                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                   F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                     May 15, 2007
                             FOR THE FIFTH CIRCUIT
                                                                               Charles R. Fulbruge III
                                                                                       Clerk
                                       No. 06-20354



MICHAEL L. GROS, M.D.; JANIE GROS; ANDREW MICHAEL GROS; and
THOMAS ALAN GROS,

                                                    Plaintiffs-Appellants,

                                           versus

THE UNITED STATES OF AMERICA,

                                                    Defendant-Appellee.



                      Appeal from the United States District Court
                          for the Southern District of Texas
                               D.C. No. 4:04-CV-04665
           _________________________________________________________

Before REAVLEY, GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

       Plaintiffs-appellants Michael L. Gros (“Gros”) and his wife, Janie Gros, appeal the

district court’s dismissal of their claims on the grounds that the Feres doctrine bars suit.

We affirm.

       The district court held that Gros’s tort claims and all derivative claims were barred



       *
        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not be published and is not precedent except under the limited circumstances set forth in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.
because Gros’s injuries arose from activity incident to service. Under the Feres doctrine,

“[t]he Government is not liable under the Federal Tort Claims Act for injuries to

servicemen that arise out of or occur ‘in the course of activity incident to service.’”

Warner v. United States, 720 F.2d 837, 838 (5th Cir. 1983) (quoting Feres v. United

States, 340 U.S. 135, 146, 71 S. Ct. 153, 159 (1950)). We consider three factors to

determine whether a suit is barred: 1) the duty status of the plaintiff at the time of the

incident; 2) whether the incident occurred on or off the base; and 3) the plaintiff's activity

at the time of the injury. Parker v. United States, 611 F.2d 1007, 1013–14 (5th Cir.

1980).

         In this case, Gros has alleged that he was exposed to toxic chemicals while

showering or drinking water at his home on the base. With respect to the first factor,

Gros claims that his injuries occurred during his off-duty hours, but while he was on

active-duty status, not on furlough. As for the second factor—whether the accident at

issue occurred on or off the base—Gros’s injuries arose from activities that took place on

the base, at Gros’s home. The third factor to consider is “what [the plaintiff] was doing

at the time he was injured.” Id. at 1014. Gros was allegedly engaged in personal

activities when he was exposed to the toxic chemical.

         We have previously held that the Feres doctrine bars suit when the injuries arose

on base while plaintiffs were off-duty and attending to personal activities. See, e.g.,

Warner, 720 F.2d at 839; Mason v. United States, 568 F.2d 1135, 1136 (5th Cir. 1978);



                                              2
Zoula v. United States, 217 F.2d 81, 84 (5th Cir. 1955). Indeed, as the district court

noted, there is little to distinguish this case from Feres itself. In Feres, the Supreme

Court held that a serviceman was acting incident to service when he was killed in a fire

while off-duty and sleeping in his barracks. Feres v. United States, 340 U.S. 135, 71 S.

Ct. 153 (1950). Gros attempts to distinguish Feres by noting that Gros’s injuries

accumulated over a period of time, rather than all at once. We fail to see the materiality

of that difference. Because Gros was on active duty status and on base when his injuries

occurred, similar to the plaintiff in Feres, his injuries were incident to service and his suit

is barred.1

AFFIRMED.




       1
        Because we hold that Gros’s suit is barred, we do not reach the second issue
raised by the parties: whether a request for a public fund for medical monitoring is
barred by the Federal Tort Claims Act.

                                               3
