MILDRED IRVIN, ET AL., PETITIONERS V. UNITED STATES OF AMERICA, ET
AL.

   No. 88-150

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit

   Memorandum for the United States in Opposition

   Petitioners contend that the courts below erred in dismissing under
Feres v. United States, 340 U.S. 135, 146 (1950), their claims based
on the allegedly negligent prenatal care afforded petitioner Mildred
Irvin while she was on active duty in the United States Army.

   1. Petitioners Mildred and Silas Irvin are the parents of Quintessa
Irvin, who died in August 1984, four days after her birth.  At that
time, both Mr. and Mrs. Irvin were on active duty in the Army.  They
brought this suit under the Federal Tort Claims Act (FTCA), 28 U.S.C.
1346, 2671-2680, contending that negligent prenatal medical treatment
by the Army had led to Quintessa's premature birth and her death.
Petitioners have not alleged that Quintessa was treated negligently
following her birth.  Pet. App. A2-A3.

   The district court dismissed the complaint (Pet. App. B1-B3).  The
court first noted that, under Feres, the FTCA does not provide relief
for injuries incurred incident to military service (id. at B2).
Mildred Irvin's individual claim, the court then held, "falls squarely
into the incident to service test" (ibid.) since Feres itself involved
medical malpractice claims.  The court further concluded that
petitioners could not recover as parents and next friends for the in
utero injuries suffered by Quintessa.  The court agreed with the Fifth
Circuit's conclusion in Scales v. United States, 685 F.2d 970, 974
(1982), cert. denied, 460 U.S. 1082 (1983), another case involving in
utero injuries to the child of a servicewoman, that "the 'treatment
accorded (the) mother is inherently inseparable from the treatment
accorded . . . a fetus in (the) mother's body'" (id. at B3).

   The court of appeals affirmed (Pet. App. A1-A10).  With respect to
Mildred Irvin's individual claim, the court noted that the Ninth
Circuit had withdrawn its opinion in Atkinson v. United States, 804
F.2d 561 (1986), on which petitioners had relied, where the court
found that a servicewoman could bring suit challenging medical
treatment during pregnancy.  Following this Court's decision in United
States v. Johnson, No. 85-2039 (May 18, 1987), which reaffirmed the
rule of Feres, the Ninth Circuit held that such claims are barred by
Feres.  Atkinson v. United States, 825 F.2d 202, 206 (9th Cir. 1987),
cert. denied, No. 87-781 (Apr. 4, 1988).  The court below next noted
that "(t)wo additional circuits have also held that the servicewoman
mother's claims were barred by the Feres doctrine in analogous
prenatal care medical malpractice cases." Pet. App. A7 (citing Del Rio
v. United States, 833 F.2d 282, 286 (11th Cir. 1987), and Scales, 685
F.2d at 973).  The court held that "Ms. Irvin's individual claim is
barred under a straightforward reading of Feres" since she "was on
active duty in the United States Army during the time in question, and
the injuries to her arose out of or were in the course of activity
incident to service" (Pet. App. A7-A8).

   The court also held that Feres barred petitioners' claims brought
as Quintessa's parents and next friends.  The court noted that the
courts of appeals have generally concluded that Feres bars "claims of
dependents of servicemen where the claim has its 'genesis' in an
injury to a serviceperson incident to military service" (Pet. App.
A8).  The court adopted that test.  Like the district court, it agreed
with the Fifth Circuit's conclusion that injury to a fetus "'is
inherently inseparable from the treatment'" accorded the mother.  Id.
at A9 (quoting Scales, 685 F.2d at 974).

   2. Petitioners contend (Pet. 9) that review is warranted because
the decision below conflicts with the Ninth Circuit's decision in
Atkinson and the Eleventh Circuit's decision in Del Rio.  They also
suggest (Pet. 10) that it is contrary to this Court's decision in
Johnson.  There is no merit to those contentions.  The decision below
is fully consistent with Johnson, and the Ninth Circuit's conflicting
decision in Atkinson has been withdrawn.  While the court below did
approach the question presented differently than did the Eleventh
Circuit in Del Rio, review is not warranted to resolve that
disagreement.

   a. The courts below were plainly correct in holding that Mrs.
Irvin's individual medical malpractice claim is barred.  In Johnson,
the Court reaffirmed that "service members cannot bring tort suits
against the Government for injuries that 'arise out of or are in the
course of activity incident to service.'" Slip op. 4 (quoting Feres,
340 U.S. at 146).  As the Court noted, "the Feres doctrine has been
applied consistently to bar all suits on behalf of service members
against the Government based upon service-related injuries" and
specifically "decline(d) to modify the doctrine at this late date"
(slip op. 6-7).  The three consolidated cases decided by this Court in
Feres included two medical malpractice claims, and this Court held
that such claims are barred.  The Ninth Circuit's contrary decision in
Atkinson (804 F.2d 561), on which petitioners rely, was withdrawn
following this Court's decision in Johnson (825 F.2d at 206), so there
is no conflict in the courts of appeals.

   b. The courts below also correctly concluded that petitioners'
claims brought as Quintessa's parents and next friends are barred.  In
determining whether an injury to a dependent of a servicemember arose
"incident to service," the lower courts have generally applied what
the court below termed the "genesis" test.  That test originated in
Van Sickel v. United States, 285 F.2d 87 (9th Cir. 1960), where the
dependents of a serviceman who died following an operation at a
military hospital sought recovery for wrongful death.  The court of
appeals held that the claim was barred by Feres, even though under
state law the dependents had an independent cause of action that
accrued upon the death of their husband and father, because "its
genesis must go back to the in-service injury alleged to have been
sustained by him due to the negligence of others in the armed
services" (285 F.2d at 91).

   Under the genesis test, claims on behalf of the dependents of
service members are held not to be barred where the dependent was
himself negligently treated by military medical personnel.  See, e.g.,
Burgess v. United States, 744 F.2d 771 (11th Cir. 1984) (serviceman's
child received post-delivery injury at army hospital);  Portis v.
United States, 483 F.2d 670 (4th Cir. 1973) (malpractice suit by
serviceman's child treated in a military hospital).  However, where
the injury to a dependent derived from the treatment of a service
member, as in Van Sickel, the lower courts have held that the claim is
barred.  Thus, claims for mental anguish and loss of companionship on
behalf of dependents of service members consistently have been held to
be barred where the injury or death of the service member was
service-related.  See, e.g., De Font v. United States, 453 F.2d 1239
(1st Cir.), cert. denied, 407 U.S. 910 (1972) (barring serviceman's
wife's claim for mental anguish and child's claim for loss of
companionship);  Harrison v. United States, 479 F. Supp. 529 (D. Conn.
1979), aff'd, 622 F.2d 573 (2d Cir.) (Table), cert. denied, 449 U.S.
828 (1980) (barring wife of serviceman's claim for loss of
consortium).  Similarly, a number of courts have held that claims
based on physical injuries to dependents of military personnel caused
by the exposure of their fathers to radiation while they served in the
armed forces are barred by Feres.  See, e.g., Mondelli v. United
States, 711 F.2d 567, 569 (3d Cir. 1983), cert. denied, 465 U.S. 1021
(1984) (child's cancer allegedly caused by service member father's
exposure to radiation);  Monaco v. United States, 661 F.2d 129,
133-134 (9th Cir. 1981), cert. denied, 456 U.S. 989 (1982) (child's
genetic defects resulted from service member father's exposure to
radiation).

   The lines drawn by the lower courts through the genesis test
sensibly apply the incident to service test of Feres to cases
involving dependents.  As this Court stated in Johnson, "a suit based
upon service-related activity necessarily implicates the military
judgments and decisions that are inextricably intertwined with the
conduct of the military mission" (slip op. 9).  It would plainly make
no sense to bar a service member from bringing a negligence suit
challenging a military decision that led to an injury, while at the
same time permitting the service member's dependent to bring suit
challenging the same decision on the ground that it indirectly caused
mental anguish or physical injury to the dependent.

   Furthermore, the genesis test is a reasonable application of this
Court's decision in Stencel Aero Engineering Corp. v. United States,
431 U.S. 666 (1977).  In Stencel Aero, a military pilot, injured when
his ejection system malfunctioned, sued the manufacturer, which in
turn sued the United States.  This Court held that the manufacturer's
claim was barred because the underlying injury was suffered incident
to military service.  While, as the court below noted (Pet. App. A8),
Stencel Aero involved a derivative claim rather than a derivative
injury, that difference should lead to no different result.  The fact
that an injury was suffered incident to military service means that a
trial arising out of that injury would "involve second-guessing
military orders, and would often require members of the Armed Services
to testify in court as to each other's decisions and actions" (431
U.S. at 673), whether the suit was based on a derivative claim or a
derivative injury.

   As applied to the unusual factual situation presented here --
negligent treatment of an active duty servicewoman that allegedly
harmed her fetus, with no claim that the child suffered any
post-delivery injury -- the genesis test reasonably leads to the
result reached by the courts below and the Fifth Circuit in Scales.
Under Feres, as we have shown, a servicewoman is plainly barred from
suing on the basis of any injury to herself resulting from
malpractice.  Since any injury to the fetus necessarily resulted from
the treatment of the mother, it is, as the courts below stated,
"'inherently inseparable from the treatment'" of the servicewoman.
Pet. App. Ap, B3 (quoting Scales, 685 F.2d at 974).  Moreover, as the
court below stated, whether the claim was brought on behalf of the
mother or the child, "'the judge is placed in the position of
questioning the propriety of decisions or conduct of fellow members of
the Armed Forces,'" which "'is precisely the type of examination that
Feres seeks to avoid.'" Pet. App. A10 (quoting Scales, 685 F.2d at
974).

   c. The Eleventh Circuit followed a different approach in Del Rio,
which also arose out of allegedly negligent prenatal care of a
servicewoman.  The court did not apply the "incident to service" test
of Feres and the "genesis" test familiar in cases involving
dependents, but instead analyzed the claim in light of the various
rationales underlying the rule.  It concluded that the servicewoman
could not bring a claim on her own behalf (833 F.2d at 286) or a
wrongful death claim on behalf of her twin child who died five days
after birth (id. at 288), but could bring suit on behalf of the twin
child who lived but was injured as a result of the allegedly negligent
prenatal treatment (id. at 287).

   Review is not warranted on account of the disagreement in approach
between the decision below and the decision in Del Rio.  As an initial
matter, there is no disagreement in result since, in both cases,
claims by a servicewoman on her own behalf and on behalf of a child
who died as a result of allegedly negligent prenatal care were held to
be barred.  While, contrary to the Eleventh Circuit's decision,
application of the genesis test would lead to the result that a claim
may not be brought on behalf of a child injured as a result of
negligent prenatal care who survives, that issue is not presented
here.  Moreover, the approach in Del Rio was plainly wrong.  The
rationales underlying the rules of Feres are not factors in a test to
be applied on a case-by-case basis to determine whether a claim is
barred, yet that is how the Eleventh Circuit analyzed the case.  In
its decision in Johnson v. United States, 749 F.2d 1530 (1985),
reinstated, 779 F.2d 1492 (1986) (en banc), the Eleventh Circuit also
adopted a case-by-case approach to determine whether the suit at issue
would tend to undermine military discipline and effectiveness (749
F.2d at 1537), the primary rationale underlying the rule.  This Court
reversed, reiterating that the test is whether the injury was suffered
incident to military service (slip op. 4).  See also United States v.
Stanley, No. 86-393 (June 25, 1987), slip op. 11.  That test was
properly applied by the courts below, so review by this Court is not
warranted.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1988