Morris v. Thompson

• Decision Date: 27 March 2017
• Docket Number: No. 16-50448,16-50448
• Parties: Meredith MORRIS; Jeffrey Morris, Plaintiffs–Appellants v. Michael J. THOMPSON, Defendant–Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

852 F.3d 416

Meredith MORRIS; Jeffrey Morris, Plaintiffs–Appellants

v.Michael J. THOMPSON, Defendant–Appellee

No. 16-50448

United States Court of Appeals, Fifth Circuit.

FILED March 27, 2017

Blakely Ian Mohr, Esq., Trial Attorney, Mohr Law Firm, P.L.L.C., Caitlin B. Howell, Adam Jason Sabrin, Law Offices of Howell & Sabrin, San Antonio, TX, for Plaintiffs–Appellants.

Erin R. McNiece, Laura Anne Cavaretta, Leslie Ernest Katona, Jr., Marie K. Miller, Cavaretta, Katona & Leighner, P.L.L.C., Leslie Ernest Katona, Jr., Plunkett, Griesenbeck & Mimari, Incorporated, San Antonio, TX, for Defendant–Appellee.

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.

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." The 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 restrain 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, 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 claims. 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 Federal 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 F.3d 158, 161 (5th 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 (5th 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 (5th Cir. 1995).

The Morrises present these 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 Jeffrey Morris, a civilian, may sue Thompson for loss of consortium.

(1) Applicability of Feresto Claims Brought Under State Law and by Servicemembers 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, 71 S.Ct. 153, 95 L.Ed. 152 (1950) ; see also Meister v. Texas Adjutant Gen.'s Dep't , 233 F.3d 332, 336 (5th 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.

After Feres , the Supreme Court "authorized a suit for damages against federal officials whose actions violated an individual's constitutional rights...." Chappell v. Wallace , 462 U.S. 296, 298, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ). In Chappell , though, the Court limited the Bivens remedy by holding "that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations." Id . at 305, 103 S.Ct. 2362. 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, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987).

This court has categorized the Feres doctrine as one of justiciability. Filer v. Donley , 690 F.3d 643, 648–50 (5th Cir. 2012). Although the Supreme Court has only considered this issue in the context of FTCA and Bivens claims, we have held that Feres bars all lawsuits based on injuries incident to military service. See Crawford v. Texas Army Nat'l Guard , 794 F.2d 1034, 1035–36 (5th Cir. 1986). Relevant to this case, claims brought directly under state law are barred by Feres . Holdiness v. Stroud , 808 F.2d 417, 426 (5th 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 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 bars 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 superior-subordinate relationship has at times been relevant in the articulation of the Feres doctrine. Chappell , 462 U.S. at 300, 103 S.Ct. 2362. Nonetheless, the Supreme Court does "not consider the officer-subordinate relationship crucial[.]" Stanley , 483 U.S. at 680, 107 S.Ct. 3054. In Stanley , the Army secretly administered LSD to the plaintiff in order to study its effect on human subjects. Id . at 671, 107 S.Ct. 3054. The Court "assume[d] that at least some of the defendants were not [his] superior officers...." Id . at 680, 107 S.Ct. 3054. Accordingly, the key consideration in applying Feres in Stanley was the incident-to-service test. Id . at 683–84, 107 S.Ct. 3054. Another circuit 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)....