Gros, et al v. USA

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
May 15, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20354
MICHAEL L. GROS, M.D.; JANIE GROS; ANDREW MICHAEL GROS; and
THOMAS ALAN GROS,
Plaintiffs-Appellants,
versus
THE UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
D.C. No. 4:04-CV-04665
_________________________________________________________
Before REAVLEY, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiffs-appellants Michael L. Gros (“Gros”) and his wife, Janie Gros, appeal the
district court’s dismissal of their claims on the grounds that the Feres doctrine bars suit.
We affirm.
The district court held that Gros’s tort claims and all derivative claims were barred

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2
because Gros’s injuries arose from activity incident to service. Under the Feres doctrine,
“[t]he Government is not liable under the Federal Tort Claims Act for injuries to
servicemen that arise out of or occur ‘in the course of activity incident to service.’”
Warner v. United States, 720 F.2d 837, 838 (5th Cir. 1983) (quoting Feres v. United
States, 340 U.S. 135, 146, 71 S. Ct. 153, 159 (1950)). We consider three factors to
determine whether a suit is barred: 1) the duty status of the plaintiff at the time of the
incident; 2) whether the incident occurred on or off the base; and 3) the plaintiff's activity
at the time of the injury. Parker v. United States, 611 F.2d 1007, 1013–14 (5th Cir.
1980).
In this case, Gros has alleged that he was exposed to toxic chemicals while
showering or drinking water at his home on the base. With respect to the first factor,
Gros claims that his injuries occurred during his off-duty hours, but while he was on
active-duty status, not on furlough. As for the second factor—whether the accident at
issue occurred on or off the base—Gros’s injuries arose from activities that took place on
the base, at Gros’s home. The third factor to consider is “what [the plaintiff] was doing
at the time he was injured.” Id. at 1014. Gros was allegedly engaged in personal
activities when he was exposed to the toxic chemical.
We have previously held that the Feres doctrine bars suit when the injuries arose
on base while plaintiffs were off-duty and attending to personal activities. See, e.g.,
Warner, 720 F.2d at 839; Mason v. United States, 568 F.2d 1135, 1136 (5th Cir. 1978);

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1Because we hold that Gros’s suit is barred, we do not reach the second issue
raised by the parties: whether a request for a public fund for medical monitoring is
barred by the Federal Tort Claims Act.
3
Zoula v. United States, 217 F.2d 81, 84 (5th Cir. 1955). Indeed, as the district court
noted, there is little to distinguish this case from Feres itself. In Feres, the Supreme
Court held that a serviceman was acting incident to service when he was killed in a fire
while off-duty and sleeping in his barracks. Feres v. United States, 340 U.S. 135, 71 S.
Ct. 153 (1950). Gros attempts to distinguish Feres by noting that Gros’s injuries
accumulated over a period of time, rather than all at once. We fail to see the materiality
of that difference. Because Gros was on active duty status and on base when his injuries
occurred, similar to the plaintiff in Feres, his injuries were incident to service and his suit
is barred.1
AFFIRMED.

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