No. 15-488
IN THE
Supreme Court of the United States
____________________________________
JORGE ORTIZ, AS NEXT FRIEND AND
PARENT OF I.O., A MINOR,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
____________________________________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Tenth Circuit
BRIEF OF AMICI CURIAE RETIRED UNITED
STATES MILITARY PERSONNEL IN
SUPPORT OF PETITIONER
ELLIOT H. SCHERKER
Counsel of Record
Greenberg Traurig, P.A.
333 Southeast
2nd Avenue, Suite 4400
Miami, Florida 33131
Counsel for Amici Curiae
i
TABLE OF CONTENTS
INTERESTS OF AMICI CURIAE .............................. 1
SUMMARY OF ARGUMENT ..................................... 3
ARGUMENT ................................................................ 5
A. Introduction. ..................................................... 5
B. The History of the Feres Doctrine and
Its Inconsistent Application by the
Circuit Courts. .................................................. 7
1. The Feres doctrine. ...................................... 7
2. The genesis test. .......................................... 9
C. The Circuit Split Undermines the
Effectiveness of the Administrative
Claims Process. ............................................... 13
D. Feres’ Application to Bar Claims of
Children of Servicewomen Injured In
Utero Undermines Military Discipline
and Morale. ..................................................... 17
CONCLUSION .......................................................... 22
ii
TABLE OF AUTHORITIES
Federal Cases
In re: Agent Orange Product Liability
Litigation,
818 F.2d 201 (2d Cir.1987) .................................... 9
Bravo v. United States,
403 F. Supp. 2d 1182 (S.D. Fla.
2005), vacated on other grounds, 532
F.3d 1154 (11th Cir. 2008) ..................................... 9
Brown v. United States,
348 U.S. 110 (1954) ................................................ 7
Burgess v. United States,
744 F.2d 771 (11th Cir.1984) ................................. 8
Callaway v. Garber,
289 F.2d 171 (9th Cir. 1961) ................................ 17
Costley v. United States,
181 F.2d 723 (5th Cir. 1950) .................................. 8
DeFont v. United States,
453 F.2d 1239 (1st Cir. 1972)................................. 9
Feres v. United States,
340 U.S. 135 (1950) ........................................ 5, 6, 7
Grigalauskas v. United States,
103 F. Supp. 543 (D. Mass. 1951),
aff’d, 195 F.2d 494 (1st Cir. 1952) ......................... 8
Hall v United States,
451 F.2d 353 (1st Cir. 1971)................................. 17
Herring v. United States,
98 F. Supp. 69 (D. Colo. 1951) ............................... 8
Hinkie v. United States,
715 F.2d 96 (3d Cir. 1983) ..................................... 9
iii
Jaffe v. United States,
663 F.2d 1226 (3d Cir. 1981)................................ 18
Lanus v. United States,
133 S. Ct. 2731 (2013) ............................................ 8
Matthew v. United States,
452 F. Supp. 2d 433 (S.D.N.Y. 2006) ................... 10
Minns v. United States,
155 F.3d 445 (4th Cir. 1998) ................................ 10
Mondelli v. United States,
711 F.2d (3d Cir. 1983) ........................................ 21
Ortiz v. United States,
786 F.3d 817 (10th Cir. 2015) .............................. 12
Portis v. United States,
483 F.2d 670 (4th Cir.1973) ................................... 9
Rayonier, Inc. v. United States,
352 U.S. 315 (1957) ................................................ 7
Romero v. United States,
954 F.2d 223 (4th Cir. 1992) .................................. 8
Roush v. United States,
752 F.2d 1460 (9th Cir. 1985) ................................ 7
Scales v. United States,
685 F.2d 970 (5th Cir. 1982) ................................ 10
Stencel Aero Eng’g Corp. v. United States,
431 U.S. 666 (1977) ...................................... 7, 9, 13
United States v. Johnson,
481 U.S. 681 (1987) ...................................... 7, 8, 13
United States v. Shearer,
473 U.S. 52 (1985) .................................................. 7
United States v. Stanley,
483 U.S. 669 (1987) .............................................. 17
iv
Wareing v. United States,
943 F. Supp. 1504 (S.D. Fla. 1996) ........................ 9
Federal Statutes
28 U.S.C. § 1346(b) ...................................................... 6
28 U.S.C. § 2401(b) .................................................... 13
28 U.S.C. §§ 2671-80 ................................................... 6
28 U.S.C. § 2675(a) .................................................... 13
28 U.S.C. § 2675(b) .................................................... 13
28 U.S.C. § 2680(a) .................................................... 21
28 U.S.C. § 2680(j) ..................................................... 21
28 U.S.C. § 2680(k) .................................................... 21
Other Authorities
Barry Bennett, The Feres Doctrine,
Discipline and the Weapons of War,
29 ST. LOUIS U. L.J. 383 (1985) ...................... 18, 20
Maj. Deidre G. Brou, Alternatives to the
Judicially Promulgated Feres
Doctrine, 192 MIL. L. REV. 1 (2007) ............... 17, 19
Jennifer Carpenter, Military Medical
Malpractice: Adopt the Discretionary
Function Exception as an Alternative
to the Feres Doctrine, 26 U. HAW. L.
REV. 35, (2003).......................................... 17, 20, 21
In Military Care, a Pattern of Errors but
Not Scrutiny, New York Times, June
28, 2014................................................................. 12
v
Kristy Kamarck, Women in Combat:
Issues for Congress, Congressional
Research Service, Sept. 1, 2015 ............................. 4
W. Keeton, D. Dobbs, R. Keeton & D.
Owen, PROSSER AND KEETON ON
TORTS 20 (5th Ed. 1984) ....................................... 19
Geoffrey Leder, The Feres Doctrine,
Negligent Prenatal Care, and Injuries
to the Children of Pregnant Military
Servicewomen: Brown v. United
States, 76 U. CIN. L. REV. 1043 (2008) ................ 11
Richard W. McKee, Defending an
Indifferent Constitution: The Plight
of Soldiers Used as Guinea Pigs, 31
ARIZ. L. REV. 633 (1989) ....................................... 18
Peggy Miller, An Ounce of Immunity
Prevents a Pound of Lawsuits:
Medical Malpractice and Military
Mothers, 70 U DET. MERCY L. REV.
327 (1993) ............................................................. 11
Eileen Patten and Kim Parker, Women
in the U.S. Military: Growing Share,
Distinctive Profile, December 22,
2011 (available at
http://www.pewsocialtrends.org/2011/
12/22/women-in-the-u-s-militarygrowing-share-distinctive-profile/) ........................ 4
Jonathan Turley, Pax Militaris: The
Feres Doctrine and the Retention of
Sovereign Immunity in the Military
System of Governance, 71 GEO.
WASH. L. REV. 1 (2003) ........................... 5, 8, 17, 19
vi
U.S. DEPARTMENT OF JUSTICE EXECUTIVE
OFFICE FOR UNITED STATES
ATTORNEYS, UNITED STATES
ATTORNEYS’ ANNUAL STATISTICAL
REPORT, FISCAL YEAR 2013 32 (2014) .................. 14
Jennifer Zyznar, Feres Doctrine: “Don’t
Let This Be It. Fight!, 46 J.
MARSHALL L. REV. 607 (2013) .............................. 19
INTERESTS OF AMICI CURIAE
Amici are former members of the United States
military or Department of Defense.1 They each
possess extensive experience with military issues
generally and the impact of the Feres doctrine in
particular. Amici are well versed in and understand
the importance of military discipline. Indeed, it is
protection of that interest that motivates Amici to
file. One Amici, Technical Sergeant Sandra Timmons
(USAF, Ret.), knows firsthand the impact that the
Feres doctrine can have on discipline and morale of
servicewomen whose children are injured in utero as
a result of medical negligence. Sergeant Timmons
delivered a son at Fort Walton Medical Center in
Walton Beach, Florida. Her son was injured as a
result of medical negligence during labor and delivery
and as a result he now suffers from a permanent
brain injury.
Fortunately, Sergeant Timmons
delivered her son in a Circuit that does not apply the
genesis test and her son was able to resolve his claim
on the merits instead of being locked out of the
courthouse by Feres.
Major General Charles E. Tucker (USAF, Ret.)
joined the United States Air Force in 1979 and served
in the Judge Advocate General’s Corps. His duties
included assignments in Germany and Turkey and
faculty positions at the United States Air Force
Academy. General Tucker has served as the Legal
and Economic Advisor for the High Representative
The parties have consented to the filing of this brief, and
letters confirming such consent have either been lodged with the
Clerk or accompany this brief. No counsel for a party authored
this brief in whole or in part, and no person or entity other than
amicus curiae or its counsel made a monetary contribution
intended to fund the preparation or filing of this brief.
1
2
for Bosnia and Herzegovina, the Military Legal
Advisor for the United States Ambassador to Iraq,
Senior Legal Advisor for the General Counsel of the
Department of Defense, and Senior Legal Advisor for
United Nations Training Assistance Teams in
Central Asia. Prior to retiring in 2009, General
Tucker served on the joint staff of the National
Guard Bureau as the Director of Doctrine, Training
and Force Development, where he developed training
programs to ensure that joint units of the National
Guard are ready to respond to their homeland
defense and homeland security missions.
Brigadier General Peter Masciola (USAF, Ret.)
has over 30 years of distinguished military service in
both the Regular and Reserve Air Force. General
Masciola led a 168-person joint interagency team of
attorneys, paralegals, intelligence analysts, criminal
investigators, linguists, and Department of State
personnel, conducting Law of Armed Conflict
operations, hearings, and staff training at the U.S.
and Afghan Detention Facilities at Bagram Air Base.
General Masciola is also an attorney with over 30
years of experience. He served as the Branch Chief of
the US Air Force Medical Claims and Tort Litigation
Division, and is a former Medical Law Consultant
(General Counsel) at two USAF Medical Centers.
General Masciola has also represented military
officers and enlisted personnel from all ranks and
specialties.
Lieutenant Colonel Clarence Lee (USAF, Ret.) is a
graduate of the Air Force Academy, Air Command &
Staff College, and the Air War College. Lt. Colonel
Lee worked in the Pentagon as the Chief of the
Logistics Operations Planning Branch, Directorate of
3
Logistics, Deputy Chief of Staff, Logistics,
Installations and Mission Support, where he was
responsible for synchronizing logistics initiatives
across the Air Staff to support troops in the field. Lt.
Colonel Lee has served in multiple combat operations
and he helped rescue children from the Pentagon
during the attacks on September 11.
Professor Ed Dorn is a former Assistant Secretary
of Defense under President Clinton and a former
Dean of the LBJ School for Public Affairs at the
University of Texas. While with the Department of
Defense (DOD), Professor Dorn was responsible for
policies governing recruitment, pay and benefits for
the DOD’s total force of more than three million
military personnel and civilians. He also exercised
authority, direction, and control over the Defense
Health Program, the Dependent Schools System, the
Defense Equal Opportunity Management Institute
and the Defense Manpower Data Center.
SUMMARY OF ARGUMENT
The Circuit Courts of Appeals are deeply split as
to whether the Feres doctrine and the “genesis test”
bar the claims of servicewomen’s children who are
injured in utero as a result of military medical
negligence. The Court should grant certiorari to
resolve this Circuit split because it perpetuates two
unreasonable burdens and undermines the very
purpose and objectives of Feres.
First, the Circuit split undermines the efficiency
and uniformity of the administrative claims process
under the Federal Tort Claims Act because it
encourages the government to resolve or deny claims
based on geography, i.e., where a servicewoman was
4
stationed or gave birth, rather than on the merits of a
claim.
This methodology of resolving claims
undermines the goal of uniformity sought by Feres
and needlessly increases the complexity and cost of
the claims review process.
Second, the Circuit split undermines military
discipline because it punishes servicewomen for their
biology by denying their children an avenue for relief
while simultaneously recognizing the validity of
identical claims of children born to civilian women
who are married to servicemen. Moreover, the Tenth
Circuit’s application of the genesis test to bar claims
of servicewomen’s children is not supported by Feres
or its military discipline justification. Denying such
claims actually undermines military discipline
because it subjects the most innocent of victims to the
Feres bar, even though those victims are civilians.
Any system that tolerates injuries to civilian children
or treats them differently based solely on the service
status of their parents, inevitably undermines
military discipline because it sanctions results that
are fundamentally at odds with any conception of
justice.
5
ARGUMENT
THE SUPREME COURT SHOULD GRANT
CERTIORARI
TO
PROVIDE
NECESSARY
GUIDANCE REGARDING THE APPLICATION OF
FERES TO CLAIMS BY CIVILIAN CHILDREN OF
SERVICEWOMEN INJURED IN UTERO AS A
RESULT OF MEDICAL NEGLIGENCE
A. Introduction.
In 1917, Loretta Walsh became the first woman to
enlist in the U.S. military.2 Since then, the number
of women enlisting in the military has grown
dramatically.3 In fact, since the United States ended
conscription in 1973, the number of women serving in
the active duty military has skyrocketed, while total
enlistment has fallen sharply.4 As of 2013, there
were more than 200,000 active duty servicewomen,
including 69 generals and admirals.5
Women join the military for the same reason as
men: for love of country. Valor has no gender.
While women like Major Heather Ortiz are
serving their country in growing numbers, they
continue to face unique hardships as a result of this
Court’s decision in Feres v. United States, 340 U.S.
135 (1950), and, more specifically, its application to
See http://americacomesalive.com/2011/03/03/loretta-walsh1896-1925/#.Vh7d-01OVbU.
3 See Kristy Kamarck, Women in Combat: Issues for Congress,
Congressional Research Service, Sept. 1, 2015.
4 See Eileen Patten and Kim Parker, Women in the U.S.
Military: Growing Share, Distinctive Profile, December 22, 2011
(available at http://www.pewsocialtrends.org/2011/12/22/womenin-the-u-s-military-growing-share-distinctive-profile/).
5 See http://www.cnn.com/2013/01/24/us/military-women-glance/.
2
6
bar claims of servicewomen’s children who are
injured in utero as a result of medical negligence.
Remarkably, if these brave women were wives of
enlisted men, instead of service members themselves,
then the law indisputably would recognize the
validity of their children’s claims.
As Petitioner notes in his application for
certiorari, the Circuits are deeply split on this issue.
That split imposes substantial burdens on
servicewomen and their families because it
undermines the efficiency and effectiveness of the
administrative procedures governing military claims
and erodes the goal of uniformity in the claims
handling process. Second, this split is adversely
affecting military morale and discipline because it
signals to servicewomen that their military service is
legally burdened by the unavoidable consequences of
gender.
The Court should grant certiorari to resolve this
split, and either overrule Feres outright or clarify
that Feres does not bar claims of children who are
injured in utero as a result of medical negligence.
For most servicewomen, “the basic option of military
health care is the only program that they have or can
afford.” Jonathan Turley, Pax Militaris: The Feres
Doctrine and the Retention of Sovereign Immunity in
the Military System of Governance, 71 GEO. WASH. L.
REV. 1, 43, n.298 (2003). Denying certiorari will only
perpetuate a fractured, discriminatory, and
burdensome system that is fundamentally at odds
with America’s most basic governing principles.
7
B. The History of the Feres Doctrine and Its
Inconsistent Application by the Circuit Courts.
1. The Feres doctrine.
Historically, the government has enjoyed
sovereign immunity against claims for injuries
caused by government employees. In 1946, however,
the Congress enacted the Federal Tort Claims Act
(FTCA) to provide an avenue of relief to such injured
persons by making the government liable “in the
same manner and to the same extent as a private
individual under like circumstances,” subject to 13
exceptions to that waiver of immunity. 28 U.S.C.
§§1346(b), 2671-80 (2006).
The Feres doctrine is an additional, judicially
created exception to the FTCA. In Feres, the Court
held that members of the armed services cannot
assert claims under the FTCA “where the injuries
arise out of or are in the course of activity incident to
service.” Feres, 340 U.S. at 146. The Court outlined
three rationales for this “incident to service”
exception: (1) the intent to extend parallel private
liability to government employees could not be met
when no such liability scheme existed for servicemen
under state tort law; (2) concern that leaving military
personnel to proceed with FTCA claims under state
tort law would interfere with the distinctive federal
relationship between the government and military
personnel; and (3) the existence of the Veterans’
Benefit Act (“VBA”) compensation system for service
members. Id. at 141-45. Four years later, in Brown
v. United States, 348 U.S. 110 (1954), the Court
expanded these rationales to include protecting
military discipline. Id. at 112.
8
Over Feres’ 65-year history, its original three
rationales have eroded. The parallel private liability
rationale was rejected outright in Rayonier, Inc. v.
United States, 352 U.S. 315, 319 (1957). The Court
later questioned the distinct federal relationship
rationale, reformulating it into a more generic
concern for the military’s need for uniformity.
Compare Feres, 341 U.S. at 142-43 with Stencel Aero
Eng’g Corp. v. United States, 431 U.S. 666, 672
(1977); see also United States v. Johnson, 481 U.S.
681, 695-96 (1987) (Scalia, J., dissenting) (describing
federal relationship rationale of Feres as “absurd,”
“peculiar” and “unpersuasive”).
Feres’ third
rationale, the existence of compensation through the
VBA, was invalid from the beginning, since Congress
never indicated that the VBA was an exclusive
remedy and because, in cases of injury by civilians,
military personnel are permitted to recover VBA
benefits and proceed under the FTCA. See Johnson,
481 U.S. at 697; United States v. Shearer, 473 U.S.
52, 58 n.4 (1985) (describing veterans’ compensation
reasoning for Feres as “no longer controlling”). The
later explained justification of protecting military
discipline now serves as the “best” justification
prohibiting liability under the FTCA. See Johnson,
481 U.S. at 698 (Scalia, J., dissenting) (citations
omitted); Roush v. United States, 752 F.2d 1460,
1463 (9th Cir. 1985).
“[A]cademics and lower courts have condemned
the [Feres] doctrine as unfounded, unfair, and even
un-American.” See Turley, supra, at 2. In Johnson,
481 U.S. 681, four members of the Court joined
Justice Scalia’s dissent declaring that “Feres was
wrongly decided and heartily deserves the
‘widespread, almost universal criticism’ it has
9
received.”
Id. at 700 (Scalia, J., dissenting)
(quotation omitted). Justice Thomas recently joined
this chorus of criticism and has urged that “[a]t a
bare minimum, [Feres] should be reconsidered.”
Lanus v. United States, 133 S. Ct. 2731 (2013)
(Thomas, J., dissenting from denial of certiorari).
2. The genesis test.
While Feres bars claims for injuries that are
incident to service, family members of military
personnel may generally assert claims under the
FTCA for their own direct injuries. In fact, service
members themselves may recover under the FTCA
for consequential damages resulting from an injury to
a spouse or child. Costley v. United States, 181 F.2d
723, 724-25 (5th Cir. 1950); Grigalauskas v. United
States, 103 F. Supp. 543, 549 (D. Mass. 1951), aff’d,
195 F.2d 494 (1st Cir. 1952). As one court explained,
“it cannot be stated as a matter of law that where a
civilian obtains entrance to a government hospital,
because a member of her family is in the military
service … any injury she might suffer as a patient in
that hospital arises out of or is incidental to the
military service.” Herring v. United States, 98 F.
Supp. 69, 70 (D. Colo. 1951). As a result, civilian
courts routinely handle cases involving military
negligence. E.g., Romero v. United States, 954 F.2d
223 (4th Cir. 1992); Burgess v. United States, 744
F.2d 771 (11th Cir.1984); Portis v. United States, 483
F.2d 670 (4th Cir.1973); Bravo v. United States, 403
F. Supp. 2d 1182 (S.D. Fla. 2005), vacated on other
grounds, 532 F.3d 1154 (11th Cir. 2008); Wareing v.
United States, 943 F. Supp. 1504, 1545 (S.D. Fla.
1996).
10
While claims for direct injury by civilians are
permitted against the military, Feres bars derivative
lawsuits, such as claims by family members for loss
of consortium or mental anguish, that arise out of an
injury to a service member. E.g., DeFont v. United
States, 453 F.2d 1239, 1240 (1st Cir. 1972). In
Stencel, this Court applied a similar analysis to bar
third-party indemnity claims in what has become
known as the “genesis test.” 431 U.S. at 673. There,
the Court held that a third-party manufacturer sued
by a service member who was injured when the
ejection system on his aircraft malfunctioned could
not allege a claim for indemnity against the United
States because the genesis of the claim was injury to
a service member incident to service and therefore
the suit implicated the very same concerns identified
in Feres. Id.
Numerous courts have applied Feres and Stencel
to preclude suits by third parties for claims that have
their genesis in injuries incurred by service members
incident to service. For example, the Second Circuit
held in In re Agent Orange Product Liability
Litigation, 818 F.2d 201 (2d Cir.1987), that Feres
bars “a suit for damages occasioned by activities that
are not meaningfully separable from a protected
discretionary function” of the military. Id. at 204;
accord Minns v. United States, 155 F.3d 445 (4th Cir.
1998) (relying on Feres to bar claims brought by the
wives of servicemen on behalf of their children
alleging that their husbands’ exposure to toxins and
pesticides in anticipation of biological or chemical
attacks by Iraq caused their later conceived children
to be born with serious birth defects); Hinkie v.
United States, 715 F.2d 96, 98 (3d Cir. 1983) (holding
that Feres bars action against United States for birth
11
defects allegedly caused by military’s negligence in
exposing serviceman to harmful levels of radiation);
Matthew v. United States, 452 F. Supp. 2d 433
(S.D.N.Y. 2006) (holding that Feres bars claim by
daughter of serviceman for injuries allegedly suffered
as the result of her father’s exposure to radioactive
depleted uranium while serving in Iraq). As one court
has explained, “If the non-serviceman’s suit is based
on essentially the same facts as the potential
serviceman’s suit or the non-serviceman’s suit could
not have happened but for the serviceman’s cause of
action, then under the genesis principle the Feres
doctrine precludes suit.” Minns, 155 F. 3d at 449.
Here, the Tenth Circuit applied the genesis test to
bar Petitioner’s claims. Like other courts, it applied
the genesis test because treatment given to a mother
is “inherently inseparable” from the treatment given
to the child in utero. See, e.g., Scales v. United
States, 685 F.2d 970, 974 (5th Cir. 1982). This
rationale, however, is based on biology, not science,
medicine, or common sense. “The distinction between
injury to the service woman personally and injury to
her unborn child does not withstand even modest
scrutiny. … Childbirth is the natural process
following nine months of symbiosis between a woman
and a fetus. When something goes wrong before
birth, a physician is presented with two patients
whose interests are intertwined and interdependent.”
Peggy Miller, An Ounce of Immunity Prevents a
Pound of Lawsuits:
Medical Malpractice and
Military Mothers, 70 U DET. MERCY L. REV. 327, 328
(1993).
The genesis test is intended to apply only to
claims that arise from the same concerns underlying
12
Feres, which is why purely derivative claims,
indemnity claims, and tort claims premised on
military decisions impacting troops are barred. The
basis of each such claim is uniquely distinct from a
servicewoman giving birth at a domestic military
hospital to a child who is injured in utero during
labor and delivery. The tenuousness of the “but for”
connection underlying this misapplication of the
genesis test has been rejected by courts for decades,
given that children of enlisted men have always been
allowed to assert claims notwithstanding that their
mothers gained access to such military care only as a
“but for” result of their husbands’ military service.
The “incident to service” analysis should not be any
different when the child’s mother is in the military.
Servicewomen should not be unfairly burdened
because of the unavoidable consequences of biology.
Instead, “the genesis test must be applied in
conjunction with the Feres rationales.” See Geoffrey
Leder, The Feres Doctrine, Negligent Prenatal Care,
and Injuries to the Children of Pregnant Military
Servicewomen: Brown v. United States, 76 U. CIN. L.
REV. 1043, 1063 (2008).
Given the controversy and confusion that
surrounds Feres, Circuits have taken different
approaches in applying Feres to claims by children of
servicewomen who suffer injuries in utero.
As
Petitioner explains in detail in his Petition, the Fifth,
Sixth, Ninth, and D.C Circuits have applied the
genesis test to bar claims for prenatal injuries,
although more recent decisions from courts in the
Fifth, Sixth and D.C. Circuits have declined to
dismiss such claims. Similarly, the First, Fourth,
Seventh, Eighth, and Eleventh Circuits also have
declined to dismiss claims brought by servicewomen’s
13
children who suffered prenatal injuries, some
expressly rejecting the application of the genesis test.
In this case, the Tenth Circuit, relying on the
military discipline rationale, joined those courts
applying the genesis test to bar prenatal injury
claims. See Ortiz v. United States, 786 F.3d 817, 822
(10th Cir. 2015).
This Circuit split imposes
substantial burdens on the administrative claims
process and undermines military discipline and
morale.
C. The Circuit Split Undermines the Effectiveness of
the Administrative Claims Process.
The Circuit split undermines Feres’ rationale of
protecting the federal relationship between the
government and its service members because the
government must handle the claims of identically
situated injured children entirely differently, based
solely on where the child’s mother was stationed or
gave birth. This is strikingly unfair to both the
children and their mothers who cannot choose their
medical providers or where they will deliver their
children.6
One of Feres’ primary concerns was
“unfairness to the solider of making his recovery turn
upon where he was injured, a matter outside his
control.”
Johnson, 481 U.S. at 695 (Scalia, J.,
dissenting). In Stencel, this Court noted that “it
would make little sense to have the Government’s
liability to members of the Armed Services depend
upon the fortuity of where the soldier happened to be
This is especially disturbing because a 2012 analysis by the
Department of Defense found that babies born at military
hospitals are twice as likely to be injured during delivery than
newborns nationwide. In Military Care, a Pattern of Errors but
Not Scrutiny, New York Times, June 28, 2014 at A1.
6
14
stationed at the time of injury.” 431 U.S. at 671. The
Circuit split in applying Feres to prenatal injuries
has created this very injustice.
The Circuit split in applying Feres also imposes a
significant administrative burden on the federal
government. The FTCA requires a potential plaintiff
first to submit a written claim to the relevant federal
agency. 28 USC §2675(a)(2000). Among other items,
the written claim must specify a sum certain for
damages, which caps any damages sought in
litigation. Id. at §§ 2401(b), 2675(b). The agency
then has six months to investigate and possibly settle
the claim. Id. at §2675(a). The plaintiff cannot file
suit until the claim is denied or six months has
lapsed. Id.
When assessing prenatal medical negligence
claims for administrative settlement under the FTCA
and the inconsistent application of Feres, the federal
government must consider where the child’s injury
occurred. Again, if the servicewoman mother was
treated or gave birth within one of the Circuits that
has applied the genesis test to prenatal injuries, the
government is likely to deny the claim as barred by
Feres. But if the mother was treated or delivered in
one of the Circuits that has rejected the genesis test
for prenatal injuries, then the government will likely
consider settling the claim. Thus, there can be no
uniformity in the military’s treatment of claims by its
servicewomen – the complete opposite of what Feres
was intended to accomplish.
FTCA medical malpractice claims already
constitute a disproportionate percentage of the
administrative claims and lawsuits that the military
15
must resolve each year. The Executive Office for
United States Attorneys (EOUSA) has stated that
FTCA medical malpractice actions against the federal
government “are some of the most time consuming
and substantively complex defensive cases the Civil
Divisions handle.” U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS,
UNITED STATES ATTORNEYS’ ANNUAL STATISTICAL
REPORT, FISCAL YEAR 2013 32 (2014). In fact, the
EOUSA has specifically identified “negligent Ob/Gyn
services resulting in lifelong harm or death to a baby
and/or the mother” as the most serious and complex
cases it must defend. Id. In 2013, United States
Attorneys’ Offices resolved 456 medical malpractice
cases brought under the FTCA, totaling over $207
million in payments to plaintiffs. Id. And the
EOUSA anticipates that defense of medical
malpractice actions will continue to demand
significant time and resources from its attorneys. Id.
at 33.
FTCA medical malpractice claims not only cost
government personnel resources, they also cost more
money to resolve than other military-related claims.
As of the 2014 fiscal year, FTCA claims accounted for
less than 6% of administrative claims resolved by the
military branches and/or the Department of Defense.7
This is taken from the Bureau of the Fiscal Service, U.S.
Department of Treasury,
Judgment Fund summary of
payments and settlements made to claimants in Fiscal Year
2014 (October 1, 2013 through September 30, 2014). Available
at https://jfund.fms.treas.gov. (hereinafter, “Judgment Fund
Summary”).
During this time period there were 1,117
administrative claims resolved against the three military
branches (Departments of Army, Air Force and Navy) and/or the
Defense Department. Of these claims, 66 were claims for
medical malpractice subject to the FTCA.
7
16
But FTCA medical malpractice claims accounted for
41% of the payments made by the military branches.8
The median payment on a military FTCA medical
malpractice claim was 21 times that of the median
payment on the collective administrative claims
against the military.9
The inconsistency across the Circuits in applying
Feres will undoubtedly lead to more denials of claims
by servicewomen who will then seek judicial relief.
Once in the court system, these claims become even
more expensive and time-consuming. In fiscal year
2014, FTCA medical malpractice claims accounted for
10% of the total lawsuits resolved against the
military branches and/or the Defense Department
and 10% of the total payments made resolving those
lawsuits.10 Most notably, the median payment on an
FTCA medical malpractice lawsuit against the
military branches was almost nine times higher than
the median payment of a similar claim resolved in
the administrative process.11 The inevitable increase
in prenatal medical malpractice lawsuits due to the
In Fiscal Year 2014, the military branches paid $27,111,230 to
resolve administrative claims, and FTCA medical malpractice
claims accounts for $11,131,655 of these payments. Judgment
Fund Summary, supra.
9 In Fiscal Year 2014, the median payment on military branch
administrative claims was $5,872 while the median payment on
military branch FTCA medical malpractice claims was
$105,000. Judgment Fund Summary, supra.
10 In Fiscal Year 2014, 339 lawsuits against the military
branches were resolved, 33 of these involved FTCA medical
malpractice claims against the military branches. Judgment
Fund Summary, supra.
11 In Fiscal Year 2014, the median payment on a military
branch FTCA medical malpractice lawsuit was $490,000, while
the median payment on a military branch FTCA medical
malpractice claim resolved at the administrative level was only
$105,000. Judgment Fund Summary, supra.
8
17
inconsistent application of Feres and the growing
number of women in the armed services will only
exacerbate this discrepancy, and cost the government
more to resolve these claims. Clarification of the
government’s liability under the FTCA to children of
servicewomen suffering prenatal injuries would
enable both these children and the federal agencies
assessing their claims to resolve them more quickly
and more efficiently, thereby driving more resources
to compensation rather than litigation.
D. Feres’ Application to Bar Claims of Children of
Servicewomen Injured In Utero Undermines
Military Discipline and Morale.
Although protecting military discipline and
morale remains the preeminent rationale for the
Feres doctrine, this justification is inapplicable to
claims on behalf of children of servicewomen injured
as a result of medical negligence. These children are
civilians; they never enlisted and therefore lack any
“peculiar and special relationship” with the military.
Further, refusing to recognize the legitimacy of the
claims of these children can only negatively affect
military discipline and morale.
Permitting suits on behalf of children of
servicewomen injured by medical negligence does not
– in any way – implicate the discipline concerns
underlying Feres. While many doctors and medical
professionals may outrank their patients, their
“medical orders” are not like military orders, because
military patients are not obligated to follow them.
See
Jennifer
Carpenter,
Military
Medical
Malpractice:
Adopt the Discretionary Function
Exception as an Alternative to the Feres Doctrine, 26
18
U. HAW. L. REV. 35, 53-54 (2003). Moreover, “military
physicians rarely, if ever, serve as commanders or
leaders.” Maj. Deidre G. Brou, Alternatives to the
Judicially Promulgated Feres Doctrine, 192 MIL. L.
REV. 1, 56 (2007). Regardless of the theoretical
justifications surrounding the military discipline
rationale, it is undisputed that injured children of
servicemen whose civilian wives give birth in military
hospitals are already bringing such claims. The same
doctors, medical staff, medical decisions and orders
are implicated in these lawsuits, and yet there is a
complete absence of evidence suggesting that these
suits have had any impact on military discipline over
the last six decades. This fact alone establishes the
empirical falsity of the military discipline rationale.
Brou, supra, at 68-69.
The military discipline rationale is highly
generalized and outcome-determinative; it is
supported by assumption and not empirical evidence.
Turley, supra, at 17. Indeed, it is so tautological that
some courts apply it even when there is admittedly
no actual threat to military discipline. See Hall v
United States, 451 F.2d 353, 353 (1st Cir. 1971);
Callaway v. Garber, 289 F.2d 171, 173-74 (9th Cir.
1961). In its broadest application, the judiciary’s
dogmatic recitation of the military discipline
rationale has led to troubling outcomes. See, e.g.,
United States v. Stanley, 483 U.S. 669, 707 (1987)
(Brennan, J. dissenting) (noting that “absent a
showing that military discipline is concretely (not
abstractly) implicated by [a servicemember’s] action,
its talismanic invocation does not counsel hesitation
in the face of an intentional constitutional tort, such
as the Government’s experimentation on an
unknowing human subject”); Jaffe v. United States,
19
663 F.2d 1226, 1248-1250 (3d Cir. 1981) (Gibbons, J.
dissenting) (admonishing military officials who
“acting without legal authority and with no sufficient
legitimate military or other purpose conducted a
human experiment upon soldiers … by exposing them
to radiation which those officials knew to be
dangerous”); Richard W. McKee, Defending an
Indifferent Constitution: The Plight of Soldiers Used
as Guinea Pigs, 31 ARIZ. L. REV. 633 (1989) (arguing
that Feres has been used to exploit service members
by permitting them to be unlawfully used as
unknown test subjects for human experimentation
involving radiation and dangerous drugs such as
LSD); Barry Bennett, The Feres Doctrine, Discipline
and the Weapons of War, 29 ST. LOUIS U. L.J. 383,
409 (1985) (“Courts have considered only one side of
the equation, and their precepts justify obedience to
even the most palpably illegal and unjust orders.
Soldiers have a duty to disobey clearly illegal orders;
but Feres doctrine’s discipline is the discipline of My
Lai. It is the discipline of Auschwitz”).
In the context of suits by injured children of
servicewomen, the judiciary’s blind adherence to the
military discipline rationale is promoting tragedy.
Tort liability is not merely compensatory; it serves as
a catalyst to improve processes and, by extension,
safety. “The prophylactic factor of preventing future
harm has been quite important in the field of torts.”
Brou, supra, at 33 (quoting W. Keeton, D. Dobbs, R.
Keeton & D. Owen, PROSSER AND KEETON ON TORTS
20 (5th Ed. 1984)). The reverse is also undoubtedly
true; the absence of liability likely discourages the
military from undertaking remedial measures that
would serve to protect civilian children from in utero
injuries during labor and delivery. E.g., Turley,
20
supra, at 4, 47-48 (arguing that the absence of
liability has the systemic effect of encouraging
malpractice and noting that “the level of malpractice
and negligence in the military appears much higher
than in the private sector”).
The unavoidable consequence is not merely a
system that tolerates injuries to children of
servicewomen but the perpetuation of an unjust
system that promotes such injuries in the first place.
This system undermines military discipline and
morale because it leaves servicewomen and military
families questioning the moral legitimacy of the
military and it causes others to question whether
joining the military is a threat to the safety and
welfare of their children. As commentators have
repeatedly argued:
“[M]ilitary order and efficiency is undermined
when the federal government shirks legal
accountability for its negligent conduct. The
perception that those in command lack concern
for the well-being of their service members is
more likely to create distrust and low morale.”
Jennifer Zyznar, Feres Doctrine: “Don’t Let
This Be It. Fight!, 46 J. MARSHALL L. REV.
607, 621 (2013).
“Preventing a legitimate medical malpractice
suit does not create or preserve the trust
relationship in the military; it allows discipline
to erode under the guise of immunity.”
Carpenter, supra, at 53-54.
“Soldiers would not continue to sue and to
reargue cases often rebuffed in the past unless
21
they believed that the military had denied
them their just recompense. … The [military’s]
desertion of its men [and women] will not gain
their agreement with its institutional
objectives. Servicemen [and women] have been
denied relief in order to preserve a respect for
authority that already has been destroyed.”
Bennett, supra, at 407, 401.
These concerns are amplified when the injured
victims are children. In the case of Major Ortiz, her
blood pressure dropped and she was given
medication, but her child was denied oxygen to her
brain. Major Ortiz never suffered any real physical
injuries, but her child suffered a catastrophic brain
injury. The Tenth Circuit proclaimed these injuries
inherently intertwined under the genesis test and
denied her child’s claim under the pretense of
military discipline, recognizing that her child’s claim
would have been valid had Major Ortiz been the wife
of an serviceman and not a member of the military
herself. This arbitrary classification punishes our
military women for their biology. It is appalling and
unjust, and can only serve to undermine the very
discipline and morale objectives that Feres was
designed to promote.
If the Court grants certiorari and limits Feres,
there is no risk of a slippery slope. Even if the Court
concludes that Feres does not apply to prenatal
injuries to children of servicewomen caused by
medical negligence, it would not subject the military
to unknown risks. For example, if a child is injured
in utero because of his or her mother’s combat related
activities, then the FTCA would still bar such claims.
28 U.S.C. § 2680(j). Likewise, if a child is injured in
22
utero because of complications with delivery
occurring overseas, instead of in a domestic hospital,
then the FTCA would also bar that claim. 28 U.S.C.
§ 2680(k). Finally, under 28 U.S.C. § 2680(a), claims
based upon discretionary acts or omissions of the
military would be barred. The discretionary activity
exception, in particular, would limit those fetal injury
cases most likely to implicate the military discipline
concerns where the causative factor giving rise to the
injury was military policy, rather than negligence in
the delivery of medical services intended for the
benefit of the baby. See Carpenter, supra, at 65.
“Rarely does the law visit upon a child the
consequences of actions attributed to the parents.”
Mondelli v. United States, 711 F.2d at 569 (3d Cir.
1983). Feres should not apply to injuries to children
of servicewomen who are harmed in utero as a result
of medical negligence. Application of the genesis test
in these circumstances is unjust and unwarranted.
The Court should grant certiorari to resolve the
existing Circuit split and make clear that our laws
will protect the most innocent of victims whether
they are injured because their mother is married to a
person who has the courage to serve or if their
mother herself has displayed such courage.
CONCLUSION
Amici respectfully urge the Court to accept
certiorari to resolve the existing circuit split and
either overrule Feres outright or clarify that Feres
does not apply to children’s medical malpractice
claims against the government alleging injuries
occurring in utero.
23
Respectfully submitted,
/s/ Elliot H. Scherker
ELLIOT H. SCHERKER
Counsel of Record
Greenberg Traurig, P.A.
333 Southeast
2nd Avenue, Suite 4400
Miami, Florida 33131