Arly Bosh v. United States ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 18 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARLY “DENVER” BOSH; EMEL No. 19-36099
BOSH; and their minor child, D.T.,
D.C. No. 3:19-cv-05616-BHS
Plaintiffs-Appellants,
v. MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee.
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.
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.
1Dismissals 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).
2
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
3
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 Self-
Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902,
912 (9th Cir. 1995).
4