     Case: 10-30827 Document: 00511370602 Page: 1 Date Filed: 02/03/2011




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

                                                 FILED
                                                                         February 3, 2011

                                     No. 10-30827                          Lyle W. Cayce
                                   Summary Calendar                             Clerk


LANNY RAY WALTERS; LOIS ANN WALTERS,

                                    Plaintiffs - Appellants
v.

DONALD R. SMITH; OVERTON BROOKS VETERANS AFFAIRS MEDICAL
CENTER,

                                    Defendants - Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:09-CV-1778


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff Lanny Walters allegedly received negligent medical care from
defendants Dr. Donald Smith and Overton Brooks Veterans Affairs Medical
Center in June 2007. Walters and his wife, Lois Walters, sued Smith and
Overton Brooks under the Federal Tort Claims Act (FTCA) in federal court on



       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 10-30827 Document: 00511370602 Page: 2 Date Filed: 02/03/2011




                                  No. 10-30827

October 13, 2009. Walters and Smith are both residents of Louisiana. Adopting
a magistrate judge’s report and recommendation, the district court dismissed the
Walters’ action for lack of subject matter jurisdiction. The Walters appealed.
       Federal subject matter jurisdiction is limited and must be conferred by
Congress within the bounds of the Constitution. See, e.g., U.S. C ONST. art. III,
§ 2; Cary v. Curtis, 44 U.S. 236, 245 (1845); Marbury v. Madison, 5 U.S. (1
Cranch) 137, 176, 179 (1803).        Litigants cannot bestow subject matter
jurisdiction on federal courts by waiver or consent. See, e.g., Mitchell v. Maurer,
293 U.S. 237, 244 (1934).
      The Walters do not contend that there is federal question or diversity
jurisdiction over this action, and we conclude that there is no such jurisdiction.
The Walters and Smith are not diverse, see, e.g., Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 553-54 (2005) (observing that 28 U.S.C. § 1332
requires complete diversity), and no federal question is presented on the face of
the Walters’ complaint. See, e.g., Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987) (observing that 28 U.S.C. § 1331 requires a federal question to be
presented on the face of the plaintiff’s properly pleaded complaint).
      The Walters contend that the FTCA confers federal jurisdiction over this
action. Federal district courts have “exclusive jurisdiction of civil actions on
claims against the United States, for money damages . . . for . . . personal injury
or death caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment . . . .”
28 U.S.C. § 1346(b)(1). It is well established that FTCA claims may be brought
against only the “United States,” and not the agencies or employees of the
United States. See, e.g., 28 U.S.C. §§ 2671, 2679(a), (b)(1) (providing that FTCA

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                                 No. 10-30827

does not authorize suits against federal agencies, and FTCA remedy is exclusive
with respect to injuries caused by federal employees acting within the scope of
their employment); Galvin v. Occupational Safety & Health Admin., 860 F.2d
181, 183 (5th Cir. 1988) (“Thus, an FTCA claim against a federal agency or
employee as opposed to the United States itself must be dismissed for want of
jurisdiction.”); Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009)
(“The United States is the only proper defendant in an FTCA action.”); Jackson
v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008) (“The only proper defendant in an
FTCA action is the United States.”); Roman v. Townsend, 224 F.3d 24, 27 (1st
Cir. 2000) (The “FTCA requires that the named defendant in an FTCA action be
the United States and only the United States.”); Allgeier v. United States, 909
F.2d 869, 871 (6th Cir. 1990) (“Failure to name the United States as defendant
in an FTCA suit results in a fatal lack of jurisdiction.”).    Indeed, we have
specifically found that the Department of Veterans Affairs and its doctors are
not proper parties to an FTCA action. Carr v. Veterans Admin., 522 F.2d 1355,
1356 (5th Cir. 1975); see also Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th
Cir. 1984). In short, the FTCA does not provide a jurisdictional basis for the
Walters’ claims against Smith and Overton Brooks.
      The Walters did not seek leave from the district court to amend their
complaint to assert claims against the United States, nor do they assert on
appeal that they are entitled to such relief. Because there is no jurisdictional
basis for the Walters’ claims against Smith and Overton Brooks, this action was
properly dismissed.
      AFFIRMED.



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