     Case: 16-50448   Document: 00513927150     Page: 1   Date Filed: 03/27/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                 No. 16-50448                             FILED
                                                                    March 27, 2017

MEREDITH MORRIS; JEFFREY MORRIS,                                     Lyle W. Cayce
                                                                          Clerk
             Plaintiffs - Appellants

v.

MICHAEL J. THOMPSON,

             Defendant - Appellee




                Appeals from the United States District Court
                      for the Western District of Texas


Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Air Force Captain Meredith Morris and her husband Jeffrey sued
another Air Force Captain, Michael Thompson, for injuries Captain Morris
sustained on Randolph Air Force Base. Thompson filed a motion to dismiss for
lack of subject-matter jurisdiction under the Feres doctrine, arguing that the
injuries occurred incident to military service. The district court granted the
motion. We AFFIRM.
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              FACTUAL AND PROCEDURAL BACKGROUND
      The incident at issue occurred on Randolph Air Force Base on May 20,
2011, during “Roll Call.” According to Thompson, Roll Call is a squadron-
scheduled event, while Morris characterizes it as “unofficial” and “non-
compulsory.” The parties agree that Roll Call is designed to foster camaraderie
and serve team-building purposes by allowing pilots the opportunity to come
“together to share their experiences and tell stories.” The date and location of
the incident are the only facts on which the parties agree.
      Meredith Morris (“Morris” denotes Captain Morris and not her husband)
claims that she was ordered to physically restrain Thompson during Roll Call
when he displayed insubordinate behavior toward superior officers. As a result
of this restraint, she claims Thompson grabbed her and “threw her to the
ground,” which caused her to hit her head on the concrete. During the attack,
Thompson “yelled pejorative, insulting, and threatening language” and
subsequently choked Morris until she was unable to breathe. Before the attack
ended, Morris claims Thompson “pushed her down with such force that her
head again hit the concrete floor.” Morris alleges Thompson was intoxicated
during their altercation, which Thompson denies.
      Thompson has a different story. He claims that while he was talking to
others, Morris attacked him from behind, while several other servicemembers
attacked him from the front. The force of the attack, he says, caused him to
fall backward and land on Morris. His assailants then attempted to “duct-tape
[him], head and all, to the concrete floor.” According to Thompson, he had
recently suffered a traumatic brain injury at the time of the incident. During
his rehabilitation, he had learned to protect his head because “impacts to his
brain during recovery could have [had] catastrophic, if not deadly,


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                                 No. 16-50448
consequences.” He thus alleges that any violent reaction on his part was
defensive in nature.
      Morris also claims injuries. She says the attack caused severe damage
to her head, neck, and shoulders, which rendered her unable to fly. She also
claims medical expenses, lost wages, and lost earning capacity, while her
husband claims loss of consortium. Thompson, though, contends that Morris
did not sustain any apparent injury at the time of the incident, nor did he
observe her receiving medical treatment at that time.
      The Morrises filed an administrative claim with the Air Force in May
2013, but it was denied. They then sued the United States in federal court in
December 2013. That suit was dismissed in May 2014 due to application of the
Feres doctrine, which we will later discuss in detail. That dismissal is not
before us today.
      A few days after they filed the administrative claim, the Morrises sued
Thompson in his individual capacity in Texas state court, alleging various tort
claims.   Thompson did not receive service of process until October 2014.
Thompson timely removed the case to the Western District of Texas based on
diversity of citizenship. Thompson filed a motion to dismiss for lack of subject-
matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). He argued
the case was nonjusticiable under the Feres doctrine because it is an action
between military service members arising from activities occurring incident to
service. The district court agreed and dismissed. The Morrises filed a timely
notice of appeal.
                                 DISCUSSION
      We review de novo the district court’s grant of a Rule 12(b)(1) motion to
dismiss for lack of subject-matter jurisdiction. Ramming v. United States, 281


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F.3d 158, 161 (5th Cir. 2001). The party asserting jurisdiction “constantly
bears the burden of proof that jurisdiction does in fact exist.” Id. When ruling
on the motion, the district court may rely on the complaint, undisputed facts
in the record, and the court’s resolution of disputed facts. Id. The motion
should be granted only if it appears certain the plaintiff cannot prove any set
of facts that would entitle her to recovery. Home Builders Ass’n of Mississippi,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The district court’s
application of the Feres doctrine is also a question of law that earns de novo
review. Hayes v. United States ex rel. United States Dep’t of Army, 44 F.3d 377,
378 (5th Cir. 1995).
      The Morrises present these arguments: (1) the Feres doctrine does not
bar state-law claims heard in federal court under diversity jurisdiction, and,
regardless, the Feres doctrine does not apply as between members of the same
rank; (2) the Feres doctrine is unconstitutional; and (3) at least Jeffrey Morris,
a civilian, may sue Thompson for loss of consortium.


      (1) Applicability of Feres to Claims Brought Under State Law and by
      Servicemembers of the Same Rank

      The Feres doctrine is a narrow exception to tort liability under federal
statute: “[T]he Government is not liable under the Federal Tort Claims Act
[FTCA] for injuries to servicemen where the injuries arise out of or are in the
course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146
(1950); see also Meister v. Texas Adjutant Gen.’s Dep’t, 233 F.3d 332, 336 (5th
Cir. 2000).   The Feres Court held the FTCA waived sovereign immunity,
“putting the United States government in the same position as any other
defendant.” Meister, 233 F.3d at 336.


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                                       No. 16-50448
       After Feres, the Supreme Court “authorized a suit for damages against
federal officials whose actions violated an individual’s constitutional
rights . . . .” Chappell v. Wallace, 462 U.S. 296, 298 (1983) (citing Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1970)). In
Chappell, though, the Court limited the Bivens remedy by holding “that
enlisted military personnel may not maintain a suit to recover damages from
a superior officer for alleged constitutional violations.” Id. at 305. The Court
later reaffirmed the applicability of the Feres incident-to-service test, requiring
courts to abstain from interfering in cases arising under such circumstances.
United States v. Stanley, 483 U.S. 669, 683–84 (1987).
       This court has categorized the Feres doctrine as one of justiciability.
Filer v. Donley, 690 F.3d 643, 648–50 (5th Cir. 2012). Although the Supreme
Court has only considered this issue in the context of FTCA and Bivens claims,
we have held that Feres bars all lawsuits based on injuries incident to military
service. See Crawford v. Texas Army Nat’l Guard, 794 F.2d 1034, 1035–36 (5th
Cir. 1986). Relevant to this case, claims brought directly under state law are
barred by Feres. Holdiness v. Stroud, 808 F.2d 417, 426 (5th Cir. 1987). 1 In
Holdiness, the plaintiff filed suit under 42 U.S.C. §§ 1983, 1985; the FTCA; and
Louisiana state law. Id. at 420. We followed Chappell’s command to hesitate
before interfering in the relationships between military personnel and the
preference for having those disputes adjudicated under the “unique structure
of the military establishment.” Id. at 426. We held that judicial review of a


       1 In an unpublished opinion, we recently reaffirmed our decision in Holdiness.
Davidson v. United States, 647 F. App’x 289, 290–91 (5th Cir. 2016). Other circuits have also
held that Feres applies to state-law claims. See, e.g., John v. Sec’y of Army, 484 F. App’x 661,
663–64 (3d Cir. 2012); Blakey v. U.S.S. Iowa, 991 F.2d 148, 152 (4th Cir. 1993).



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                                        No. 16-50448
state-law tort claim arising in this context would constitute an “unwarranted
intrusion into the military personnel structure” about which the Court has
previously warned. Id. 2
       The Morrises allege that their case is distinguishable because Thompson
removed on the basis of diversity of citizenship. We see no distinction. These
are still state-law claims arising in a situation that was incident to service.
“[C]ivilian courts may not sit in plenary review over intraservice military
disputes.” Crawford, 794 F.2d at 1035. Feres bars state-law claims because
adjudication “would undermine military decision-making as surely as federal
claims held to be nonjusticiable.” Texas Adjutant Gen.’s Dep’t v. Amos, 54
S.W.3d 74, 78 (Tex. App.—Austin 2001, pet. denied). 3
       The Morrises further argue that the Feres doctrine does not apply
because Morris and Thompson held the same rank. It is true that the superior-
subordinate relationship has at times been relevant in the articulation of the
Feres doctrine. Chappell, 462 U.S. at 300. Nonetheless, the Supreme Court
does “not consider the officer-subordinate relationship crucial[.]” Stanley, 483
U.S. at 680. In Stanley, the Army secretly administered LSD to the plaintiff
in order to study its effect on human subjects. Id. at 671. The Court “assume[d]
that at least some of the defendants were not [his] superior officers . . . .” Id.


       2 The Morrises characterize the relevant language from Holdiness as dicta. Not so.
In Holdiness, we analyzed each of the plaintiff’s claims, devoting an entire section to his state-
law tort claim. See Holdiness, 808 F.2d at 421–26. There were two grounds on which the
claim could have been dismissed, but most of our analysis focused on “the rationale of
Chappell” and similar cases. Id. at 426. The analytical foundation of our holding would have
been substantially disrupted had that language been removed. It is binding.

       3 The Morrises attempt to distinguish many Texas cases, but our review convinces us
that all support our holding. See, e.g., Newth v. Adjutant Gen.’s Dep’t of Texas, 883 S.W.2d
356, 360 (Tex. App.—Austin 1994, writ denied).


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                                  No. 16-50448
at 680. Accordingly, the key consideration in applying Feres in Stanley was
the incident-to-service test. Id. at 683–84. Another circuit held that Feres
applied even when the parties were of the same rank. Mattos v. United States,
412 F.2d 793, 794 (9th Cir. 1969) (per curiam). Feres requires that we avoid
“judicial intrusion into the area of military performance[.]” Id. The relative
rank of the plaintiff and defendant are of no moment.
      Though neither party disputes that these events occurred incident to
military service, we examine the test. We are to consider three factors: (1) the
duty status of the service member; (2) the place where the injury occurred; and
(3) the activity in which the service member was engaged at the time of the
injury. Walch v. Adjutant Gen.’s Dep’t of Texas, 533 F.3d 289, 297 (5th Cir.
2008). The facts of this case involved actions taken by two active-duty service
members on Randolph Air Force Base during a military training function. The
Morrises claims are thus incident to service, and Feres applies regardless of
the rank of the parties or the bringing of state-law claims.


      (2) Constitutionality of Feres and (3) the Consortium Claim
      The Morrises argue that the application of the Feres doctrine would
interfere with their constitutional rights. They argue that not allowing them
to sue military personnel violates their Fifth and Fourteenth Amendment
rights, as well as of their right to access courts. These arguments fail. Though
the Feres doctrine has been subject to criticism, United States v. Johnson, 481
U.S. 681, 692–703 (1987) (Scalia, J., dissenting), it is Supreme Court precedent
binding on this court.
      Finally, the Morrises concede that Jeffrey Morris’s loss-of-consortium
claim, which is derivative of his wife’s claim, will be barred if hers is. See


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                                        No. 16-50448
Schoemer v. United States, 59 F.3d 29, 30 n.5 (5th Cir. 1995). Because of our
holding as to Meredith Morris’s claims, Jeffrey Morris’s loss-of-consortium
claim also fails.


      (3) Westfall Act
      A new issue was presented for the first time at oral argument. The
Morrises’ counsel argued that Feres does not apply because Thompson did not
use the procedures of the Westfall Act 4 to have the factual events on which the
state-law claims are based certified as being incident to military service.
      Oral argument is far too late a time to be injecting a new issue. Indeed,
an issue not properly raised in the district court and timely briefed on appeal
is not before us. Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1
(5th Cir. 2004). The Morrises’ counsel orally argued that two cases relevant to
the argument were in fact cited in their briefing. The Morrises’ initial brief,
though, cited just one of them and only to support that Feres does not apply to
state-law claims. See Day v. Massachusetts Air Nat’l Guard, 167 F.3d 678 (1st
Cir. 1999). That overstates what Day held, and, regardless, the brief makes
no reference to Day’s discussion of the Westfall Act and certification. In the
reply brief, the Morrises cited both Day and another opinion upon which they
wish to rely. See Lutz v Sec’y of Air Force, 944 F.2d 1477, 1488 (9th Cir. 1991).
That brief cited Day and Lutz for the proposition that incidents between
servicemembers of equal rank and involving activities that were outside of the
scope of employment are not subject to Feres. Westfall certification again went




      4   See 28 U.S.C. §§ 2671–2680.


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                                   No. 16-50448
unmentioned.    Even more importantly, questions about Westfall were not
presented to the district court.
      Despite the lateness of the issue, this court has an independent
obligation to confirm that we have jurisdiction regardless of the parties’
arguments. Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2
(5th Cir. 2011). If Thompson’s failure to seek certification under the Westfall
Act somehow affects our jurisdiction, we must consider the issue.
      We thus examine just what the Westfall Act provides. Relevant here,
when a federal employee is named in a tort suit, the Attorney General may
certify that the employee was “acting within the scope of his office or
employment at the time of the incident out of which the claim arose,” which
will cause the federal employee to be dismissed and the United States
substituted as the defendant. 28 U.S.C. § 2679(d)(1). This Act “accords federal
employees absolute immunity from common-law tort claims arising out of acts
they undertake in the course of their official duties.” Osborn v. Haley, 549 U.S.
225, 229 (2007) (citing 28 U.S.C. § 2679(b)(1)).      For the first time in our
courtroom, the Morrises raised that Feres cannot bar these claims because the
Attorney General never declared anything about Thompson’s status as a
federal employee at the time of the incident.
      We see no jurisdictional defect in having a case proceed against a party
who could but did not invoke a statutory procedure to gain immunity. Until
immunity is claimed, the individual may be a proper party. Here, the Feres
doctrine provided its own mechanism for determining the propriety of bringing
suit against this airman.
      There also was no error in allowing removal. Removal would have been
conclusively established had there been a Westfall Act certification. Osborn,


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549 U.S. at 231. Even without that basis, there was another basis for removal
here — complete diversity of the parties.      The failure of anyone to seek
certification under Westfall does not divest us of the jurisdiction to resolve
what is brought to us on this appeal.
      AFFIRMED.




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