IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50448

MEREDITH MORRIS; JEFFREY MORRIS, 

 Plaintiffs - Appellants 

v. 

MICHAEL J. THOMPSON, 

 Defendant - Appellee 

Appeals from the United States District Court 

for the Western District of Texas 

Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges. 

LESLIE H. SOUTHWICK, Circuit Judge:

Air Force Captain Meredith Morris and her husband Jeffrey sued 

another Air Force Captain, Michael Thompson, for injuries Captain Morris 

sustained on Randolph Air Force Base. Thompson filed a motion to dismiss for 

lack of subject-matter jurisdiction under the Feres doctrine, arguing that the 

injuries occurred incident to military service. The district court granted the 

motion. We AFFIRM. 

United States Court of Appeals

Fifth Circuit

FILED

March 27, 2017

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND 

The incident at issue occurred on Randolph Air Force Base on May 20, 

2011, during “Roll Call.” According to Thompson, Roll Call is a squadronscheduled event, while Morris characterizes it as “unofficial” and “noncompulsory.” The parties agree that Roll Call is designed to foster camaraderie 

and serve team-building purposes by allowing pilots the opportunity to come

“together to share their experiences and tell stories.” The date and location of 

the incident are the only facts on which the parties agree. 

 Meredith Morris (“Morris” denotes Captain Morris and not her husband) 

claims that she was ordered to physically restrain Thompson during Roll Call 

when he displayed insubordinate behavior toward superior officers. As a result 

of this restraint, she claims Thompson grabbed her and “threw her to the 

ground,” which caused her to hit her head on the concrete. During the attack, 

Thompson “yelled pejorative, insulting, and threatening language” and 

subsequently choked Morris until she was unable to breathe. Before the attack 

ended, Morris claims Thompson “pushed her down with such force that her 

head again hit the concrete floor.” Morris alleges Thompson was intoxicated 

during their altercation, which Thompson denies. 

Thompson has a different story. He claims that while he was talking to 

others, Morris attacked him from behind, while several other servicemembers 

attacked him from the front. The force of the attack, he says, caused him to 

fall backward and land on Morris. His assailants then attempted to “duct-tape 

[him], head and all, to the concrete floor.” According to Thompson, he had 

recently suffered a traumatic brain injury at the time of the incident. During 

his rehabilitation, he had learned to protect his head because “impacts to his 

brain during recovery could have [had] catastrophic, if not deadly, 

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consequences.” He thus alleges that any violent reaction on his part was 

defensive in nature. 

Morris also claims injuries. She says the attack caused severe damage 

to her head, neck, and shoulders, which rendered her unable to fly. She also 

claims medical expenses, lost wages, and lost earning capacity, while her 

husband claims loss of consortium. Thompson, though, contends that Morris 

did not sustain any apparent injury at the time of the incident, nor did he 

observe her receiving medical treatment at that time. 

The Morrises filed an administrative claim with the Air Force in May 

2013, but it was denied. They then sued the United States in federal court in 

December 2013. That suit was dismissed in May 2014 due to application of the 

Feres doctrine, which we will later discuss in detail. That dismissal is not 

before us today. 

A few days after they filed the administrative claim, the Morrises sued 

Thompson in his individual capacity in Texas state court, alleging various tort 

claims. Thompson did not receive service of process until October 2014. 

Thompson timely removed the case to the Western District of Texas based on 

diversity of citizenship. Thompson filed a motion to dismiss for lack of subjectmatter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). He argued 

the case was nonjusticiable under the Feres doctrine because it is an action 

between military service members arising from activities occurring incident to 

service. The district court agreed and dismissed. The Morrises filed a timely 

notice of appeal. 

DISCUSSION 

We review de novo the district court’s grant of a Rule 12(b)(1) motion to 

dismiss for lack of subject-matter jurisdiction. Ramming v. United States, 281 

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F.3d 158, 161 (5th Cir. 2001). The party asserting jurisdiction “constantly 

bears the burden of proof that jurisdiction does in fact exist.” Id. When ruling 

on the motion, the district court may rely on the complaint, undisputed facts 

in the record, and the court’s resolution of disputed facts. Id. The motion 

should be granted only if it appears certain the plaintiff cannot prove any set 

of facts that would entitle her to recovery. Home Builders Ass’n of Mississippi, 

Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). The district court’s 

application of the Feres doctrine is also a question of law that earns de novo

review. Hayes v. United States ex rel. United States Dep’t of Army, 44 F.3d 377, 

378 (5th Cir. 1995).

The Morrises present these arguments: (1) the Feres doctrine does not 

bar state-law claims heard in federal court under diversity jurisdiction, and, 

regardless, the Feres doctrine does not apply as between members of the same 

rank; (2) the Feres doctrine is unconstitutional; and (3) at least Jeffrey Morris, 

a civilian, may sue Thompson for loss of consortium. 

(1) Applicability of Feres to Claims Brought Under State Law and by 

Servicemembers of the Same Rank

 The Feres doctrine is a narrow exception to tort liability under federal 

statute: “[T]he Government is not liable under the Federal Tort Claims Act

[FTCA] for injuries to servicemen where the injuries arise out of or are in the 

course of activity incident to service.” Feres v. United States, 340 U.S. 135, 146 

(1950); see also Meister v. Texas Adjutant Gen.’s Dep’t, 233 F.3d 332, 336 (5th 

Cir. 2000). The Feres Court held the FTCA waived sovereign immunity, 

“putting the United States government in the same position as any other 

defendant.” Meister, 233 F.3d at 336. 

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After Feres, the Supreme Court “authorized a suit for damages against 

federal officials whose actions violated an individual’s constitutional 

rights . . . .” Chappell v. Wallace, 462 U.S. 296, 298 (1983) (citing Bivens v. Six 

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1970)). In 

Chappell, though, the Court limited the Bivens remedy by holding “that

enlisted military personnel may not maintain a suit to recover damages from 

a superior officer for alleged constitutional violations.” Id. at 305. The Court 

later reaffirmed the applicability of the Feres incident-to-service test, requiring 

courts to abstain from interfering in cases arising under such circumstances. 

United States v. Stanley, 483 U.S. 669, 683–84 (1987).

This court has categorized the Feres doctrine as one of justiciability. 

Filer v. Donley, 690 F.3d 643, 648–50 (5th Cir. 2012). Although the Supreme 

Court has only considered this issue in the context of FTCA and Bivens claims, 

we have held that Feres bars all lawsuits based on injuries incident to military 

service. See Crawford v. Texas Army Nat’l Guard, 794 F.2d 1034, 1035–36 (5th 

Cir. 1986). Relevant to this case, claims brought directly under state law are 

barred by Feres. Holdiness v. Stroud, 808 F.2d 417, 426 (5th Cir. 1987).1 In 

Holdiness, the plaintiff filed suit under 42 U.S.C. §§ 1983, 1985; the FTCA; and 

Louisiana state law. Id. at 420. We followed Chappell’s command to hesitate 

before interfering in the relationships between military personnel and the 

preference for having those disputes adjudicated under the “unique structure 

of the military establishment.” Id. at 426. We held that judicial review of a 

 

1 In an unpublished opinion, we recently reaffirmed our decision in Holdiness. 

Davidson v. United States, 647 F. App’x 289, 290–91 (5th Cir. 2016). Other circuits have also 

held that Feres applies to state-law claims. See, e.g., John v. Sec’y of Army, 484 F. App’x 661, 

663–64 (3d Cir. 2012); Blakey v. U.S.S. Iowa, 991 F.2d 148, 152 (4th Cir. 1993).

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state-law tort claim arising in this context would constitute an “unwarranted 

intrusion into the military personnel structure” about which the Court has 

previously warned. Id.2 

 The Morrises allege that their case is distinguishable because Thompson 

removed on the basis of diversity of citizenship. We see no distinction. These 

are still state-law claims arising in a situation that was incident to service. 

“[C]ivilian courts may not sit in plenary review over intraservice military 

disputes.” Crawford, 794 F.2d at 1035. Feres bars state-law claims because 

adjudication “would undermine military decision-making as surely as federal 

claims held to be nonjusticiable.” Texas Adjutant Gen.’s Dep’t v. Amos, 54 

S.W.3d 74, 78 (Tex. App.—Austin 2001, pet. denied).3

The Morrises further argue that the Feres doctrine does not apply 

because Morris and Thompson held the same rank. It is true that the superiorsubordinate relationship has at times been relevant in the articulation of the 

Feres doctrine. Chappell, 462 U.S. at 300. Nonetheless, the Supreme Court 

does “not consider the officer-subordinate relationship crucial[.]” Stanley, 483 

U.S. at 680. In Stanley, the Army secretly administered LSD to the plaintiff 

in order to study its effect on human subjects. Id. at 671. The Court “assume[d] 

that at least some of the defendants were not [his] superior officers . . . .” Id. 

 

2 The Morrises characterize the relevant language from Holdiness as dicta. Not so. 

In Holdiness, we analyzed each of the plaintiff’s claims, devoting an entire section to his statelaw tort claim. See Holdiness, 808 F.2d at 421–26. There were two grounds on which the 

claim could have been dismissed, but most of our analysis focused on “the rationale of 

Chappell” and similar cases. Id. at 426. The analytical foundation of our holding would have 

been substantially disrupted had that language been removed. It is binding.

3 The Morrises attempt to distinguish many Texas cases, but our review convinces us 

that all support our holding. See, e.g., Newth v. Adjutant Gen.’s Dep’t of Texas, 883 S.W.2d 

356, 360 (Tex. App.—Austin 1994, writ denied).

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at 680. Accordingly, the key consideration in applying Feres in Stanley was 

the incident-to-service test. Id. at 683–84. Another circuit held that Feres 

applied even when the parties were of the same rank. Mattos v. United States, 

412 F.2d 793, 794 (9th Cir. 1969) (per curiam). Feres requires that we avoid 

“judicial intrusion into the area of military performance[.]” Id. The relative 

rank of the plaintiff and defendant are of no moment. 

Though neither party disputes that these events occurred incident to 

military service, we examine the test. We are to consider three factors: (1) the 

duty status of the service member; (2) the place where the injury occurred; and 

(3) the activity in which the service member was engaged at the time of the 

injury. Walch v. Adjutant Gen.’s Dep’t of Texas, 533 F.3d 289, 297 (5th Cir. 

2008). The facts of this case involved actions taken by two active-duty service 

members on Randolph Air Force Base during a military training function. The 

Morrises claims are thus incident to service, and Feres applies regardless of 

the rank of the parties or the bringing of state-law claims. 

(2) Constitutionality of Feres and (3) the Consortium Claim 

The Morrises argue that the application of the Feres doctrine would 

interfere with their constitutional rights. They argue that not allowing them 

to sue military personnel violates their Fifth and Fourteenth Amendment

rights, as well as of their right to access courts. These arguments fail. Though 

the Feres doctrine has been subject to criticism, United States v. Johnson, 481 

U.S. 681, 692–703 (1987) (Scalia, J., dissenting), it is Supreme Court precedent 

binding on this court. 

Finally, the Morrises concede that Jeffrey Morris’s loss-of-consortium 

claim, which is derivative of his wife’s claim, will be barred if hers is. See 

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Schoemer v. United States, 59 F.3d 29, 30 n.5 (5th Cir. 1995). Because of our 

holding as to Meredith Morris’s claims, Jeffrey Morris’s loss-of-consortium 

claim also fails. 

(3) Westfall Act 

A new issue was presented for the first time at oral argument. The 

Morrises’ counsel argued that Feres does not apply because Thompson did not

use the procedures of the Westfall Act4 to have the factual events on which the 

state-law claims are based certified as being incident to military service. 

 Oral argument is far too late a time to be injecting a new issue. Indeed, 

an issue not properly raised in the district court and timely briefed on appeal 

is not before us. Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 

(5th Cir. 2004). The Morrises’ counsel orally argued that two cases relevant to 

the argument were in fact cited in their briefing. The Morrises’ initial brief, 

though, cited just one of them and only to support that Feres does not apply to 

state-law claims. See Day v. Massachusetts Air Nat’l Guard, 167 F.3d 678 (1st 

Cir. 1999). That overstates what Day held, and, regardless, the brief makes 

no reference to Day’s discussion of the Westfall Act and certification. In the 

reply brief, the Morrises cited both Day and another opinion upon which they 

wish to rely. See Lutz v Sec’y of Air Force, 944 F.2d 1477, 1488 (9th Cir. 1991). 

That brief cited Day and Lutz for the proposition that incidents between 

servicemembers of equal rank and involving activities that were outside of the 

scope of employment are not subject to Feres. Westfall certification again went 

 

4 See 28 U.S.C. §§ 2671–2680.

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unmentioned. Even more importantly, questions about Westfall were not 

presented to the district court.

Despite the lateness of the issue, this court has an independent 

obligation to confirm that we have jurisdiction regardless of the parties’ 

arguments. Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 

(5th Cir. 2011). If Thompson’s failure to seek certification under the Westfall 

Act somehow affects our jurisdiction, we must consider the issue. 

We thus examine just what the Westfall Act provides. Relevant here, 

when a federal employee is named in a tort suit, the Attorney General may 

certify that the employee was “acting within the scope of his office or 

employment at the time of the incident out of which the claim arose,” which 

will cause the federal employee to be dismissed and the United States

substituted as the defendant. 28 U.S.C. § 2679(d)(1). This Act “accords federal 

employees absolute immunity from common-law tort claims arising out of acts 

they undertake in the course of their official duties.” Osborn v. Haley, 549 U.S. 

225, 229 (2007) (citing 28 U.S.C. § 2679(b)(1)). For the first time in our 

courtroom, the Morrises raised that Feres cannot bar these claims because the 

Attorney General never declared anything about Thompson’s status as a 

federal employee at the time of the incident. 

We see no jurisdictional defect in having a case proceed against a party 

who could but did not invoke a statutory procedure to gain immunity. Until 

immunity is claimed, the individual may be a proper party. Here, the Feres 

doctrine provided its own mechanism for determining the propriety of bringing 

suit against this airman. 

There also was no error in allowing removal. Removal would have been 

conclusively established had there been a Westfall Act certification. Osborn, 

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549 U.S. at 231. Even without that basis, there was another basis for removal 

here — complete diversity of the parties. The failure of anyone to seek 

certification under Westfall does not divest us of the jurisdiction to resolve 

what is brought to us on this appeal. 

AFFIRMED. 

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