Ortiz Ex Rel. I.O. v. United States

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH May 15, 2015
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

JORGE ORTIZ, as next friend and
parent of I.O., a minor,

Plaintiff - Appellant,
v. No. 13-1500
UNITED STATES OF AMERICA, by
and through Evans Army Community
Hospital,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:12-CV-01731-PAB-KMT)

Laurie M. Higginbotham, Whitehurst, Harkness, Brees, Cheng, Alsaffar &
Higgonbotham, P.L.L.C., Austin, Texas (James E. Puga, Sean B. Leventhal, and
Benjamin I. Sachs, Leventhal, Brown & Puga, P.C., Denver, Colorado, and Joseph
F. Bennett, Cross & Bennett, L.L.C., Colorado Springs, Colorado, with her on the
briefs) for Appellant.

Lowell V. Sturgill, Jr., Attorney (Stuart F. Delery, Assistant Attorney General,
John F. Walsh, United States Attorney, and Marleigh D. Dover, Attorney, with
him on the brief), Civil Division, Appellate Staff, Department of Justice,
Washington, D.C., for Appellee.

Before TYMKOVICH, EBEL, and PHILLIPS, Circuit Judges.

TYMKOVICH, Circuit Judge.
 This case requires us to consider whether the federal government is immune

from damages for injuries its agents caused to an active-duty servicewoman’s

baby during childbirth. Our resolution of the issues is controlled by the Supreme

Court’s decision in Feres v. United States, which found that military service

members were barred from bringing claims against the government under the

Federal Tort Claims Act (FTCA) for injuries incident to their military service. In

the many decades since its inception, criticism of the so-called Feres doctrine has

become endemic. That criticism is at its zenith in a case like this one—where a

civilian third-party child is injured during childbirth, and suffers permanent

disabilities.

Under the Feres doctrine, federal courts lose their subject matter

jurisdiction over claims like this because we conclude the injured child’s in utero

injuries are unmistakably derivative of an injury to her mother, an active duty Air

Force captain, who gave birth at a Fort Carson Army Base hospital. To be sure,

the facts here exemplify the overbreadth (and unfairness) of the doctrine, but

Feres is not ours to overrule. Applying controlling law, the government is not

liable under the FTCA for the claims of negligence in this case.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district

court’s decision.

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 I. Background

Captain Heather Ortiz was an active-duty service member in the United

States Air Force. In March 2009, Captain Ortiz was admitted to Evans Army

Community Hospital 1 for a scheduled Caesarean section. Complications caused

by the medical staff’s administering of drugs in preparation for the surgery caused

a precipitous drop in Captain Ortiz’s blood pressure, leading to hypotension. As a

result of Captain Ortiz’s hypotension, her baby, “I.O.,” was deprived of oxygen in

utero, leading to severe injuries.

Plaintiff here is George Ortiz, Captain Ortiz’s husband, who, as the parent

of I.O., filed a lawsuit against the United States, seeking compensation for I.O.’s

injuries, her long-term medical care, and her life-care needs. According to the

complaint, in advance of the Caesarian section, one of the hospital’s nurses gave

Captain Ortiz the trade drug Zantac, which is commonly used to prevent

aspiration of gastric acid during labor or surgery. But as was apparent in Captain

Ortiz’s hospital records, she was allergic to this drug and she suffered an allergic

reaction to the provided dose soon after it was administered. To counteract the

allergy, a doctor ordered that Captain Ortiz receive a dose of Benadryl. The

Benadryl caused an immediate drop in Captain Ortiz’s blood pressure, resulting in

1
The hospital, which is owned and operated by the government, is located
in Colorado Springs on the Fort Carson Army base and provides medical services
and benefits primarily to military personnel and retirees, and their families.

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hypotension, an injury that occurs when blood flow is inadequate to perfuse the

uterus and the placenta. Captain Ortiz’s hypotension resulted in severe injuries to

I.O., including brain trauma that caused cerebral palsy.

In addition, the complaint alleges that personnel at the hospital were

negligent in failing to scrutinize the fetal monitoring strips following Captain

Ortiz’s allergic reaction and the attendant consequences. Fetal monitoring strips

refer to the graphical representation of the fetus’s heart rate during labor. Captain

Ortiz alleges that had the hospital personnel timely reviewed the monitoring

strips, they could have prevented I.O.’s injuries.

Finally, the complaint alleges that the hospital staff members were

“negligent with regard to their care and treatment of Heather Ortiz and I.O.” See

App. at 19; see also id. at 19 ¶ 65 (“The medical care providers . . . did not

appropriately provide care and treatment concerning Heather Ortiz’s blood

pressure problem.”); id. at 21 ¶ 77 (“These Defendants deviated from the standard

of care and were negligent in . . . failing to properly monitor and treat I.O. [sic]

condition.”); id. at 19 ¶ 71 (“These providers . . . were negligent with regard to

their care and treatment of Heather Ortiz and I.O.”).

The government filed a motion to dismiss for lack of subject matter

jurisdiction, raising the bar to claims under the FTCA first established in Feres v.

United States, 340 U.S. 135 (1950). The government also moved to stay

discovery pending the district court’s decision on the motion to dismiss the

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complaint because the Feres doctrine is classified as jurisdictional and thus a

ruling could dispose of the case without any discovery.

The district court agreed with the government that plaintiff’s claims were

precluded by Feres. In doing so, the district court recognized limited authority

with respect to handling third-party Feres claims, especially those related to fetal

injuries. Nevertheless, applying each of the several standards adopted in other

circuits, and reaching the same result regardless of which it applied, the district

court found that Feres barred plaintiff’s claims related to both the negligent

dispensation of the Zantac and the Benadryl, and the observation of the fetal

monitoring strips.

II. Analysis

We address first whether the district court correctly found that it lacked

subject matter jurisdiction over plaintiff’s claims because of the Feres doctrine.

We find that the district court did not err, and, over the course of evaluating this

jurisdictional question, we further explain this circuit’s case law on the Feres

doctrine, particularly as it applies to third-party claims brought by civilians.

A. Subject Matter Jurisdiction

Because the question of subject matter jurisdiction is partially intertwined

with an aspect of the merits of plaintiff’s claims here, we proceed under a

summary-judgment standard. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.

1995). Thus, our review is de novo, and plaintiff “must present . . . evidence

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sufficient to establish the court’s subject matter jurisdiction by a preponderance

of the evidence.” Robinson v. Union Pac. R.R., 245 F.3d 1188, 1191 (10th Cir.

2001) (quoting United States ex rel. Hafter v. Spectrum Emergency Care, Inc.,

190 F.3d 1156, 1160 n.5 (10th Cir. 1999)). We can only affirm if there is no

genuinely disputed issue of material fact concerning jurisdiction. See Pringle v.

United States, 208 F.3d 1220, 1223 (10th Cir. 2000).

The question of whether sovereign immunity exists “is jurisdictional in

nature.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). “Absent a waiver, sovereign

immunity shields the Federal Government and its agencies from suit.” Id.

Although the FTCA constituted an expansive waiver of the federal government’s

sovereign immunity for torts committed by government actors, several

exemptions apply. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 218 (2008).

When an exemption applies, we revert to the baseline application of the

government’s sovereign immunity, which deprives the federal courts of

jurisdiction. See Garcia v. U.S. Air Force, 533 F.3d 1170, 1175 (10th Cir. 2008).

The Feres doctrine is one such exemption.

1. The Feres Doctrine

Since 1950, courts have analyzed tort lawsuits brought by service members

against the government under the standards set forth in Feres v. United States,

340 U.S. 135 (1950). In that case, the Supreme Court considered several lawsuits

seeking recovery for injuries or deaths of servicemen caused by the negligence of

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fellow military employees acting on behalf of the government. Each serviceman-

plaintiff contended that the broad waiver of sovereign immunity under the FTCA

provided their recourse toward recovery, even though the injuries were sustained

during activities associated with their service. Id. at 137.

The Supreme Court, however, found the FTCA does not apply in such

cases. Instead, the Court crafted a limited judicial exception to the federal

government’s broad waiver of sovereign immunity under the FTCA. Id. at 146.

In particular, the Court exempted from the scope of that statute “injuries to

servicemen where the injuries arise out of or are in the course of activity incident

to service.” Id. (emphasis added). This limitation is now known as the Feres

doctrine.

In these cases, the crucial question involved in examining whether a service

member is barred from recovery under the FTCA is resolving whether the injury

was “incident to service.” The incident-to-service test applies “consistently to bar

all suits on behalf of service members against the Government based upon

service-related injuries.” United States v. Johnson, 481 U.S. 681, 687–88 (1987).

The incident-to-service test, however, is neither self-defining nor readily

discernible from the language of Feres or Johnson.

In our application of Feres, we have explained that, regardless of its precise

contours, the incident-to-service test applies broadly:

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 In recent years, the Supreme Court has broadened Feres
to the point where it now encompasses, at a minimum,
all injuries suffered by military personnel that are even
remotely related to the individual’s status as a member
of the military. Courts applying the Feres doctrine have
given a broad reach to Feres’ “incident to service” test
and have barred recovery by members of the armed
services for injuries that at first blush may not have
appeared to be closely related to their military service or
status. Practically any suit that implicates the military's
judgments and decisions runs the risk of colliding with
Feres.

Pringle, 208 F.3d at 1223–24 (emphasis added) (quotations, citations, and

alterations omitted). Our general view is the dominant understanding of Feres.

Notwithstanding a consensus on the Feres doctrine’s potency as a general

matter, the Supreme Court and lower courts alike have consistently wrestled with

the mechanics of its application to particular facts. In the early years after its

adoption, courts focused on the underlying purposes for the doctrine to determine

whether application to a given fact pattern furthers those reasons. See Ricks v.

Nickels, 295 F.3d 1124, 1128 (10th Cir. 2002). Courts articulated several

rationales—often called “special factors”—for Feres’s existence. Id. Based

loosely on Feres, courts looked to three general policies: “(1) the distinctly

federal nature of the relationship between the government and members of its

armed forces; (2) the availability of alternative compensation systems; and (3) the

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fear of damaging the military disciplinary structure.” Walden v. Bartlett, 840

F.2d 771, 773 (10th Cir. 1988) (internal quotation marks and citation omitted). 2

In many jurisdictions, the extent to which these factors still bear on the

Feres analysis is an open question. In some cases, a gradual chipping away at

factors (1) and (2) left a solitary reason at the heart of Feres: whether allowing

the lawsuit to proceed would disrupt the unique hierarchical and disciplinary

structure of the military. See United States v. Shearer, 473 U.S. 52, 57–58 & n.4

(1985); see also Ritchie v. United States, 733 F.3d 871, 874 (9th Cir. 2013), cert.

denied, 134 S. Ct. 2135 (2014) (“Although the Supreme Court has offered

inconsistent guidance about how Feres should be applied . . . we have

consistently emphasized the third rationale.”). 3 But that constriction has not at all

2
In Feres, the Court also acknowledged that the absence of parallel private
liability supported excluding service-member injuries from the FTCA waiver. See
Feres, 340 U.S. at 146. This rationale did not last five years. See United States
v. Brown, 348 U.S. 110, 112 (1954) (rejecting the parallel-private-liability
argument).
3
The Ninth Circuit further paved its own course, latching onto the
Supreme Court’s warning that the Feres doctrine “cannot be reduced to a few
bright-line rules; each case must be examined in light of the statute as it has been
construed in Feres and subsequent cases.” Shearer, 473 U.S. at 57. Bearing this
in mind, the Ninth Circuit constructed a series of factual predicates that clue to
whether a given injury was incident to service: “In cases where the existence of a
Feres bar is not clear, we have looked to four factors to determine whether an
activity is incident to military service: (1) the place where the negligent act
occurred; (2) the duty status of the plaintiff when the negligent act occurred; (3)
the benefits accruing to the plaintiff because of his status as a service member;
and (4) the nature of the plaintiff’s activities at the time the negligent act
occurred.” Dreier v. United States, 106 F.3d 844, 848 (9th Cir. 1997) (paragraph
(continued...)

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been uniform, and even very recent cases have stressed that the Supreme Court’s

guidance requires that all the Feres factors must still be analyzed to determine

whether the claims are prohibited. See, e.g., Purcell v. United States, 656 F.3d

463, 465–66 (7th Cir. 2011) (recognizing that all three Feres rationales still

apply).

Our circuit has simplified the equation, concluding that all the special

factors “effectively merged . . . with the incident to service test.” Ricks, 295 F.3d

at 1130. We credited the Supreme Court’s decision in United States v. Stanley,

483 U.S. 669 (1987), as articulating “that the incident to service test rests

squarely on the third ‘special factor’ of preserving the military’s disciplinary

structure and Congress’ prerogative in regulating intramilitary affairs.” Ricks,

295 F.3d at 1130 (citing Stanley, 483 U.S. at 683). But we also stressed that the

incident-to-service test does not permit an inquiry into how military discipline is

“affected in a particular case,” because that inquiry itself would be an

impermissible intrusion into military affairs. Id. In the end, we essentially

rejected any focus on the special factors, finding them unduly redundant, and

returned the analysis to the inquiry that Feres originally set forth: whether the

injury was “incident to service.” Tootle v. USDB Commandant, 390 F.3d 1280,

1282 (10th Cir. 2004) (“Rather than focusing on the presence or absence of the

3
(...continued)
format altered).

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Feres rationales . . . the relevant question is whether [plaintiff’s] alleged injuries

arose ‘incident to service.’”).

With all of this confusion and lack of uniform standards, it comes as no

surprise that the Feres doctrine, while the law of the land, has received steady

disapproval from the Supreme Court on down. An early and vociferous critique

came from Justice Scalia in dissent in Johnson, where he stated that “Feres was

wrongly decided and heartily deserves the widespread, almost universal criticism

it has received.” Johnson, 481 U.S. at 700 (Scalia, J., dissenting) (internal

quotation marks omitted). Justice Scalia (joined by three other Justices) found

the Feres special factors lacking in textual support in the FTCA and devoid of

logic. See id. at 694–700. This dissent has provided the cornerstone in the

foundation for Feres detractors, and it has been widely praised. See, e.g., Taber

v. Maine, 67 F.3d 1029, 1044 (2d Cir. 1995) (applauding Justice Scalia’s dissent

as a persuasive rebuttal to the Feres doctrine). 4

Because the dissent in Johnson and many other appellate-court decisions

survey the doctrinal concerns Feres presents, we do not do so here. Suffice it to

say that when a court is forced to apply the Feres doctrine, it frequently does so

with a degree of regret. See, e.g., Ritchie, 733 F.3d at 874 (“For the past sixty-

4
Recently, in fact, Justice Thomas dissented from the denial of certiorari
in a case that asked the court to overrule Feres, suggesting that, “at a bare
minimum, it should be reconsidered.” See Lanus v. United States, 133 S. Ct.
2731, 2732 (2013) (Thomas, J., dissenting from the denial of certiorari).

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three years, the Feres doctrine has been criticized by countless courts and

commentators across the jurisprudential spectrum.” (internal quotation marks and

citations omitted)); Purcell, 656 F.3d at 465 (“The Feres doctrine, while currently

viable, is certainly not without controversy . . . and has also been widely

criticized.”); Regan v. Starcraft Marine, LLC, 524 F.3d 627, 633 (5th Cir. 2008)

(“This [Feres] doctrine has been much-criticized.”); McMahon v. Presidential

Airways, Inc., 502 F.3d 1331, 1341 (11th Cir. 2007) (“The Feres doctrine has

been controversial, even as applied to the government . . . [b]ut . . . Feres remains

the law.”); Costo v. United States, 248 F.3d 863, 869 (9th Cir. 2001) (“[W]e apply

the Feres doctrine here without relish. Nor are we the first to reluctantly reach

such a conclusion under the doctrine. Rather, in determining this suit to be

barred, we join the many panels of this Court that have criticized the inequitable

extension of this doctrine to a range of situations that seem far removed from the

doctrine’s original purposes.”); Hinkie v. United States, 715 F.2d 96, 97 (3d Cir.

1983) (“We are forced once again to decide a case where we sense the injustice of

the result but where nevertheless we have no legal authority, as an intermediate

appellate court, to decide the case differently.” (quotation marks and footnote

omitted) (alteration incorporated)).

This circuit long ago expressed the same sentiment: “Although many courts

have expressed reservations about the continuing validity of the broad Feres

doctrine, only the United States Supreme Court can overrule or modify Feres

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. . . . Therefore, once again we are constrained to follow the Feres doctrine,

notwithstanding its harsh result.” Labash v. U.S. Dep’t of Army, 668 F.2d 1153,

1156 (10th Cir. 1982); see also Tootle, 390 F.3d at 1282–83.

In summary, based on our decision in Ricks, the incident-to-service test as

originally enunciated in Feres (and independent of the other so-called Feres

rationales) is the standard that we apply here. To fully resolve this case,

however, we must move beyond the traditional Feres claim because Captain Ortiz

is not a plaintiff; I.O., a civilian, is. And so, we next analyze the framework for

addressing claims asserted by civilian third parties that arise out of injuries to a

service member.

2. Third-Party Feres Claims

From its inception, Feres has applied to cases beyond those brought by

service members to recover for their own injuries. In fact, Feres itself dealt with

two wrongful-death actions brought by the widows of servicemen. But questions

lingered regarding the extent to which Feres could uniformly bar recovery for

injuries to third parties in circumstances where the genesis of the third-party

injury was intimately associated with injuries to service members.

Stencel Aero

The Supreme Court analyzed those questions in Stencel Aero Engineering

Corp. v. United States, 431 U.S. 666 (1977). In that case, the Court found that

Feres applied equally to a claim against the United States brought by the

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manufacturer of an ejection seat, the malfunction of which had caused a

serviceman’s injuries. The serviceman had sued Stencel, the manufacturer, and

the United States for permanent injuries that occurred when the ejection seat in

his military plane failed during a midair exercise. Stencel responded by

cross-claiming the United States for indemnity, and the United States raised Feres

as a jurisdictional bar. The Court sided with the government, finding that “the

third-party indemnity action in this case is unavailable for essentially the same

reasons that the direct action by [the serviceman] is barred by Feres.” Id. at 673.

We have applied this rule to civilian third-party claims beyond a garden-

variety indemnification suit. Thus, for example, we have denied jurisdiction

where the civilian wife of a serviceman brought claims against the government on

account of her husband’s negligent vasectomy. Harten v. Coons, 502 F.2d 1363

(10th Cir. 1974). Similarly, we have prohibited the daughter of a serviceman

from bringing claims for injuries deriving from her father’s military service in

Vietnam. See Heffington v. Dep’t of Defense of the U.S., 248 F. App’x 952 (10th

Cir. 2007).

Other courts have also interpreted Stencel Aero broadly to “preclude[] suits

by third parties that derive—directly or indirectly—from injuries to service

members incident to military duty.” Brown v. United States, 462 F.3d 609, 612

(6th Cir. 2006). In fact, on the heels of Stencel Aero, every other circuit has

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acknowledged that Feres applies to third-party claims brought by civilians beyond

the standard indemnification claim. 5

The analysis in Stencel Aero became what is now known as the “genesis

test.” Application of the genesis test sought to provide a reasoned standard for

the question common to all third-party Feres claims; namely, to what extent are

injuries to civilian third parties that arise out of circumstances concerning the

service member’s relationship with the military also barred under the FTCA?

To this end, the genesis test asks whether the civilian injury has its origin

in an incident-to-service injury to a service member. See, e.g., Ritchie, 733 F.3d

at 875. If it does, then Feres applies as a bar to the third-party claim, just as it

would to a claim by the service member for his or her injuries. See Minns v.

United States, 155 F.3d 445, 449 (4th Cir. 1998) (“Under this test, if a

nonserviceman’s injury finds its ‘genesis’ in the injury suffered by a serviceman

incident to service, then the Feres doctrine bars the non-serviceman’s suit.”).

5
See Minns v. United States, 155 F.3d 445 (4th Cir. 1998); Mossow v.
United States, 987 F.2d 1365 (8th Cir. 1993); Smith v. United States, 877 F.2d 40
(11th Cir. 1989); Irvin v. United States, 845 F.2d 126 (6th Cir. 1988); In re Agent
Orange Litig., 818 F.2d 201 (2d Cir. 1987); West v. United States, 744 F.2d 1317
(7th Cir. 1984) (en banc); Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983);
Gaspard v. United States, 713 F.2d 1097 (5th Cir. 1983); Lombard v. United
States, 690 F.2d 215 (D.C. Cir. 1982); Monaco v. United States, 661 F.2d 129
(9th Cir. 1981); DeFont v. United States, 453 F.2d 1239 (1st Cir. 1972).

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 The Genesis Test’s Injury Focus

Despite the near-universal adoption of the genesis test, our court has yet to

apply it to the type of third-party claims we find here. As we explain, in light of

our obligation to follow Feres and Stencel Aero, the genesis test is the appropriate

mechanism to apply to third-party Feres claims involving derivative third-party

injuries, including those occurring in utero. While we recognize that other

circuits have not so inclusively utilized the genesis test for every third-party

Feres claim, we are convinced that Stencel Aero dictates our decision in this case.

In addition, we find it persuasive that courts across the circuits find the

genesis test helpful to adjudicate a wide array of third-party Feres claims.

First, circuit courts have employed the genesis test when considering

whether children can recover for genetic injuries stemming from alleged

government negligence in exposing their service-member fathers to radiation or

chemical weapons. See Minns, 155 F.3d at 449; Hinkie, 715 F.2d at 98; Laswell

v. Brown, 683 F.2d 261, 269 (8th Cir. 1982); Monaco v. United States, 661 F.2d

129, 133 (9th Cir. 1981). In Minns, for example, the Fourth Circuit explained

why Feres precluded the claims of the wives and children of servicemen for

genetic birth defects resulting from the military’s negligent inoculation of the

servicemen in an effort to immunize them from possible biological or chemical

attacks during the Persian Gulf War. The court said that the government’s

conduct toward the servicemen “was the ‘genesis’ and the ‘but for’ cause of the

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injuries to the wives and children.” Minns, 155 F.3d at 450. Relying on Feres’s

military-discipline rationale, the court found that “[i]f allowed to proceed, their

suits would place the courts in exactly the position that the Feres doctrine was

designed to avoid.” Id. Other genetic-defect cases have likewise relied on this

rationale as the reason for extending Feres to bar the third-party claims. See,

e.g., Monaco, 661 F.2d at 134 (dismissing third-party claims where “the court still

must examine the Government’s activity in relation to military personnel on

active duty”).

Second, an even more clear-cut application of the genesis test occurs when

the relative of a service member sues for loss of consortium or mental anguish

when the government negligently causes the service member’s death or injury.

See Kendrick v. United States, 877 F.2d 1201, 1206–07 (4th Cir. 1989); De Font

v. United States, 453 F.2d 1239, 1240 (1st Cir. 1972). By their very legal nature,

these claims are “ancillary or derivative to an injury to a serviceman incident to

military service” and thus cannot proceed under Feres. Lombard v. United States,

690 F.2d 215, 226 (D.C. Cir. 1982) (internal quotation marks omitted).

But courts have inconsistently described the threshold or starting point for

scrutiny of a civilian plaintiff’s claims under the genesis test—sometimes

underscoring the government’s negligent conduct and other times the service

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member’s injury. 6 While the courts are not united, we appreciate that only the

latter approach conforms with Feres and Stencel Aero. Indeed, this injury-focused

approach asks first whether there was an incident-to-service injury to the service

member, Feres, 340 U.S. at 144, and second whether the injury to the third party

was derivative of that injury, Stencel Aero, 431 U.S. at 673–74. A negative

answer to either question permits a complaint to survive dismissal for lack of

subject matter jurisdiction under Feres.

We thus apply the injury-focused approach, finding that it is more faithful to

Feres and Stencel Aero, the precedential cases binding on this court. By the same

6
In Minns, for instance, the Fourth Circuit focused on the target of the
government’s negligent conduct as the key consideration. According to that
court, where the negligent act or behavior was directed at the service person, then
any injuries that had their genesis in that negligence, even those to third parties,
were barred by Feres. See Minns, 155 F.3d at 450 (“This negligence in
implementing and administrating the program to the servicemen thus was the
“genesis” and the “but for” cause of the injuries to the wives and children.”); see
also Matthew v. United States, 452 F. Supp. 2d 433, 442 (S.D.N.Y. 2006) (“The
relevant inquiry is not, therefore, who is injured and when the injury becomes
manifest, but rather the time and nature of the negligent act alleged.”).

But in Lombard, the D.C. Circuit focused instead on whether there was an
actual injury to the serviceman that, based on typical causation principles,
ultimately generated an injury to the third party. There, the plaintiffs claimed that
government negligence during its oversight of the “Manhattan Project” in New
Mexico allowed Mr. Lombard, a member of the Army, to handle radioactive
substances, which negatively altered his genetic makeup. As a result, his children
were born with physical defects. Relying on Stencel Aero, the court found that
“Feres has also been held to bar cases brought by third parties . . . where the
claim originates with or derives from an injury to a serviceman incident to
military service.” Lombard, 690 F.2d at 219 (emphasis added); see also Adkins v.
United States, 869 F.2d 593, at *2 (4th Cir. 1989) (unpublished table decision).

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token, we reject the object of the negligence or the target of the medical treatment

as linchpins in analyzing third-party Feres claims. 7

Our task in this case would be difficult enough if we simply had to navigate

the conflicting interpretations of Feres and the genesis test. But an additional (and

significant) variable requires further explanation: the fact that I.O.’s injuries were

suffered in utero. With that in mind, we next discuss the nature of the in utero

cases.

3. In Utero Cases

As a threshold matter, claims for fetal injuries brought by the offspring of

servicewomen ordinarily do not pose substantial doctrinal questions under Feres’s

genesis test. After all, such causes of actions are third-party civilian claims

against the government, typical of the sort that invite a Feres inquiry into whether

the third-party injury derives from a service person’s incident-to-service injury.

But to counterbalance the harsh results often associated with the application

of Feres to third parties, some courts have resisted the genesis test in prenatal

cases. See, e.g., Brown, 462 F.3d at 616; Mossow v. United States, 987 F.2d 1365,

1369–70 (8th Cir. 1993); Romero v. United States, 954 F.2d 223, 226 (4th Cir.

1992); Del Rio v. United States, 833 F.2d 282 (11th Cir. 1987); Lewis v. United

7
There is no reason to categorically exclude consideration of these factors
when divining the source of the third-party injury. But, contrary to the
comprehensive treatment-focused approach adopted by some circuits, we
emphasize the primacy of identifying an injury to a service member and tracing
the third-party injury to it as the crucial elements.

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States, 173 F. Supp. 2d 52, 56–57 (D.D.C. 2001), vacated in part on other

grounds, 290 F. Supp. 2d 1 (D.D.C. 2003). These courts justify an “in utero

exception” because there is either no injury to the mother or, in fewer cases,

injuries to the mother and to the fetus are unrelated. In either scenario, the fetus’s

injury must be independent—that is, it cannot be derivative of the service

member’s nonexistent or wholly separate injury.

But this rule is not really an “exception” at all; rather, the upshot of the

genesis test in such situations is that the third-party injury did not have its genesis

in an incident-to-service injury to the service person. 8 By its very terms, the

genesis test under Feres will never bar a third party’s claim absent a service-

member injury. And where there is a clear severability between the injuries to the

fetus and those to the mother, the genesis test will likewise not preclude recovery.

The Nature of In Utero Injuries

A number of cases have analyzed in utero injuries under the Feres doctrine.

And like with the genesis test more generally, these courts have struggled to

ascertain the crux of the genesis test for in utero injuries, disagreeing about

8
Plaintiff alleges that the in utero exception is an entirely separate rule
from the genesis test that applies to cases involving fetuses. Due to some
conflicting case law, this classification makes some sense but is irrelevant in any
event. Because the totally independent injury to the fetus is a raison d’etre for the
in utero rule, it serves to negate the derivativeness that is required for the genesis
test. As we have said, properly construed, the in utero exception is better
described as a particular class of cases under which application of the genesis test
reveals an independent third-party injury not barred by Feres.

-20-
whether the starting point is an injury to the service member or simply treatment

directed at or for the benefit of the service member.

Plaintiff here oscillates between these approaches, urging that we consider a

narrow application of Feres for claims by infants injured during childbirth under

either standard. Based on the cases from other circuits, plaintiff’s hedging is

understandable, and the Sixth Circuit’s decision in Brown is a useful illustration of

the interaction between the competing principles. See 462 F.3d at 611–16. In that

case, the court was forced to grapple with its circuit’s own precedent, Irvin v.

United States, 845 F.2d 126 (6th Cir. 1988), which had broadly adopted the

genesis test for in utero injuries because “[t]he treatment accorded [to a fetus’s]

mother is inherently inseparable from the treatment accorded . . . [to] a fetus in his

mother’s body.” Brown, 462 F.3d at 617 (quoting Scales v. United States, 685

F.2d 970, 974 (5th Cir. 1982)). To break away from this authority, the Brown

court cited with approval the collection of in utero cases, “conclud[ing] that the

child’s FTCA claim was not barred by Feres because the child had sustained an

independent injury.” Id. at 613 (“[S]ome of the cases are factually similar to the

case before this Court in that they allege a negligent injury only to the child, rather

than an injury to both the child and the service member.”). It further distinguished

Irvin because “the death of the Irvin infant was caused by (and was therefore

derivative of) an injury suffered by the child’s mother.” Id. at 614. This made all

of the difference in the world because, as the court repeatedly underscored,

-21-
“Deborah Brown sustained no physical injury whatever from the effects of the

negligent prenatal treatment, from her pregnancy, or from Melody’s birth.” Id. at

611 (emphasis added). As we read the opinion, this focus on the injury permitted

the Sixth Circuit to apply the genesis test, but escape the weight of Irvin’s

seemingly broad holding and permit the military dependent to recover for her

injuries.

Brown’s articulation of the service person’s injury as the place to start is

sound, and other courts have gravitated toward an injury-focused approach for

cases involving fetal injuries. For example, in Romero, the Fourth Circuit found

that “[i]n our view the relevant inquiry in a genesis analysis is whether a service

member was injured, not whether the negligent act occurred during active duty

service.” Romero, 954 F.2d at 226. The court in Romero was persuaded in part by

the fact that the military mother “suffered no physical injury as a result of the

allegedly negligent conduct.” Id. at 224. Similarly in Mossow, the Eighth Circuit

noted that “[b]ecause [the baby’s] injury is not derivative of an injury to a service

member, we find his cause of action for legal malpractice is not barred by the

genesis test under Feres.” 987 F.2d at 1370.

And finally, the Ninth Circuit’s recent decision in Ritchie convincingly

explains why the only sustainable way to approach the genesis test is through a

focus on the service member’s injury itself. Ritchie, 733 F.3d at 877–88. In that

case, the court applied the genesis test to dismiss claims for fetal injury brought

-22-
about because the fetus’s servicewoman mother was forced, against doctor’s

orders, to participate in physical training while pregnant. The court first found

that the in utero exception was inapplicable based on Ninth Circuit precedent,

instead applying a version of the genesis test to find that examining the fetus’s

claim would involve second-guessing military orders and thus could not be

maintained. Id. at 875–76. Addressing the plaintiff’s urging that the court adopt

the in utero exception, the court commented in dicta that the result would be

unchanged. Indeed, the court found that “[o]nly where a fetus alone suffers injury

can the claim survive Feres.” Id. at 877–88 (“[A] civilian fetus’s claim may only

escape Feres if its servicewoman mother suffered no injury from the purportedly

negligent acts.”).

Other Approaches

The injury-focused approach, however, has not gained universal acceptance

in the in utero cases. For example, the district court in Lewis found a different

result flowed from Romero, concluding that “[t]he crucial issue . . . is whether the

negligent medical treatment leading to [the baby’s] injury was provided to him or

to his mother.” Lewis, 173 F. Supp. 2d at 57. 9 But, at the very least, the internal

9
Lewis and the Eleventh Circuit’s decision in Del Rio are outliers to the
extent that they found no Feres bar even when the fetus’s injuries stemmed from
an injury to the servicewomen mother. These cases are unfaithful to Feres for all
of the reasons we discuss herein.

-23-
inconsistencies in Romero are evidence as to why the treatment-focused approach

is unworkable:

Admittedly, in satisfying its duty of care to Joshua,
proper prenatal treatment would have involved his
mother’s body. The sole purpose of the treatment,
however, would have been directed at Joshua.

Mrs. Romero suffered from a congenital cervical
weakness. This condition apparently placed Joshua at
risk of injury. It did not, however, affect Mrs. Romero’s
health. Presumably her state of health would have been
the same whether the physician placed the sutures or not.
If the treatment had been administered, its sole purpose
would have been directed at preventing injury to Joshua.
The failure to place the sutures during the prenatal period
and to cut them immediately preceding birth was the
direct cause of the injuries to Joshua, a civilian. Because
the purpose of the treatment was to insure the health of a
civilian, not a service member, Feres does not apply.

Romero, 954 F.2d at 225. As this suggests, the difficulties in ascertaining the

beneficiary of the treatment are never more pronounced than in a case involving

mother and fetus. It is difficult to comprehend how courts are well-positioned to

determine whether a particular negligent act was directed at the mother, at the

fetus, or at both. 10

Faced with the dilemma of the inherently-inseparable nature of prenatal and

neonatal treatment, the Romero court strained to demonstrate that the

10
Even some cases that ultimately applied Feres as a bar to third-party
claims misguidedly stressed the importance of the target of the negligence. See
Scales, 685 F.2d at 974 (“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.”).

-24-
government’s conduct was directed at, and intended to benefit, the fetus in order to

avoid Feres’s application. But Romero’s analysis is unpersuasive, especially to

the extent that it sought to differentiate in utero cases from other third-party Feres

claims that required application of the genesis test. Id. at 226. (“We are persuaded

that a genesis analysis is inappropriate here.”).

In any event, this distinction was unnecessary because as the court

ultimately concluded, the fetus’s “injury did not derive from any injury suffered

by a service member . . . . Because no service person was injured [the fetus’s]

claim is not Feres-barred.” Id. at 226. Bending over backwards to discern the

target and beneficiary of the treatment only served to confuse what could have

been a straightforward injury-focused approach that would have led to the same

result.

Injury-Focused Approach

Regardless of the split in authority pertaining to the primary concern in the

in utero cases, we are convinced that the injury-focused approach is the one

required by Supreme Court precedent. As we have said, at a doctrinal level, we

need not look much further than Stencel Aero to confirm that the heart of the

genesis test is a service member’s incident-to-service injury. Even more

fundamentally, the service member’s injury—and by extension, the derivative

nature of a third-party injury—is the touchstone of all Feres claims. See Madsen

v. United States ex rel. U.S. Army, Corps of Engineers, 841 F.2d 1011, 1012 (10th

-25-
Cir. 1987) (stressing that Feres’s incident-to-service test is fundamentally

concerned with the relationship between the injury and the service member’s

status, not the negligence itself).

Along the same lines, it is worth reiterating that Feres is a jurisdictional

doctrine that directs our focus to the injury as a threshold matter, largely

independent of the viability of plaintiff’s negligence or other tort claims.

Remember that if Feres applies, then the government is immune to lawsuits

notwithstanding the FTCA’s broad waiver. And although we proceed on summary

judgment, 11 this preliminary analysis of jurisdiction limits our full-fledged

consideration of whether the government owed a duty to any party or whether that

duty was breached. But the treatment-focused approach takes us away from the

typical Feres question and requests that we purely investigate the merits of the

plaintiff’s negligence claim, asking us to analyze the existence of a duty, whether

that duty was breached, whether the government caused the alleged injury and so

forth. In the end, “[t]he mere fact that the cause of action is not derivative . . . but

is an original and distinct cause of action . . . does not remove it from the

11
We note that on summary judgment, we consider the merits of the case
to the extent that they are intertwined with the question of subject matter
jurisdiction. See Pringle, 208 F.3d at 1222. And while this procedural posture
changes both the standard and the evidence available for our consideration, it is
not an invitation to forego the jurisdictional question to reach the merits. In other
words, we consider certain “aspect[s] of the substantive claim,” id. at 1223, that
bear on our jurisdictional analysis, see id. at 1223 n.3 (explaining how important
jurisdictional facts under Feres “overlap with the merits of the FTCA claim”).

-26-
prohibition of Feres.” De Font, 453 F.2d at 1240 (emphasis added).

In many ways, the treatment-focused approach requests that we put the cart

before the horse. The Feres doctrine has always operated as an antecedent

jurisdictional hurdle—that is, it activates an inquiry into our ability to even

consider the merits of the tort alleged against the government. The injury-focused

approach appreciates this prefatory concern, deferring any substantial merits

discussion related to the actions of the government vis-a-vis the third party. In

order to reach those questions, we must proceed past the Feres bar and to do so,

we consider the relationship between the third-party injury and the service

member’s injury as a threshold matter. 12

And the treatment-focused approach could produce anomalous results. For

example, in many cases treatment is simultaneously provided for the benefit of

both mother and fetus. Oftentimes, only one of the two is injured by medical

negligence. In addition, a common scenario might involve treatment aimed solely

to benefit the fetus, but which results in an injury to the mother. If the baby

suffers an obviously derivative injury as a result of the accidental injury to the

mother, then Feres should bar the claim regardless of the fact that the treatment

12
One might question whether discussion of the service person’s injury
and the causal link between the service member’s injury and the third-party injury
impermissibly ushers in negligence principles. But our examination of those
elements exists on a jurisdictional, rather than a merits-based, plane. To the
extent that we discuss injury or causation, we do so not with an eye toward
whether those elements might state a prima facie tort against the government, but
out of fidelity to Feres and Stencel Aero to decide whether we have jurisdiction.

-27-
was originally intended to benefit only the baby. By the same token, we can

envision a scenario where treatment was provided solely for the mother’s benefit,

but negligence in providing such treatment injured the baby alone. In those cases,

Feres would not operate as a bar because the injury could not be derivative of the

non-existent injury to the mother.

One final point: we do not intend our rule here to convey that the source and

scope of the treatment is irrelevant or necessarily incompatible with the inquiry

under Feres. An examination of the treatment may, for instance, be crucial in

determining whether the service person was injured at all, see Brown, 462 F.3d at

612–13, or whether that injury was in fact incident to military service, see

Monaco, 661 F.2d at 133. But any review of the treatment can only be a means to

an end—the end being whether the third-party injury is derivative of the service

person’s incident-to-service injury. Phrased another way, our point is simply that

looking to the target of the alleged negligence—or the treatment—is not the

applicable test. It is not the case that deciphering the target of treatment will

always resolve the inquiry. But we leave open the possibility that identifying a

separate negligent act may help to establish a direct and non-derivative injury to

the fetus. 13

13
The injury-focused approach is not without its flaws, as the concurrence
well points out. But the injury focus fittingly accounts for the different outcomes
in cases involving fetal claims. Compare Brown, 462 F.3d at 611 (“Deborah
Brown sustained no physical injury whatever from the effects of the negligent
(continued...)

-28-
 For those reasons, we disagree with the concurrence. A treatment- or

conduct-focused approach has its own virtues, as the concurrence explains. But it

also has its own vices, and we think the injury focus is most consistent with

Stencel Aero and the complexities of fetal injury cases. 14 After all, the FTCA is a

broad waiver of sovereign immunity and the Feres doctrine excepts a class of

service member claimants who are injured incident to military service. Feres is

concerned not so much with the government’s conduct per se but with whether the

claimant’s injuries arose from that service. We share some of the concurrence’s

concerns about application of the genesis test, but those concerns are not enough

to adopt a categorical bar for any fetal injuries arising from obstetric care.

Conclusion

At bottom, the in utero cases do not require a unique standard. The genesis

test supplies the relevant rule, and its purpose is not undercut simply because the

13
(...continued)
prenatal treatment.”); Romero, 954 F.2d at 226 (“In our view the relevant inquiry
in a genesis analysis is whether a service member was injured.”); Utley v. United
States, 624 F. Supp. 641, 645 (S.D. Ind. 1985) (“The only party injured by the
alleged malpractice is a civilian infant.”), with Scales, 685 F.2d at 974 (holding
that servicewoman mother “sought relief for injury to herself”); Irvin, 845 F.2d at
127 (finding that the baby’s injuries were derivative of an injury to the mother).
To be sure, this clean categorization is not entirely true to type. See Lewis, 173 F.
Supp. 2d at 54 (describing injuries to both mother and child but finding Feres
inapplicable); Del Rio, 833 F.2d at 286 (same). But the injury-focused approach
is the superior alternative.
14
For instance, under the concurrence’s approach, government conduct
aimed at the child but injuring the mother and then derivately injuring the child
would be actionable. This situation would squarely raise Feres doctine concerns.

-29-
plaintiff’s injuries arose in utero. As it has always been, the test is whether the

civilian (fetal) injury had its genesis in a service-related injury to a service person

(mother).

4. Application

Turning to the facts of this case, the focal point of our examination is

whether I.O.’s injury was derivative of (i.e., had its genesis in) an injury to

Captain Ortiz. 15 Given this standard, plaintiff’s allegations cannot overcome

Feres. When we weigh all of the competing evidence, and view it in the light

most favorable to plaintiff, we find that the injuries that I.O. sustained forming the

basis of the complaint are derivative of the injuries to her mother, Captain Ortiz.

First, plaintiff failed to allege in the complaint and the briefing below that

Captain Ortiz was not injured by the hospital personnel’s actions. See, e.g., App.

at 18–19 (Complaint) (repeatedly referencing Captain Ortiz’s “allergic reaction,”

“blood pressure problems,” and “hypotension”); id. at 10, 26 (mentioning failure

to “treat [Captain] Ortiz’s condition); id. at 143 (Response to Motion to Dismiss)

(“I.O.’s injuries are not derivative of Ms. Ortiz’s.”); id. at 146 (“As these resulting

15
We reject plaintiff’s apparent contention that I.O.’s injuries do not
“arise[] out of activity incident to service.” Aplt. Br. at 39. We decline to be
misdirected from our starting point for the incident-to-service test: Captain
Ortiz’s injury. Were this a case in which a military member was uninjured, we
would not pursue the Feres course in the first place. Here, we are faced with a
service-related injury of a service member that potentially resulted in a derivative
injury to a third party. Under those circumstances, we look to whether the service
member’s injury was incident to service, not the third party’s. There is no
genuine dispute that Captain Ortiz’s injury was incident to her military service.

-30-
injuries were not derivate of Ms. Ortiz’s injuries . . .”); see also Aplt. Br. at 6, 25.

Although on appeal plaintiff argues that Captain Ortiz was uninjured, see, e.g.,

Aplt. Reply at 6–8, that argument not only comes too late, it misstates the record.

Accordingly, only if I.O.’s injuries are truly separate from Captain Ortiz’s injuries

can plaintiff overcome Feres.

But no such theory is present on this record. Indeed, the allegations in the

complaint and the affidavits offered as evidence tell a tragic but straightforward

story that precludes recovery. I.O.’s oxygen loss was the result of Captain Ortiz’s

drop in blood pressure, which was caused by the negligent administration of

Benadryl following Captain Ortiz’s allergic reaction to the Zantac. Even

plaintiff’s expert, a board-certified obstetrician-gynecologist, essentially conceded

this theory in an affidavit attached to plaintiff’s opposition to the government’s

motion to dismiss:

Because Ms. Ortiz was given Zantac, she was given
diphenhydramine (Benadryl), which is routinely given
during times of allergic reaction to prevent anaphylactic
response. Anaphylaxis in a pregnant woman could lead
to maternal hypoxia and/or hypotension which could, in
turn, harm an unborn child. Accordingly,
diphenhydramine was given in order to prevent such an
allergic reaction and to benefit and prevent injury to both
Ms. Ortiz and her unborn child, I.O.

App. at 129 (emphasis added).

At bottom, the source of I.O.’s ultimate brain injury was her servicewoman

mother’s blood-pressure problems. It does not matter that Captain Ortiz does not

-31-
allege legal injuries 16 within the complaint; the point is that she was injured

incident to service, which would bar her claims and anything derivative of them.

The plain fact is that Captain Ortiz’s service-related injury led to an injury to her

civilian daughter. Even construing those facts in plaintiff’s favor, the Feres

doctrine—in conjunction with the genesis test—bars I.O.’s claims related to her

brain injury.

With respect to the alleged failure to scrutinize the fetal monitoring strips,

there is no independent injury that would support this claim. Thus, even though

the defendant had a duty to review the fetal monitoring, this alleged injury to I.O.

is still derivative of the injuries to Captain Ortiz. On this point, the district court

succinctly (and correctly) stated “[b]ut for the administration of Zantac and

Benadryl to Captain Ortiz, failure to review the fetal monitoring strips in this case

would not have caused I.O.’s injuries.” App. at 234–35. This conclusion is not

overcome by the fact that, according to plaintiff, the monitoring of the fetal heart

rate provides no benefit to the mother. As we highlighted above, the target of the

treatment is not our focus in Feres cases.

Even if we were to adopt a treatment-focused approach, however, the result

would be the same because the complaint unambiguously alleged that the

16
A prudent lawyer would never allege a legal injury to the service person
in a third-party Feres case. Accordingly, it is incumbent on the court to review
the factual record to determine whether the facts themselves describe a factual
injury to the service person (and whether the third-party injury is derivative of
that injury).

-32-
treatment that caused the injury was provided to both Captain Ortiz and I.O. 17

Thus, even under a treatment-focused approach, we see no reasoned way to sever

the injury-inducing treatment and afford I.O. relief.

Plaintiff criticizes this approach as a sort of blanket rule that would bar all

“pregnancy-related claims of children of active duty mothers, even where the

mother has no injury.” Aplt. Reply at 3. But where the mother is truly not injured

at all, Feres does not apply under our rule. See, e.g., Brown, 462 F.3d at 611;

Romero, 954 F.2d at 226. While we focus on the injury to the mother as our

starting point, our analysis does not end there. As required by the genesis test, the

injury to the fetus must trace back to that injury in order for Feres to render the

court without jurisdiction. And certainly there are also cases where the mother

and the fetus are injured, but their injuries are truly unconnected—that is, the

fetus’s injury is not derivative of a service-related injury to the mother. But that is

not the case here, and plaintiff’s own allegations and concessions are decisive on

this score. 18

17
In addition to the board-certified obstetrician-gynecologist, plaintiff also
submitted an affidavit from a registered nurse in support of his opposition to the
government’s motion to dismiss. Both indicated that the Benadryl was given for
the benefit of both Captain Ortiz and I.O. See App. at 120, 129–30.
18
Nor do we dispute that medical personnel—including those at military
hospitals—owe duties of care under state law to fetuses during and in connection
with prenatal and neonatal care. Pizza Hut of Am., Inc. v. Keefe, 900 P.2d 97, 101
(Colo. 1995) (“Colorado, like other jurisdictions, recognizes a child’s right to
bring a cause of action for prenatal injuries.”). Our focus on the service
(continued...)

-33-
 In sum, the Feres doctrine applies to the injuries alleged here. We wish,

frankly, that were not the case. But in faithfully applying Supreme Court

authority, Tenth Circuit precedent, and the persuasive decisions from other

circuits, the incident-to-service and genesis standards require such an outcome.

The district court properly found that it lacked subject matter jurisdiction and

granted summary judgment.

B. Discovery Order

In addition, the plaintiff contends the district court erred by not allowing

additional time and discovery to respond to the government’s Rule 56 motion.

Under Rule 56, a party must “state with specificity how the additional material

will rebut the summary judgment motion.” Libertarian Party v. Herrera, 506 F.3d

1303, 1308–09 (10th Cir. 2007) (internal citation omitted). Plaintiff supplied two

reasons. One, that additional evidence would prove that the Benadryl was

provided for both Captain Ortiz and I.O.’s benefit. Two, that the presentation of

evidence concerning the fetal monitoring strips would prove an independent injury

not subject to Feres. The district court denied the motion.

We find no abuse of discretion in that decision. As an initial matter, the

government provided plaintiff with a complete set of medical records related to

18
(...continued)
member’s injury, however, does not vitiate the duty in any way. As stressed, the
Feres inquiry says nothing of the merits of plaintiff’s claim for, in this case,
medical malpractice; it is a separate and antecedent jurisdictional question.

-34-
Captain Ortiz’s treatment. Plaintiff does not deny as much. The secondary

documents and testimony that plaintiff requested, therefore, could not add any

serious value to plaintiff’s ability to defeat summary judgment, and plaintiff did

not convince the district court otherwise.

Moreover, plaintiff has difficulty escaping the fact that he alleged in the

complaint that Captain Ortiz suffered from hypotension and related blood-pressure

problems as a result of the government employees’ alleged negligence. Even in

the light most favorable to plaintiff, those allegations outline an injury to Captain

Ortiz, which ultimately resulted in the harm to I.O. Accordingly, there is no merit

to plaintiff’s argument regarding the district court’s abuse of discretion in refusing

to reopen discovery.

Similarly, on the fetal-monitoring issue, it appears that plaintiff had all of

the relevant documents and information and cannot therefore allege the district

court abused its discretion in not allowing further discovery. In any event, as we

explained above, we do not credit that argument as providing an alternative avenue

to escape Feres’s application. For this reason, the relevance of any additional

discovery on the fetal monitoring strips is obviated, and the district court correctly

forestalled the discovery requests.

-35-
 III. Conclusion

We AFFIRM the district court’s decision granting summary judgment in

favor of the government.

-36-
Ortiz v. United States, No. 13-1500

EBEL, J., concurring.

I agree with the majority’s conclusion that the Feres doctrine, which immunizes

the United States from liability for service-related injuries to military servicemembers,

bars civilian I.O.’s medical malpractice claim against the Government. I therefore concur

in affirming the district court’s order granting the Government’s motion to dismiss.

Nonetheless, I write separately because I disagree with the majority’s conceptual

approach for determining whether Feres bars a civilian’s claim for in utero injuries that

arise out the military’s provision of medical care to a servicemember mother.

The majority identifies two approaches for determining whether Feres applies in

the context of this case—i.e., an injury-focused approach and a treatment-focused

approach—and ultimately adopts the injury-focused approach. See Maj. Op. at 19, 24–

31. I do not find either of these approaches persuasive. Accordingly, I propose a new,

third approach that tethers the military’s Feres-immunity to the military’s conduct toward

its servicemembers.

Thus, instead of focusing on whether the servicemember mother was injured by

the medical treatment that harmed her fetus, as the injury-focused approach does, or on

whether the servicemember mother was the intended target of the medical treatment that

harmed her fetus, as the treatment-focused approach does, I would simply consider

whether the civilian child’s in utero injuries flowed directly from the military’s

immunized conduct toward its pregnant servicemember. If they do, then Feres bars the

claim. This approach—which can be described as a conduct-focused approach—is not
only most consistent with the policy behind Feres and principles of immunity more

generally, but also easier to apply and less prone to adverse unintended consequences.

Applying my conduct-focused approach here, I.O.’s claim is Feres-barred because

her in utero injuries flowed directly from the military’s provision of obstetric care to her

active-duty servicemember mother. In other words, because I.O.’s injuries were a direct

consequence of the military’s protected conduct toward its pregnant servicemember, the

military is immune from liability. Because I believe this is the most straight forward

application of Feres to this factual scenario, I disagree with the majority’s adoption of an

injury-focused approach.

I. Advantages of a conduct-focused approach

A conduct-focused approach for determining whether a civilian’s claim for in

utero injuries is Feres-barred offers two major advantages over the majority’s focus on

the injury to the servicemember mother. First, by focusing the immunity inquiry on the

military’s conduct toward its pregnant servicemember, a conduct-focused approach is

most consistent with the fundamental purpose of Feres—i.e., to protect the “peculiar and

special” relationship between the military and its servicemembers. Rather than focusing

on this relationship and the conduct that is driven by it, the majority’s focus on whether

the servicemember mother was injured undercuts the purpose of Feres immunity by

subjecting the military to possible liability for in utero injuries that flow from the very

conduct Feres is designed to shield from judicial scrutiny.

2
 Second, by tethering the military’s Feres-immunity to its conduct—rather than to

the often unpredictable consequences of such conduct—a conduct-focused approach

comports with this Court’s front-loaded immunity inquiry in other contexts. The

majority’s approach conflicts with our standard front-loaded immunity inquiry by

conditioning the military’s Feres immunity with respect to a civilian child’s claim for in

utero injuries on a post-hoc determination whether the servicemember mother was

injured at the same time her fetus was injured.

a. A conduct-focused approach is most consistent with the fundamental
purpose of Feres.
When the Supreme Court initially created the Feres doctrine in 1950, it offered

several justifications for its decision to immunize the military from tort liability for

incident-to-service injuries sustained by servicemembers.1 See Feres v. United States,

340 U.S. 135, 140–45 (1950). Over time, as courts distilled these justifications, three

overriding rationales for the Feres doctrine emerged: (1) the distinctly federal nature of

the military’s relationship to its servicemembers; (2) the availability of alternative

compensation systems for injured servicemembers; and (3) the need to preserve the

military disciplinary structure by preventing judicial intrusion upon, and second-guessing

of, military decisions. See Ricks v. Nickels, 295 F.3d 1124, 1128–30 (10th Cir. 2002).
1
Although the Feres doctrine was created in the context of servicemember actions
against the United States under the Federal Tort Claims Act (“FTCA”), it has since been
applied to non-FTCA actions. See Chappell v. Wallace, 462 U.S. 296, 304–05 (1983)
(expanding the Feres doctrine to include constitutional claims brought under Bivens v.
Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971));
Newton v. Lee, 677 F.3d 1017, 1025 (10th Cir. 2012) (expanding the Feres doctrine to
include constitutional claims brought under 42 U.S.C. § 1983).

3
 Although the viability of the first two rationales has diminished in recent years,

see United States v. Shearer, 473 U.S. 52, 58 n.4 (1985) (suggesting that the first and

second rationale are “no longer controlling”); United States v. Stanley, 483 U.S. 669, 683

(1987) (characterizing the second rationale as “irrelevant”), the Supreme Court has

consistently reaffirmed the fundamental importance of the third rationale, see Ricks, 295

F.3d at 1130 (explaining that the importance of the third rationale has increased as the

importance of the first two rationales has decreased).2 As the Supreme Court explained

in Chappell v. Wallace,

the Feres Court was acutely aware that it was resolving the question of
whether soldiers could maintain tort suits against the government for
injuries arising out of their military service. The Court focused on the
unique relationship between the government and military personnel—
noting that no such liability existed before the Federal Tort Claims Act—
and held that Congress did not intend to create such liability. . . . As the
Court has since recognized, “[i]n the last analysis, Feres seems best
explained by the ‘peculiar and special relationship of the soldier to his
superiors, [and] the effects on the maintenance of such suits on
discipline . . . .’”

462 U.S. 296, 299 (1983) (emphasis added) (quoting United States v. Muniz, 374 U.S.

150, 162 (1963)).

2
Indeed, the third rationale is the cornerstone of the “incident-to-service test,” which the
Supreme Court has identified as the most appropriate test for determining whether a
particular claim is Feres-barred. Ricks, 295 F.3d at 1130 (citing Stanley, 483 U.S. at
682–83); see also Tootle v. USDB Commandant, 390 F.3d 1280, 1282 (10th Cir. 2004)
(recognizing that the incident-to-service test “has become the primary indicator of the
applicability of the Feres doctrine”). A conduct-focused approach to claims for in utero
injuries aligns with this test by immunizing the military from liability when in utero
injuries flow from the military’s incident-to-service conduct toward a servicemember.

4
 Because Supreme Court precedent clearly establishes that the military-

servicemember relationship is at the heart of the Feres doctrine, I disagree with the

majority’s assertion that “the service member’s injury—and by extension, the derivative

nature of a third-party injury—is the touchstone of all Feres claims.” Maj. Op. at 25. By

conditioning Feres immunity on the existence of an injury to a servicemember, the

majority makes damages the central inquiry in a Feres-immunity defense. I believe, to

the contrary, that Feres immunity ultimately turns on the nature of the military’s allegedly

wrongful conduct rather than the injurious consequences of such conduct. See infra p.

10–11. Although an injury to the plaintiff is certainly a necessary element in a successful

damages claim, it seems odd to make an injury to another person essential to resolving

the jurisdictional question of Feres immunity.

The Supreme Court’s continued reliance on the “peculiar and special” military-

servicemember relationship as the primary justification for Feres makes sense given the

unique structure and operational realities of the military establishment. Chappell, 462

U.S. at 300. The military is, in all respects, a “specialized community.” Orloff v.

Willoughby, 345 U.S. 83, 94 (1953). This community simply cannot accomplish its

mission “without strict discipline and regulation that would be unacceptable in a civilian

setting.” Chappell, 462 U.S. at 300; see also Goldman v. Weinberger, 475 U.S. 503, 507

(1986) (explaining that to succeed “the military must foster instinctive obedience, unity,

commitment, and esprit de corps”). Such are the necessities of military service that the

rights of servicemembers must “be conditioned to meet certain overriding demands of

discipline and duty,” Chappell, 462 U.S. at 300 (quoting Burns v. Wilson, 346 U.S. 137,

5
140 (1953) (plurality opinion)), and the authority of civilian courts must be carefully

circumscribed to prevent inappropriate judicial intrusion into military matters, see

Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (explaining that the “complex, subtle, and

professional decisions as to the composition, training, equipping, and control of a military

force are essentially professional military judgments,” the responsibility for which “is

appropriately vested in branches of the government which are periodically subject to

electoral accountability”); see also Orloff, 345 U.S. at 94 (“Orderly government requires

that the judiciary be as scrupulous not to interfere with legitimate Army matters as the

Army must be scrupulous not to intervene in judicial matters.”).

As the Supreme Court explained in United States v. Johnson,

a suit upon service-related activity necessarily implicates the military
judgments and decisions that are inextricably intertwined with the conduct
of the military mission. Moreover, military discipline involves not only
obedience to orders, but more generally duty and loyalty to one’s service
and to one’s country. Suits brought by service members against the
Government for service-related injuries could undermine the commitment
essential to effective service and thus have the potential to disrupt military
discipline in the broadest sense of the word.

481 U.S. 681, 691 (1987) (footnote omitted).

Although the danger of disrupting the military-servicemember relationship is

strongest when a servicemember brings a damages action directly against the military, in

Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977), the Supreme

Court recognized that the same danger lurks when a third party brings an indemnity

action against the military seeking to recover damages paid by the third party to a

servicemember. In Stencel, a servicemember sustained permanent, service-related

6
injuries when the ejection system in his aircraft malfunctioned during a midair

emergency. 431 U.S. at 667. After paying the servicemember for his injuries, the private

company that manufactured the defective ejection system filed a third-party indemnity

action against the United States, arguing that the United States provided faulty

specifications and components for the defective system and was therefore primarily

responsible for the servicemember’s injuries. Id. at 668, 670. Relying on Feres, the

United States argued that it was immune from liability because the company was

essentially standing in the shoes of the servicemember, whose direct damages action

against the United States was itself Feres-barred. Id. at 669.

The Supreme Court agreed, concluding that the company’s third-party indemnity

action was “unavailable for essentially the same reasons” that the direct action by the

servicemember was unavailable. Id. at 673. In reaching this conclusion, the Court

emphasized that the third Feres rationale weighed against permitting the company’s

recovery. Id. As the Court explained, where a 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.” Id.

As the Court’s analysis in Stencel suggests, certain non-servicemember actions

against the military are sufficiently related to the military’s immunized conduct toward its

servicemembers that they pose the same danger to the military-servicemember

relationship as actions brought directly by a servicemember. Although the Court has

7
never explicitly extended its Stencel rationale beyond the indemnity context,3 a civilian’s

claim for in utero injuries calls for such an extension because it poses the same threat to

the military-servicemember relationship as a servicemember’s own claim for pregnancy-

related injuries. Just like the company’s indemnity action in Stencel, which would not

have existed but for the military’s provision of aircraft equipment to the injured

servicemember, a civilian child’s damages action for in utero injuries would not exist but

for the military’s provision of obstetric care to the servicemember mother.

3
Many of our sister circuits have extended the Supreme Court’s analysis in Stencel
beyond the indemnity context, creating what is now known as “the genesis test.” See,
e.g., Irvin v. United States, 845 F.2d 126, 130 (6th Cir. 1988) (noting that “[t]he genesis
test appears to have evolved from Stencel”); Romero ex rel. Romero v. United States,
954 F.2d 223, 225 (4th Cir. 1992) (explaining that the genesis test “evolved from
Stencel” as circuits “expanded the Stencel rationale” to bar certain derivative civilian
claims). Based on this out-of-circuit precedent, the majority adopts the genesis test,
characterizing it as asking “whether the civilian injury has its origin in an incident-to-
service injury to a service member.” Maj. Op. at 15 & n.5.
I agree that this Court should adopt the genesis test, which is less a “test” in the
true sense of the word than an acknowledgment that Feres applies to certain actions
against the military that are brought by civilian claimants. But, consistent with a
conduct-focused approach, I would recast the test as asking whether the civilian injury
has its origin in the military’s service-related conduct toward a servicemember. I
therefore disagree with our sister circuits’ characterization of the genesis test (which the
majority endorses) to the extent they imply that a servicemember injury is a prerequisite
for Feres immunity. See Romero, 954 F.2d at 225 (characterizing the genesis test as
barring civilian claims for injuries that had their “‘genesis’ in a service-related injury to a
service member”); Mossow ex rel. Mossow v. United States, 987 F.2d 1365, 1369 (8th
Cir. 1993) (characterizing the genesis test as barring civilian claims “when the injury to
the civilian is a result of an injury to the service member”); Minns v. United States, 155
F.3d 445, 449 (4th Cir. 1998) (explaining that under the genesis test, “if a non-
serviceman’s injury finds its ‘genesis’ in the injury suffered by a serviceman incident to
service, then the Feres doctrine bars the non-serviceman’s suit”).

8
 Consistent with Stencel, the conduct-focused approach I suggest for determining

whether a civilian child’s claim for in utero injuries is Feres-barred protects the military-

servicemember relationship by focusing on the military’s conduct. Since the military is

immune from liability when its provision of service-related medical care causes injuries

to a pregnant servicemember, see Madsen v. U.S. ex rel. U.S. Army, Corps of Eng’rs,

841 F.2d 1011, 1012–13 (10th Cir. 1987) (applying the Feres doctrine to bar medical

malpractice claim brought by active duty servicemember), a conduct-focused approach

ensures that the military is also immune from liability when that exact same conduct

causes in utero injuries to the servicemember’s unborn child, cf. Harten v. Coons, 502

F.2d 1363, 1364–65 (10th Cir. 1974) (implicitly concluding that a civilian wife’s claim

against the military for wrongful pregnancy as a result of the military’s negligent

vasectomy operation on her servicemember husband was Feres-barred for the same

reasons that her husband’s claim was barred). In other words, the military’s immunity is

the same regardless of which potential claimant ultimately challenges the military’s

conduct.

In contrast to the military’s predictable and knowable immunity under a conduct-

focused approach, the majority’s approach, which requires injury to a servicemember

mother before the military is immune from liability for in utero injuries, breeds

inconsistency and uncertainty. For example, the majority would subject the military to

potential liability for in utero injuries if subsequent litigation revealed that the

servicemember mother was not “truly” injured at the time her fetus was injured. See

Maj. Op. at 33. Yet, if subsequent litigation revealed that the servicemember mother did

9
suffer injuries of her own, however slight, then the military would be immune from

liability for the in utero injuries suffered by her fetus. It does not make sense to condition

Feres immunity on something so malleable and unpredictable.

Moreover, the majority’s approach would permit some civilian children to

challenge through a back door the very conduct that pregnant servicemembers would be

barred from challenging through the front door. This threat of liability for in utero

injuries will inevitably impact how the military fulfills its medical obligations to its

pregnant servicemembers. Consider, for example, the perverse incentives that flow from

the majority’s approach when a treatment that is needed to preserve a pregnant

servicemember’s health poses a great risk of injury to her fetus. Despite the military’s

primary obligation to provide competent medical care to its servicemember, the military

may, however unconsciously, alter its course of treatment to give primary attention to the

fetus rather than to the mother since the possibility of fetal injuries presents the greatest

risk of future liability. Because the majority’s approach will influence the military’s

medical decision-making with respect to its servicemembers, even if only inadvertently,

it intrudes upon the very relationship that Feres is designed to protect.

b. The conduct-focused approach better aligns with general immunity
principles.
The conduct-focused approach not only is most consistent with the fundamental

purpose of Feres to protect the military-servicemember relationship but also better aligns

with principles of immunity generally. Although Feres is tailored to the military context,

at its most basic level, Feres is an immunity doctrine that shields qualifying defendants

10
from liability. Accordingly, when determining how best to apply Feres in a given case,

this Court’s approach to immunity determinations in other, non-military contexts can

offer helpful guidance.

Absolute immunity and qualified immunity are two such contexts. Importantly,

when determining whether a particular defendant is entitled to absolute immunity or

qualified immunity, this Court’s inquiry focuses on the nature of the defendant’s

allegedly wrongful conduct, rather than on the often unknowable consequences of this

conduct. For example, in Stein v. Disciplinary Board of Supreme Court of New Mexico,

this Court emphasized the prosecutorial nature of the defendant prosecutors’ allegedly

wrongful conduct in determining that they were entitled to absolute immunity. 520 F.3d

1183, 1189, 1193–94 (10th Cir. 2008). Similarly, in Thomas v. Kaven, this Court

considered the unconstitutional nature of the defendant officers’ allegedly wrongful

conduct in determining that they were not entitled to qualified immunity at the Rule

12(b)(6) stage of litigation. 765 F.3d 1183, 1195–98 (10th Cir. 2014) (explaining that the

defendants were not entitled to qualified immunity because the facts, as alleged in the

complaint, were sufficient to demonstrate that their decision to place the plaintiff parents’

child on a temporary medical hold violated the clearly established constitutional right to

familial association). In neither context was immunity determined by, or predicated

upon, the nature of the resulting injury or the identity of the injured person.

This Court’s analytical approach to absolute immunity and qualified immunity

suggests that, as a general principle, immunity determinations should turn on the nature

11
of the defendant’s actual conduct, which logically precedes the injurious consequences of

such conduct. Conditioning the immunity determination on a defendant’s conduct (which

a defendant can control), rather than a plaintiff’s injuries resulting from such conduct

(which a defendant cannot necessarily control or even anticipate), makes sense given that

the defendant is the party seeking the benefit of immunity. Consistent with this Court’s

front-loaded approach to immunity in other contexts, the conduct-focused approach I

suggest predicates the military’s Feres immunity upon its service-related conduct toward

servicemembers.

The majority’s injury-focused approach, in contrast, conflicts with this Court’s

general immunity inquiry by conditioning Feres immunity not on the nature of the

military’s conduct, but on a court’s later determination whether that conduct did, or did

not, coincidentally result in injuries to a servicemember.4 Because the military (like any

4
Because I.O.’s complaint did not allege that her servicemember mother suffered a
compensable injury as a result of the Government’s allegedly negligent administration of
Benadryl, the majority labors to explain why the Government is entitled to Feres
immunity despite the absence of an allegation that a servicemember was injured. See
Maj. Op. at 32. Attempting to draw a distinction between legal injuries and factual
injuries, the majority explains that “it is incumbent on the court to review the factual
record to determine whether the facts themselves describe a factual injury to the service
person” because a “prudent lawyer would never allege a legal injury to the service
person” when asserting a claim for in utero injuries. Maj. Op. at 32 n.16.
Rather than strengthen the majority’s position, this explanation—which is not
supported by a single citation—reveals how precarious it is to base the military’s liability
for in utero injuries on the presence or absence of an injury to someone other than the
child claimant. After all, the child claimant is seeking damages for its injuries, not the
servicemember mother’s injuries. The mother is only relevant to the Feres inquiry to the
extent that her status as a servicemember implicates the military’s chain of command.
(Indeed, there is no Feres inquiry if the mother is not a servicemember.) Because it is the

12
other defendant) cannot directly control all of the consequences of its conduct, it is

unclear why the military’s Feres-immunity should hinge on something as uncertain as a

judge’s post-hoc determination whether the servicemember mother suffered an injury.

This back-loaded approach not only runs contrary to general immunity principles but also

perversely rewards the military—in the form of Feres immunity—when its conduct

harms not just the fetus, but the servicemember mother as well. For example, if the

military harms both the mother and the fetus, then it is entitled to Feres immunity; but if

it harms only the fetus or deliberately chooses to protect its servicemember at the expense

of harming the fetus, then it is not entitled to Feres immunity.

And perhaps most problematic, these unpredictable outcomes and perverse

rewards force the military into a wholly untenable litigation position whenever it faces

possible liability for a civilian child’s in utero injuries. Because the military’s Feres

immunity in this context is based on the fortuity of an injury to the servicemember

mother, to have any chance of successfully invoking such immunity in a suit brought by a

civilian child, the military must argue that it injured its pregnant servicemember. But,

because it is possible that a court will ultimately determine that the servicemember

mother was not injured, thereby foreclosing the availability of Feres immunity, to have

servicemember mother’s relationship to the military that matters, not her injuries or lack
thereof, the majority’s injury-focused approach injects an unnecessary and superfluous
consideration into the Feres inquiry. Moreover, because the military cannot be sure that
the mother suffered a factual injury until after litigation has commenced, I do not see how
the military would ever know how to evaluate its potential liability at the time it is
committing to the actions which later may, or may not, subject it to liability.

13
any chance of successfully defending against the child’s claim, the military must

simultaneously argue that its conduct, although injurious to the mother, was not injurious

to her unborn child. There is simply no good reason to require the military to engage in

this kind of legal gymnastics in order to avail itself of Feres immunity.

II. Application of the conduct-focused approach

Applying a conduct-focused approach to determine whether I.O.’s claim is Feres-

barred, I would simply consider whether her alleged in utero injuries flowed directly from

the military’s incident-to-service conduct toward her mother, an active duty

servicemember. The military’s provision of obstetric care to I.O.’s servicemember

mother is clearly incident-to-service conduct for which the military is immune from

liability under Feres. See Madsen, 841 F.2d at 1012–13. Thus, I.O.’s claim is Feres-

barred if her alleged in utero injuries can be said to flow directly from this protected

conduct. Because I.O.’s in utero injuries necessarily derived from the military’s

immunized conduct toward a servicemember, her claim is Feres-barred.

This conclusion stems from the very nature of the mother-fetus relationship, which

is unlike any other. Until the moment of birth, mother and fetus are inexplicably

intertwined—they share oxygen, nutrients, and a physical body. By virtue of their

inseparability, mother and fetus share a unity of interests. Although medical

interventions may, at times, be directed more particularly to either the mother or her

fetus, at all times the mother’s interest in safely delivering her child aligns with the

fetus’s interest in a healthy birth. Because these ultimate interests are indivisible while

14
the fetus is in utero, it seems likely to me that a mother will inevitably be injured

whenever her unborn child sustains in utero injuries.

Thus, I disagree with the majority’s conclusion that fetal injuries can occur even

though “the mother is truly not injured at all.” See Maj. Op. at 33. This conclusion not

only defies the physical realities of pregnancy, but it also fails to acknowledge the unique

mother-fetus bond and the inevitable mental or psychological injury a mother experiences

whenever her unborn child is injured.

Given the sui generis nature of the mother-fetus relationship, the military’s

obligation to provide competent medical care to a pregnant servicemember extends to her

unborn child. For the military to care properly for a servicemember during her

pregnancy, that care will undeniably include not only attending to the servicemember’s

health but also attending to a successful delivery of the fetus from her body. The reality

is that the military acts toward both mother and fetus whenever it provides obstetric

medical care to either mother or fetus. See Scales v. United States, 685 F.2d 970, 974

(5th Cir. 1982) (explaining that the treatment accorded to a pregnant servicemember

mother is “inherently inseparable” from the treatment accorded to her fetus). Thus,

regardless of whether the military’s obstetric medical care injures the mother or her fetus,

15
or both, Feres immunity attaches because such injuries are a direct result of the mother’s

military status.5

III. Conclusion

I.O.’s claim is Feres-barred because her in utero injuries necessarily flowed from

the military’s incident-to-service conduct toward her servicemember mother. Although

harsh in its result,6 this conduct-focused approach has two noteworthy advantages. First,

by tethering the military’s Feres-immunity to its service-related conduct toward pregnant

servicemembers, the conduct-focused approach is consistent with the fundamental

purpose of Feres to protect the “peculiar and special” relationship between the military

and its servicemembers. Second, by zeroing in on the nature of the military’s conduct,

rather than the consequences of such conduct, the conduct-focused approach aligns with

general principles of immunity. As long as Feres remains the law, we are tasked with

5
Importantly, however, as the unity of interests between mother and fetus—which is
anchored in their physical inseparability while the fetus is inside the mother’s body—
begins weakening during the birth process, so too does the rationale for applying Feres to
in utero claims. Indeed, once a baby is born, and therefore becomes physically separate
from the servicemember mother, this rationale dissipates. At that point, it makes sense to
consider the military’s actions toward the baby separately from the military’s actions
toward the servicemember mother.
6
The Feres doctrine itself has often been criticized as harsh, but the Supreme Court has
not backed down in the face of such criticisms. See, e.g., Ritchie v. United States, 733
F.3d 871, 874 (9th Cir. 2013) cert. denied, 134 S. Ct. 2135 (2014) (“For the past sixty-
three years, the Feres doctrine has been criticized by ‘countless courts and commentators’
across the jurisprudential spectrum. . . . However, neither Congress nor the Supreme
Court has seen fit to reverse course.”).

16
upholding it. Because I think that a conduct-focused approach is most consistent with

this obligation, I respectfully concur.7

7
I concur with both the majority’s conclusion that I.O.’s claim is Feres-barred and its
conclusion that the district court did not abuse its discretion in denying I.O. additional
time and discovery to respond to the Government’s Rule 56 motion. See Maj. Op. at 34–
35.

17