                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 14 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ALEXIS WITT, On Behalf of the                 No. 09-15339
Estate of Dean Witt, Deceased,
                                              D.C. No. 2:08-cv-02024-JAM-KJM
              Plaintiff - Appellant,

       v.                                     MEMORANDUM *

UNITED STATES OF AMERICA,

              Defendant - Appellee.

                     Appeal from the United States District Court
                         for the Eastern District of California
                      John A. Mendez, District Judge, Presiding

                        Argued and Submitted May 11, 2010
                             San Francisco, California

Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.

      Alexis Witt appeals the district court’s dismissal of her wrongful death

action under the Federal Tort Claims Act (FTCA), alleging that her husband, a

member of the Air Force, died as the result of negligent medical treatment in a

military hospital.



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       In Feres v. United States, the Supreme Court established an exception to the

FTCA’s waiver of sovereign immunity “for injuries to servicemen where the

injuries arise out of or are in the course of activity incident to service.” 340 U.S.

135, 146 (1950). We have consistently held that claims for medical malpractice in

military facilities are barred by Feres. See, e.g., Persons v. United States, 925 F.2d

292, 296 (9th Cir. 1991); Veillette v. United States, 615 F.2d 505, 507 (9th Cir.

1980). Although Witt’s husband may have been on some form of leave when the

injury occurred, duty status is only one factor in the analysis. See Costo v. United

States, 248 F.3d 863, 867 (9th Cir. 2001). Moreover, we have specifically held

that Feres applies even when service members were off duty, emphasizing that

they received care in a military hospital based on their status as service members.

See, e.g., Persons, 925 F.2d at 296; Veillette, 615 F.2d at 507. The same analysis

controls the present case.

       Although we acknowledge the tragic circumstances underlying this lawsuit,

we are bound by precedent of the Supreme Court and our court to affirm the

district court’s dismissal.

       The parties shall bear their own costs.

       AFFIRMED.




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