1 / 23

Sovereign Immunity You cannot sue the king (or the government)

Brown v. United States 462 F.3d 609 (6 th Cir. 2005) * The beginning of the end of a type of systematic gender discrimination of pregnant military personnel *How real gender discrimination can occur as an unintended consequence of badly construed law [redacted].

kaz
Download Presentation

Sovereign Immunity You cannot sue the king (or the government)

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Brown v. United States462 F.3d 609 (6th Cir. 2005)* The beginning of the end of a type of systematic gender discrimination of pregnant military personnel*How real gender discrimination can occur as an unintended consequence of badly construed law[redacted]

  2. Sovereign ImmunityYou cannot sue the king (or the government)

  3. Until: Plane crashes at full speed into the tallest building in Manhattan with many killed and injuredSeptember 11, 2001?

  4. July 28, 1945

  5. Plane was a US Military B-25 Bomber piloted by a Lt. Colonel who, in thick fog, was told he couldn’t land at LaGuardia airport due to no visibilityHe started an approach anyway and crashed.

  6. Federal Tort Claims Act (1946)Waiver of Sovereign ImmunityAllows the government to be sued for damages caused by the negligence of U.S. government employees

  7. Supreme Court makes an Exception No liability for injury or death of service member that arises “incident to service”Feres DoctrineFeres v. United States340 U.S. 135 (1950)

  8. “Incident to Service” means anything that a military person does that is even remotely related to their involvement in the military.Specifically, includes care at military medical institutions.

  9. Feres cites three rationales why military personnel can’t sue the government:1. military relationship is distinctly federal2. no fault system of military benefits3. maintain military discipline

  10. Supreme Court Expands Exception No liability to third parties whose injuries derive from injuries to service members (1977)Examples:Cut off wrong leg of military member- family cannot sueRadiation induced birth defects

  11. Exception Expanded Again:Treatment accorded a military mother is inherently inseparable from the treatment of the fetus in the mother’s body (1982)Result: Children born of active duty military mothers are barred by Feres and have no recourse for negligent prenatal care

  12. BUT Children born of active duty military fathers (via civilian mother) are NOT barred by Feres and have full recourse for negligent prenatal care

  13. RESULTDecades of Gender discrimination as a result of an unintended consequence of badly construed lawIn race to limit governmental liability a system of gender discrimination was set in place

  14. Spina Bifida: a failure of the neural tube to close during fetal development- Neural Tube DefectMost common severe birth defectApproximately 70% of spina bifida cases are avoided if mother takes adequate folic acid during critical time period

  15. Argument: Treatment with folic acid was for the health benefit of the baby, not the motherChild’s injuries are independent of any injury to parent- No injury whatsoever to motherMother not even a plaintiff

  16. Holding: The FTCA 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

  17. Special Bonus: Because [Redacted] involved preconceptional care, the full gamut of pregnancy care from before conception to delivery is now subject to review by the courts

  18. Case was remanded to the trial court and tried to a judgment.Plaintiffs prevailed.

More Related