### 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 Case: 16-50448 Document: 00513927150 Page: 1 Date Filed: 03/27/2017No. 16- 50448

2 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 squadron

scheduled event, while Morris characterizes it as “unofficial” and “non

compulsory.” T he 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 restr ain 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, Case: 16-50448 Document: 00513927150 Page: 2 Date Filed: 03/27/2017No. 16- 50448

3 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 claim s. 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 subject

matter jurisdiction under Fede ral 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 Case: 16-50448 Document: 00513927150 Page: 3 Date Filed: 03/27/2017No. 16- 50448

4 F.3d 158, 161 (5 th 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 (5 th 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 (5 th Cir. 1995). The Morrises present th ese 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 Jeffre y Morris, a civilian, may sue Thompson for loss of consortium.

(1) Applicability of Feres to Claims B rought Under State L aw and by S ervicemembers 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 . Tex as Adjutant Gen.’s Dep’t , 233 F.3d 332, 336 (5 th 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. Case: 16-50448 Document: 00513927150 Page: 4 Date Filed: 03/27/2017No. 16- 50448

5 After Feres , the Supreme Court “authorized a suit for damages against federal officials whose actions violated an ind i vidual’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 “th at 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).
Th is court has categorized the Feres doctrine as one of justiciability. Filer v. Donley , 690 F.3d 643, 648

– 50 (5 th Cir. 2012). Although the Supreme Court has only considered this issue in the context of FTCA and Bivens claims,

we have held that Feres bar s all lawsuits based on injuries incident to military service. See Crawford v. Tex as Army Nat’l Guard , 794 F .2d 1 0 34, 1035

– 36 (5 th Cir. 1986 ). R elevant to this case, claims brought directly under state law are barred by Feres

. Holdiness v. Stroud , 808 F.2d 417, 426 (5 th 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, 29 0–9 1 (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 (4 th Cir. 1993). Case: 16-50448 Document: 00513927150 Page: 5 Date Filed: 03/27/2017No. 16- 50448

6 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 bar s 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 , w e analyzed each of the plaintiff’s claims, devoting an entire section to his state

law 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). Case: 16-50448 Document: 00513927150 Page: 6 Date Filed: 03/27/2017No. 16- 50448

7 at 680. Accordingly, the key consideration in applying Feres in Stanley was the incident -to- service test. Id . at 683

– 84. Another c ircuit 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 “j udicial intrusion into the area of military performance [.]” Id. The relative rank of the plaintiff and defendant are of no moment. Though n either 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 (5 th 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 the ir right to access courts. These argument s 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 Case: 16-50448 Document: 00513927150 Page: 7 Date Filed: 03/27/2017No. 16- 50448

8 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 . T he Morrises ’ counsel argued that Feres does not apply because Thompson did not use the procedures of the Westfall Act 4 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 ap peal 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 case s relevant to the argument were in fact cited in their briefing. T he 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 discu ssion 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).
T hat 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 a re not subject to Feres

. Westfall certification again went

4 See 28 U.S.C. §§ 2671

– 2680. Case: 16-50448 Document: 00513927150 Page: 8 Date Filed: 03/27/2017No. 16- 50448

9 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,

w hen 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 Unit ed 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 claim ed , 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 , Case: 16-50448 Document: 00513927150 Page: 9 Date Filed: 03/27/2017No. 16- 50448

10 549 U.S. at 231. Even without that basis, there was another basis for r emoval here — complete diversity of the parties. T he 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. Case: 16-50448 Document: 00513927150 Page: 10 Date Filed: 03/27/2017