Thurlow vs. U S In Loving Memory of Private Justin Haase *********************** Re: Thurlow v. United States et al. Original Reproduced Copy Filed: March 11, 2005 Docketed: March 15, 2005 Writ Denied: April 15, 2005 Note: Reproduction of this document is prohibited in any form without the expressed written consent of VERPA Inc. To protect the integrity of our legislative efforts; we are only providing the case caption, questions presented, parties and jurisdiction and the appendix of the district court hearing.  /// No. 04-1234 _____________________________________________ ______________________________________________________ In The Supreme Court of the United States _______ Renee S. Thurlow, Petitioner, v. United States of America, et al. Respondents. _______ On Petition For Writ of Certiorari To The United States Court Of Appeals For The Sixth Circuit PETITION FOR WRIT OF CERTIORARI ______ Renee S. Thurlow Petitioner pro se QUESTIONS PRESENTED FOR REVIEW I. Whether Petitioner’s case presents a federal question challenge against the constitutionality of the "incident to service" holding under the provisions of the Feres doctrine, Feres v. United States, 340 U.S. 135 (1950), wherein “gross/criminal” negligent acts and omissions of federal employees cannot be exempted under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346 et seq., based upon any of the rationale for the Feres doctrine to remain the law of the land? II. Whether the doctrine established under the Feres Court’s "incident to service" holding, has unlawfully obstructed Petitioner’s First Amendment Right under The United States Constitution and statutory right under the FTCA to petition the federal courts to redress the wrongful death of her son, Marine Corps Recruit Justin Haase, arising from Respondent’s "gross/criminal" negligent acts or omissions? III. Whether the good faith intent of the Feres doctrine’s “incident to service” bar under the FTCA established primarily to maintain “good order and discipline” in the military, has been so manipulated and misinterpreted over the past 54 years, barring even criminal acts or omissions from redress under the FTCA, such as the wrongful death of Justin Haase, compels this Court to overturn or reform the Feres doctrine to restore integrity within the federal courts? IV. Whether the Federal District Court’s strong reluctance to dismiss the Complaint for lack of subject matter jurisdiction under the provisions of the FTCA, based the egregious facts and circumstances surrounding Justin’s death, demands this Court to revisit the constitutionality and purpose of the Feres doctrine? V. Whether Petitioner’s wrongful death claim must be remanded to the District Court to establish new precedent and subject matter jurisdiction to address “gross/criminal” negligence under the provisions of the FTCA, to prevent unnecessary injuries or death arising from medical malpractice outside the scope of combat and to restore "checks and balances" on power in the United States Armed Forces? VI. If this Court is unwilling to remedy the Feres doctrine injustice, as the Guardian of The United States Constitution and in the name of justice, is this Court obligated to compel the United States Armed Forces to provide Recruits “informed consent” or the “right to know” the Feres doctrine strips and prohibits them from equal protection of the American Constitution once they assume their military oaths? VII. If this Court denies issuance of writ of certiorari in this case based upon Respondent, United States of America’s sovereign immunity status, is there any final United States authority Petitioner should address before seeking to hold “individual” Respondents accountable for the wrongful death of her son, Justin, at the United Nations (UN), Organization of American States (OAS), or International Criminal Court (ICC)? //// LIST OF PARTIES The list of parties to this proceeding arising from the final decision before the Sixth Circuit Court of Appeals include the following: a. Petitioner Renee S. Thurlow, Personal Representative of the Estate of Justin Haase, deceased; and b. Respondents The United States of America, The Department of the Navy, Sergeant William R. Bilenski, Sergeant Dwayne A. Hardwick, Hospitalman Sean O. Audain, and Lieutenant Commander Lloyd D. Weddington. /// BASIS FOR JURISDICTION Petitioner believes The United States Constitution and its First Amendment confers jurisdiction upon this Court to review this petition for writ of certiorari in addition to 28 U.S.C. § 1254(1), arising from a final judgment of the United States Court of Appeals for the Sixth Circuit filed on December 13, 2004. Petitioner believes this case presents a federal question challenge against the judicially created Feres doctrine, Feres v. United States, 340 U.S. 135 (1950), and is of such imperative public importance as to justify this Court’s issuance of writ of certiorari. /// STATEMENT OF THE CASE This case arises from a final judgment of the United States Court of Appeals for the Sixth Circuit filed on December 13, 2004. Petitioner affirmatively asserts the judicially created Feres doctrine established in Feres v. United States, 340 U.S. 135 (1950), on December 4, 1950, and its “incident to service” holding, has denied her equal protection and justice under The United States Constitution and The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346 et seq., to redress the wrongful death of her son, Marine Corps Recruit Justin Haase. Petitioner asks this Court to declare the “incident to service” bar on judicial redress of “gross/criminal” negligent acts or omissions of federal government employees resulting in injury or death to a service member unconstitutional. On August 24, 2001, Petitioner’s son Justin enlisted in the United States Marine Corps (USMC) delayed entry program. On September 11, 2001, (9/11), after learning of the infamous attacks against the United States of America, Justin immediately proceeded to the USMC recruiting office to expedite his processing onto Initial Active Duty for Training (IADT). On October 29, 2001, Justin reported for IADT to USMC basic training to fight for his Country in what we now know as the Global War on International Terrorism (“War on Terror”) having no knowledge he was stripped of all inalienable protections of The United States Constitution due to the “incident to service” bar under the provisions of the Feres doctrine’s grant of sovereign immunity. Hence, Petitioner filed her Complaint to assert these facts, in addition to the fact the Feres doctrine removes “checks and balances” on power in the United States military, is the direct and proximate cause giving rise to Justin’s wrongful death on December 23, 2001. //APPENDIX TO PETITION// No. 04-1234 ________________________________________________ ________________________________________________________ In The Supreme Court of the United States _______ Renee S. Thurlow, Petitioner, v. United States of America, et al. Respondents. _______ On Petition For Writ of Certiorari To The United States Court Of Appeals For The Sixth Circuit ______ APPENDIX ______ Sixth Circuit Court of Appeals Judge Nelson                                                            Renee S. Thurlow Judge Batchelder                                                       Petitioner pro se Judge Collier (DJ)  ________________________________________________ APPENDIX As required by Rule 14.1(i), attached hereto are the relevant District and Appeals Court opinions, orders, findings of fact and conclusions of law entered in conjunction with the December 13, 2004 judgment be sought review by petition to this Court and reproduced verbatim. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DISTRICT RENEE THURLOW, Personal Representative of the Estate of Justin Haase, deceased, Plaintiff, -v- Case Number: 03-72865 UNITED STATES OF AMERICA, THE DEPARTMENT OF THE NAVY, SERGEANT WILLIAM R. BILENSKI, SERGEANT DWAYNE A. HARDWICK, HOSPTIALMAN SEAN O. AUDAIN, and LIEUTENANT COMMANDER LLOYD D. WEDDINGTON, Defendants. ----------------------------------------------------/ DEFENDANT’S (sic) MOTION TO DISMISS BEFORE THE HONORABLE BERNARD A. FRIEDMAN United States District Judge 238 U.S. Courthouse & Federal Building 231 Lafayette Boulevard West Detroit, Michigan 48226 WEDNESDAY, DECEMBER 17TH 2003 APPEARANCES: For the Plaintiff: Leroy Wulfmeier, III, Esq. For the Defendant: Elizabeth J. Larin, Assistant Court Reporter: Joan L. Morgan, CSR Official Court Reporter DEFENDANT’S (sic) MOTION TO DISMISS WEDNESDAY, DECEMBER 17TH 2003 Detroit, Michigan Wednesday, December 17th, 2003 -- --- -- THE CLERK: Recalling 03-72865, Rene (sic) Thurlow 6 versus United States of America. THE COURT: May we have appearances, please? MS. LARIN: Elizabeth Larin, appearing on behalf of the United States. THE COURT: How are you? MR. WULFMEIER: Leroy Wulfmeier, your Honor, on behalf of Renee Thurlow. THE COURT: How are you? MR. WULFMEIER: Good. MR. COURT: Okay. This is Defendant’s (sic) Motion. MS. LARIN: Yes, Judge, this is our Motion to Dismiss this case under the Feres doctrine. I don’t really -- we’ve really briefed this thoroughly. This is a classic Feres case. THE COURT: It’s really a sad case. MS. LARIN: Very. THE COURT: Counsel, anything you want to add, or anything? I mean -- MR. WULFMEIER: Well, I -- yes, I would like to ask this Court to overturn Feres. I know it’s a difficult and unique situation. Feres has been around for fifty years, but that does not mean that it is anything but I believe to be judicial interpretation, judicial legislation. We have briefed it extensively. I think that while the Court apparently has its ruling -- THE COURT: No, I just have my notes. But I agree with you, this is one of those equitable cases. If I had equity jurisdiction, it screams, it screams and screams. It‘s not fair. There‘s is no question about that. Probably Ms. Larin would say the same thing, but she can‘t she‘s on the record. MS. LARIN: I hope you’re not asking -- THE COURT: No, I’m not asking, but I’m sure in your heart, but anybody who reads the facts in this particular case -- it’s a horrible set of facts. To be honest with you, one of my law clerks who really worked on it initially, the other is sitting right in front of me, she came to me and said oh, man, you know. And we looked at everything, I’ll tell you. This is one we said there must be some case out there that will allow me. I’m not going to overrule the Supreme Court, I’ll tell you right now. But we kept looking, and kept searching trying to find something, something that I could hang my hat on. I mean it’s just so egregious, there’s no question about that. I mean, with so many cases that you could go on and on and on for fifty years, you know, you’re absolutely right. And every time it gets interpreted by a Court of competent jurisdiction on an appellate level it keeps slicing a little more, you know, away from the military person’s rights to do something including when we finally get down to it, this such as this -- not sure as these things, but I mean there’s several cases right on point -- MR. WULFMEIER: There are no rights at this point. THE COURT: None. MR. WULFMEIER: Even though it was under the Federal Tort Claims Act, specifically it indicates that there are rights. THE COURT: But as I say for the last fifty years it’s been interpreted and its keeps getting stronger -- MR. WULFMEIER: My point being that I believe that at the inception it was interpreted incorrectly. THE COURT: It may have, but it’s been re-interpreted so many times including by the United States Supreme Court that I would be very hard press to do it. And I agree with you. As I say, we really looked at this case, and we sat down and -- Greta came in and said, there’s got to be -- she just got out of law school. She said this is unfair, we’ve got to do something. I tell you if there was any way to hang my hat on something, I would have. In fact, I event told Greta, I said maybe I’m going to put a little pressure on Ms. Larin to -- if we can find any loophole whatsoever, I’ll put some pressure on her to go back to her client and maybe even settle this case or do something, just a little something, some satisfaction. We couldn’t find a loophole; otherwise, I would have had her at sidebar -- MR. WULFMEIER: You could start a new precedent today. Instead of Feres we could have Haase, your Honor, a new case. THE COURT: I wish I could. As I say, I took an oath, and the oath was to follow the law. Unfortunately the Supreme Court -- if it was, you know, another circuit or something like that, it would be real easy to do it. I understand why they couldn’t give him a stripe because he hadn’t finished basic. I’m not sure, did they pay his funeral expenses? MS. LARIN: Judge, I don’t know. THE COURT: I saw something in there that indicated that they -- MS. LARIN: I would think that they paid it. THE COURT: Did they pay it? MR. WULFMEIER: Yes. THE COURT: Oh, I thought I saw -- I knew they didn’t give him a stripe but I thought there was something in there that said that they -- MR. WULFMEIER: There were so many other egregious acts. THE COURT: I can’t disagree with you. There’s not much I can do so I have to grant the Government’s Motion. MR. WULFMEIER: Thank you. MS. LARIN: Thank you. MS. LARIN: Shall I prepare an order? THE COURT: No, we’ll do it. MS. LARIN: All right. Thanks. MR. WULFMEIER: Thanks. THE COURT: Happy holidays to the both of you. MR. WULFMEIER: Thank you, you too. MS. LARIN: Thank you, Judge. (Proceedings concluded.) -- --- -- -7- DEFENDANT’S (sic) MOTION TO DISMISS WEDNESDAY, DECEMBER 17TH 2003 CERTIFICATE I, JOAN L. MORGAN, Official Court Reporter for the United States District Court for the Eastern District of Michigan, appointed pursuant to the provisions of Title 28, United State Code, Section 753, do hereby certify that the forgoing proceedings were had in the within entitled and number cause of the date hereinbefore set forth; (sic) and I do further certify that the foregoing transcript has been prepared by me or under my direction. s/ Joan L. Morgan___________ JOAN L. MORAN,CSR Official Court Reporter Detroit, Michigan 48226 Date: Feb 20, 2004 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DISTRICT RENEE THURLOW, CLOSED 18 DEC 2003 Plaintiff, Civil Action No. vs. 03-CV-72865-DT HON. BERNARD A. FRIEDMAN UNITED STATES OF AMERICA, et al., Defendants. Filed '03 DEC 10 A11:17 U.S. DIST. COURT CLERK EAST DIST. MICH DETROIT-PSG _________________________________/ ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION On December 17, 2003, this matter came before the court on defendants’ motion to dismiss plaintiff’s complaint. A hearing was held and oral argument heard. For the reasons stated on the record, IT IS ORDER that the complaint is dismissed based on the court’s lack of jurisdiction. “s/ Bernard A. Friedman” UNITED STATES DISTRICT JUDGE Dated: DEC 18 2003 Detroit, Michigan -9- No. 04-1095 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT RENEE THURLOW, Personal Representative of the Estate of FILED DEC 13 2004 Justin Haase, deceased, LEONARD GREEN, CLERK Plaintiff-Appellant, v. UNITED STATES OF AMERICA; O R D E R DEPARTMENT OF THE NAVY; SERGEANT WILLIAM R. BILENSKI; SERGEANT DWAYNE A. HARDWICK: HOSPTIALMAN SEAN O. AUDAIN; LIEUTENANT COMMANDER LLOYD D. WEDDINGTON, NOT RECOMMENDED Defendants-Appellees. FOR FULL-TEXT PUBLICATION Before: NELSON and BATCHELDER, Circuit Judges; COLLIER, District Judge.* Renee Thurlow, a citizens of Michigan, appeals through counsel, on behalf of her son Justin Haase’s estate, a district court order dismissing her complaint field pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., and 42 U.S.C. § 1983. Counsel did not respond to a request to show cause why oral argument would be necessary in this case, and this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 43(a). Mrs. Thurlow field this action to recover damages due to her son’s death. According to the complaint, Justin Haase reported to Marine basic training in October 2001 at the age of eighteen. He was allergic to penicillin, and never received an alternate prophylactic course of antibiotics as required at his admission. Under the stress of basic training, including inadequate nutrition and rest, he developed a sinus infection which later developed into bacterial meningitis. His condition was not diagnosed or treated. Even after he was finally sent to a military hospital in December, the failure to properly diagnose and treat his condition continued, resulting in his untimely demise. Mrs. Thurlow sought relief under the FTCA § 1983. Defendants moved to dismiss, arguing that the district court lacked jurisdiction under Feres v. United States, 340 U.S. 135 (1950), which prevents members of the military from recovering damages under the FTCA. Mrs. Thurlow field a response, and the district court heard the oral argument on the motion, which it reluctantly granted. On appeal, Mrs. Thurlow argues that Feres was wrongly decided and should be overturned as unconstitutional. Alternatively, she argues that Feres should not be applied in this case because her son was not yet technically on active duty, not having completed basic training. We review de novo a dismissal for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), Skees v. Untied States, 107 F.3d.421, 422-23 (6th Cir. 1997). Such review shows that the district court correctly dismissed this complaint pursuant to existing law. There Feres doctrine has been held to bar claims by service members and their families for medical malpractice. Irvin v. United States, 845 F.2d 126, 130 (6th Cir. 1998). Mr. Thurlow argues the Feres doctrine was wrongly decided and is unconstitutional, relying on the dissenting opinion in United States v. Johnson, 481 U.S. 681, 692-703 (1987). However, this court cannot overrule a Supreme Court precedent. Mackey v. United States, 226 F.3d 773, 777 (6th Cir. 2000). Mrs. Thurlow’s attempt to distinguish Feres also lacks merit because malpractice claims arising from pre-induction medical examinations have been held barred under the doctrine. Schoemer v. United States, 59 F.3d 26, 29-30 (5th Cir. 2000). Finally, Mrs. Thurlow’s attempt to circumvent the Feres holding by invoking § 1983 fails, because the federal government and its employees are not subject to suit under § 1983. Ana Leon T. v. Fed. Reserve Bank, 823 F.2d 928, 931 (6th Cir. 1987). Moreover, Mrs. Thurlow has not pursued her § 1983 claim on appeal. For the above reasons, the district court order dismissing this complaint is affirmed. ENTERED BY ORDER OF THE COURT s/Leonard Green_____________________ Clerk   Equal Justice for Veterans & Families can happen via abolishment of the Feres Doctrine!