NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARLY “DENVER” BOSH; EMEL

BOSH; and their minor child, D.T., 

Plaintiffs-Appellants, 

 v. 

UNITED STATES OF AMERICA, 

Defendant-Appellee.

No. 19-36099 

D.C. No. 3:19-cv-05616-BHS 

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Submitted November 20, 2020**

Seattle, Washington

Before: GOULD and FRIEDLAND, Circuit Judges, and OTAKE,*** District 

Judge.

Plaintiff-Appellants Emel Bosh, her husband Arly Bosh, and their minor 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Jill Otake, United States District Judge for the District 

of Hawaii, sitting by designation.

FILED

DEC 18 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

daughter D.T. appeal the district court’s dismissal of their complaint. We have 

appellate jurisdiction under 28 U.S.C. § 1291, and we affirm. 

The Boshes, invoking the jurisdiction of the Federal Tort Claims Act 

(“FTCA”), 28 U.S.C. § 1346(b), brought constitutional, statutory, and common law 

tort claims against the United States, its agents, actors, and employees. Their 

claims concern the side effects that Emel experienced after being administered the 

anthrax vaccine as an active-duty service member of the United States Army at 

Madigan Army Medical Center on Joint Base Lewis-McChord in Washington 

State. The Boshes contend that Emel was vaccinated against her will. The district 

court dismissed with prejudice for lack of subject matter jurisdiction pursuant to 

Rule 12(b)(1) of the Federal Rules of Civil Procedure, concluding that Feres v. 

United States, 340 U.S. 135 (1950), precluded the claims.1

The district court properly dismissed the Boshes’ claims for lack of subject 

matter jurisdiction because the United States has not waived its sovereign 

immunity for these claims. See McCarthy v. United States, 850 F.2d 558, 560 (9th 

Cir. 1988). Sovereign immunity bars suits against the United States unless the 

Government clearly waives that immunity. United States v. Mitchell, 463 U.S. 

1 Dismissals for lack of subject matter jurisdiction ordinarily must be without 

prejudice. But where, as here, “the bar of sovereign immunity is absolute,”

dismissal with prejudice is permitted. Frigard v. United States, 862 F.2d 201, 204 

(9th Cir. 1988).
3 

206, 212 (1983). 

Under the Feres doctrine, sovereign immunity precludes relief for injuries 

sustained incident to military service, whether brought against the United States

pursuant to the FTCA, see Feres, 340 U.S. at 146, or against federal officials 

pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

403 U.S. 388 (1971), see United States v. Stanley, 483 U.S. 669, 684 (1987). We 

apply the Feres doctrine by comparing this case to prior cases with analogous fact 

patterns. Schoenfeld v. Quamme, 492 F.3d 1016, 1019–20 (9th Cir. 2007).

The Boshes’ alleged injuries were sustained incident to Emel’s military 

service. We have applied the Feres doctrine to bar claims relating to injuries 

sustained by service members while receiving care at a military hospital. See 

Daniel v. United States, 889 F.3d 978, 980 (9th Cir. 2018) (concluding that injury 

caused by hemorrhaging from postpartum care received at a military hospital was 

incident to service); Jackson v. United States, 110 F.3d 1484, 1486, 1489 (9th Cir. 

1997) (concluding that an aggravated hand injury resulting from treatment in a 

military hospital was incident to service, even though the injury occurred while the 

plaintiff was not on active duty). The Boshes have not meaningfully distinguished 

Emel’s injuries from the injuries sustained in these cases.2

2 The Boshes allege a number of disturbing additional facts on appeal, including 

Emel’s detention in a military prison, unnecessary interrogation, forgery of her 

signature, sexual misconduct against her, and discrimination against her based on 
4 

The Boshes contend that that their claims are distinguishable from Feres and 

its progeny because the Boshes allege intentional acts and constitutional violations. 

This argument is unavailing. The Feres doctrine bars both intentional tort claims,

see Bowen v. Oistead, 125 F.3d 800, 804 (9th Cir. 1997), and constitutional tort 

claims, see Stanley, 483 U.S. at 683–84.

3

 

The Feres doctrine also bars Arly’s and D.T.’s claims because they derive 

from Emel’s claims. See Ritchie v. United States, 733 F.3d 871, 874–75 (9th Cir. 

2013). The Feres doctrine applies “whether the suit is brought by the soldier 

directly or by a third party.” Stencel Aero Eng’g Corp. v. United States, 431 U.S. 

666, 673 (1977). 

Finally, the Boshes request that we make an exception to Feres. We have no 

authority to depart from controlling precedent, so we must decline.

AFFIRMED.

national origin. But because these allegations were not considered by the district 

court, we do not consider them in this appeal. See Dreier v. United States, 106 

F.3d 844, 847 (9th Cir. 1996), as amended (Feb. 4, 1997).

3 The Boshes contend that recent legislation, which “allocates $400 million to the 

Department of Defense to investigate and pay out military medical malpractice 

claims internally[,]” overturns parts of the Feres doctrine. We do not consider this 

argument because the issue was not properly preserved for appeal. See SelfRealization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 

912 (9th Cir. 1995).