov- ernment specifications and used components provided by the government, Stencel cross-claimed against the United States for indemnity. Jd. at 667-68. ®Ms. Scales was not injured while she was treated by the military medical personnel. *Dependents of military personnel are entitled only to death benefits under the VBA, 38 U.S.C. §§341. Charles’ action would not subject the United States to double liability, and therefore would not contravene the VBA’s pur- pose of limiting the government's liability.'° In this case the Court of Appeals relied heavily on the factor of military discipline as the basic reason for invoking the Feres doctrine.!' However, in medical malpractice cases, courts have not employed the military discipline factor to deny a claim by a military person, and rather, plainly relied on the military status of the claimant.’* In Shults vu. United States, 421 F.2d 170, the administrator of the estate of a de- ceased serviceman, who was injured on leave in an auto acci- dent and taken to a military hospital, filed suit against the government under the FTCA for the death of the serviceman allegedly caused by malpractice of physicians and others in charge of the military hospital. In affirming the district court’s summary judgment for the government, the Fifth Circuit held: “(It] is obvious that the injured man could not have been admitted, and would not have been admitted, to the Naval Hospital except for his military status. He was of that status. It inescapably follows that whatever happened to him in that hospital and during the course of that treatment had to be ‘in the course of activity incident to service.’ (Citation omitted)” (421 F.2d at 171-172.) For an excellent, detailed discussion of the unwarranted application of the rationale of the availability of veterans’ benefits under these cir- cumstances, please see The Effect of the Feres Doctrine on Tort Acts against the United States by Family Members of Service, 60 Fordham L. Rev. 1241, at 1254-1258 (May, 1982). "685 F.2d at 973. “Shults u United States, 421 F.2d 179 (6th Cir. 1969); Lowe u United States, 440 F.2d 452 (6th Cir, 1971) cert. denied 404 U.S. 833 (1971); Vallance uv. United States, 674 F.2d 1282 (6th Cir. 1978); Hall u United States, 451 F.2d 353 (1st Cir. 1971); Stansberry u. Wf iddendorf, 667 F.2d 617 (4th Cir. 1978); Woodside u United States, 606 F.2d 134 (6th Cir. 1979) cert, denied 445 U.S. 904 (1980); Henninger u. United States, 473 F.2d 814 (9th Cir. 1973) cert. denied 414 U.S, 819 (1973); Veillette u United States, 615 F.2d 506 (9th Cir. 1980); Harten u. Coons, 502 F.2d 1363 (10th Cir. 1974), cert. denied, 420 U.S. 963 (1975). ray, spe This holding was followed by the courts in Lowe, supra, and Vallance, supra. In the case at bar, had the minor’s mother, Ms. Scales, filed a lawsuit on her own behalf, her cause of action would have been dismissed on the same grounds announced in Shults, supra, Lowe, supra, and Vallance, supra, not on the grounds of military discipline as in Stencel, supra. Further- more, the court in Parker v. United States, 611 F.2d 1007 (5th Cir. 1980), stated that the military discipline factor is more relevant to the decision of whether to imply an exception than it is to the exception’s application. 611 F.2d at 1013. At bottom, in medical malpractice claims, the difference between the claim made by military personnel and that brought by a military dependent is merely a matter of status, because the medical care afforded military servicemen and their dependents has been recognized as a valuable preroga- tive incident to their service.” If the following statement made by the Court of Appeals in this case is correct: “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. See Stencel, supra, 661 F.2d at 134; Hunt, supra, 636 F.2d 599.” (685 F.2d at 973.) then the dependents of military personnel would not have been allowed to recover against the government in any of these cases because it would be necessary for the court to “second-guess” the judgment of the military officers in asses- sing their treatment of such dependents. “Costley u United States, 181 F.2d 723 (5th Cir. 1950). “Costley uv. United 3tates, 181 F.2d 723 (5th Cir. 1950) (the wife of a serviceman became permanently paralyzed because the Army doctor gave her the wrong medicine jor a spinal anesthetic during delivery); Bridgford u United States, 550 F.2d 978 (4th Cir. 1977) (retired military officer's dependent injured as a nvsult of medical malpractice); Williams u. United States, 435 F.2d 804 (1st Cir. 1970) (serviceman’s child died after being refused to military hospitai); Arrendale u. United States, 469 F.Supp. 883 (N.D. Tex. 1979) (injuries vo serviceman’s son as a result of medical malpractice); Grigalauskas u. United States, 103 F.Supp. 543 (D.Mass. (Continued on Page 15) sid MON ls In this connection, the Court of Appeals also heavily relies on Monaco uv. United States, 661 F.2d 129 (9th Cir. 1981), cert. denied, 102 U.S. 2269, (1982), in which Denise Monaco, the daughter of a serviceman, brought suit against the government to recover for permanent injuries induced by birth defects caused by a previous genetic change in her father which occurred when he was exposed to radiation while on active duty. Though the Court states that the Plaintiff is seeking relief for an injury to herself, her cause of action was entirely based on establishing that the genetic change in her father was caused by negligent acts of commission or omis- sion by the government. In other words, her injuries were caused by her father’s injuries, which, in turn, were caused by the government’s negligence. Her damages were not directly caused by the government's conduct but rather were indirectly caused. As the court points out, the focus of Monaco is ultimately on the injury to the plaintiff's father which occurred while he was on active duty. This forces the court to “...examine the government’s activity in relation to mili- tary personnel on active duty. It is this examination that the Feres doctrine seeks to avoid.” 661 F.2d at 134. The court goes on to say that although this analysis has been used to bar wrongful death claims by heirs of servicemen, and claims for genetic injuries to children caused by Agent Orange, the 4/(Continued from Page 14) 1951), aff'd, 195 F.2d 494 (1st Cir, 1952) (the dependent child of a service- man was injured by the Army doctor in the course of post-natal care at the Army hospital); Sigler vu. Le Van, 485 F.Supp. 185 (D.Md. 1980) (the widow and daughter of an Army counterintelligence agent could proceed with claims for conversion, replevin and constitutional injuries against military and non-military intelligence officers); Steele u United States, 463 F.Supp. 321 (D.Alas. 1978) (the child of a serviceman lost his eye because the Army optometrist failed to promptly advise parents of the disease the child suffered); Fournier u United States, 220 F.Supp. 752 (D.Miss. 1963) (the wife of a serviceman lost her life at an officers’ club because of the negligence of the government employees); Herring u United States,, 98 F.Supp. 69 (D.Colo. 1951) (the wife of a serviceman was injured as a patient in the Army hospital); Messer u United States,, 96 F.Supp. 512 (D.Fla. 1951) (a sergeant’s wife was injured by the negligence of the Army hospital employees); Wilson u. United States,, 76 F.Supp. 580 (D. Hawaii 1948) (a minor child of the Naval officer lost his life due to the negligence of a Naval medical corpsman); Jones u United States,, 236 F.Supp. 756 (E.D.N.C. 1964) (Serviceman’s wife injured in auto accident). oe en analysis has not been used to bar claims of civilians injured directly by military personnel. In the present case, Charles Lewis Scales was injured directly by the negligence of gov- ernment medical personnel and an examination of such con- duct has always been within the ambit of the Courts under the FTCA. How can it possibly disrupt military discipline to award an innocent baby just and adequate compensation for tragic injuries caused directly to him by the clear-cut negli- gence of medical personnel? Military discipline is simply not that fragile, especially in the realm of medical treatment, where no uniquely military concepts are at work, and where the doctor-patient relationship is not radically different from that found in civilian life. Furthermore, cases in which the Feres doctrine applied always involved injuries to military personnel. In the case at bar, however, no injuries to any military personnel are involved.'® This factual difference makes the Feres doctrine inapplicable because the authority of a decision is co-extensive only with the facts on which it is founded." It is also well established that the claims of dependents of servicemen have been regularly allowed, and the Feres doctrine has not been applied to dependents, as distinguished from the servicemen themselves who receive injury “incident to service.” Cases dealing with such claims"’ hold that a dependent who receives injuries as a result of the negligence of service personnel acting within the course and scope of their employment may pursue their remedies as granted under the FTCA, without regard to the Feres doctrine. In Texas, a child who is born alive and survives does have a cause of action for prenatal injuries sustained at any prenatal stage.’® Logically, this means that a child, from the 165Ms. Scales was not injured by the military medical personnel. %Rutkin vu. United States, 343 U.S. 130 (1952); United States u. Neifert-White Co., 390 U.S. 228 (1968); Kemart Corp. u Printing Arts Research Lab., Inc., 232 F.2d 897 (9th Cir. 1956); W-R C. u Sova, 106 F.2d 478 (6th Cir. 1939); United States. u Brand, 79 F.2d 605 (2d Cir. 1935), cert. denied, 296 U.S. 655 (1936); C.h Mederia Co. u Commissioner of Internal Revenue, 38 F.2d 812 (6th Cir. 1930); Means u. United States, 6 F.2d 975 (2d Cir. 1925). See Note 14, supra. See Yandell vu. Delgado, 471 SW2d 569 (Tex. 1971). a time of conception, has an independent legal status from that of its mother. The unborn child has an independent cause of action against anyone who negligently injures him while he is still in the womb. In essence there are two sepa- rate and distinct causes of action existing against a tortfea- sor in the situation where a pregnant woman and a fetus are injured by the tortfeasor. This is exactly the situation which occurred in the case at bar. Here, government doctors com- mitted several acts of negligence’® and each act of negligence was a proximate cause of injury 1 himself and gave rise to an entirely independent cause of action by himself, regardless of whether his mother was also injured. Since Charles is not a serviceman and his injuries and cause of action are not derivative of or dependent upon any injury to his mother, the Feres doctrine is simply not applicable here. This conclusion is buttressed by this Court’s analysis in Stencel, supra. There the Feres doctrine was applied to bar the manufacturer from bringing in the government as a third-party defendant.” The trial court sustained the motion of the United States for summary judgment against the plain- tiff, and the motion to dismiss the cross claim. The manufac- turer appealed. The circuit court affirmed the dismissal and certiorari was granted. In affirming the dismissal, the U.S. Supreme Court held: “We conclude, therefore, that the third-party indem- nity action in this case is unavailable for essentially the same reasons that the direct action by Donham is barred by Feres. The factors considered by the Feres court are largely applicable in this type of case as well; hence, the right of a third party to recover in an indemnity action against the United States recognized in Yellow Cab, must be held limited by the rationale of Feres where the injured party is a serviceman. Since the relationship between the United States and petitioner is based on a 9E.g., (1) giving the mother a rubella shot; (2) failing to diagnose the mother’s pregnancy; (3) failing to send the mother home until the epidemic of rubella in the base was over; and/or (4) failing to consult with the mother as to the effects of the rubella on Charles Lewis Scales, who had already been conceived and was alive in his mother’s womb. See Note 7, supra. toy ae commercial contract, there is no basis for a claim of un- fairness in this result.” (341 U.S. at 673-674) (Emphasis added). In Monaco, supra, and In Re Agent Orange Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y. 1980), the Feres doctrine was also applied to bar the claims made by children of military personnel for damages for their own genetic and physical harm resulting from their parents’ chro- mosomal and genetic changes which were caused by the expo- sure to radiation or chemicals during the parents’ military service.*! This application of the “Feres doctrine” is well illus- trated by the court in In Re Agent Orange Product Liability Litigation, supra, in the following words: “Only the veterans’ children’s claim of direct injury requires additional analysis. Here, children of Vietnam veterans allege that they have suffered genetic and somatic injury as a result of a parent having been “The closest POET is Monaco v. United States, No. C 79-0860 (N.D.Cal. Nov. 2, 1979), where plaintiff, rede archi pag c-aee hw ceva ent I. her being born with a birth defect. States, slip op. at 3. There, the court held that ‘[the] test of Feres is whether plaintiff's injuries have as their genesis injuries allegedly sustained incident to the per- formance of military service’, slip op. at 3, and found saree yar barred under this rsondr because ‘ py, the United bar Saber " Slip be ume be "But see Hinkie vu. United States, 524 F.Supp. 227, 279, 285 (E.D. pa. 1981). —_" ye “In the cove ot bes, Se chilicaih Sietena of senate faeries aieed by the children had their eng in the exposure of their parents and, assuming that Agent Orange could produce the genetic changes alleged, the injuries were inflicted on the serviceman at the time of exposure. Thus, although Agent Orange may ultimately be found to have caused injuries in subsequently con- ceived children, those injuries, nevertheless, arose out of and were incident to the service of the parent. To hold otherwise might open the door for governmental liabil- ity to countless generations of claimants having ever diminishing genetic relationship to the person actually injured.” (Emphasis added) (506 F.Supp. at 781) The claims mentioned in the above-cited cases were trig- gered by the servicemen’s injuries. If there had been no injury to the servicemen, then the children would not have been in- jured and would have had no cause of action. In these cases the servicemen’s injuries were the origin of the lawsuits. The children’s lawsuits, as well as their injuries, were entirely de- rivative of the servicemen’s injuries. These cases therefore contained the two essential elements of the Feres doctrine. In the present case, however, Charles’ injuries were in no way derivative of any injury to his mother, but rather were the direct result of the negligence of Air Force medical per- sonnel toward him. In fact — the critical fact — the mother, Ms. Scales, was not injured. Stated another way, Charles has an independent ground of recovery because he was directly injured by the medical personnel’s negligence. His cause of action is not dependent on establishing either that his mother was injured or that the government was negligent in the medical care and treatment of his mother. Such issues are irrelevant to Charles’ cause of action t acause he was in exist- ence and present at the time of the medical treatment of his mother and such treatment was received by him directly, resulting in the terrible injuries and damages at hand. There- fore, in accordance with Texas law,” and the intent of the FTCA, Charles is entitled to seek redress from his govern- "See Note 2, supra. = ment as would any other civilian or military dependent. The significunce, for purposes of the Feres doctrine, of Charles’ independent cause of action for medical malpractice is best illustrated by a comparison of two series of cases: in the first group of cases it has been consistently held that a claim for medical malpractice by a serviceman is barred under Feres, because of his military status.” By contrast, a second group of cases holds that similar medical malpractice claims brought against the government by minor dependents of servicemen are not barred by Feres, despite the claimants’ relation to the military.™ Accordingly, if a servicewoman and her child were both admitted to a military hospital for treat- ment and each was injured due to the negligence of military medical personnel, Feres would bar only the mother’s action, not the child’s. Likewise, a fetus who necessarily accompan- ies his servicewoman mother for treatment at a military hos- pital, and is himself negligently injured as a result, has a cause of action which is not barred by Feres. In addressing the breadth to be given this exception to the FTCA, it bears mention that the Feres doctrine has been uniformly and cogently criticized by courts* and commenta- tors*, The criticism is summarized in Hall vu. United States, 528 F.Supp. 963 (D.N.J. 1981). In dismissing a medical mal- practice action as barred by the Feres doctrine, the district court took the occasion to criticize the Feres doctrine, which precluded a serviceman’s action against another member of the armed forces where the injury arose out of or was inci- dent to his military service. The court found fault with the See Note 12, supra. “See Arrendale, Grigalauskas, Steele, and Wilson, Note 14, supra. See Parker, supra, 611 F.2d at 1010-11; Monaco, supra, 661 F.2d at 132; Veillette, supra Note 9, 615 F.2d at 507; Thomason vu. Sanchez, 539 F.2d 955, 957 (3rd Cir. 1976), cert. denied 429 U.S. 1072 (1977). *Note, The Supreme Court and the Tort Claims Act: End of an Enlightened Era?, 27 Clev.St.L.Rev. 267 (1978); Note, Stencel Aero Engi- neering Corp. u. United States: An Expansion of the Feres Doctrine to Include M uitary Contractors, Subcontractors, anci Suppliers, 29 Hastings L.J. 1217 (1978); Note, From Feres to Stencel: Should M‘litary Personnel Have Access to FTCA Recovery? 77 Mich.L. Rev. 1099 (1979). Note, The Effect of the Feres Doctrine on Tort Acts Against the United States by Family Members of Servicemen, 50 Fordham L.Rev. 1241 (May 1982). = 91 — various rationales advanced to support Feres, initially noting that decisions subsequent to Feres justified the doctrine as necessary to maintain military discipline, whereas Feres itself makes no mention of a possible detriment to discipline. Another reason advanced to support Feres — that no private right of action should exist because of the “distinctly feder- al” relationship between a soldier and the government — was criticized by the court as being equally applicable to many other government agencies against which private actions are allowed. Also, the court noted that an argument often advanced in support of Feres is that there is no analogous private right of action, and since the FTCA limits govern- ment liability to instances where an analogous private right of action exists, Feres is consistent with the FTCA. However, the court criticized this argument, stating that it is suffi- cient that an analogous private right of action is conceivable. Finally, the court argued that in determining whether mili- tary immunity should apply, a distinction should be drawn | between acts which only the military can perform, such as combat operations, and acts such as medical care, which are routinely performed by civilians. In summary, the factual situation in this case at bar is essentially different from that in Feres, supra; Stencel, supra; Monaco, supra, and In Re Agent Orange, supra. Nothing in the rationale of Feres supports, let alone compels, the Court of Appeals’ destruction of a civilian’s independent cause of action to seek compensation for the staggering injuries he received as a result of the negligence of military physicians. “There is no justification for this Court to read exceptions into the Act [FTCA] beyond those provided for by Congress.” Rayonier, Inc. v. United States, 352 U.S. 315, 320 (1957). As stated by this Court in United States u. Yellow Cab Co., 340 U.S. 543 (1950) as follows: “The Federal Tort Claims Act waives the Govern- ment’s immunity from suit in sweeping language. It unquestionably waives it in favor of an injured per- son....” (340 U.S. at 547.) Under these circumstances, it would be an unprecedent- ed, unjustified extension of the Feres doctrine to bar recov- ery in this case. ole ON saat CONCLUSION The Petition for Writ of Certiorari should be granted for the reasons set out above. Respectfully submitted, L. TONNETT BYRD BYRD, DAVIS & EISENBERG 707 West 34th Street Austin, Texas 78705 (512) 454-3751 BOB GIBBINS GIBBINS, BURROW & BRATTON Post Office Box 1452 Austin, Texas 78767 "ZI: » * BOB GIBBINS ATTORNEYS FOR PETITIONER eS CERTIFICATE OF SERVICE I hereby certify that on this/# day ot panting. 1988, I served the foregoing Petition for Writ4f Certiorfiri to the United States Court of Appeals for the Fifth Circuit by mailing, via certified mail, return receipt requested, three copies, to: Solicitor General \ Department of Justice Washington, — 4p 4 r BOB GIBBINS SOO w> on ON and APPENDICES Opinion of the Court of Appeals. District Court’s Memorandum of Findings of Fact and Conclusions of Law. District Court’s Amended Order. District Court’s Judgment. Fifth Circuit's Judgment. Fifth Circuit’s Order Denying Petitioner's Suggestion for Rehearing En Banc. a APPENDIX A Judy Renee SCALES, As Next Friend of Charles Lewis Scales, Plaintiff-Appellee, UNITED STATES of America, Defendant-Appellant. No, 81-1367, United States Court of Appeals, Fifth Circuit. Sept. 13, 1982. Plaintiff infant sued the United States under Federal Tort Claims Act alleging that he was born with congenital rubella syndrome as a result of negligent medical treatment that his mother received during her basic training for service in the Air Force. The United States District Court for the Western District of Texas, Jack Roberts, J., rendered judg- ment against the United States, and the Government ap- pealed. The Court of Appeals, Thornberry, Circuit Judge, held that claim was barred by Feres, notwithstanding that infant had an independent cause of action under state tort law. REVERSED. 1. United States 78(16) Infant plaintiff's Federal Tort Claims Act suit based on alleged negligent medical treatment of his then pregnant mother during her basic training for service in the Air Force was barred by the Feres doctrine, notwithstanding that the on who was born with congenital rubella syndrome, had t cause of action under state tort law for wrong- ful life. 28 U.S.C.A. §§1346, 2671-2680. 2. United States § 78(16) If a claim falls within the Feres exception to the we’ . of tort liability under Federal Tort Claims Act, the = urt lacks jurisdiction. 28 U.S.C.A. §§1346, 2671-1680. my ye Edward C. Prado, U.S. Atty., San Antonio, Tex., Eloise E. Davies, Barbara B. Price, Robert S. Greenspan, Attys., Civ. Div., Dept. of Justice, Washington, D.C., for defendant- appellant. Gibbins & Wash, Bill Zook, Bob Gibbins, Yii-Chwen (Francis) Pan, L. Tonnett Byrd, Austin, Tex., for plaintiff- appellee. Appeal from the United States District Court for the Western District of Texas. Before THORNBERRY, JOHNSON and GARWOOD, Circuit Judges. THORNBERRY, Circuit Judge: Charles Lewis Scales, an infant, sued the United States through his mother, Judy Renee Scales, as next friend under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§1346, 2671-1680, alleging that he was born with congenital rubella syndrome as a result of the negligent medical treatment his mother received during her basic training for service in the Air Force. Charles alleged three instances of negligent con- duct. First, he claimed that Air Force medical personnel were negligent in administering a rubella vaccination to his mother without determining first whether she was pregnant. They were negligent a second time in failing to ascertain whether his mother was pregnant when she later contracted rubella. And finally, they were careless in failing to send for her medical records, which indicated that she had been diagnosed “probable rubella,” once it was discovered that she was pregnant. [1] Having denied the government's motion to dismiss based on Feres u. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the district-court accepted each of Charles’ contentions and entered judgment against the United States in the amount of $625,000. The government continues to insist on this appeal that Charles’ claim is barred by the Feres doctrine, which prohibits lawsuits brought by service- men under the FTCA when the injuries involved in the law- suit arise out of activities incident to military service. Id. at 147, 71 S.Ct. at 159. The government also argues, in the alternative, that the district court clearly erred in finding that a vaccination was administered during Ms. Scales’ basic ey training and that state tort law, in any event, will not sup- port a damage award based on a wrongful life theory. We hold that Charles’ claim against the government is barred by Feres as a matter of law. Consequently, our discussion of the facts need only be brie‘, and we find it unnecessary to reach the government's alternate points of error. When Judy Renee Scales was inducted into the United States Air Force on June 27, 1977, and assigned to undergo basic training at Lackland Air Force Base in San Antonio, she was unaware that she was approximately one month pregnant. During her basic training, Lackland AFB experi- enced an outbreak of rubella. Rubella is an infectious dis- ease, commonly known as German measles, that may cause permanent injury to an unborn fetus, particularly if it is contracted in the first trimester of pregnancy. Ms. Scales believes that she received a rubella vaccination as part of the battery of inoculations given all recruits during basic train- ing. This vaccination, allegedly administered to Ms. Scales while she was pregnant, is claimed to have resulted in Charles’ congenital rubella syndrome. The government insists that there is no evidence, other than hearsay, to support the con- clusion that Ms. Scales received a rubella vaccination during her basic training. Furthermore, assuming that Ms. Scales was vaccinated against rubella, the government argues that there is no evidence demonstrating a causal connection between a rubella vaccination administered to the mother and congenital rubella syndrome in the child. On July 25, 1977, Ms. Scales was hospitalized at Lack- land AFB with complaints of nausea, stiff joints, and a rash. A physician in the dispensary diagnosed her symptoms as “probable rubella,” but neither informed Ms. Scales of the diagnosis nor made any effort to determine whether she was pregnant. When Ms. Scales completed her basic training at the end of August 1977, she was transferred from Lackland AFB to Keesler Air Force Base in Biloxi, Mississippi. One month later she discovered that she was nineteen weeks preg- nant. The Air Force physician treating Ms. Scales during her pregnancy never requested her medical records from Lack- land, even though he administered two rubella titer tests that indicated Ms. Scales’ exposure to rubella at some point in the past. Unfortunately, the tests cannot pinpoint accu- ow as rately when a rubella infection has occurred unless the infec- tion is acute, which was not Ms. Scales’ case. Ms. Scales was discharged from the Air Force in December, 1977, because of her pregnancy. On March 21, 1978, she gave birth to Charles Lewis Scales. Charles suffers from several congenital! defects, including cataracts, a heart murmur, possible neurological damage, respiratory problems, growth deficiencies, and pos- sible mental and physical retardation. Expert testimony at trial agreed that Charles’ defects are characteristic of congen- ital rubella syndrome resulting from his mothers’ exposure to rubella during the early stages of her pregnancy. Ms. Scales maintains that if she had known about the “probable rubella” diagnosis and the effect of rubella on an unborn child, she would have aborted the fetus she was carrying. Thus, the basic thrust of Charles’ theory of damages is that but for the negligence of Air Force medical personnel he would never have been born. The question we must address, however, is not whether Charles presents a supportable legal theory, but whether the court below had jurisdiction to con- sider his claim. [2] The FTCA provides that the United States shall be liable for tort claims “in the same manner and to the same extent as a private individual under like circumstances. 28 U.S.C. §2674. While this act “waives the Government’s immunity from suit in sweeping language,” United States v. Yellow Cab Co., 340 U.S. 543, 547, 71 S.Ct. 399, 402, 95 L.Ed. 523, 528 (1951), several statutory and judicial excep- tions limit the Government’s waiver of immunity. Among these is the exception for liability for injuries incident to military service. In Feres, supra, the Supreme Court enunci- ated what has come to be known as the Feres doctrine, which renders the United States “not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 147, 81 S.Ct. at 159. If a claim falls within the Feres 'This Court explained the evolution of the Feres doctrine from Brooks u United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), to the present in Parker u United States, 611 F.2d 1007, 1009-1011 (5th Cir. 1980). See also Woodside u United States, 606 F.2d 134, 138-42 (6th Cir. 1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980); Citizens National Bank of Wankegan vu. United States, 594 F.2d 1154, 1156-58 (7th Cir. 1979). oh MN tis exception to the waiver of tort liability, this Court lacks jurisdiction to hear the case. United States v. Orleans, 425 US. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390, 398 (1976); Monaco v. United States, 661 F.2d 129, 13: (9th Cir. 1981), cert. denied, U.S. —_.._. , 103 S.Ct. 2269, 73 L.Ed.2d (1982). The Supreme Court clarified and reaffirmed the ration- ale underlying the Feres doctrine in Stencel Aero Engineer- ing Corp. v. United States, 431 U.S. 666, 671, 97 S.Ct. 2054, 2057-58, 52 L.Ed.2d 665, 670 (1977). First, the Court rea- soned that it would be inconsistent with the distinctively federal nature of the relationsh » between the federal gov- ernment and its servicemen to make the governments liabil- ity dependent upon the fortuity of where the soldier happened to be stationed at the time of the injury, as would result under the FTCA since it requires the law of the state where the act or omission occurred to govern liability. Id. at 671, 97 S.Ct. at 2058. Second, the Court noted that Congress pro- vided a special remedy for servicemen in passing the Veter- ans’ Benefits Act, 38 U.S.C. 301-1008 (1976 & Supp. 1978), which creates a “no fault” compensation scheme as a substi- tute for tort liability for service-related injuries. A tort claim under the FTCA, such as Charles’ see Monaco, supra, 661 F.2d at 138, could circumvent the limitation established by the act and “judicially admit at the back door that which has been legislatively turned away at the front door.” Id. 431 U.S. at 673, 97 S.Ct. at 2059 quoting, Laird u Nelms, 406 U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499 (1972). [3] While these two prongs of the rationale underlying the Feres doctrine are recognized frequently in cases discus- sing the rule, see, e.g., Johnson uv. United States, 631 F.2d 34, 35-36 (5th Cir. 1980), cert. denied, 451 U.S. 1018, 101 S.Ct. 3007, 69 L.Ed.2d 389 (1981); Parker, supra, 611 F.2d at 1011; Daberkow v. United States, 581 F.2d 785, 787-88 (9th Cir. 1978), the third predicate for application of the doctrine stands out as the most important consideration in any single case. It is the concern for preserving military discipline. United States v. Muniz, 374 U.S. 150, 162, 88 a CE 1850, 1858, 10 L.Ed.2d 805 (1963); Hunt v. United States, 636 F.2d 580, 599 (D.C.Cir. 1980). The Supreme Court explained the focus of pay Ye this concern in Sfencel: “(t}he peculiar and special relation- ship of the soldier to his superiors, the effects of the mainte- nance 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 commit- ted in the course of military duty.’” 431 U.S. at 672-73, 97 S.Ct. at 2058, quoting United States u. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954). The need to preserve military discipline, standing alone, can justify dis- missal of suits arising out of activities incident to military service even when there was no command relationship between the claimant and the individual tort-feasor. Monaco, supra, 661 F.2d at 132. as the Supreme Court did in Stencel and as the Ninth Circuit did in Monaco, supra, 661 F.2d at 133-34, we hold that Feres bars Charles’ claim for recovery. Feres previour.y has been applied to bar suits brought by non- military personnel. Two of the three cases involved in Feres were brought by widows of servicemen. The Court in Stencel relied on Feres to prohibit an action brought by a third party indemnity plaintiff. 431 U.S. at 673, 97 S.Ct. at 2059. In Monaco, a case very similar to the one before us, the Ninth Circuit held that Feres barred a claim by an infant who alleged that the government’s negligence caused chromosomal and genetic changes in her father which in turn caused her to be born with a serious birth defect. 661 F.2d at 130. Contrary to appellee's assertion, then, the fact that Charles was not on active duty at the time of the injury does not foreclose appli- cation of the Feres doctrine, nor does it matter that Charles has an independent cause of action under state tort law. Id. at 134. Stencel and its progeny direct our inquiry to the manner in which the policies underlying Feres are affected — specifically the impact on military discipline — rather than to the status of the claimant. The policies that support the Feres doctrine clearly would preclude Charles’ mother from bringing suit against the United States based on the negligent medical treatment she received while on active duty in the Air Force. Two of the claims rejected in Feres were based on allegations of medical malpractice. Moreover, this Court has held repeatedly since Feres that claims based on medical malpractice fall within wis ME id the bounds of the Feres doctrine when the plaintiff was a serviceman on active duty at the time of the alleged mal- practice. Stanley vu. Central Intelligence Agency, 639 F.2d 1146, 1150 (5th Cir. 1981); Vallance uv. United States, 574 F.2d 1282, 1283 (5th Cir.), cert. denied, 439 U.S. 965, 99 S.Ct. 453, 58 L.Ed.2d 423 (1978); Shults v. United States, 421 F.2d 170 (5th Cir, 1969). See also Veillette u United States, 615 F.2d 505, 507 (9th Cir. 1980). These cases tell us not only that Ms. Scales is barred from suit but also that the medical treat- ment administered to Ms. Scales was incident to military service. Thus, the only question that remains is whether a suit initiated by Charles would have the same disruptive effect on military discipline as a suit brought by his mother. In asking this question, courts will focus on the type of examination that will be demanded of the district court. If the court must second-guess the judgment of military officers in assessing their treatment of a member of the armed ser- vices, the claim will be deemed to have a disruptive effect on discipline and will be dismissed. See Stencel, supra, 431 U.S. at 674, 97 S.Ct. at 2059; Monaco, supra, 661 F.2d at 134; Hunt, supra, 636 F.2d at 599. If we accept the argument that a suit brought by Charles’ mother would tend to undermine military discipline, which we must since it is the law, then it is impossible to see how the result should be different if Charles sues the government instead. Appellee attempts to escape Feres by relying on those cases that allow dependents of servicemen to recover for negligent medical treatment they received in the hands of army medical personnel, e.g., Costley uv. United States, 181 F.2d 723, 726. (Sth Cir. 1950); Grigalauskas v. United States, 103 F.Supp. 543, 549 (D.Mass.1951), aff'd, 195 F.2d 494 (1st Cir. 1952), and by insisting that Monaco is distinguishable on the ground that Denise Monaco’s claim “derived” from her father’s claim. We find appellee's arguments unpersuasive. In cases that allow the dependents of servicemen to sue the government, the negligent conduct is directed to the dependent alone and does not involve any decisions by the military toward enlisted personnel. Charles’ allegations of negligence by contrast focus entirely on the medical treat- ment that Air Force physicians gave his mother. The treat- ment accorded his mother is inherently inseparable from the din IE Ni treatment accorded Charles as a fetus in his mother’s body. tly, 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. See Broudy v. United States, 661 F.2d 125, 127 (9th Cir. 1981). Furthermore, though Monaco may be distinguished superficially as appellee suggests, the Ninth Circuit in that case did not rest its decision on the fact that the infant plaintiff's claim lacked an independent ground of recovery. In fact, Judge Nelson noted specifically that Denise sought relief for injury to herself, “but this does not change the substantive analysis: the court still must examine the Gov- ernment’s activity in relation to military personnel on active duty.” Monaco, supra, 661 F.2d at 134. As we have noted already, the medical treatment involved in this case was administered to Charles’ mother while she was on active duty. Whether it constitutes negligence with respect to Charles cannot be determined without requiring the court to second- guess military judgment in a manner inconsistent with the concern for military discipline that underlies the Feres doctrine. For the foregoing reasons we are compelled, however reluctantly, to reverse the judgment of the district court and dismiss the claim as barred by Feres. We are not blind to the tragedy of Charles’ condition and we regret the effects of our conclusion. Nevertheless, we are not writing on a clean slate. Though the rationale underlying Feres has been criticized by courts, e.g., Monaco, supra, 661 F.2d at 132; Parker, supra, 611 F.2d at 1010-11, and commentators, see, e.g., ‘'ote, From Feres to Stencel: Should Military Personnel Have Access to FTCA Recovery? 77 Mich.L.Rev. 1099 (1979), it remains the law to which we must adhere. REVERSED. a APPENDIX B UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION CIVIL ACTION NO. A-79-CA-70 UNITED STATES OF AMERICA, Defendant. MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW This is a personal injury action filed by Judy Renee Scales as next friend for her minor son, Charles Lewis Scales, seeking damages for Charles Lewis Scales under the provi- sions of the Federal Tort Claims Act, 28 U.S.C. 2671, et seq. At all times material herein, Judy Renee Scales, a single woman, was an active member of the United States Air Force. On March 21, 1978, Judy Renee Scales gave birth to Charles Lewis Scales who was severely afflicted with congenital rubella syndrome. As a result of this syndrome, he is physically and mentally retarded, he has hearing and vision impairments, heart murmur, and respiratory and blood supply dysfunc- tion, all of which are of a permanent nature. He has already undergone open heart surgery and two surgical procedures on his right eye for rubella cataracts. In all probability he will require custodial care throughout his life and will never be employable. Judy Renee Scales was inducted into the United States Air Force on June 27, 1977. As a basic training inductee at the Lackland Air Force Base, she received a rubella or German measles vaccination from Air Force medical personnel some- time between June 27 and July 25, 1977. On July 25 she was hospitalized at Lackland Air Force Base and on July 26, 1977 she was diagnosed as having “probable rubella”. On September 25, 1977, after having been transferred to Keesler Air Force Base in Biloxi, Mississippi, she was diagnosed as being pregnant. It is plaintiff's contention that the Air Force medical personnel at Lackland Air Force Base were negligent (1) by injecting Judy Renee Scales with a rubella or German mea- sles vaccination while she was in her first trimester of preg- nancy, (2) by failing to conduct a pregnancy test on Judy — Al0 — Renee Scales prior to administering the rubella vaccination, (3) by failing to conduct any tests which would determine Judy Renee Scales’ susceptibility to rubella or German mea- sles prior to administering the rubella vaccination and (4) by failing to make adequate inquiry of Judy Renee Scales as to whether or not she was pregnant prior to administering the rubella vaccination. The record is undisputed that if her preg- nancy had been established, no vaccination would have been given. In addition, plaintiff contends that after Judy Renee Scales was diagnosed as having “probable rubella” on July 26, 1977, the Lackland Air Force medical personnel were negligent (1) by failing to conduct a pregnancy test on Judy Renee Scales to determine if she was pregnant, (2) by failing to inform Judy Renee Scales that she had “probable rubella”, (3) by failing to inform Judy Renee Scales of the adverse affects on a fetus when the mother contracts rubella or German measles during the first trimester of pregnancy and (4) by failing to advise and offer Judy Renee Scales the option of an abortion. The record is undisputed that if the medical personnel had determined Judy Renee Scales was pregnant when she was diagnosed as having “probable rubel- la”, they would have counseled and instructed her about the adverse affects on a fetus when the mother contracts rubella or German measles during the first trimester of pregnancy and they would have instructed her concerning her options to terminate the pregnancy with an abortion. Plaintiff fur- ther contends that after Judy Renee Scales was diagnosed as being pregnant on September 25, 1977, the Keesler Air Force Base medical personnel were negligent (1) by failing to con- duct proper tests to determine if Judy Renee Scales had been infected with rubella or German measles during her preg- nancy, (2) by failing to obtain Judy Renee Scales’ medical records from Lackland Air Force Base which would have revealed that she had been diagnosed as having “probable rubella”, (3) by failing to inform Judy Renee Scales of the adverse affects on a fetus when the mother contracts rubella or German measles during the first trimester of pregnancy and (4) by failing to advise and offer Judy Renee Scales the option of an abortion. Again, the record is undisputed that if the medical personnel had determined that Judy Renee Scales had recently been infected with “probable rubella” when she — All — was diagnosed as being pregnant, they would have informed and counseled her concerning the adverse affects on a fetus when the mother contracts rubella or German measles during the first trimester of pregnancy and they would have coun- seled her concerning her options to terminate the pregnancy with an abortion. It is Judy Renee Scales’ contention that had she been informed of the severe consequences of having rubella or German measles during the first trimester of preg- nancy, she would have aborted any diagnosed pregnancy. It is Judy Renee Scales’ further contention that she was never informed that “probable rubella” had been diagnosed in July of 1977 and that she first discovered that fact on January 8, 1980 when plaintiff’s attorneys were furnished with medical records from Lackland Air Force Base. The Government denies that Judy Renee Scales received a rubella or German measles vaccination while stationed at Lackland Air Force Base and further denies that the medical personnel at Lackland Air Force Base or Keesler Air Force Base were negligent in any respect. The Government further contends that plaintiff cannot now complain of any acts of alleged negligence on behalf of the medical personnel at Lackland Air Force Base or Keesler Air Force Base (other than the injection of Judy Renee Scales with a rubella or German measles vaccination between June 27 and July 25, 1977) because plaintiff did not refer to such conduct when his administrative claim (Standard Form 95) was filed. Indeed the record establishes that no such complaint was possible at the time plaintiff’s administrative claim was pending. The record reveals that prior to initiating the admin- istrative claims procedure, plaintiff's personal physician requested Judy Renee Scales’ medical records from the Gov- ernment but in complying with this request the Government failed to include the records from Lackland Air Force Base dated July 26, 1977 with the diagnosis of “probable rubella”. It was not until January 8, 1980, after the appropriate admin- istrative agency had denied plaintiff's claim and after this suit was files that Government attorneys discovered the omis- sion and furnished the appropriate records to plaintiff's coun- sel. — Al2 — Based upon the record herein established, the Court enters the following Findings of Fact and Conclusions of Law: A. FINDI Ai 1. Judy Renee Scales received a rubella or German mea- sles vaccination at Lackland Air Force Base between June 27, 1977 and July 25, 1977. 2. At the time Judy Renee Scales received this vaccina- tion she was in her first trimester of pregnancy with Charles Lewis Scales. 3. As a proximate result of Judy Renee Scales receiving this vaccination, Charles Lewis Scales was born with con- genital rubella syndrome. 4. At all times material herein, the medical personnel at Lackland Air Force Base and at Keesler Air Force Base were acting for and on behalf of the United States of America and within the course and scope of their employment by the United States of America. 5. Between June 27, 1977 and July 25, 1977, the medical personnel at Lackland Air Force Base were negligent in the following respects: (a) In administering a rubella or German measles vaccination to Judy Renee Scales while she was in her first trimester of pregnancy. (b) In failing to conduct a pregnancy test on Judy Renee Scales prior to administering the rubella or German measles vaccination. 6. After Judy Renee Scales had been diagnosed as having “probable rubella”, the medical personnel at Lackland Air Force Base were negligent in the following respect: (a) In failing to conduct a pregnancy test on Judy Renee Scales. 7. After Judy Renee Scales had been diagnosed as being pregnant, the medical personnel at Keesler Air Force Base were negligent in the following respects: (a) In failing to obtain Judy Renee Scales’ medical records from Lackland Air Force Base which showed that she had been diagnosed as having “probable rubella” during her pregnancy. — Al3 — (b) In failing to conduct proper tests to determine if Judy Renee Scales had been infected with rubella or German measles during her pregnancy. 8. Each of the negligent acts and omissions listed above was a proximate cause of Charles Lewis Scales being born with congenital rubella syndrome. 9. If Judy Renee Scales had been properly informed of the adverse effects on a fetus in cases where the mother contracts rubella or German measles during the first trimes- ter of pregnancy, and if she had been counseled and offered the option of an abortion, she would have elected to have an abortion. 10. The defendant United States of America has not been prejudiced in any way by plaintiff's inability to allege in his Administrative Claim Form 95 the allegations of negli- gence subsequently made by plaintiff and about which the defendant has complained. 11. As a direct and proximate result of being afflicted with congenital rubella syndrome, Charles Lewis Scales has sustained the following damages: (a) Medical and custodial expenses which in reason- able medical probability will be incurred in the future after he attains the age of eighteen years which are necessary for the proper treatment and care of his condition and reasona- ble in amount for the services rendered — $400,000.00. (b) Pain, suffering and mental anguish which in rea- sonable medical probability he will sustain in the future after he attains the age of eighteen years — $200,000.00. (c) Loss of capacity to work and earn money which in reasonable probability he will incur in the future after he attains the age of eighteen years — $25,000.00. B. CONCLUSIONS OF LAW 1. Plaintiff, Charles Lewis Scales, is entitled to recover judgment against defendant United States of America based upon the Government's negligence as stated in Findings of Fact No. 5 (a) and (b), each of which acts of negligence was a proximate cause of his being born with congenital rubella syndrome. — Al4 — 2. Plaintiff, Charles Lewis Scales, is also entitled to recover judgment against defendant United States of Amer- ica based upon the Government’s negligence as stated in Findings of Fact No. 6 (a) and No. 7 (a) and (b), each of which acts of negligence was a proximate cause of his mother not terminating her pregnancy and of Charles Lewis Scales being born with congenital rubella syndrome. 3. The defendant United States of America is not ei:ti- tled to any offset of the damages granted herein to plaintiff by reason of the fact this his mother, Judy Renee Scales, is presently married to a member of the United States Armed Forces. 4. Charles Lewis Scales is entitled to recover of and from the defendant, United States of America, the sum of $625,000.00. 5. The Clerk of the Court is hereby ordered to enter Judgment accordingly. Entered on this the day of , 1981, at Austin, Texas. JACK ROBERTS Senior United States District Judge — Alb — APPENDIX C UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION JUDY RENEE SCALES, AS NEXT § FRIEND OF CHARLES LEWIS SCALES, Plaintiff, V. CIVIL ACTION NO. A-79-CA-70 UNITED STATES OF AMER.CA, Defendant. AMENDED ORDER It having come to this Court’s attention on the Court's own motion that a typographical error was committed in this Court’s Memorandum of Findings of Fact and Conclusions of Law entered June 9, 1981, the Court hereby ORDERS pursuant to Federal Rule of Civil Procedure 60(a) that the Court’s Findings of Fact number eleven (11) is amended to read as follows: 11. As a direct and proximate result of being afflicted with congenital rubella syndrome, Charles Lewis Scales has sustained the following damages: (a) Medical and custodial expenses which in reason- able medical probability will be incurred in the future after he attains the age of eighteen years which are necessary for the proper treatment and care of his condition and reasona- ble in amount for the services rendered — Four Hundred Thousand Dollars ($400,000.00). (b) Pain, suffering and mental anguish which in rea- sonable medical probability he will sustain in the future after he attains the age of eighteen years — Twenty-Five Thou- sand Dollars ($25,000.00). (c) Loss of capacity to work and earn money which in reasonable probability he will incur in the future after he attains the age of eighteen years — Two Hundred Thousand Dollars ($200,000.00). ANN LN LM LP — Al6 — The remainder of the order of June 9, 1981 remains in full force and effect as originally ordered. ENTERED on this the 12th day of June, 1981 at Austin, Texas. JACK ROBERTS Senior United States District Judge — Al7 — APPENDIX D UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION JUDY RENEE SCALES, AS NEXT § FRIEND OF CHARLES LEWIS SCALES, Plaintiff, CIVIL ACTION NO. A-79-CA-70 V. UNITED STATES OF AMERICA, Defendant. This action came on for trial before the Court, Honorable Jack Roberts, United States District Judge, presiding and the issues having been duly tried and a decision having been duly rendered, It is ORDERED and ADJUDGED that Plaintiff, Charles Lewis Scales, is entitled to recover of and from the defendant, United States of America, the sum of Six Hun- dred Twenty-five Thousand dollars ($625,000.00). Dated at Austin, Texas, this 9th day of June, 1981. AMNMMNM MM CHARLES W. VAGNER Clerk of Court By: Sally Looke, Deputy — Als — APPENDIX E UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 82-2467 D. C. Docket No. A-79-CA-70 JUDY RENEE SCALES, as next friend of CHARLES LEWIS SCALES, Plaintiff-Appellee, versus UNITED STATES OF AMERICA, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas Before THORNBERRY, JOHNSON and GARWOOD, Cir- cuit Judges. JUDGMENT This cause came on to be heard on the record on appeal, and was argued by counsel; ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court that the judgment of the said District Court in this cause be, and the same is hereby, reversed ; It is further ordered that plaintiff-appellee pay to defendant-appellant, the costs on appeal to be taxed by the Clerk of this Court. September 13, 1982 — Al9 — APPENDIX F IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 81-1367 JUDY RENEE SCALES, as next friend of CHARLES LEWIS SCALES, Plaintiff-Appellee, versus UNITED STATES OF AMERICA, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas ON SUGGESTION FOR REHEARING EN BANC (Opinion 09/13/82, 5 Cir., 198 ® F.2d ). ( October 19, 1982 ) Before THORNBERRY, JOHNSON and GARWOOD, Cir- cuit Judges. PER CURIAM: ( ) ‘Treating the suggestion for rehearing en banc as a petition for panel rehearing, it is ordered that the petition for panel rehearing is DENIED. No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc (Rule 16), the Cy a ee ) ‘Treating the suggestion for rehearing en banc as a Sail maueea chai the petition for panel rehearing is DENIED. The judges in regular active service of this Court having been polled at the request of one of said judges ep and a majority of said judges not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16), the suggestion for Rehearing En Banc is DENIED. ENTERED FOR THE COURT: United States Circuit Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0306%3A1. Public record. Not legal advice.