Opinion
No. 10-55561 D.C. No. 3:09-cv-01246-JAH-AJB
12-07-2011
SHELLY ANNE HUDSON, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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.
The Honorable Helen W. Gillmor, United States District Judge for the District of Hawaii, sitting by designation.
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Plaintiff-Appellant Shelly Anne Hudson appeals the district court's dismissal of her Federal Tort Claims Act ("FTCA") claim pursuant to Feres v.
Page 2 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.