                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-2077


B. HANCOX, Administrator of the Estate of Latiece Renee Reid
Glenn,

                Plaintiff – Appellant,

           v.

PERFORMANCE ANESTHESIA, P.A.; UNITED STATES OF AMERICA,

                Defendants – Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:09-cv-00309-BR)


Argued:   October 26, 2011                 Decided:   November 23, 2011


Before KING, GREGORY, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Tamara Louise Miller, MILLERMASCIOLA, Washington, D.C.,
for Appellant. William Ellis Boyle, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellees.      ON BRIEF:
Bruce J. Klores, BRUCE J. KLORES & ASSOCIATES, PC, Washington,
D.C.; Donald H. Beskind, TWIGGS, BESKIND, STRICKLAND & RABENAU,
P.A., Raleigh, North Carolina, for Appellant.      George E. B.
Holding, United States Attorney, R. A. Renfer, Jr., Jennifer P.
May-Parker,   Joshua   B.  Royster,  Assistant   United   States
Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Bradford      Scott    Hancox,       Administrator         of    the     estate    of

Corporal Latiece Reid Glenn, appeals the August 27, 2010 Order

of the district court that dismissed, for want of subject matter

jurisdiction, the estate’s negligence claims against the United

States.    See Glenn v. Performance Anesthesia, P.A., No. 5:09-CV-

00309, 2010 WL 3420538 (E.D.N.C. Aug. 27, 2010) (the district

court’s    “Opinion”).           In       accordance       with       the      procedures

prescribed by the Federal Tort Claims Act (“FTCA”), specifically

28 U.S.C. §      2679(d), the United States had been substituted for

named defendants Walter Hand, Jr., Raymond E. Brezinski, Corey

Eichelberger, and Denise Conneen, the latter being the executrix

of   the   estate     of    Robert    L.    Conneen.        Concluding          that    the

district    court     committed      no    error     in   dismissing          the   claims

against the United States, we affirm.



                                           I.

                                           A.

      We review de novo a district court’s dismissal pursuant to

Federal Rule of Civil Procedure 12(b)(1).                    See Vulcan Materials

Co. v. Massiah, 645 F.3d 249, 261 (4th Cir. 2011).                           In so doing,

we   afford      Corporal      Glenn’s          estate    “the        same     procedural

protection”      as   one     “would       receive       under    a     Rule     12(b)(6)

consideration.”       Kerns v. United States, 585 F.3d 187, 192 (4th

                                            3
Cir. 2009).       That is, “the facts alleged in the complaint are

taken as true, and the motion must be denied if the complaint

alleges sufficient facts to invoke subject matter jurisdiction.”

Id.

      According    to     the     allegations        of    the     Complaint   in   this

matter, Corporal Glenn, pregnant and about ten days away from

her expected delivery date, arrived at Fort Bragg’s Womack Army

Medical Center in the Eastern District of North Carolina during

the   mid-afternoon       of    June   21,       2007,    her    amniotic   sac   having

ruptured about half an hour previously.                         In preparation for a

Caesarian section, three Certified Registered Nurse Anesthetists

(“CRNAs”), i.e., Hand, Brezinski, and Robert Conneen, together

with a student intern, Major Eichelberger, attempted to give

Glenn     an   epidural        anesthesia.          The    needle     mistakenly      and

tragically      punctured        Glenn’s     spinal        dura,     from   which     she

contracted meningitis and died six days later.                      See J.A. 4-5. 1

                                           B.

        Hand, Brezinski, and Conneen were employed at Womack in

accordance      with      a      “personal         services        contract”      between

Performance Anesthesia, P.A., and the government, the terms of

which rendered the CRNAs subject to the direction and control of


      1
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties to this appeal.



                                             4
military personnel.            Corporal Glenn’s surviving spouse, Julius

H. Glenn, Sr., filed administrative claims for compensation on

behalf of his wife’s estate, see 28 U.S.C. §§ 2672, 2675(a),

which were denied on the grounds established in Feres v. United

States, 340 U.S. 145 (1950). On June 11, 2009, Mr. Glenn brought

suit in state court against Performance Anesthesia, the three

CRNAs (in Conneen’s case, his estate), and Major Eichelberger,

alleging medical negligence.

       On July 9, 2009, upon the Attorney General’s certification

that    Major   Eichelberger          was   acting     within    the    scope    of   his

employment      with     the    Army    during     the    events       underlying     the

Complaint, the United States substituted itself on his behalf

and removed the matter to the district court.                         See 28 U.S.C. §

2679(d)(1),      -(2).         Soon    thereafter,       on    July    24,    2009,   the

Attorney General submitted similar certifications on behalf of

the CRNAs, and the United States was substituted accordingly.

On   September    21,     2009,       relying     on   the    Feres     doctrine,     the

government moved to dismiss the claims against it.                           As detailed

in     its   Opinion,      the    district        court       granted    the     motion,

concluding that it lacked subject matter jurisdiction over the

claims against the government.                  The court directed further that

the claims against Performance Anesthesia, the only remaining

defendant, be remanded to state court.                    On September 21, 2010,

Glenn filed a Notice of Appeal challenging the court’s rulings,

                                            5
and    we   possess    jurisdiction      in     conformance     with    28    U.S.C.

§ 1291. 2



                                        II.

       The FTCA, codified at 28 U.S.C. § 2671 to 2680, works a

limited waiver of the government’s sovereign immunity for torts

committed by employees acting within the scope of their office

or employment.        The waiver is subject to a myriad of legislative

exceptions, set forth in § 2680(a) – (n), and the occasional

judicial exception, the most prominent and well-known of which

is embodied by Feres v. United States, 340 U.S. 145 (1950).                        In

Feres, the Supreme Court ruled that the government cannot be

held liable under the FTCA “for injuries to servicemen where the

injuries arises out of or are in the course of activity incident

to    service.”       Id.   at   146.     Broad      public   policy    rationales

support the Feres doctrine, including the disdain for state tort

law    concepts       intruding    upon        the   “distinctively          federal”

relationship between the government and the members of its armed

services, the availability of statutory veterans’ benefits, and

the    subversion     of    discipline        that   could    occur    if    service




       2
       On October 6, 2010, Hancox was substituted on appeal for
Mr. Glenn as Administrator of Corporal Glenn’s estate.



                                          6
personnel    were    permitted    to   sue     the     government.       See   United

States v. Johnson, 481 U.S. 681, 689-91 (1987).

      The    FTCA,   of   course,      only      addresses      the   government’s

liability, meaning that soldiers and sailors who suffer service-

related injuries as the result of negligence are free to sue

private tortfeasors.      The CRNAs here would seem to fit into that

category of potential defendants, but for the enactment of the

Medical     Malpractice   Immunity     Act      (the    “Gonzalez     Act”),     which

provides, in pertinent part:

      The remedy against the United States provided by [the
      FTCA] for damages for personal injury, including
      death, caused by the negligent or wrongful act or
      omission of any physician, . . . nurse, . . . or
      paramedical or other supporting personnel . . . of the
      armed forces . . . while acting within the scope of
      his duties or employment . . . shall hereafter be
      exclusive of any other civil action or proceeding by
      reason of the same subject matter against such [above-
      described healthcare professional].    This subsection
      shall also apply if the [above-described healthcare
      professional] is serving under a personal services
      contract entered into under section 1091 of this
      title.

10 U.S.C. § 1089(a) (emphasis added).                  The contract between the

government and Performance Anesthesia in this case meets the

statutory     requirements;       thus,       the    CRNAs     are,    in      effect,

employees “of the armed forces” for liability purposes.

      Nonetheless, Hancox insists on appeal that the CRNAs are

“private contractors,” and that by substituting itself for them,

the   government     cannot      assert       defenses,      including      sovereign


                                          7
immunity, that would not have been available to the individual

defendants absent the substitution.                       Hancox maintains further

that the public policy concerns underlying the Feres doctrine

are not present here where the CRNAs are otherwise subject to

state law and not part of the military chain of command.

        Unfortunately for Hancox, his characterization of the CRNAs

as    private    contractors         is    directly       contrary      to    the    plain

language of the Gonzales Act.                In enacting the statute, Congress

unambiguously         placed   the    government’s         professional       healthcare

contractors      on    an   equal     footing      with    its     similarly      situated

armed services personnel, and Congress did so knowing full well

the established applicability of the Feres doctrine in the realm

of injuries incident to military service.                          Indeed, Hancox does

not challenge the government’s authority to legislatively except

from tort liability a class of private actors such as the CRNAs,

but   simply     questions      the       wisdom    of    presuming     that      Congress

intended to do so in circumstances such as the ones before us,

given    the    practical      differences         between    military       doctors    and

nurses who wear their nation’s uniform, and civilians engaged in

the same professions who do not.

        The distinction Hancox urges is not one that the Supreme

Court    recognizes.           To    the    contrary,        the    Court    in     Johnson

discerned no difference, for Feres purposes, between members of

the military and civilian government employees.                        See 481 U.S. at

                                             8
686 (“[T]his Court has never suggested that the military status

of the alleged tortfeasor is crucial to the application of the

[Feres] doctrine.”).            Accordingly, attributing no significance

to the status of the alleged tortfeasors, we have observed that

“[i]t    is     well   established     that    receipt         of    medical   care     in

military facilities by members of the military on active duty is

activity incident to service.”                Kendrick v. United States, 877

F.2d    1201,     1203    (4th     Cir.   1989)       (citations        and    internal

quotation marks omitted); see Appelhans v. United States, 877

F.2d 309, 310 (4th Cir. 1989) (reciting “general rule” derived

from    Feres    and   Johnson,    and    applied         in   Kendrick).        We   have

recognized       an    exception     to    the     general           rule   where      the

plaintiff’s       medical   condition     and     negligent          treatment     occurs

following        the     termination      of      active-duty           status,       thus

constituting      a    “truly    independent     or       post-service      tort,”      see

Bradley v. United States, 161 F.3d 777, 782 (4th Cir. 1998)

(quoting      Kendrick),    but    that   is    clearly        not    the   case      here.

Given    Hancox’s      reticence     to   mount       a    direct     attack     on    the

validity of the Gonzales Act, we decline to strip it of force

and effect via the backdoor by rendering nugatory the premise

upon which it was enacted.

       We therefore affirm the judgment below, for the foregoing

reasons and for those set forth in more detail by the district

court in its Opinion granting the government’s motion to dismiss

                                          9
and remanding the claims against Performance Anesthesia to the

Superior Court of Cumberland County, North Carolina.            See Glenn

v.   Performance   Anesthesia,   P.A.,   No.   5:09-cv-00309,    2010   WL

3420538 (E.D.N.C. Aug. 27, 2010).

                                                                 AFFIRMED




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