Arly Bosh v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 18, 2020
• Docket: 19-36099
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.

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).

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).