                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0349p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 TIMOTHY BROWN, individually and as next friend of X
                                                      -
                               Plaintiff-Appellant, -
 MELODY BROWN, his minor daughter,
                                                      -
                                                      -
                                                          No. 04-5171

                                                      ,
          v.                                           >
                                                      -
                                                      -
                              Defendant-Appellee. -
 UNITED STATES OF AMERICA,

                                                      -
                                                      -
                                                      -
                                                     N
                       Appeal from the United States District Court
                    for the Western District of Tennessee at Memphis.
                   No. 03-02282—Jon Phipps McCalla, District Judge.
                                          Argued: March 17, 2005
                                 Decided and Filed: September 8, 2006
            Before: DAUGHTREY and CLAY, Circuit Judges; GRAHAM, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: Jamal K. Alsaffar, THE MICHAEL ARCHULETA LAW FIRM, Austin, Texas, for
Appellant. Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Jamal K. Alsaffar, George J. Hanko, III, Michael E.J. Archuleta,
THE MICHAEL ARCHULETA LAW FIRM, Austin, Texas, for Appellant. Robert S. Greenspan,
Lowell V. Sturgill, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
    DAUGHTREY, J., delivered the opinion of the court, in which CLAY, J., joined.
GRAHAM, D. J. (pp. 8-11), delivered a separate dissenting opinion.




        *
          The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.


                                                        1
No. 04-5171           Brown v. United States                                                   Page 2


                                        _________________
                                            OPINION
                                        _________________
        MARTHA CRAIG DAUGHTREY, Circuit Judge. In this appeal, brought by plaintiff
Timothy Brown on behalf of his minor child, Melody, we are asked to reinstate the plaintiff’s
medical malpractice complaint against the United States, filed pursuant to the Federal Tort Claims
Act, 28 U.S.C. § 1346(b). That complaint was dismissed by the district court for lack of subject
matter jurisdiction, under Feres v. United States, 340 U.S. 135 (1950), as applied to prenatal injuries
by this court in Irvin v. United States, 845 F.2d 126 (6th Cir. 1988). Because the facts in this case
are readily distinguishable from those in Irvin and do not implicate the rationales underlying the
decision in Feres, we conclude that the district court does have subject matter jurisdiction over the
plaintiff’s complaint. We therefore reverse the judgment entered below and remand the case for
further proceedings.
                       FACTUAL AND PROCEDURAL BACKGROUND
        Despite the district judge’s entry of an order of dismissal under Federal Rule of Civil
Procedure 12(b)(6), there can be no doubt that he was fully sympathetic to the Brown family,
especially to young Melody, who was born with spina bifida, allegedly as the result of malpractice
on the part of a military doctor who provided prenatal care to Melody’s mother, Deborah Brown,
while Deborah was on active duty with the United States Navy. In April 2000, in an effort to
conceive a child, Deborah had sought pre-conception counseling at her branch medical clinic.
Dr. Danjoyeb Mukherjee, a Navy Lieutenant there, prescribed prenatal vitamins to Deborah, and she
began taking them in anticipation of achieving a pregnancy.
        The vitamins contained folic acid, which the plaintiff alleges is intended solely to prevent
neural tube defects in a developing fetus. Neural tube defects can cause serious spinal cord and
brain injury during the first 28 days of gestation, after which the fetal neural tube closes. Deborah’s
husband, plaintiff Timothy Brown, later alleged in the complaint that prenatal doses of folic acid
offer no scientific benefits to an expectant mother but are prescribed to ensure that there is adequate
folic acid for the baby from the moment of conception onward.
       In June 2000, some two months after she began taking the prenatal vitamins, Deborah Brown
returned to the clinic for a regularly scheduled physical exam. She indicated on a medical history
form that she and her husband were trying to conceive and that she was currently taking prenatal
vitamins. Captain Leland Mills, then the senior medical officer at the clinic, purportedly
recommended that she discontinue taking the prenatal vitamins. In response to this advice, her
husband alleged, Deborah stopped taking the vitamins that day.
        About four weeks later, Deborah conceived. After approximately one month of gestation,
Deborah returned to the clinic, where she received a new prescription for prenatal vitamins
containing folic acid. According to the complaint, however, the critical time period for taking folic
acid had passed, and the fetus that Deborah was carrying had already suffered a neural tube defect
from lack of folic acid. Melody Brown was born on March 28, 2001, and was diagnosed as having
spina bifida and its neurological sequelae. Deborah Brown sustained no physical injury whatever
from the effects of the negligent prenatal treatment, from her pregnancy, or from Melody’s birth.
        Timothy Brown brought this action against the United States on behalf of himself and his
infant daughter, alleging that Dr. Mills was negligent in recommending that prenatal vitamins be
discontinued and thereby failing to assure that folic acid was available for Melody’s benefit from
the time of her conception. In response, the United States filed a motion to dismiss the action for
want of subject matter jurisdiction, contending that the Feres doctrine had created an applicable
No. 04-5171               Brown v. United States                                                                Page 3


exception to the government’s waiver of sovereign immunity in the Federal Tort Claims Act, one
that barred Timothy Brown’s suit because the injury stemmed from allegedly negligent acts by and
against military personnel. The district court granted the government’s motion to dismiss, and
Timothy Brown now appeals.
                                                   DISCUSSION
        We emphasize that in resolving the legal question presented by this appeal, we are reviewing
only the district court’s order of dismissal under Rule 12(b)(1). We must, therefore, treat the
allegations in the complaint as true. See Evans v. Pearson Enters., Inc., 434 F.3d 839, 843 (6th Cir.
2006).
        The legal background of this case is well-plowed territory. The Federal Tort Claims Act
permits the government to be sued for injuries caused by the negligence of government employees,
acting within the scope of their employment, to the same extent that a private individual would be
liable for such negligence. See 28 U.S.C. § 1346(b). This statutory provision is, nevertheless,
subject to a judicially-created exception carved out in Feres v. United States, 340 U.S. 135 (1950).
In Feres, the Supreme Court held that the broad waiver of sovereign immunity found in the Federal
Tort Claims Act does not apply to negligence actions brought by military personnel. Specifically,
the Court ruled, the government “is not liable under [the Act] for injuries to servicemen where the
injuries arise out of or are in the course of activity incident to service.” Id. at 146. The Court has
since identified three rationales for the Feres exception: first, the distinctly federal nature of the
relationship between the government and members of its armed forces; second, the existence of the
Veterans’ Benefits Act, which provides a form of no-fault compensation for injured members of the
military; and, third, the special relationship of a service member to his or her superiors and “the
effects of the maintenance of such suits on discipline, and the extreme results that might obtain if
suits under the Tort Claims Act were   allowed for negligent orders given or negligent acts committed
in the course of military duty.”1 United States v. Shearer, 473 U.S. 52, 57 (1985) (citations and
internal quotation marks omitted).
        After Feres, the Court held that the doctrine also precludes suits by third parties for claims
that derive – directly or indirectly – from injuries to service members incident to military duty. See
Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 673 (1977) (“where the case concerns an
injury sustained by a soldier while on duty, the effect of the action upon military discipline is
identical whether the suit is brought by the soldier directly or by a third party”). See also Mondelli
v. United States, 711 F.2d 567 (3d Cir. 1983) (child’s suit for genetic injuries caused by her father’s
exposure to radiation during active duty in the military barred because the injury derived from injury
to her father); Lombard v. United States, 690 F.2d 215 (D.C. Cir. 1982) (same).
         Despite the plaintiff’s argument that, in contrast to the situations in Stencel, Mondelli, and
Lombard, the Feres doctrine is inapplicable in this case because Melody’s injury was not derivative
of any injury to her mother but was, rather, the result of negligence affecting Melody directly (albeit
in utero), the district court held that it lacked jurisdiction under our ruling in Irvin v. United States,
845 F.2d 126 (1988). There we dismissed an action for negligent prenatal care given to a mother
enlisted in the Army that allegedly resulted in the death of her child four days after birth. Relying
on the Fifth Circuit’s analysis in Scales v. United States, 685 F.2d 970, 974 (5th Cir. 1982), we held
in Irvin that the treatment accorded to a pregnant member of the military on active duty is inherently

         1
           In Shearer, the Court held that this third rationale should be considered “controlling” and seemingly undercut
the basis for consideration of the first two Feres bases. See 473 U.S. at 57. However, in a 5-4 decision only two years
after Shearer, the Court reaffirmed the full three-part analysis in holding that Feres applied to injuries suffered by
military personnel at the hands of civilian employees of the federal government. See United States v. Johnson, 481 U.S.
681 (1987).
No. 04-5171           Brown v. United States                                                        Page 4


inseparable from that accorded to the fetus and that such a claim would therefore force a judge to
question the propriety of decisions or conduct of fellow members of the military. See Irvin, 845 F.2d
at 131. The district court found the Browns’ case factually indistinguishable from Irvin and,
therefore, dismissed the action.
       But the district court did so with great reluctance, engaging in the following, highly
persuasive, analysis:
               Plaintiffs attempt to distinguish Irvin and Scales in two ways. First, Plaintiffs
       argue that the treatment (i.e. the failure to provide prenatal vitamins with folic acid)
       injured only Melody Brown, rather than her mother. Therefore, Plaintiffs maintain
       that Melody Brown’s injury does not have its genesis in a service member’s injury.
       Second, Plaintiffs argue that prenatal folic acid supplementation should have been
       provided specifically for the benefit of Melody Brown, a civilian, rather than her
       mother, an active duty military servicewoman, for whom the folic acid offered no
       benefit. Therefore, Plaintiffs argue that Melody Brown sustained a direct injury that
       is independent of the medical treatment her mother received.
               In support of their arguments, Plaintiffs cite to a number of circuit and district
       courts permitting civilian dependents of military personnel to proceed with claims
       under the [Federal Tort Claims Act (FTCA)] for negligent prenatal care. See, e.g.,
       Romero v. United States, 954 F.2d 223 (4th Cir. 1992) (finding that child’s claim for
       prenatal injuries was not Feres barred); Del Rio v. United States, 833 F.2d 282 (11th
       Cir. 1987) (finding that children’s claim for prenatal injuries was not barred by Feres
       because their claims did not derive from their mother’s injury, but were
       independent); Lewis v. United States, 173 F. Supp.2d 52 (D. D.C. 2001) (holding that
       the Feres doctrine did not bar claims for negligent prenatal care where medical
       treatment was allegedly directed at only the child, rather than the service member);
       Graham v. United States, 753 F. Supp. 994 (D. Me. 1990) (permitting child’s suit
       under the FTCA for prenatal injuries suffered at the time of her delivery); Utley v.
       United States, 624 F. Supp. 641 (S.D. Ind. 1985) (allowing child’s FTCA claim for
       negligent prenatal care).
               In each of the cases cited by Plaintiffs, the court permitted recovery for the
       child’s injuries. Admittedly, none of these cases addressed negligence allegedly
       occurring early in gestation as the Fifth Circuit did in Scales. Indeed, most of
       Plaintiffs’ cases concern negligence at the time of labor and delivery. However,
       some 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. Romero, 954 F.2d at 225 (“Joshua, the civilian child, was injured,
       not a military patient. 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.”); Lewis, 173 F. Supp.2d
       at 57 (“Plaintiffs’ amended complaint is consistent in its allegations: while both
       Regina and Clayton received medical care at Walter Reed, only Clayton’s medical
       treatment was negligent.”); Graham, 753 F. Supp. at 999 (“[I]t is the injury to [the
       child] and not one to the serviceperson which is at issue.”); Utley, 624 F. Supp. at
       645 (“The only party injured by the alleged malpractice is a civilian infant who has
       no federal relationship with the government and no remedy if his suit is barred.”).
       Therefore, each of these courts concluded that the child’s FTCA claim was not
       barred by Feres because the child had sustained an independent injury at the hands
       of military personnel. That is precisely the argument Plaintiffs assert here.
No. 04-5171           Brown v. United States                                                      Page 5


                Moreover, as noted in many of the cases cited by Plaintiffs, none of the three
        considerations typically invoked to support application of the Feres doctrine seems
        to apply with particular force in the case of a servicewoman seeking prenatal care in
        anticipation of or during a pregnancy. In this case, the relationship between the
        civilian child, Melody Brown, and the government is not distinctly federal in nature.
        Moreover, the Court has no indication that Melody Brown could recover benefits
        under the Veteran’s Benefits Act for her injuries. Finally, the question of whether
        a doctor should recommend that an expectant mother take prenatal vitamins with
        folic acid seems to have little, if any, bearing upon military discipline and would not
        require judicial scrutiny of the operations of the armed services.
        Despite this cogent analysis of relevant case law pointing to a finding of non-immunity based
on the facts before the district court, the court came to the conclusion that it was bound by Irvin to
hold that no recovery was available to Tim Brown on behalf of Melody. Unlike the district court,
however, we are not convinced that the end result of this analysis requires slavish adherence to Irvin,
principally because the facts of the two cases can be distinguished, but also because the Irvin
opinion’s analysis rests on shaky ground, as indicated below, and because its reliance on the then-
recent decision by the Fifth Circuit in Scales has since been undercut by subsequent decisions in the
Fifth Circuit and elsewhere.
         The complaint in Irvin sought recovery for injury to the plaintiff mother, at that time on
active duty with the United States Army, that had resulted in the death of her newborn infant, caused
by the defendants’ malpractice in “prescribing contraindicated medication” and in failing both “to
aggressively treat, evaluate and properly diagnose the [resulting] pregnancy condition” and “to
reclassify Mildred Irvin’s medical condition as urgent.” 845 F.2d at 127. In other words, the death
of the Irvin infant was caused by (and was therefore derivative of) an injury suffered by the child’s
mother. By contrast, the facts here indicate that the medical treatment at issue caused no injury to
Deborah Brown, as opposed to her fetus. And, although it is true that the Irvin opinion relied on the
Fifth Circuit’s dictum in Scales that the claim of a fetus cannot be considered ”an independent
ground of recovery,” 685 F.2d at 973, in a subsequent Fifth Circuit case, Dickerson v. United States,
280 F.3d 470 (5th Cir. 2002), the government conceded liability, and the Fifth Circuit permitted a
claim to proceed for negligent prenatal care when the care was offered solely for the benefit of the
active duty mother’s unborn child. Thus, the Fifth Circuit appears to have joined the other courts
that have distinguished claims involving injury to a child that derives from an injury to a service-
member parent, such as a birth defect caused by a parent’s exposure to radiation, see, e.g., Mondelli,
711 F.2d at 568, from those claims for negligent medical care administered solely to the detriment
of a civilian child. See, e.g., Romero, 954 F.2d at 226; cf. Mossow v. United States, 987 F.2d 1365,
1369-70 (8th Cir. 1993) (recovery permitted in legal malpractice action against military lawyer who
informed an injured child’s father that he could not sue for negligent prenatal care provided by the
military to his wife, who was on active duty with the Air Force at the time).
         Doubtless, we would be obliged by Irvin to apply the Feres doctrine to bar the plaintiff’s
claim on his daughter’s behalf had the injury to the child been caused by an injury to her mother,
who was on active duty with the military at the time of the alleged negligence. However, the injury
to the fetus in this case was direct and not derivative. Moreover, as the district court correctly noted,
the three rationales underlying the Feres doctrine, i.e., the distinctly federal relationship between
service members and the military, the administrative compensation scheme available to service
members, and the need for military discipline, are simply inapplicable to suits for negligent prenatal
care affecting only the health of the fetus.
        In Shearer, the Supreme Court noted that an action by a member of the armed forces against
the government for an injury sustained incident to military service is Feres-barred because it is “the
type of claim[ ] that, if generally permitted, would involve the judiciary in sensitive military affairs
No. 04-5171           Brown v. United States                                                    Page 6


at the expense of military discipline and effectiveness.” Shearer, 473 U.S. at 59. But a negligence
action for medical malpractice in the prenatal care or birth of a child is a matter that courts can and
do handle on a routine basis, and it is one that clearly cannot be said to invite judicial interference
in “sensitive military affairs.” More to the point is the indication in Shearer that courts should take
a flexible approach to government claims of immunity in actions brought under the Federal Tort
Claims Act. See id. at 57 (“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.”). We thus conclude that the holding in Irvin, eroded by the decisions in subsequent cases,
should be confined to its facts and does not foreclose a contrary result in a clearly distinguishable
set of facts such as the one now before us.
        One of the most persuasive of those subsequent cases is Romero, in which the Fourth Circuit
held that Feres did not bar recovery for injuries to the child of active members of the United States
Navy who was born with cerebral palsy, alleged to have been caused by inadequate prenatal care
by military doctors. The mother, Roxanna Romero, was known to have a condition known as
“incompetent cervix,” which, when left untreated, resulted in Joshua Romero’s premature birth and
resulting cerebral palsy. The government argued that if “reasonable medical measures had been
undertaken to prevent Joshua’s injuries, the treatment [suturing of the cervix until the beginning of
labor] would have been directed solely to Joshua’s mother” and, therefore, that Joshua’s injury was
“incident to military service.” Romero, 954 F.2d at 225. The court rejected this argument – virtually
the same contention as the government made here – and, after noting that “claims brought by
civilians and civilian dependents of service members who have directly sustained injuries from
military personnel are not Feres-barred,” id., held as follows:
       We believe the precedent governing injuries by the military to civilians applies here.
       Joshua, the civilian child, was injured, not a military patient. 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 . . . . Because the
       purpose of the treatment was to insure the health of a civilian, not a service member,
       Feres does not apply.
        We note that the situation in this case directly parallels that in Romero, in that the allegedly
inadequate treatment produced no injury whatever to Deborah Brown. Indeed, had the proper
prenatal care been provided, it would have been solely for the benefit of the fetus and would not
have affected the mother’s health in any way. We conclude that this set of facts should be governed
by cases such as Romero, rather than by cases like Mondelli, involving derivative genetic injuries
to children resulting from a parent’s exposure to radioactivity while on military duty. See Mondelli,
711 F.2d at 569. The latter clearly “arise[s] out of or [is] in the course of activity incident to
service.” Feres, 340 U.S. at 146. The former just as clearly is not.
        Because the underlying rationales supporting the Feres doctrine are not applicable in the
situation before us, and because the case is readily distinguishable from prior circuit precedent, we
decline to adopt the government’s contention that we are bound in this matter by our decision in
Irvin. Instead, we elect to join those circuits holding that the Federal Tort Claims Act does not
preclude recovery for negligent prenatal injuries to the child of a military service person that are
independent of any injury to the child’s parent.
No. 04-5171          Brown v. United States                                                 Page 7


                                         CONCLUSION
        For the reasons set out above, we reverse the judgment of the district court and remand the
case to the district court for further proceedings.
No. 04-5171           Brown v. United States                                                    Page 8


                                        _________________
                                            DISSENT
                                        _________________
        GRAHAM, District Judge, dissenting. The majority has decided that the medical
malpractice claims asserted against the United States by plaintiff Timothy Brown on behalf of
himself and his minor child, Melody Brown, were improperly dismissed by the district court for lack
of subject matter jurisdiction. Because I would conclude that plaintiff’s action is barred under Feres
v. United States, 340 U.S. 135 (1950) and Sixth Circuit precedent, I respectfully dissent.
        In Feres, the Supreme Court held that the government is not liable under the Federal Torts
Claims Act for injuries to military personnel for injuries that “arise out of or are in the course of
activity incident to service.” Feres, 340 U.S. at 146. The Feres doctrine is not limited to those
situations where a service member is injured or killed in the course of military duty or while subject
to a direct command relationship. Woodside v. United States, 606 F.2d 134, 140 (6th Cir. 1979).
The Supreme Court in Feres disallowed two claims of medical malpractice asserted against military
doctors, and courts have consistently applied the Feres doctrine in barring suits for the alleged
negligent medical treatment of active service members at a military hospital. See Skees v. United
States By and Through Dept. of Army, 107 F.3d 421, 424 (6th Cir. 1997); Sidley v. United States
Dept. of Navy, 861 F.2d 988 (6th Cir. 1988)(treatment of service member at naval hospital incident
to military service); Woodside, 606 F.2d at 142 (injury to active duty service member while
receiving treatment at military hospital or medical facility deemed to be incident to military service).
        The Feres holding has also been extended to bar non-military third-party claims based on
injuries sustained by service persons. See Stencel Aero Engineering Corp. v. United States, 431 U.S.
666 (1977)(claim asserted by third party seeking indemnity for damages paid to injured service
member barred).
        Courts have construed Feres as barring the derivative claims of family members of service
persons where the claim has its “genesis” in an injury to an active duty service person incident to
military service. Under the “genesis” test, if the non-serviceman’s suit is based on essentially the
same facts as the potential serviceman’s suit or the non-serviceman’s suit could not have happened
“but for” the serviceman’s cause of action, then the Feres doctrine precludes suit. Minns v. United
States, 155 F.3d 445, 449 (4th Cir. 1998).
        Cases applying the “genesis” test include: Minns, 155 F.3d at 449-51 (claims of children of
servicemen given investigational and defective drugs, causing children to be born with birth defects,
properly dismissed because the exposure of servicemen to chemicals was the genesis of children’s
alleged contact with chemicals); Skees, 107 F.3d at 424-25 (claim of widow of serviceman who
committed suicide due to allegedly negligent treatment at military hospital barred); West v. United
States, 744 F.2d 1317 (7th Cir. 1984)(vacating opinion reported at 729 F.2d 1120 which held that
there was a cause of action for health problems suffered by children due to parents’ incompatible
blood types where parents allegedly relied on negligent typing of father’s blood at time of
induction); Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983)(barring claims of children born with
birth defects caused by father’s exposure to radiation); Mondelli v. United States, 711 F.2d 567 (3d
Cir. 1983)(claim for child’s cancer caused by father’s exposure to radiation while on active duty
barred); Lombard v. United States, 690 F.2d 215, 223-26 (D.C.Cir. 1982)(damage claim for genetic
injuries to children allegedly caused by father’s exposure to radiation while in the service barred);
Scales v. United States, 685 F.2d 970 (5th Cir. 1982)(claim asserted on behalf of child for birth
defects allegedly caused by rubella vaccination given to child’s mother barred); Laswell v. Brown,
683 F.2d 261 (8th Cir. 1982)(claims of children for genetic injuries caused by father’s exposure to
No. 04-5171           Brown v. United States                                                      Page 9


radiation barred); Monaco v. United States, 661 F.2d 129 (9th Cir. 1981)(claim of child for injuries
caused by father’s exposure to radiation barred).
        In Scales, the Fifth Circuit addressed the viability of claims asserted on behalf of a child
allegedly born with birth defects due to a rubella vaccination given to his service member mother
during her pregnancy. The court distinguished cases which have permitted the dependents of
servicemen to sue the government based on negligent conduct directed to the dependent alone which
did not involve any decisions by the military toward enlisted personnel. Scales, 685 F.2d at 974.
In contrast, the court noted, the allegations of negligence of the child in Scales focused entirely on
the medical treatment that military physicians gave the mother. Id. The court stated:
        The treatment accorded his mother is inherently inseparable from the treatment
        accorded Charles as a fetus in his mother’s body. Consequently, the district court’s
        analysis is the same whether the suit is brought by Charles or Ms. Scales. In either
        instance, the judge is placed in the position of questioning the propriety of decisions
        or conduct of fellow members of the Armed Forces. This is precisely the type of
        examination that Feres seeks to avoid.
Id.
        A minority of courts have adopted a position contrary to Scales. For example, in Del Rio v.
United States, 833 F.2d 282 (11th Cir. 1987), the court held that a claim asserted on behalf of twin
infants who were allegedly injured due to negligent prenatal care given to their service person
mother was not precluded under Feres. In Romero by Romero v. United States, 954 F.2d 223, 225
(4th Cir. 1992), the court reversed the dismissal of claims brought on behalf of a child born
prematurely with cerebral palsy due to the doctors’ failure to implement a medical treatment plan
made necessary by his service person mother’s incompetent cervix, concluding that the genesis test
only applied to civilian injuries derived from an actual injury to the service person.
        In Irvin v. United States, 845 F.2d 126 (6th Cir. 1988), the Sixth Circuit considered the case
of a service member who became pregnant while on active duty in the United States Army. The
complaint alleged that the child died due to negligent prenatal medical care, including prescribing
contraindicated medication during pregnancy. The Irvin court addressed whether the claim brought
on behalf of the deceased infant by her parents was barred, and concluded that it was. The court
“decline[d] appellants’ invitation to reject the genesis test.” Id. at 130. The Irvin court also relied
on the above-quoted language from Scales, stating, “This is the position which we adopt today.”
Id. at 131. The court also noted the different approach taken by the court in Del Rio and declined
to follow that reasoning. Id.
        The decision in Irvin was subsequently followed in an unreported decision in France v.
United States, 225 F.3d 658 (table), 2000 WL 1033020 (6th Cir. 2000). In France, a wrongful birth
claim was asserted on behalf of an infant born with birth defects whose service member mother
alleged that the failure to perform adequate ultrasound examinations deprived her of the opportunity
to terminate her pregnancy. The France panel concluded that plaintiff’s case was indistinguishable
from Irvin, and affirmed the dismissal of plaintiff’s claims. Id. at **3.
        The claims in the instant case also fall within the scope of Irvin. Any prenatal treatment
involving Melody Brown also involved her mother; in fact, at the time the treatment decision was
made, Melody had not been conceived. Irvin involved negligence in prenatal care during pregnancy.
This case involved the failure to prescribe prenatal vitamins both before and during the early stages
of pregnancy. However, this distinction is not critical to the Feres analysis. If anything, the fact that
the allegedly negligent treatment decision instructing Deborah Brown to stop taking prenatal
vitamins was made prior to Melody Brown’s conception makes the application of the Feres doctrine
No. 04-5171           Brown v. United States                                                   Page 10


even more compelling, because the decision at that point impacted only the physical condition of
Deborah Brown, a service member. Once Melody was conceived, the treatment decision involved
both Melody and her mother.
         The majority states that Irvin is distinguishable because the alleged negligent treatment in
this case caused no injury to the mother, and therefore, the “genesis” theory is inapplicable in this
case. However, plaintiff’s claim on behalf of Melody Brown depends on a showing that the decision
to stop prescribing prenatal vitamins allegedly resulted in Deborah Brown being physiologically less
capable of delivering a healthy child. Any woman wanting a healthy child would argue that a
negligent medical decision impairing her ability to do so, resulting in the birth of a child with health
problems, would constitute an actionable injury. If plaintiff’s theory of liability is correct, the
medical decision to cease prescribing prenatal vitamins had a significant impact on Deborah
Brown’s body chemistry by depriving her body of the nutrients needed to create a healthy baby,
allegedly resulting in injury to Melody. This situation is analogous to the cases cited above
involving servicemen who suffered chromosomal damage due to exposure to radiation, thereby
impairing their ability to father healthy children. If the medical decision to stop prenatal vitamins
was negligent, then Deborah Brown suffered an injury which was also the “genesis” of the injury
to her child, and the alleged injury to Melody Brown was derivative of the alleged injury caused to
Deborah Brown.
        Even if it is assumed that no injury occurred to Deborah Brown, neither that fact nor the fact
that no claim of injury has been asserted by Deborah Brown alters the Feres analysis. The plaintiffs
in Minns also argued that their claims were not barred because they only alleged an injury
themselves, not to the parent service member. The court found that the omission of this allegation
was not critical to the Feres analysis, stating:
       We conclude that the plaintiffs cannot escape the fact that the negligent acts alleged
       in their complaint find their basis in the military’s decision to inoculate its soldiers
       with drugs and to expose them to pesticides, and the issue of whether they can allege
       or demonstrate injury is irrelevant to the analysis. See e.g., Monaco, 661 F.2d at 134
       (holding that the fact that a plaintiff may seek relief from injury not based on the
       injury of the serviceman “does not change the substantive analysis [because] the
       court must still examine the Government’s activity in relation to military personnel
       on active duty”).... Because the servicemen’s exposure to the chemicals is the
       genesis of the plaintiffs’ alleged contact with the chemicals, Feres bars the claims.
Minns, 155 F.3d at 450. Similarly, there was no indication in West that the serviceman father was
injured in any way due to the negligent recording of his blood type, yet the Ninth Circuit vacated
its prior opinion recognizing the right of the serviceman’s children to assert claims based on the
erroneous blood typing. West, 744 F.2d at 1317.
        The majority seeks to discredit Irvin by noting the post-Scales opinion of the Fifth Circuit
in Dickerson ex rel. Dickerson v. United States, 280 F.3d 470 (5th Cir. 2002). However, the Feres
doctrine was not at issue in Dickerson, because the government in that case did not contest liability.
Id. at 474. Neither Feres nor Scales was cited in the opinion. In addition, Dickerson involved
claims alleging negligence in the actual delivery of the infant plaintiff, including the failure to
perform a caesarean section which resulted in brain damage, not negligence in prenatal treatment,
and thus it is distinguishable from Scales on its facts.
        The majority also reasons that the three rationales underlying the Feres doctrine do not apply
in this case, those being: (1) the distinctly federal character of the relationship between the
government and members of the armed forces; (2) the existence of generous statutory disability and
death benefits provided to service members; and (3) the fact that claims for injuries incurred incident
No. 04-5171           Brown v. United States                                                    Page 11


to military service would involve the judiciary in sensitive military affairs at the expense of military
discipline and effectiveness. United States v. Johnson, 481 U.S. 681, 688-691 (1987). However,
the defining standard under Feres has always been whether the injury arose out of or occurred in the
course of activity incident to service. See id. at 686 (“In Feres, this Court held 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.’ [Feres,] 340 U.S., at 146. This Court has never deviated from this
characterization of the Feres bar.”)(footnote omitted). Although Johnson included a general
discussion of the three rationales, the Court referred solely to the fact that the alleged injury arose
directly out of and was incident to military service in analyzing claim at issue in that case. Id. at
688-91.
        In United States v. Stanley, 483 U.S. 669 (1987), the Supreme Court did not mention the first
two factors, and specifically rejected a “special factors” analysis which would consider how military
discipline would actually be affected in a particular case, stating that it would be appropriate to
disallow actions “whenever the injury arises out of activity ‘incident to service.’” Id. at 681. This
led the Tenth Circuit to conclude that “Stanley thus effectively merged the ‘special factors’ analysis
with the incident to service test.” Ricks v. Nickels, 295 F.3d 1124, 1130 (10th Cir. 2002).
        In Minns, the plaintiffs argued that two of the underlying rationales for the Feres doctrine
did not apply to them, because the children of servicemen did not have a distinctively federal
relationship to government or an effective remedy for their claims. The Fourth Circuit nonetheless
concluded that because the children’s claims were derivative of the military’s alleged negligent acts
directed at its servicemen, their claims were barred by the genesis test because “their suits would
require the judiciary to enmesh itself deeply into military decisions, a consequence that implicates
the primary justification for the Feres doctrine.” Minns, 155 F.3d at 450-51. Similarly, in Scales,
the Fifth Circuit addressed the question of whether a suit filed on behalf of the service person’s child
would have the same disruptive effect on military discipline as a suit brought by his service person
mother. The court concluded, “If the court must second-guess the judgment of military officers in
assessing their treatment of a member of the armed services, the claim will be deemed to have a
disruptive effect on discipline and will be dismissed.” Scales, 685 F.2d at 973.
        The record in this case is silent as to why the military physician instructed Deborah Brown
to stop taking prenatal vitamins. Any inquiry as to why this decision was made would necessarily
involve the district court in questioning the decision of a military doctor in the treatment of an active
service member, implicating the third Feres factor. This is sufficient to invoke the Feres bar.
         Regardless of whether this panel agrees or disagrees with the reasoning in Irvin, the genesis
test adopted in Irvin remains the law in this circuit. This court has long adhered to the “venerable
principle” that a prior published decision remains controlling unless overturned by an inconsistent
decision of the United States Supreme Court or by this court itself sitting en banc. Schoenberger
v. Russell, 290 F.3d 831, 841 (6th Cir. 2002); United States v. Smith, 73 F.3d 1414, 1418 (6th Cir.
1996); 6 Cir. R. 206(c). The facts of the instant case fall within the scope of the holding in Irvin,
and that holding mandates the dismissal of plaintiff’s claims. I would affirm the judgment of the
district court dismissing the complaint for lack of subject matter jurisdiction.
