Schoenfeld v. Quamme

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AARON SCHOENFELD, 

Plaintiff-Appellant,

v. No. 05-55126

ERIK QUAMME,

Defendant,  D.C. No.

CV-02-00819-WQH

and OPINION

UNITED STATES OF AMERICA,

Defendant-Appellee.



Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted

March 8, 2007—Pasadena, California

Filed July 2, 2007

Before: Pamela Ann Rymer, Kim McLane Wardlaw, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Wardlaw

7807

7810 SCHOENFELD v. QUAMME

COUNSEL

Thomas F. Friedberg, Law Offices of Friedberg & Bunge, San

Diego, California, for the plaintiff-appellant.

Peter D. Keisler, Assistant Attorney General, Carol C. Lam,

United States Attorney, Robert S. Greenspan, Attorney, and

Lowell V. Sturgill, Jr., Attorney (argued), for the defendant-

appellee.

SCHOENFELD v. QUAMME 7811

OPINION

WARDLAW, Circuit Judge:

Lance Corporal Aaron Schoenfeld lost his leg while a pas-

senger in his roommate’s car when it crashed into a previ-

ously damaged, but unrepaired, guardrail on a military base.

The sole issue on appeal is whether the Feres doctrine, which

immunizes the government from suit for injuries arising inci-

dent to military service, bars Schoenfeld’s claim against the

government under the Federal Tort Claims Act (“FTCA”).

The district court determined that the Feres doctrine bars

Schoenfeld’s action and dismissed it for lack of subject matter

jurisdiction. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we reverse and remand for further proceedings.

I.

Aaron Schoenfeld was a Lance Corporal in the United

States Marine Corps stationed at Marine Corps Base, Camp

Pendleton in Southern California. He was generally on duty

from Monday to Friday and had weekends off. On Friday,

July 13th, 2001, Schoenfeld finished up work in the afternoon

and began his weekend liberty. “Liberty” is a short period

during which servicemen are permitted to leave the base at

will. They are not required to seek permission in their com-

ings and goings, or to report on their whereabouts. Liberty

status is subject to immediate cancellation. Soldiers on liberty

are still subject to the Uniform Code of Military Justice, 10

U.S.C. §§ 801 et seq., and to Camp Pendleton’s rules and reg-

ulations. Schoenfeld was not due to report back to service

until the following Monday.

On Saturday morning, Schoenfeld and his roommate, co-

defendant Erik Quamme, also a marine, decided to head off-

base for the day and drive to Oceanside, a town abutting

Camp Pendleton. According to Schoenfeld, their plan was “to

mail some letters, have lunch, see a movie and ‘hang out’ for

7812 SCHOENFELD v. QUAMME

the afternoon.” Before heading out, Schoenfeld tossed his

dirty laundry into the back of the car, figuring he would have

it washed at a cleaners in Oceanside. Among the dirty clothes

were some of his military uniforms.1 The pair took Quamme’s

car, with Quamme driving and Schoenfeld sitting in the pas-

senger seat. Driving on Stuart Mesa Road, Quamme lost con-

trol of the car and crashed into a guardrail that had been badly

damaged in a prior accident.2 The collision severed Schoen-

feld’s right leg below the knee.

Stuart Mesa Road is located within Camp Pendleton, a lim-

ited access federal military facility. All entrances to the base

feature sentries and security gates. The base’s roads and entry

gates are under the authority of Camp Pendleton’s command-

ing general. Access to Camp Pendleton is restricted, but base

regulations permit limited access to the public. Civilians are

allowed on base between 8 a.m. and sunset every day, but

they must first enter their names into the base’s Visitor Con-

trol Log. Civilian travel within the base is restricted to hard

surface roads, including Stuart Mesa Road.

The Provost Marshal, a military officer, is responsible for

road maintenance in Camp Pendleton. However, civilian

employees play a substantial role in managing the day-to-day

maintenance and repair of the base’s roads even though those

tasks are under the ultimate authority of military officers.

1

In his declaration to the district court, Major J.A. Lore testified that

marines have a duty to keep their uniforms “properly configured, clean

and presentable.” This responsibility is “very significant . . . , as the

appearance of a Marine’s uniform reflects on his personal discipline and

his pride in the Marine Corps.” Schoenfeld did not have to wash his uni-

forms off-base, however, and he was not acting on specific orders when

he threw them into the car. Instead, his usual routine was to wash his uni-

forms himself, or to have them taken care of at Camp Pendleton’s own

laundry.

2

Two months earlier, co-defendant Byron Jacobson had crashed into the

guard rail. Camp Pendleton’s maintenance staff had begun repairs, but a

jagged edge still protruded into oncoming traffic.

SCHOENFELD v. QUAMME 7813

Passengers in cars driving through Camp Pendleton are

subject to Section 2404 of the base regulations. This section

mandates, among other things, that passengers wear seatbelts,

stay inside the vehicle while it is running, and ride in a man-

ner such that no part of their body, clothing, or personal items

protrude from the car.

Following his injury, the government has paid for a signifi-

cant portion of Schoenfeld’s medical bills and also provided

free on-site air evacuation, emergency care, and follow-up

medical treatment. Schoenfeld is entitled to affordable health-

care and pharmacy services through the military’s TRICARE

program. However, Schoenfeld claims that he has not been

reimbursed for several surgeries and that he was forced to

purchase his own medical insurance. Additionally, the gov-

ernment has represented to Schoenfeld that any medical

expenses paid for under any insurance, including Medicare

and TRICARE, will only be paid subject to a third party reim-

bursement agreement mandating that any benefits paid must

be reimbursed from the proceeds of this action.

After the accident, Schoenfeld continued to receive his reg-

ular military salary until 2002, when he was placed on the

Navy’s Temporary Disability Retirement List, which entitles

him to a portion of his military pay. Schoenfeld receives dis-

ability benefits from the Department of Veterans Affairs total-

ing $1,111.00 per month. He is also eligible for subsistence

payments of $464 per month while attending college and a

$9,000 car allowance.

In April 2002, Schoenfeld filed a complaint in the district

court against co-defendants Quamme and Jacobson. He subse-

quently filed an amended complaint, adding a FTCA claim

against the United States alleging that the government had

knowledge of the damaged guardrail and negligently failed to

repair or warn of the dangerous condition. Quamme and

Jacobson eventually settled with Schoenfeld and were dis-

missed from the case. On June 18, 2003, the government

7814 SCHOENFELD v. QUAMME

moved to dismiss the complaint for lack of subject matter

jurisdiction under Feres v. United States, 340 U.S. 135

(1950), or in the alternative for summary judgment. In a rea-

soned order dated August 5, 2003, Judge Judith Keep

declined to find the Feres doctrine applicable, following our

opinion in Dreier v. United States, 106 F.3d 844 (9th Cir.

1996). On September 14, 2004,3 the action was reassigned to

Judge Hayes. The government again filed a motion to dismiss

under Feres, and this time it was granted. Schoenfeld timely

appealed.

II.

We have jurisdiction over final judgments of the district

court under 28 U.S.C. § 1291. “Whether the Feres doctrine

applies to the facts in the record is reviewed de novo. Factual

findings are reviewed de novo, with all disputed facts

resolved in favor of the non-moving party.” Costo v. United

States, 248 F.3d 863, 865-66 (9th Cir. 2001) (citations omit-

ted).

III.

[1] The FTCA is a broad waiver of the federal govern-

ment’s sovereign immunity: “The United States shall be lia-

ble, respecting the provisions of this title relating to tort

claims, in the same manner and to the same extent as a private

individual under like circumstances . . . .” 28 U.S.C. § 2674;

see also 28 U.S.C. §§ 1346(b)(1), 2679. In Feres, the

Supreme Court carved out a significant exception, holding

that “the Government is not liable under the [FTCA] for inju-

ries to servicemen where the injuries arise out of or are in the

course of activity incident to service.” 340 U.S. at 146. “This

broad exception has been labeled ‘the Feres doctrine.’ ”

Costo, 248 F.3d at 866.

3

Sadly, Judge Keep lost her final battle with cancer on that date.

SCHOENFELD v. QUAMME 7815

The Feres doctrine is rooted in three policy rationales: (1)

the need for a uniform system of compensation for soldiers

spread out across the country and the world; (2) the Veterans’

Benefits Act (“VBA”) provides soldiers with a generous alter-

native to recovery in tort; and (3) allowing soldiers to file

lawsuits against the armed forces undermines military disci-

pline. See McConnell v. United States, 478 F.3d 1092, 1095

(9th Cir. 2007) (citing Costo, 248 F.3d at 866). We have rec-

ognized that the third rationale — the interest in maintaining

military discipline — is “the most persuasive justification” for

the doctrine, and our Feres cases have focused mainly on

whether the serviceman’s activities implicate that interest.

Dreier, 106 F.3d at 849 (quoting Johnson v. United States,

704 F.2d 1431, 1436 (9th Cir. 1983)); see also United States

v. Millang, 817 F.2d 533, 535 (9th Cir. 1987) (per curiam)

(noting that the “key inquiry is ‘whether the suit requires the

civilian court to second-guess military decisions, . . . and

whether the suit might impair essential military discipline.’ ”)

(quoting United States v. Shearer, 473 U.S. 52, 57 (1985)).

[2] We have identified four non-exclusive factors relevant

to determining whether Feres bars an action (“the Johnson

Factors”):

1) the place where the negligent act occurred;

2) the plaintiff’s duty status when the negligent act

occurred;

3) the benefits accruing to the plaintiff because of

his status as a service member; and

4) the nature of the plaintiff’s activities at the time

of the negligent act.

Bon v. United States, 802 F.2d 1092, 1094 (9th Cir. 1986)

(citing Johnson, 704 F.2d at 1436-41). None of these factors

7816 SCHOENFELD v. QUAMME

is dispositive; instead, we look to the totality of the circum-

stances. Costo, 248 F.3d at 867.

IV.

Despite this framework, our Feres jurisprudence is some-

thing of a muddle. “[W]e have reached the unhappy conclu-

sion that the cases applying the Feres doctrine are

irreconcilable, and thus, comparison of fact patterns to out-

comes in cases that have applied the Feres doctrine is the

most appropriate way to resolve Feres doctrine cases.” Id.

(internal quotation marks omitted). Therefore, we now exam-

ine “the Ninth Circuit cases that are most factually analogous

to the case at bar to determine whether the Feres doctrine bars

[Schoenfeld’s] suit.” Dreier, 106 F.3d at 849.

In Johnson, an active duty Air Force sergeant moonlighted

as a bartender in the Noncommissioned Officers Club (“NCO

Club”) located on Malmstrom Air Force base in Montana. 704

F.2d at 1433. After the NCO Club closed at 2:00 a.m. in com-

pliance with Montana law and military regulations one night,

Johnson and several other employees held a liquor-laden

after-hours party until 4:30 a.m. Id. Another employee, Hay,

who was intoxicated, agreed to drive Johnson to his off-base

home. Id. About a mile outside the entrance to the base, Hay’s

vehicle was involved in an accident which resulted in Johnson

becoming a quadriplegic. Id. Johnson was an active duty offi-

cer at the time of the accident, but he was off-duty for that

day. Id. at 1438. The government denied Johnson’s adminis-

trative claim. He brought suit under the FTCA alleging that

the government negligently allowed the NCO Club to stay

open late in violation of Montana and military law.

We held that Feres was inapplicable, noting that “the most

persuasive [policy] justification for the Feres doctrine is the

potential impact of civil suits on military discipline,” and that

while the NCO Club’s on-base location weighed in favor of

a Feres bar, the “occurrence of government negligence on a

SCHOENFELD v. QUAMME 7817

military base should not automatically bar recovery.” Id. at

1436-37.

Instead of focusing narrowly on where the NCO Club was

located, we considered the connection between “the situs of

the negligence and Johnson’s military service . . . .” Id. at

1437. We found that connection “tenuous,” because Johnson

was essentially acting in a civilian capacity while working at

the NCO Club. Id. (“The location of the NCO Club should not

obscure the fact that Johnson was performing a non-military

job in what was essentially a civilian context.”).

With respect to the second Johnson factor — the service-

man’s duty status — we gave little weight to Johnson’s active

duty status because he was off-duty at the time of the negli-

gent act. Id. at 1438 (“In and of itself, however, his active

duty status is not relevant to our inquiry.”). Noting that “[t]he

important question is whether the service member on active

duty status was engaging in an activity that is related in some

relevant way to his military duties,” we concluded that “John-

son’s off-duty work as a bartender bears no such relevant rela-

tionship to the military disciplinary structure that the Feres

doctrine was meant to safeguard.” Id.

In particular, we emphasized that Johnson was acting in a

manner that did not meaningfully distinguish him from a

civilian: “In short, he was in the same position that any civil-

ian employee of the NCO Club might have been in at the time

of the government’s negligence.” Id. Therefore, we held that

“[t]he fact that Johnson was off-duty for the day is, under the

circumstances presented here, sufficient to eliminate any rele-

vant links between his activities and his military service.” Id.

With respect to the third factor — benefits accruing to the

plaintiff because of his status as a service member — we drew

a clear line between cases where the “plaintiffs had access to

the [activity in question] only because of their status as mili-

tary personnel,” and those where civilians might also have

7818 SCHOENFELD v. QUAMME

access. Id. at 1438-39 (noting that Feres applies in cases

where “the plaintiffs would not have been privileged to take

advantage of the benefits but for their military status”). We

held that Johnson’s employment at the NCO Club could not

be characterized as a privilege incident to his military service,

because it was a second job of the type commonly held by

civilians. Id. at 1439. Johnson thus strongly suggests that

NCO Club positions were not actually available to civilians,

but rather that the essentially non-military nature of the activ-

ity weighed against applying Feres. Id. (“Johnson held a pay-

ing job at the NCO Club. The job is identified with those

routinely performed by civilian bartenders. Indeed, Johnson’s

after-hours employment at the NCO Club cannot logically be

distinguished from second jobs held by other off-duty military

personnel.”) (emphasis added).

Our discussion of the fourth factor is perhaps the most illu-

minating and important to our decision here. In considering

the nature of the Johnson’s activities, we held that “the most

relevant line of inquiry is whether or not the service member’s

activities at the time of the injury are of the sort that could

harm the disciplinary system if litigated in a civil action.” Id.

We concluded that Johnson’s activities could not have

adversely affected military discipline for three reasons. First,

he was “not subject in any real way to the compulsion of mili-

tary orders or performing any sort of military mission . . . .

[He] could just as easily ‘have been injured had [he] never

worn a uniform at all.’ ” Id. (quoting United States v. Brown,

348 U.S. 110, 114 (1954) (Black, J., dissenting)). Second, we

noted the “purely personal” nature of Johnson’s activity,

which is noteworthy given that he was working in a military-

controlled bar. Id. at 1440 (quotation marks omitted). Lastly,

we emphasized that Johnson’s employment at the NCO Club

did “not involve the sort of close military judgment calls that

the Feres doctrine was designed to insulate from judicial

review.” Id.

SCHOENFELD v. QUAMME 7819

Dreier is another factually analogous case relied upon by

Schoenfeld. Ronald Dreier was on liberty for an afternoon,

spent the day drinking beer and hanging out on a beach

located on Fort Lewis, Washington, and died after falling into

a steep wastewater drainage channel. 106 F.3d at 845-46. The

beach was a restricted access area and civilians could enter

only with a use permit.4 Id. Dreier’s widow sued under the

FTCA, alleging the government knew that the area was haz-

ardous but did nothing to make it more safe. We reversed the

district court’s ruling that Feres barred her suit. We reasoned

that because civilians could gain access to the beach, Dreier’s

presence there made his activities “indistinguishable” from a

civilian and weighed against applying Feres. Id. at 853. Like

Johnson’s bartending job, Dreier’s “ability to use [the beach

area could] ‘hardly be characterized as a privilege or benefit

incident to his military service.’ ” Id. (quoting Johnson, 704

F.2d at 1439). Although the fact that Dreier was off-duty only

for the afternoon “weigh[ed] slightly in favor of a Feres bar,”

we held that fact was not determinative. Id.

In Dreier the government argued, as it does here, that

because Dreier was subject at the time to various military reg-

ulations and also to immediate cancellation of his liberty, civil

litigation could undermine discipline. Id. We firmly rejected

those arguments, noting that the “government’s rationale . . .

would bar recovery against the government by any soldier

injured on military property, an absolutist position rejected by

Johnson.” Id. Because Dreier was not acting under military

orders or performing a mission, he was, like Johnson, “subject

to military discipline only in the very remotest sense.” Id.

(internal quotation marks omitted).

We then observed that “close military judgment call[s]”

were not involved when it came to providing adequate warn-

ings about a dangerous drainage channel, and therefore that

4

As a practical matter, however, members of the public often used the

beach without first obtaining permits. Dreier, 106 F.3d at 846.

7820 SCHOENFELD v. QUAMME

military discipline would not suffer if the suit went forward.

Id. at 853-54 (quoting Johnson, 704 F.2d at 1440). We found

relevant “that many, if not all of the employees overseeing the

[site of the accident] were civilians.” Id.

In Bon, Janice Bon was an active duty member of the

United States Navy. 802 F.2d at 1093. She was injured when

a government motor boat struck a canoe she was rowing and

had rented from the Navy’s Special Services facility at the

San Diego Naval Training Center. Id. Bon was on authorized

liberty at the time, though it is unclear for how long. Id.

Although the parties disputed whether the accident occurred

within the military base’s boundaries or just outside of them,

we held that resolution of that issue would not affect the out-

come of the case. Id. at 1095 n.3.

We held that Feres barred Bon’s FTCA action. Among

other facts, we noted that Bon’s canoe was struck by a motor

boat driven by another active duty serviceman and that the

accident occurred on or very close to military property. Id. at

1095. We also emphasized that the government offered canoe

rentals as a benefit of military service, and that unlike in

Johnson, only servicemen could take advantage of that bene-

fit. Id. Lastly, we analyzed the nature of the activity and found

that “its entire scope was subject to military orders and disci-

pline,” which weighed heavily on the side of applying Feres.

Id. at 1095-96. We also distinguished Johnson, where plaintiff

was subject to military discipline “only in the sense that mem-

bers of the military are at all times subject to the orders of

their commanding and superior officers.” Id. at 1096. The dis-

positive difference for us was that “Bon was subject to mili-

tary orders and regulations for the particular activity in which

she was engaged.” Id.

In Costo, Nollie Costo, a sailor in the United States Navy,

drowned during a Navy-sponsored recreational white water

rafting trip. 248 F.3d at 864. While the actual rafting was off-

base, id. at 868, the trip was part of the Navy’s Morale, Wel-

SCHOENFELD v. QUAMME 7821

fare, and Recreation program, the “administration, supervi-

sion, and operation” of which was the “responsibility of

cognizant commanding officers.” Id. at 865. The key facts

were closely analogous to those found in Bon: Costo was

active duty, but on liberty; the rafting trip was provided as a

benefit of service and was open only to servicemen; and the

recreational program was under the command of the base’s

commanding officer. Id. at 867. We noted that it was firmly

established that “military-sponsored activities fall within the

Feres doctrine, regardless of whether they are related to mili-

tary duties.” Id. at 868. Therefore, relying heavily on Bon, we

held that Feres barred the estate’s action. Id. at 869; see also

McConnell, 478 F.3d at 1096-97 (relying on Costo and Bon

to hold that a serviceman’s family could not bring suit for

government negligence leading to his death during an Air

Force-sponsored recreation program).

The government here relies heavily on Coffey v. United

States, 455 F.2d 1380 (9th Cir. 1972) (per curiam).5 Coffey,

like Schoenfeld, was involved in a car accident at Camp

Pendleton. Coffey v. United States, 324 F. Supp. 1087, 1087

(S.D. Cal. 1971). He died when a train struck the car in which

he was riding as a passenger at an intersection between a

government-maintained road and some railroad tracks. Id.

Significantly, there is no indication that the road on which

Coffey was killed was accessible to the general public. Coffey

was on liberty at the time. Id. The district court assumed for

purposes of the motion that the car in which Coffey rode was

heading off-base for non-military purposes. Id. The district

court noted that while he was still within Camp Pendleton,

Coffey “was subject to all liberty, cancellation of liberty, uni-

5

Our succinct opinion in Coffey states that “[t]he facts of the case may

be found in the decision of the district court,” but does not adopt the dis-

trict court’s reasoning. The opinion affirms the district court’s grant of

summary judgment on the conclusory ground that “[i]t is clear that Coffey

was acting incident to military service,” but fails to provide any reasons

for its own decision. 455 F.2d at 1380.

7822 SCHOENFELD v. QUAMME

form, traffic and other military regulations.” Id. The district

court concluded that Feres barred Coffey’s claim, id. at 1088,

and we affirmed without providing our own reasoning, Cof-

fey, 455 F.2d at 1380.

V.

With these cases in mind, we turn to the factual circum-

stances before us. We structure our analysis around the four

Johnson factors and look to the totality of the circumstances,

but we note from the outset that it is the fourth factor — the

nature of the plaintiff’s activities — that our precedent estab-

lishes as most relevant in determining whether Feres bars

Schoenfeld’s suit.

a. Place Where the Negligent Act Occurred

[3] Because the alleged negligence occurred on a military

base, the first Johnson factor weighs in favor of a Feres bar.

See Dreier, 106 F.3d at 852. However, the situs of the negli-

gence is “not determinative.” Id. Indeed, where the nature of

a plaintiff’s activities at the time of injury are only minimally

related to his military service, we have declined to give much

weight to this factor. See, e.g., Johnson, 704 F.2d at 1437

(“[T]he connection between the situs of the negligence and

Johnson’s military service is so tenuous that location is not an

important factor.”); Troglia v. United States, 602 F.2d 1334,

1339 (9th Cir. 1979) (where there is little connection between

the site of the accident and plaintiff’s military service, courts

must “further inquir[e] into the extent of the connection

between the plaintiff’s activities and his military service.”).

[4] In this regard, our precedent indicates that the fourth

Johnson factor (the nature of the plaintiff’s activities when the

negligent act occurred) may affect our analysis under the first

factor (the situs of the alleged negligence). Because, as dis-

cussed below, we conclude that Schoenfeld’s act of riding in

a car while on liberty heading off-base for the weekend was

SCHOENFELD v. QUAMME 7823

substantially unrelated to his military service, we do not

attach great weight to the fact that the negligent act occurred

on base.

b. Schoenfeld’s Duty Status When the Negligent Act

Occurred

[5] Schoenfeld, an active duty marine, was on liberty from

Friday afternoon until Monday morning. Schoenfeld’s active

duty status cuts in favor of applying Feres, see Bon, 802 F.2d

at 1095, but not strongly given that he was on liberty at the

time. Indeed, because Schoenfeld was not engaged in military

activity when he was injured, as discussed below, his duty sta-

tus is at best marginally relevant to the Feres analysis. See

Johnson, 704 F.2d at 1438 (“In and of itself, however, his

active duty status is not relevant to our inquiry . . . . The

important question is whether the service member on active

duty status was engaging in an activity that is related in some

relevant way to his military duties . . . . The fact that Johnson

was off-duty for the day is, under the circumstances presented

here, sufficient to eliminate any relevant links between his

activities and his military service.”) (citation omitted).

c. Benefits Accruing to Schoenfeld Because of His

Status as a Service Member

[6] Our cases have construed the third factor broadly to

encompass “benefits” accruing to a serviceman both before

and after he is injured. For example, we have considered as

relevant the benefit of being permitted to participate in the

activity that led to the injury. See Bon, 802 F.2d at 1095. We

have also held that compensation received on account of the

resulting injury is a “benefit” of military status. See Jackson

v. United States, 110 F.3d 1484, 1489 (9th Cir. 1997). These

are seemingly unrelated inquiries, and were we writing on a

clean slate we might say there were five Johnson factors

instead of four.

7824 SCHOENFELD v. QUAMME

But in any event, both of these constructs are implicated

here, and they cut in opposite directions. On the one hand,

Schoenfeld has received substantial disability benefits from

the military, a fact that weighs in favor of applying Feres. On

the other hand, riding along Stuart Mesa Road, which is par-

tially open to the public, was not a privilege available to him

because of his military status.

i. Schoenfeld Received Substantial Disability Benefits

[7] The parties dispute the precise benefits Schoenfeld has

received on account of his injuries, but it is clear he has had

a significant amount of his medical care paid for; receives

monthly disability checks; enjoys cheap healthcare for life;

and qualifies for allowances for his car and college education.

“The existence and receipt of these medical and disability

benefits by [Schoenfeld] supports the application of the Feres

doctrine in this case.” Jackson, 110 F.3d at 1489; see also

Dreier, 106 F.3d at 855 (noting that plaintiff’s widow was

denied administrative compensation). However, the govern-

ment has indicated that it will seek an offset for these

expenses from any amount Schoenfeld may recover from this

suit, and Schoenfeld acknowledges in his briefing that any

disability benefits he receives would be deducted from an

award of FTCA damages. Moreover, neither Jackson, Dreier,

nor any of our other cases holds that the receipt of disability

and medical benefits is a dispositive factor in the Feres analy-

sis. A serviceman is not precluded from FTCA recovery

merely because he receives disability benefits. See United

States v. Brown, 348 U.S. 110, 113 (1954) (observing “that

Congress had given no indication that it made the right to

compensation the veteran’s exclusive remedy, [and] that the

receipt of disability payments under the Veterans Act was not

an election of remedies and did not preclude recovery under

the Tort Claims Act but only reduced the amount of any judg-

ment under the latter Act.”).

SCHOENFELD v. QUAMME 7825

ii. Driving on the Road Was Not a Benefit of Military

Service

[8] Schoenfeld was doing what any member of the public

could have done that Saturday morning: riding in a car on

Stuart Mesa Road. In Bon, we emphasized that Janice Bon

was able to rent a canoe only because of her military status.

802 F.2d at 1095 (“[U]se of the [canoes] was restricted to

members of the military and employees of the Department of

Defense and their guests and dependants.”). In Millang, plain-

tiff’s suit was Feres-barred in part because the picnic where

the accident occurred was open only to servicemen and their

guests. 817 F.2d at 535 (“Millang enjoyed the use of the pic-

nic area solely by virtue of his status as a serviceman.”).

[9] The original district court judge correctly reasoned that

the factual circumstances of this case are closer to Johnson

and Dreier than to Bon and Millang. In Johnson, we empha-

sized that Johnson “was in the same position that any civilian

employee of the NCO Club might have been in . . . .” 704

F.2d at 1438. Similarly, in Dreier, the beach was open to

civilians (with a permit) as well as to servicemen. 106 F.3d

at 853 (Dreier’s “ability to use the [beach] can hardly be char-

acterized as a privilege or benefit incident to his military ser-

vice.”) (internal quotation and citation omitted). In Bon and

Millang, no member of the public could have participated in

the plaintiffs’ activities, so the benefits were clearly incident

to military service. That is not the case here, which weighs

against applying a Feres bar.

d. The Nature of Schoenfeld’s Activities At the Time the

Negligent Act Occurred

[10] Our case law suggests that this factor is the most

important in determining whether a plaintiff’s suit is Feres-

barred, and that the key inquiry is “whether or not the service

member’s activities at the time of injury are of the sort that

7826 SCHOENFELD v. QUAMME

could harm the disciplinary system if litigated in a civil

action.” Johnson, 704 F.2d at 1439.

[11] Schoenfeld’s activities do not implicate military disci-

pline in any meaningful way. He was not subject to “the

compulsion of military orders or performing any sort of mili-

tary mission.” Dreier, 106 F.3d at 853 (quotation omitted).

The military did not require Schoenfeld to drive to Oceanside

that day — he could have gone elsewhere off-base, or

remained in his barracks until his weekend liberty was over.

The government points to several regulations of general

applicability to which Schoenfeld remained subject during his

weekend leave, including the rules that he wear a seatbelt in

a car; that he abide by certain wardrobe requirements like

wearing a belt around his pants; and that he not travel more

than a certain distance away from Camp Pendleton. These do

not implicate military discipline sufficiently to invoke the

Feres bar because they involve “aspects of the operation of a

military base that are not related to traditional military func-

tions.” Id. at 854 n.9. And we observe that if we found such

rules on their own to be sufficient, no marine on liberty could

ever recover under the FTCA; nor could any marine injured

in a car accident within Camp Pendleton. Those are precisely

the type of “absolutist” positions we rejected in Dreier. Id. at

853 (“Adopting the government’s rationale, however, would

bar recovery against the government by any soldier injured on

military property.”).

[12] Moreover, Schoenfeld’s activities leading up to his

accident are not meaningfully distinguishable from those of a

civilian, which suggests a minimal impact on military disci-

pline. This case is unlike Bon, Costo, or McConnell, where

the plaintiffs’ military status afforded them access to certain

privileges. Civilians and servicemen alike could drive on Stu-

art Mesa Road. See Johnson, 704 F.2d at 1438 (noting that

“Johnson was in the same position that any civilian employee

of the NCO Club might have been in”); Dreier, 106 F.3d at

SCHOENFELD v. QUAMME 7827

853. That fact distinguishes this case from Coffey, where the

plaintiff was involved in an accident on “a government-

maintained private road.” 324 F. Supp. at 1087.

[13] We are also unpersuaded by the government’s sugges-

tion that Schoenfeld was engaged in military activity because

he was taking his uniforms to be laundered. Notwithstanding

the general regulations regarding the cleanliness of uniforms,

Schoenfeld was not under orders to wash his uniforms at a

specific time or place. That he opted to launder them in

Oceanside that Saturday does not convert his weekend off

into a military mission. And in any event, the record suggests

that Schoenfeld was bringing both his military and his civilian

clothes to be cleaned. It would be quite arbitrary, and would

in no way bolster military discipline, to insist that for a soldier

to recover he must sort his laundry not just by colors and

whites, but also by work- and plain-clothes.

[14] Lastly, it weighs against a Feres bar that “many, if not

all of the employees directly overseeing [road repair at Camp

Pendleton] were civilians.” Dreier, 106 F.3d at 853. This

leads us to doubt that second-guessing the government on that

issue will “involve the sort of close military judgment call that

the Feres doctrine was designed to insulate from judicial

review.” Johnson, 704 F.2d at 1440. In Dreier, we empha-

sized that the type of negligence at issue could just as easily

have been alleged against “a completely private water treat-

ment plant.” 106 F.3d at 854. Similarly, the neglected damage

to the guardrail in this case could just as easily have existed

on a non-military road. There was nothing distinctly military

about the earlier car crash that created it, nor about the dan-

gerous condition itself. We conclude, therefore, that Schoen-

feld’s activities leading up to his accident are not of the sort

that could adversely impact military discipline if litigated in

a civil suit.

7828 SCHOENFELD v. QUAMME

CONCLUSION

[15] For the foregoing reasons, we hold that Schoenfeld’s

claim is not barred by the Feres doctrine and that his action

against the government may proceed.

REVERSED and REMANDED.