Shelly Hudson v. United States , 461 F. App'x 541 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SHELLY ANNE HUDSON, No. 10-55561
Plaintiff-Appellant, D.C. No. 3:09-cv-01246-JAH-AJB
v.
MEMORANDUM *
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
John Allen Houston, District Judge, Presiding
Argued and Submitted November 7, 2011
Pasadena, California
Before: SCHROEDER and LEAVY, Circuit Judges, and GILLMOR, District
Judge.**
Plaintiff-Appellant Shelly Anne Hudson appeals the district court’s
dismissal of her Federal Tort Claims Act (“FTCA”) claim pursuant to Feres v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Helen W. Gillmor, United States District Judge for the
District of Hawaii, sitting by designation.
United States, 340 U.S. 135 (1950). The district court held that Hudson’s FTCA
claims were incident to her active military service and were, therefore, barred by
the Feres doctrine. We appreciate Hudson’s counsel’s acknowledgment that Feres
is binding upon this Court. Hudson seeks to overturn Feres in the United States
Supreme Court.
We review a dismissal pursuant to the Feres doctrine de novo. Jackson v.
Tate, 648 F.3d 729, 732 (9th Cir. 2011). When a service member’s injury is
incident to military service, the service member lacks standing to pursue an FTCA
claim. Id. at 733. Hudson was an active duty service member of the United States
Navy during the events giving rise to the controversy. The Feres Doctrine,
therefore, bars Hudson’s FTCA claim. See, e.g., Atkinson v. United States, 825
F.2d 202, 203-06 (9th Cir. 1987), cert. denied, 485 U.S. 987 (1988) (barring
servicewoman’s medical malpractice claim alleging military hospital’s negligence
caused her child to be stillborn).
AFFIRMED.
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