IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30827

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

February 3, 2011

Lyle W. Cayce

Clerk

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.

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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. CONST. 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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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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