Bosh v. United States

Opinion

1 2

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 ARLY “DENVER” BOSH, EMEL CASE NO. C19-5616 BHS 8 BOSH, and their minor child, ORDER ADOPTING REPORT 9 Plaintiffs, AND RECOMMENDATION v. 10 UNITED STATES OF AMERICA, 11 Defendant. 12

13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable Theresa L. Fricke, United States Magistrate Judge, Dkt. 14, and 15 Plaintiffs Arly and Emel Bosh’s (“Boshs”) objections to the R&R, Dkt. 15. 16 On September 12, 2019, Judge Fricke issued the R&R recommending that the 17 Court dismiss the Boshs’ complaint because it is barred by the doctrine of Feres v. United 18 States, 340 U.S. 135, 146 (1950), which determined that “the Government is not liable 19 under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out 20 of or are in the course of activity incident to service.” On September 19, 2019, the Boshs 21 filed objections. Dkt. 15. On October 1, 2019, the Government responded. Dkt. 16. 22 1 The district judge must determine de novo any part of the magistrate judge’s 2 disposition that has been properly objected to. The district judge may accept, reject, or

3 modify the recommended disposition; receive further evidence; or return the matter to the 4 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 5 In this case, the Boshs’ objections are without legal merit. It is true that many 6 people, including Supreme Court justices, have questioned the Feres decision. See, e.g., 7 United States v. Johnson, 481 U.S. 681, 700 (Scalia, J., dissenting) (“Feres was wrongly 8 decided and heartily deserves the widespread, almost universal criticism it has received.”)

9 Feres, however, is the law of the land, and the Court declines any invitation to depart 10 from binding precedent. Therefore, the Court having considered the R&R, the Boshs’ 11 objections, and the remaining record, does hereby find and order as follows: 12 (1) The R&R is ADOPTED; 13 (2) The Government’s motion to dismiss, Dkt. 5, is GRANTED;

14 (3) The Boshs’ claims are DISMISSED with prejudice; and 15 (4) The Clerk shall terminate all pending motions, enter a JUDGMENT in 16 favor of the Government, and close the case. 17 Dated this 11th day of December, 2019. A 18 19 BENJAMIN H. SETTLE 20 United States District Judge

21 22