Brown v. U.S.

• Decision Date: 08 September 2006
• Docket Number: No. 04-5171.,04-5171.
• Citation: 462 F.3d 609
• Parties: Timothy BROWN, individually and as next friend of Melody Brown, his minor daughter, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

462 F.3d 609

Timothy BROWN, individually and as next friend of Melody Brown, his minor daughter, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 04-5171.

United States Court of Appeals, Sixth Circuit.

Argued: March 17, 2005.

Decided and Filed: September 8, 2006.

ARGUED: Jamal K. Alsaffar, the Michael Archuleta Law Firm, Austin, Texas, for Appellant. Edward Himmelfarb, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Jamal K. Alsaffar, George J. Hanko, III, Michael E.J. Archuleta, the Michael Archuleta Law Firm, Austin, Texas, for Appellant. Robert S. Greenspan, Lowell V. Sturgill, Jr., United States Department of Justice, Washington, D.C., for Appellee.

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

DAUGHTREY, J., delivered the opinion of the court, in which CLAY, J., joined. GRAHAM, D.J. (pp. 616-620), delivered a separate dissenting opinion.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

In this appeal, brought by plaintiff Timothy Brown on behalf of his minor child, Melody, we are asked to reinstate the plaintiff's medical malpractice complaint against the United States, filed pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). That complaint was dismissed by the district court for lack of subject matter jurisdiction, under Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), as applied to prenatal injuries by this court in Irvin v. United States, 845 F.2d 126 (6th Cir.1988). Because the facts in this case are readily distinguishable from those in Irvin and do not implicate the rationales underlying the decision in Feres, we conclude that the district court does have subject matter jurisdiction over the plaintiff's complaint. We therefore reverse the judgment entered below and remand the case for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Despite the district judge's entry of an order of dismissal under Federal Rule of Civil Procedure 12(b)(6), there can be no doubt that he was fully sympathetic to the Brown family, especially to young Melody, who was born with spina bifida, allegedly as the result of malpractice on the part of a military doctor who provided prenatal care to Melody's mother, Deborah Brown, while Deborah was on active duty with the United States Navy. In April 2000, in an effort to conceive a child, Deborah had sought pre-conception counseling at her branch medical clinic. Dr. Danjoyeb Mukherjee, a Navy Lieutenant there, prescribed prenatal vitamins to Deborah, and she began taking them in anticipation of achieving a pregnancy.

The vitamins contained folic acid, which the plaintiff alleges is intended solely to prevent neural tube defects in a developing fetus. Neural tube defects can cause serious spinal cord and brain injury during the first 28 days of gestation, after which the fetal neural tube closes. Deborah's husband plaintiff Timothy Brown, later alleged in the complaint that prenatal doses of folic acid offer no scientific benefits to an expectant mother but are prescribed to ensure that there is adequate folic acid for the baby from the moment of conception onward.

In June 2000, some two months after she began taking the prenatal vitamins, Deborah Brown returned to the clinic for a regularly scheduled physical exam. She indicated on a medical history form that she and her husband were trying to conceive and that she was currently taking prenatal vitamins. Captain Leland Mills, then the senior medical officer at the clinic, purportedly recommended that she discontinue taking the prenatal vitamins. In response to this advice, her husband alleged, Deborah stopped taking the vitamins that day.

About four weeks later, Deborah conceived. After approximately one month of gestation, Deborah returned to the clinic, where she received a new prescription for prenatal vitamins containing folic acid. According to the complaint, however, the critical time period for taking folic acid had passed, and the fetus that Deborah was carrying had already suffered a neural tube defect from lack of folic acid. Melody Brown was born on March 28, 2001, and was diagnosed as having spina bifida and its neurological sequelae. Deborah Brown sustained no physical injury whatever from the effects of the negligent prenatal treatment, from her pregnancy, or from Melody's birth.

Timothy Brown brought this action against the United States on behalf of himself and his infant daughter, alleging that Dr. Mills was negligent in recommending that prenatal vitamins be discontinued and thereby failing to assure that folic acid was available for Melody's benefit from the time of her conception. In response, the United States filed a motion to dismiss the action for want of subject matter jurisdiction, contending that the Feres doctrine had created an applicable exception to the government's waiver of sovereign immunity in the Federal Tort Claims Act, one that barred Timothy Brown's suit because the injury stemmed from allegedly negligent acts by and against military personnel. The district court granted the government's motion to dismiss, and Timothy Brown now appeals.

DISCUSSION

We emphasize that in resolving the legal question presented by this appeal, we are reviewing only the district court's order of dismissal under Rule 12(b)(1). We must, therefore, treat the allegations in the complaint as true. See Evans v. Pearson Enters., Inc., 434 F.3d 839, 843 (6th Cir.2006).

The legal background of this case is well-plowed territory. The Federal Tort Claims Act permits the government to be sued for injuries caused by the negligence of government employees, acting within the scope of their employment, to the same extent that a private individual would be liable for such negligence. See 28 U.S.C. § 1346(b). This statutory provision is, nevertheless, subject to a judicially-created exception carved out in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In Feres, the Supreme Court held that the broad waiver of sovereign immunity found in the Federal Tort Claims Act does not apply to negligence actions brought by military personnel. Specifically, the Court ruled, the government "is not liable under [the Act] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. 153. The Court has since identified three rationales for the Feres exception: first, the distinctly federal nature of the relationship between the government and members of its armed forces; second, the existence of the Veterans' Benefits Act, which provides a form of no-fault compensation for injured members of the military; and, third, the special relationship of a service member to his or her superiors and "the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty."¹ United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (citations and internal quotation marks omitted).

After Feres, the Court held that the doctrine also precludes suits by third parties for claims that derive—directly or indirectly—from injuries to service members incident to military duty. See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 673, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) ("where the case concerns an injury sustained by a soldier while on duty, the effect of the action upon military discipline is identical whether the suit is brought by the soldier directly or by a third party"). See also Mondelli v. United States, 711 F.2d 567 (3d Cir.1983) (child's suit for genetic injuries caused by her father's exposure to radiation during active duty in the military barred because the injury derived from injury to her father); Lombard v. United States, 690 F.2d 215 (D.C.Cir.1982) (same).

Despite the plaintiff's argument that, in contrast to the situations in Stencel, Mondelli, and Lombard, the Feres doctrine is inapplicable in this case because Melody's injury was not derivative of any injury to her mother but was, rather, the result of negligence affecting Melody directly (albeit in utero), the district court held that it lacked jurisdiction under our ruling in Irvin v. United States, 845 F.2d 126 (1988). There we dismissed an action for negligent prenatal care given to a mother enlisted in the Army that allegedly resulted in the death of her child four days after birth. Relying on the Fifth Circuit's analysis in Scales v. United States, 685 F.2d 970, 974 (5th Cir.1982), we held in Irvin that the treatment accorded to a pregnant member of the military on active duty is inherently inseparable from that accorded to the fetus and that such a claim would therefore force a judge to question the propriety of decisions or conduct of fellow members of the military. See Irvin, 845 F.2d at 131. The district court found the Browns' case factually indistinguishable from Irvin and, therefore, dismissed the action.

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

Plaintiffs attempt to distinguish Irvin and Scales in two ways. First, Plaintiffs argue that the treatment (i.e. the failure to provide prenatal vitamins with folic acid) injured only Melody Brown, rather than her mother. Therefore, Plaintiffs maintain that Melody Brown's injury does not have its genesis in a service member's injury. Second, Plaintiffs argue that prenatal folic acid supplementation should have been provided specifically for the benefit of Melody Brown, a civilian, rather than her mother, an active duty military servicewoman, for whom the folic acid offered no benefit. Therefore, Plaintiffs argue that Melody Brown sustained a direct injury that is independent of the medical treatment her mother received.

In support of their...