                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 09-1683
                                     ___________

Allen Payne,                              *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the Western
                                          * District of Missouri.
United States of America,                 *
                                          * [UNPUBLISHED]
             Appellee.                    *
                                     ___________

                              Submitted: January 19, 2010
                                 Filed: January 22, 2010
                                  ___________

Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
                         ___________

PER CURIAM.

       Allen Payne appeals the district court’s1 adverse grant of summary judgment
in his Federal Tort Claims Act (FTCA) suit. We conclude that summary judgment
was proper, because the record shows that Payne seeks damages for injuries arising
out of his exposure to Agent Orange while he was serving in Vietnam. Accordingly,
his suit is barred under Feres v. United States, 340 U.S. 135, 146 (1950) (United
States is not liable under FTCA for injuries to servicemen where injuries arise out of
or are sustained in course of activity incident to service). See Saulsberry v. St. Mary’s

      1
        The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
Univ. of Minn., 318 F.3d 862, 866 (8th Cir. 2003) (appellate court may affirm on any
basis supported by record); Brown v. United States, 151 F.3d 800, 803-04 (8th Cir.
1998) (injury is incident to service if it arises because of injured’s military relationship
with government; Feres doctrine limits scope of FTCA’s waiver of sovereign
immunity and is jurisdictional); Wood v. United States, 968 F.2d 738, 739 (8th Cir.
1992) (under Feres doctrine, claims under FTCA, negligence claims, 42 U.S.C. § 1983
claims, and claims brought under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), are nonjusticiable if they involve injuries
arising out of or in course of activity incident to military service).

       Accordingly, we affirm the district court’s judgment.
                      ______________________________




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