     Case: 13-50057       Document: 00512314312         Page: 1     Date Filed: 07/19/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 19, 2013

                                     No. 13-50057                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



COLTON J. READ; JESSICA G. READ,

                                                  Plaintiffs - Appellants
v.

UNITED STATES OF AMERICA,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:12-CV-910


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiffs Colton and Jessica Read sued the United States under the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80, alleging that Colton
Read, while on active duty in the United States Air Force, suffered injuries due
to medical malpractice by military surgeons. The district court dismissed the
Reads’ action for lack of subject matter jurisdiction pursuant to the Feres
doctrine, which jurisdictionally bars actions brought under the Federal Tort


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 13-50057

Claims Act for military service-related injuries to military servicemembers.
Feres v. United States, 340 U.S. 135 (1950). The Reads argue that Feres was
wrongly decided because, inter alia, it conflicts with the plain language of the
Federal Tort Claims Act, and that the Feres doctrine is unconstitutional.
Accordingly, the Reads ask us not to follow Feres and to reverse the district
court’s dismissal. For the reasons that follow, we affirm the district court’s
dismissal of the Reads’ complaint.
                 I. FACTS AND PROCEDURAL HISTORY
      While on active duty, Colton Read underwent laparoscopic gallbladder
surgery to restore his condition such that he would be ready for deployment to
Afghanistan. The surgery was performed by two Air Force surgeons at David
Grant Medical Center and resulted in an injury to Colton Read’s descending
abdominal aorta. This injury was unsuccessfully repaired, and restricted the
blood supply to Colton Read’s legs. Related complications eventually required
that both of Colton Read’s legs be amputated. In March 2012, after extensive
medical and rehabilitative therapy, Colton Read was classified as permanently
disabled and relieved from active duty.
      Colton Read and his wife, Jessica Read, (the “Reads”), filed suit against
the United States under the Federal Tort Claims Act (“FTCA”) in federal court,
each seeking damages for Colton’s surgery-related injuries and disability. The
United States filed a motion to dismiss for lack of subject matter jurisdiction
pursuant to the Feres doctrine. Acknowledging that it was bound by Feres and
our precedent, the district court held that the Reads’ claims were barred under
the Feres doctrine because (1) Colton Read’s surgery was “incidental to military
service”—since Colton Read was on active duty status when the surgery was
performed, his surgery was intended to return him to military service, and his
injury occurred at a military installation site—and (2) his receipt of medical care
in a military facility by active duty military members was “activity incident to

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                                  No. 13-50057

service.” Accordingly, the district court granted the motion to dismiss and
entered final judgment for the government.
      The Reads timely appealed. On appeal, the Reads make no attempt to
distinguish their case from those encompassed by the Feres doctrine. Rather,
they ask us to disregard the doctrine and reverse the district court’s dismissal,
arguing that Feres was wrongly decided, that the Feres doctrine conflicts with
the plain language of the FTCA, and that the doctrine is unconstitutional.
                         II. STANDARD OF REVIEW
      As a “strict stare decisis court,” we “are in no position to challenge the
statutory construction utilized by the Supreme Court in [Feres],” nor may we
disregard or overrule Supreme Court precedent. Ballew v. Cont’l Airlines, Inc.,
668 F.3d 777, 782 (5th Cir. 2012) (internal citations and quotation marks
omitted). “The Supreme Court has sole authority to overrule its own decisions,
meaning that [we] must follow the Supreme Court’s directly controlling
precedent.” Id. Thus, the sole question before us is whether the district court
properly dismissed the Reads’ case pursuant to the Feres doctrine.
      We review a dismissal for lack of subject matter jurisdiction de novo,
resolving all disputed facts in favor of the nonmovant. See United States v.
Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012); see also Hayes v. United
States, 44 F.3d 377, 378 (5th Cir. 1995) (“[W]hether the district court properly
applied Feres . . . to preclude Hayes’s claim is a question of law which we review
de novo.”).
                               III. DISCUSSION
      The FTCA allows the United States to be sued in federal court for the
negligent or wrongful acts of its employees. 28 U.S.C. § 1346(b). It is a limited
waiver of the sovereign immunity of the United States and has been strictly
construed in favor of the United States. See Vernell v. U.S. Postal Serv., 819 F.2d
108, 111 (5th Cir. 1987). The Supreme Court has set forth an exception to the

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                                      No. 13-50057

FTCA waiver of immunity called the “Feres doctrine,” which holds that the
government is not liable under the FTCA for injuries to servicemembers in the
military whose alleged injuries arise out of or are in the course of activity
incident to service. Feres, 340 U.S. at 146.
       Irrespective of criticism of the Feres doctrine, the Supreme Court since
Feres has clearly held that the government remains immune from suits by
servicemembers for injuries arising out of or suffered in the course of activity
incident to service. See United States v. Johnson, 481 U.S. 681, 692 (1987).
Consistent with this rule, we have held that the Feres doctrine bars actions
brought under the FTCA for injuries sustained by a servicemember on active
duty from surgery performed by military doctors. See Hayes, 44 F.3d at 378-79
(“Medical malpractice by a physician employed by the military, in a military
hospital, and in the course of treatment of a person in active military service has
been clearly held to fall within ‘the course of activity incident to service.’”
(citation omitted)). The Reads have conceded that Colton Read’s injuries arose
out of activity incident to his military service. Thus, for the reasons articulated
by the district court,1 we find that Colton Read’s injuries were “incident to
service” and not actionable under the FTCA.
                                  IV. CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s judgment.




       1
        In summary, the district court found that it is “undisputed that Airman Read was on
active duty status at the time of his injury,” and “also undisputed that he was injured at a
military installation.” Further, the district court found that Airman Read was ill, and that
gallbladder surgery was necessary to restore him to military readiness.

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