Meredith Morris v. Michael Thompson, 2017 U.S. App. LEXIS 5344

Background

On May 20, 2011, Captains Meredith Morris and Michael Thompson (both active-duty Air Force) were involved in a physical altercation during a squadron "Roll Call" on Randolph AFB; parties dispute who attacked whom and whether Thompson was intoxicated or defending himself due to a prior traumatic brain injury.
Meredith Morris alleges she was ordered to restrain Thompson, was assaulted, struck her head on concrete, suffered head/neck/shoulder injuries, became non-flight-rated, and incurred damages; Jeffrey Morris claims loss of consortium.
The Morrises filed an administrative claim with the Air Force (denied), then sued the United States (FTCA) in federal court (that suit was dismissed under Feres). They later sued Thompson individually in Texas state court; Thompson removed to federal court based on diversity.
Thompson moved to dismiss under Rule 12(b)(1), invoking the Feres doctrine as barring suits between servicemembers for injuries incident to service; the district court granted dismissal and the Morrises appealed.
On appeal, the Fifth Circuit reviewed jurisdiction de novo, considered whether Feres bars state-law diversity suits and claims between equal-ranking service members, addressed constitutional challenges and Jeffrey Morris’s derivative consortium claim, and considered (sua sponte) whether Westfall Act certification affected jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Feres bars state-law claims brought in federal court under diversity	Feres is an FTCA doctrine and does not bar state-law claims in federal diversity suits; also argues Feres should not apply between service members of the same rank	Feres applies to all suits (including state-law claims in federal court) where injuries are incident to service; rank is irrelevant	Feres bars the Morrises’ state-law claims brought in federal court; rank does not matter when incident-to-service test is met
Whether the incident-to-service test is satisfied here	The Morrises contend the events were not outside service activity and/or were between peers so Feres shouldn’t apply	Thompson argues the injury occurred on base during a squadron function—incident to service	Court applies three-factor test (duty status, place, activity) and finds all factors support application of Feres
Whether Feres is unconstitutional / violates due process or access to courts	Morrises assert Feres deprives them of constitutional rights and access to courts	Thompson invokes controlling Supreme Court precedent upholding Feres-related limits on military tort suits	Court rejects constitutional challenge, holding it must follow Supreme Court precedent
Whether Westfall Act certification was required for Feres to bar the suit / whether failure to certify defeats removal or immunity	Morrises (raised at oral argument) argued absence of Westfall certification means Feres cannot operate to bar the suit	Thompson/respondent pointed to Feres and alternative removal basis (diversity); Westfall is a separate statutory immunity process	Court deems the late-raised Westfall point forfeited but independently holds failure to seek Westfall certification does not defeat jurisdiction or application of Feres; removal was proper via diversity

Key Cases Cited

Feres v. United States, 340 U.S. 135 (1950) (establishes that FTCA does not cover injuries incident to military service)
Chappell v. Wallace, 462 U.S. 296 (1983) (limits Bivens actions by enlisted military personnel against superior officers; endorses restraint in military disputes)
United States v. Stanley, 483 U.S. 669 (1987) (reaffirms incident-to-service test and that officer-subordinate status is not dispositive)
Holdiness v. Stroud, 808 F.2d 417 (5th Cir. 1987) (Feres bars state-law tort claims among servicemembers; judicial intrusion into military structure disfavored)
Osborn v. Haley, 549 U.S. 225 (2007) (describes Westfall Act certification procedure and federal-employee immunity)