# Petition for Writ of Certiorari — Sonnenberg v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1067

## Text

90-5 39”

i]: SEP 2? 1999
;
No. 90 - JOSEPH F. SPANRDL, JR

u | CLERK

i Wiiiem. | ——

In The

Supreme Court of the United States
Octeber Term, 1990

a
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CAROLYN SONNENBERG, GORDON SONNENBERG,
MARY CARHOUN MCCORMICK, JEFF CARHOUN,
SCOTT CARHOUN, GERRY CARROLL,
KATHERINE CARROLL, KRISTOPHER CARROLL,

Plaintiffs and Petitioners,

VS.

UNITED STATES OF AMERICA,
Defendant and Respondent.

,%
4

On Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

a
wr

PETITION FOR WRIT OF CERTIORARI

4.
v

THomMas T. ANDERSON Victorias J. De Gorr
& ASSOCIATES Counsel of Record
45-926 Oasis Street Dre Gorr AND SHERMAN
Indio, California 92201 1916 Los Angeles Avenue
(619) 347-3364 Berkeley, California
94707

Trial Counsel
For Petitioners (415) 524-1840
Counsel for Petitioners

in United States

Supreme Court

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Has the time come to overrule Feres v. United
States, 340 U.S. 145, 71 S.Ct. 153, 95 L.Ed. 152 (1950)
because it created a judicial exception that Congress
never intended, to the general waiver of sovereign immu-
nity contained in the Federal Tort Claims Act?

The Feres doctrine, which bars tort recovery where 2
serviceman was injured while engaging in an activity
incident to military service, was last before the Court in
United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 96
L.Ed.2d 648 (1987). There, Justice Scalia, joined by three
other justices, wrote a strong dissenting opinion which
explained why Feres was decided incorrectly. The dissent
stopped short of stating that Feres should be overruled
because that relief had not been requested. In the present
case, petitioners challenged the Feres doctrine throughout
the proceedings below, and this issue is now directly
presented. Justice Kennedy, who was not on the Court
when Johnson was decided, concurred in opinions which
were critical of Feres, and followed it only reluctantly,
when he was on the Court of Appeals. See, Troglia v.
United States, 602 F.2d 1334 (9th Cir. 1979) and Veillette v.
United States, 615 F.2d 505 (9th Cir. 1980). The views on
this issue of the justice appointed to replace Justice Bren-
nan are unknown.

Overruling Feres, and returning the law to what it
always should have been, would be particularly appro-
priate now. It would implement the view that the Court
should construe statutes according to congressional
intent, not the justices’ visions of social policy.

ii
QUESTIONS PRESENTED - Continued

2. In the alternative, petitioners submit the Court
should grant certiorari to consider whether it is at least
time to reevaluate the rationales of the Feres doctrine, so
that recovery would only be precluded in more limited
situations. The question presented here would then be
whether the immunity created by Feres should apply
when an off-duty serviceman is injured in an automobile
accident, while returning to his base, after having gone
on a military sponsored trip to a public entertainment
park such as Disneyland. Numerous federal court deci-
sions, including the present one, have interpreted and
extended the Feres doctrine to bar such an action, on the
basis that the recreational activity was only available to
the serviceman because of his military status. The Court
has never considered this kind of application of the Feres
doctrine. Given the rationales most often advanced to
support the doctrine, there is no reason that it should
preclude recovery in such a situation.

ili

TOPICAL INDEX

Page
ee es er i
STATUTORY PROVISIONS INVOLVED............. 1
EE 3
JURISDICTION AND TIMELINESS................. 4
DEAD memIeE OP THE CASE... 0... cess ccccccccene 4

REASONS FOR GRANTING CERTIORARI

L.

THE FERES DOCTRINE, WHICH WAS JUDI-
CIALLY CREATED BY THIS COURT, SHOULD
BE OVERRULED AND THE LAW RETURNED
TO WHAT CONGRESS INTENDED WHEN IT
PASSED THE FEDERAL TORT CLAIMS ACT...

er

A. The Language Of The Federal Tort Claims
Act Plainly And Unambiguously Provides
For Suits By Members Of The Military
Injured During Most Of Their Activities...

B. The Feres Doctrine That A Serviceman Can-
not Recover For Injuries Which Arise Out Of,
Or Are Sustained In The Course Of, Activity
Incident To Military Service Has Been
che ch Case ciacesvecesenss

C. None Of The Reasoning Advanced To Sup-
port The Feres Doctrine Justifies Its Broad
Exception To Tort Liability ................

iv

TOPICAL INDEX - Contiued
Page

D. The Fact That congress Has Not Amended
The Act To Overturn Feres Does Not Estab-
lish That The Court Interpreted —— |
sional Intent Correctly ...............0+55- 18

Il. ALTERNATIVELY, THE FERES DOCTRINE
SHOULD BE LIMITED SO THAT IT DOES NOT
BAR ALL CIVIL ACTIONS ARISING OUT OF
NEGLIGENCE OF A GOVERNMENT
EMPLOYEE DURING MILITARY SPONSORED
RECREATIONAL ACTIVITIES ................. 19

COGN © Sn Kc hanten sy cncscencswcuesccesencess 22

—s

v

TABLE OF AUTHORITIES

Page
DecIsIONS

Appelhans v. United States, 877 F.2d 309 (4th Cir.
Nike wes ook een bce eee bieawe snes << we 11

Atkinson v. United States, 804 F2d 561 (9th Cir.
DEN iv cawscnctiasds vevtihauk ke baeetesakasnsess 20

Atkinson v. United States, 825 F2d 202 (9th Cir.
Sy ee eee ee eee a ee ae 21

Bon v. United States, 802 F2d 1092 (9th Cir. 1986) ..5, 21

Boys Market, Inc. v. Retail Clerks Union, Local 770,
398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) .... 18

Bozeman v. United States, 780 F2d 198 (2d Cir.

an is eins Ce A es oa 4s 10
Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93
* % ~ —_s EE rr eee 9, 15, 16

Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76
L.Ed.2d 586 (1983)

Feres v. United States, 340 U.S. 145, 71 S.Ct. 153, 95
Ce, SING Gun cncsanncncdsscnneekenneces passim

Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983)
cert. denied, 465 U.S. 1023, 104 S.Ct. 1276, 79

LDU II a0 hn bce cccsevetcecsecsoeescass 10
Hunt v. United States, 204 U.S. App. D.C. 308, 636

FD Ge GD ae oc oct eecesucessetesosenvedess 10, 16
In re ao. Orange” Product Liability Litigation,

580 F. 1243 (E.D.N.Y.) appeal dismissed,

745 F.2d Nel Set Sneha scosacanscancceces 18
Indian Towing Co. v. United States, 350 U.S. 61, 76

SCR. TAA, BOD Le. GB CURBS) on cn nsec cece c cece 12, 14
Johnson v. United States, 704 F.2d 1431 (9th Cir.

SU s 6 6 vc bk ee endsscees eas caecsctabeaseeesuies 17, 19

vi

TABLE OF AUTHORITIES - Continued

LaBash v. United States Dept. of Army, 668 F.2d 1153
(10th Cir.) cert. denied, 456 US. 1008, 73

L.Ed.2d 1303, 102 S.Ct. 2299 (1982) ...... 6.6...

Loughney v. United States, 839 F2d 186 Gd Cir.

1 88) se eee esses eeseeeseeeseseeeesese ee eee eee ee ee ee eee’

Monaco v. United States, 661 F.2d 129 (9th Cir. 1981)
cert. denied, 456 U.S. 989, 73 L.Bd.2d 1284, 102

S.C. THED CUBBED oon ccccccsccccessncsecccuseces

Mondelli v. United States, 711 F2d 567 (Gd Cir.
1983) cert. denied, 465 U.S. 1021, 79 L.Bd.2d

ee Se ee, EE in wemencccncanacencece
Parker v. United States, 611 F.2d 1007 (Sth Cir. 1980) ....

Peluso v. United States, 474 F.2d 605 (3d Cir.) cert.
denied, 414 U.S. 879, 38 L.Ed.2d 124, 94 S.Ct. 50

CTDTS) wn nscvcccvecccnsenccccnscecneseuecusecees

Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct.

. Ee § | f | eer rt
Roush v. United States, 752 F.2d 1460 (9th Cir. 1985) ..
Sanchez v. United States, 813 F.2d 593 (2d Cir. 1987) ....

Scales v. United States, 685 F.2d 970 (Sth Cir. 1982)
cert. denied, 460 U.S. 1082, 76 L.Bd.2d 344, 103

S.CU. 177A CUBTSD onc cescccnecccscnnncscccsccccs

Stencel Aero Engineering Corp. v. U,.-ted States, 431
U.S. 666, 97 S.Ct. 2054, 52 L.Bd.2d 665 (1977)
Shc cvdeueacencesevecrebencaetutéecaccesebass 13,

Troglia v. United States, 602 F2d 1334 (9th Cir.
Seerereeererrrrrsrrereyrios yet

Page

vii

TABLE OF AUTHORITIES - Continued

Page

United States v. Brown, 348 U.S. 110, 75 S.Ct. 141,
er Ey GD hh dn eaccdccccbecececcensess 10, 16

United States v. Johnson, 481 U.S. 681, 107 S.Ct.
2063, 96 L.Ed.2d 648 (1987)... .. 2... can passim

United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850,
Oe ED GT ITER s bc asnces svc ccnacases 14, 15, 16

United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039,
ee ree 13, 15, 16, 19

Veillette v. United States, 615 F.2d 505 (9th Cir.
SICA MAAN UE eek bkkeiscdcnnctnueasnebenssans i, 10

STATUTES
5 United States Code
eT eT Tee 16
28 United States Code

INA WEA anccdccncouussccenseusecueen 4
PITS ah oe4 ceca sddnwnvecccacceccenusencas 1
IE a Wa vas cn ccacaccsbeace 1, 2, 6, 8, 13
IIE Cc awecnabackskueeskabeenéaneeeba 2
as nnn eae inced vuneusdenceuaatce 2, 8
IIE 6... 46.0 Kou K040 60000 ceeekccducbabe 1
EA ain 4 Seay wdecnnwaenesccdeseesesiuus 15
SR SAG heAdc ana chocndetaaneemaeuks 2, 6, 12
Nn cs Adee cektnbndadecasiaececenaes 15

EE AR ae ay ee nal aE Freeh 15

viii

TABLE OF AUTHORITIES - Continued

Page
OTM BO sac aca svencseccansececcesesssescecess 7
I I a sn vec ccnescnncccussensccccsseees 17
SUE TG wan nccecacnveccncssssecsens 8, 12, 14
I Bs wien eccenccnccccccsesesccnseness 12
PECTS eT Te Te TTC Tee Te eT eee TTT 12
| CCST eTeeeeereene ttt tet 17
SE Ma cccnseccnccsnanesccensssscens 12, 14
ss os ccccacuyaneecenci 3, 8, 14, 17
RU BED Swsanneacncececccccessnccsecss 14, 17

Veterans’ Benefits Act 72 Statute 1118, as amended
38 United Stares Code

SroONDARY AUTHORITIES

Bennett, Feres Doctrine, Discipline, and the Weapons
of War, 29 St. Louis U.L.J. 383 (1985). ..... 00... 10, 17

Cooley, Method to This Madness: Acknowledging the
Legitimate Rationale Behind the Feres Doctrine, 68
B. UU. L. Rew SOR CROGBD wn cnc ccccncccnnnccncceess iB

Gallagher, Servicemembers’ Rights Under the Feres
Doctrine: Rethinking “Incident to Service” Anal-
ysis, 33 Vill. L. Rev. 175 (1988)... 0... iW

Hitch, The Federal Tort Claims Act and Military Per-
sonnel, Rutgers L.Rev. 316 (1954)... 0... 10

ix

TABLE OF AUTHORITIES - Continued "
age

Kenworthy, The Feres Doctrine: Should it Bar Claims
by Military Personnel inst Civilian Federal
Employees? 15 N. Ky. L.Rev. 559 (1988)... 0... 1

Riley, United States 0. Johnson: Expansion of the
Feres Doctrine to Include Servicemembers’
FTCA suits against Civilian Government

Employees, 42 Vand. L. Rev. 233 (1989) ........... 10
Rhodes, The Feres Doctrine “ weeenetee Years,

18 AFL Rev. 24 (Spring 1976)... 2... 10
Simmons, Milita atecient sari 23 Ariz. B.

J. 22 (1988)... PRURNRESEEEEeeEereneeeeeneeesesene 11
Note, Feres Doctrine Gets New Life and Continues to

Grow, 38 Am. U. L. Rev. 185 (1988)... 2.20... 66... li

Note, Has the Feres Doctrine Become a Grant of
ee tnawenity? 23 New Eng. L. Rev. 767
ee nh anes Gh Oe beech adden us hha KNe00000.00. i1

Note, From Feres to Stencel: Should Military Per-
sonnel Have Access To FTCA Recovery?, 77

a a as os wa entesse 10, 16
Note, 6 Cardozo L.Rev. 391 (1984)... i0
Note, 51 J. Air L. & Com. 1087 (1986) .. 2.0.00 0 0... 10

Note, 43 St. John’s L.Rev. 455 (1969)... 10

No. 90 —-

..
vw

In The

Supreme Court of the United States
October Term, 1990

ds.
wv

CAROLYN SONNENBERG, GORDON SONNENBERG,
MARY CARHOUN MCCORMICK, JEFF CARHOUN,
SCOTT CARHOUN, GERRY CARROLL,
KATHERINE CARROLL, KRISTOPHER CARROLL,

Plaintiffs and Petitioners,

VS.

UNITED STATES OF AMERICA,
Defendant and Respondent.

,%
4

On Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit

,
ww

PETITION FOR WRIT OF CERTIORARI

a
—

STATUTORY PROVISIONS INVOLVED

This case involves the interpretation of various provi-
sions of the Federal Tort Claims Act (28 USC §§ 1346,
2671-2680). In particular, it involves:

(1) 28 USC section 1346(b) which abolished the sov-
ereign immunity of the United States. This statute allows
a civil tort action for damages against the government

—,

2

. . . for injury or loss of property, or personal |
injury or death caused by the negligent or
wrongful act or omission of any employee of the
government while acting within the scope of his
office or employment, under circumstances |
where the United States, if a private person,

would be liable to the claimant in accordance |
with the law of the place where the act or omis-

sion occurred.

(2) 28 USC section 2674, which similarly provides,
in pertinent part:

The United States shall be liable, 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, but
shall not be liable for interest prior to judgment
or for punitive damages.

(3) 28 USC section 2671, which contains definitions
that refer to the military and states, in pertinent part:

As used in this chapter and sections 1346(b)
and 2401(b) of this title, the term “Federal
agency” includes the executive departments, the |
judicial and legislative branches, the military |
departments, independent establishments of the :
United States, and corporations primarily acting
as instrumentalities or agencies of the United
States, but does not include any contractor with
the United States.

officers or employees of any federal agency,
members of the military or naval forces of the
United States, members of the National Guard
while engaged in training or duty under section
316, 502, 503, 504, or 505 of title 32, and persons
acting on behalf of a federal agency in an official

“Employee of the government” includes

3

capacity, temporarily or permanently in the ser-
vice of the United States, whether with or with-
out compensation.

“Acting within the scope of his office or
employment”, in the case of a member of the
military or naval forces of the United States or a
member of the National Guard as defined in
section 101(3) of title 32, means acting in the line
of duty.

(4) 28 USC section 2680(j), which lists exceptions to tort

liability and states, in pertinent part, that the United
States is not liable for

Any claim arising out of the combatant

activities of the military or naval forces, or the
Coast Guard, during time of war.

,%
-_

DECISIONS BELOW

On February 5, 1988, the District Court issued find-
ings of fact and conclusions of law, which determined
that this wrongful death action was barred by Feres v.
United States, supra, 340 U.S. 135. These findings and
conclusions were entered on February 8, 1988. (Exhibit
A.) On the same dates, the District Court filed and
entered an order of dismissal. (Exhibit B.) On June 1,
1990, the United States Court of Appeals for the Ninth
Circuit filed an unpublished memorandum opinion
upholding the decision of the District Court. (Exhibit C.)

,%
vw

JURISDICTION AND TIMELINESS

The decision of the Ninth Circuit was filed June 1,
1990. Petitioners invoke this court’s certiorari jurisdiction
under 28 USC section 1254(1). The petition for certiorari
was initially due on August 30, 1990. By order dated
August 6, 1990, the time to file it was extended until
October 1, 1990, by Justice Sandra Day O’Connor.

—i.
_

STATEMENT OF THE CASE

The pertinent facts are simple and fairly stated in the
findings of the District Court and the opinion of the
Court of Appeals. Certain members of the Armed Forces
were temporarily stationed in Las Vegas, Nevada. During
their off-duty time on a weekend, they went on a recre-
ational trip to Disneyland in California, sponsored by the
military. A bus and a van leased by the military were
used to transport the servicemen. During the return trip,
the van went off the road in a single car accident at
approximately 12:30 a.m. It rolled, crashed, and burned.
Three servicemen who were passengers in the van were
killed. Their families brought the present wrongful death
action against the United States under the Federal Tort
Claims Act.

The District Court granted the plaintiffs’ motion in
limine to the effect that the accident would not have
happened, but for the negligence of a government
employee. It dismissed the action for lack of subject mat-
ter jurisdiction on the ground that under Feres v. United
States, supra, 340 U.S. 135 and its progeny, the United
States was immune from civil liability on these facts. The

District Court held that the Feres doctrine applied to bar
recovery even though the servicemen were off-duty, and
the accident occurred while they were returning to the
military base after a recreational activity at Disneyland,
which is open to the public.

On appeal, the servicemen’s families argued that the
Feres doctrine does not apply on these facts. They also
preserved their record for review here, by contending
that Feres should be overruled.

The Court of Appeals for the Ninth Circuit affirmed
the order dismissing the action. As pertinent here, it
followed its previous decisions in Roush v. United States,
752 F.2d 1460 (9th Cir. 1985) and Bon v. United Siates, 802
F.2d 1092 (9th Cir. 1986). Roush held that the Feres doc-
trine precludes the imposition of liability on the govern-
ment for its negligence, if the plaintiff enjoyed the
recreational benefit by virtue of his military status, and
was subject to direct military control during the activity.
Bon applied Roush to conclude that an off-duty ser-
vicewoman, who rented a canoe from the military special
services for recreational purposes, could not recover for
injuries she sustained in a collision with another service
member whose rented motorboat struck the canoe.

Accordingly, two questions are presented by this
petition. First, should this court recognize that Feres inter-
preted the Federal Tort Claims Act incorrectly and over-
rule it? Second, in the event the court does not overrule
Feres, should it narrow the application of the Feres doc-
trine so that it does not apply to injuries negligently

|

caused by a government employee to an off-duty service-
man during a recreational trip that takes place off mili-
tary premises, because this type of activity is not truly |
“incident to military service”?

REASONS FOR GRANTING CERTIORARI

I. THE FERES DOCTRINE, WHICH WAS JUDI-
CIALLY CREATED BY THIS COURT, SHOULD BE
OVERRULED AND THE LAW RETURNED TO
WHAT CONGRESS INTENDED WHEN IT PASSED
THE FEDERAL TORT CLAIMS ACT.

INTRODUCTION

Congress eliminated most of the sovereign immunity
of the United States in 1946, when it passed the Federal
Tort Claims Act (hereafter “FTCA”, or “Act”). The Act
requires the Government to pay money damages for:

. .. injury or loss of property, or personal injury

or death caused by the negligent or wrongful act

or omission of any employee of the Government

while acting within the scope of his office or

employment, under circumstances where the

United States, if a private person, would be

liable to the claimant in accordance with the law
of the place where the act or omission occurred.

28 USC § 1346(b). See also, 28 USC § 2674.

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95
L.Ed. 152 (1950), the Court provided three reasons that
Congress might have used to justify writing a legislative
decision to preclude many tort claims brought by service-
men against the Government. As Justice Scalia’s dissent
in United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95

nti, .

a

L.Ed.2d 648 (1987) succinctly pointed out, Congress not
only failed to provide such a broad exemption, but quite
explicitly limited the exceptions that it wanted to recog-
nize, by enumerating them in section 2680. Justice Scalia’s
forceful opinion, in which three other justices joined, thus
explained why Feres was decided incorrectly.

The plaintiff in Johnson had prevailed in the Court of
Appeals, and did not request the Court to overrule Feres.
She argued only that the doctrine should not be extended
to bar her wrongful death action against the Government
where her husband had been killed while he was on a
Coast Guard rescue mission, as a result of the negligence
of a non-military government employee. In the present
case, petitioners challenged the continued validity of the
Feres doctrine throughout the proceedings below. They
now ask this Court to return the law to what it should
have been, before Feres created an unwarranted judicial
exception to the Act.

In what follows, we draw heavily on Justice Scalia’s
careful and detailed explanation of why Feres was incor-
rect. We also update, summarize, slightly expand, and
therefore partly reorganize, those arguments. We are
hopeful that there are now at least four justices on the
Court who would like the opportunity to convince one or
more of their colleagues that the dissent in Johnson was
correct, and that Feres should either be overruled or sig-
nificantly narrowed.!

1 In Johnson, the serviceman unquestionably was killed
while he was performing duties incident to his military service.

(Continued on following page)

A. The Language Of The Federal Tort Claims Act
Plainly And Unambiguously Provides For Suits
By Members Of The Military Injured During
Most Of Their Activities.

The language in 28 USC section 1346 (b) imposes civil
tort liability on the United States for all persons injured
by the negligence of a government employee. Section
2671 includes members of the military who are acting
within the course and scope of their employment, as
government employees, for whose conduct the United
States is liable under the Act.

Section 2680 sets forth various exceptions to liability.
It does not contain a general exclusion for actions
brought by servicemen. Instead, section 2680(j) excludes
“any claim arising out of the combatant activities of the
military or naval forces, or the Coast Guard, during time of
war.” (Emphasis added.) Section 2680(b) excludes all mili-
tary personnel injured in a foreign country.

The existence of these specific exceptions demon-
strates that Congress considered the special requirements
of the military, and provided the precise exceptions that it
thought were needed.

(Continued from previous page)

The issue was whether Feres applied when the negligent gov-
ernment employee was not in the military. Therefore, the Court
did not need to address limitations which might be appropriate
on what activity is “incident to service” for the purpose of
applying the Feres doctrine. That issue is presented here, and is
discussed in section II, where petitioners suggest an alternative
to the outright overruling of Feres.

The first decision of the Court interpreting the Act,
Brooks v. United States, 337 U.S. 49, 93 L.Ed. 1200, 69 S.Ct.
918 (1949), specifically rejected the Government’s argu-
ment that people enlisted in the military could never
recover under the Act. It reasoned that in light of the
Act’s specific exceptions, it could not be inferred that
Congress intended to bar all actions brought by injured
servicemen. 337 U.S. at 51. Accordingly, Brooks concluded
that off-duty servicemen who were injured in a collision

with an Army truck could recover damages under the
Act.

B. The Feres Doctrine That A Serviceman Cannot
Recover For Injuries Which Arise Out Of, Or
Are Sustained In The Course Of, Activity Inci-
dent To Military Service Has Been Strongly
Criticized.

Feres was decided one year after Brooks. It held that
servicemen cannot recover for injuries that “arise out of
or are in the course of activity incident to service.” 340
U.S. at 146. Feres gave three reasons for announcing this
rule. First, there is no parallel civil liability on the part of
a private person. At 141-142. Second, Congress could not
have intended local tort law to govern the “distinctively
federal” relationship between the Government and ser-
vicemen. At 142-144. Third, Congress could not have
intended to make actions available to servicemen because
they receive veterans’ benefits as compensation for inju-
ries suffered incident to service. At 144-145. Several years
later, the Court added a fourth rationale: Congress could
not have intended tc permit tort actions for service-
related injuries because this would unduly interfere with

10

military discipline. United States v. Brown, 348 U.S. 119,
112, 75 S.Ct. 141, 99 L.Ed. 139 (1954).

Feres has been applied to deny recovery in a wide
variety of contexts that seem to have little, if anything, to
do with the original intent of Congress when it passed
the Act. As Justice Scalia’s opinion in Johnson pointed out,
the Feres doctrine has received almost universal criti-
cism.? 481 U.S. at 701.

The expansion of Feres in Johnson has also been crit-
icized extensively. See e.g., Riley, United States v. Johnson:

2 Citing Sanchez v. United States, 813 F.2d 593 (2d Cir.
1987); Bozeman v. United States, 780 F.2d 198, 200 (2d Cir. 1985);
Hinkie v. United States, 715 F.2d 96, 97 (3d Cir. 1983), cert.
denied, 465 U.S. 1023, 79 L.Ed.2d 680, 104 S.Ct. 1276 (1984);
Mondeili v. United States, 711 F.2d 567, 569 (3d Cir. 1983), cert.
denied, 465 U.S. 1021, 79 L.Ed.2d 677, 104 S.Ct. 1272 (1984);
Scales v. United States, 685 F.2d 970, 974 (Sth Cir. 1982), cert.
denied, 460 U.S. 1082, 76 L.Ed.2d 344, 103 S.Ct. 1772 (1983);
LaBash v. United States Dept. of Army, 668 F.2d 1153, 1156 (10th
Cir.), cert. denied, 456 U.S. 1008, 73 L.Ed.2d 1303, 102 S.Ct.
2299 (1982); Monaco v. United States, 661 F.2d 129, 132 (9th Cir.
1981), cert denied, 456 U.S. 989, 73 L.Ed.2d 1284, 102 S.Ct. 2269
(1982); Hunt v. United States, 204 U.S. App. D.C. 308, 317, 636
F.2d 580, 589 (1980); Veillette v. United States, 615 F.2d 505, 506
(9th Cir. 1980); Parker v. United States, 611 F.2d 1007, 1011 (Sth
Cir. 1980); Peluso v. United States, 474 F.2d 605, 606 (3d Cir.),
cert. denied, 414 U.S.;879, 38 L.Ed.2d 124, 94 S.Ct. 50 (1973).

Bennett, The Feres Doctrine, Discipline, and the Weapons of
War, 29 St. Louis U.L.J. 383 (1985); Hitch, The Federal Tort Claims
Act and Military Personnel, 8 Rutgers L. Rev. 316 (1954); Rhodes,
The Feres Doctrine After Twenty-Five Years, 18 AFL Rev. 24
(Spring 1976); Note, 51 J. Air L. & Com. 1087 (1986); Note, 6
Cardozo L. Rev. 391 (1984); Note, 77 Mich. L.Rev. 1099 (1979);
Note, 43 St. John’s L. Rev. 455 (1969).

11

Expansion of the Feres Doctrine to Include Servicemembers’
FTCA Suits Against Civilian Government Employees, 42
Vand. L. Rev. 233 (1989); Note: Has the Feres Doctrine
Become a Grant of Absolute Immunity? 23 New Eng. L. Rev.
767 (1989); Cooley Method to This Madness: Acknowledging
the Legitimate Rationale Behind the Feres Doctrine 68 B. U. L.
Rev. 981 (1988); Note: Feres Doctrine Gets New Life and
Continues to Grow, 38 Am. U. L. Rev. 185 (1988); Simmons,
Military Medical Malpractice, 23 Ariz. B. J. 22 (1988); Gal-
lagher, Servicemembers’ Rights Under the Feres Doctrine:
Rethinking “Incident to Service” Analysis, 33 Vill. L. Rev.
175 (1988); Kenworthy, The Feres Doctrine: Should it Bar
Claims by Military Personnel Against Civilian Federal
Employees? 15 N. Ky. L. Rev. 559 (1988).

The Courts of Appeals have continued to apply the
Feres Doctrine only because they are obliged to do so. See
Appelhans v. United States, 877 F.2d 309, 313 (4th Cir. 1989)
(“the fact that the doctrine may in many cases lead to
undeniably harsh results does not relieve this court of its
obligation to apply precedent”}; Loughney v. United States,
839 F.2d 186, 187 (3d Cir. 1988) [“We are sympathetic to
Loughney’s legal arguments, and we are distressed by the
tragic circumstances that gave rise to her suit. We do not,
however, write on a clean slate.”).

12

C. None Of The Reasoning Advanced To Support
The Feres Doctrine Justifies [ts Broad Exception
To Tort Liability.

The first reason advanced in Feres for the exception it
created was that there is no “parallel private liability”.
This is the only justification which even purports to have
a basis in the actual language of the Act. The argument is
that the Act imposes liability on the United States “in the
same manner and to the same extent as a private individ-
ual under like circumstances.” 28 USC § 2674. No "pri-
vate individual” can raise a military force, and no State
has consented to suits by members of its militia. Accord-
ingly, section 2674 shields the Government from liability
to servicemen who suffer injuries in the course of activity
incident to service. 340 U.S. at 141-142.

The primary flaw in this reasoning is that it renders
many of the Act’s specific exceptions superfluous. Private
individuals do not typically transmit postal matter
(§ 2680(b), collect taxes or customs duties (§ 2680{c)),
impose quarantines (§ 2680(f)), or regulate the monetary
system (§ 2680(i)).

The Court eventually rejected the “parallel private
liability” rationale of Feres. See Rayonier, Inc. v. United
States, 352 U.S. 315, 319, 77 S.Ct 374, 1 L.Bd.2d 354 (1957);
Indian Towing Co. v. United States, 350 U.S. 61, 66-69, 76
S.Ct. 122, 100 L.Bd. 48 (1955). Moreover, when the Court
expanded the reach of the Feres doctrine in United States
v. Johnson, supra, it did not resurrect this textual argument
to justify the doctrine. 481 U.S. at 686-691.

As Justice Scalia opined, without textual support in
the Act itself, to which Feres pointed as the embodiment

13

of Congressional intent on which its other rationales were
based, the Court might not have reached the conclusion
which it did in Feres. 481 U.S. at 695. Perhaps the present
case is an appropriate one in which to hold that without
any textual support in the Act itself, the Court should not
have speculated about what Congress must have
intended.

The doctrine cannot be sustained by the other ratio-
nales used to defend it either.

The first of them, Feres’ second rationale, is as fol-
lows: Liability under the Act depends on “the law of the
place where the [negligent] act or omission occurred”. 28
USC § 1346(b). Congress could not have intended for
local, and therefore geographically diverse, tort law to
control important aspects of the “distinctively federal”
relationship between the United States and military per-
sonnel. 340 U.S. at 142-144.

The Court rejected this rationale in United States v.
Shearer, 473 U.S. 52, 58, n. 4, 105 S.Ct. 3039, 87 L.Bd.2d 38
(1985). When the Court revived this rationale in Johnson,
it ignored Shearer. 481 U.S. at 688-689. Instead, it cited its
earlier decision in Stencel Aero Engineering Corp. v. United
States, 431 U.S. 666, 671-673, 97 S.Ct. 2054, 52 L.Bd.2d 665
(1977). In fact, the Court was correct to reject this ratio-
nale in Shearer, and should do so again, for the following
reasons.

The primary concern expressed in Feres was that it
would be unfair to the soldier to make his recovery turn
on where he was injured because this was outside of his
control, 340 U.S. at 142-143. Yet, as the Court subse-
quently pointed out in another context, nonuniform

eee

14

recovery cannot be worse than uniform nonrecovery. See
United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 10
L.Ed.2d 805 (1963). Moreover, a serviceman injured by a
negligent civilian must resort to state tort law. There is
nothing inherently unfair about a rule that also requires a
serviceman injured by a negligent government employee
to do so.

Stencel had emphasized the military's need for unifor-
mity in the standards governing it. 431 U.S. at 671. The
rationale should be unpersuasive on this basis because
several of the Act’s exemptions show that Congress con-
sidered the uniformity problem. See, e.g., 28 USC
§§ 2680(b), 2680(i), 2680(k). Yet Congress chose to retain
sovereign immunity for only some claims affecting the
military. § 2680(j).

Moreover, the Court effectively disavowed any “uni-
formity” justification - and rendered its benefits to mili-
tary planning illusory — by permitting: (1) servicemen to
recover against the government for injuries incurred in
activity not incident to their military service, and (2)
civilians to recover for injuries caused by military negli-
gence. See e.g., Indian Towing Co. v. United States, supra,
350 U.S. 61 at 675.

Finally, there is no reason to conclude that uniformity
is indispensable for the military alone, but not for the
many other federal departments and agencies that can be
sued under the Act for the negligent performance of their
“unique, nationwide functions”. Stencel Aero Engineering
Corp. v. United States, supra, 431 U.S. at 675 (Marshall, J.,
dissenting). Furthermore, as has been noted, liability
based on negligence of the federal prison system can be

15

imposed under varying state laws. Unite? States v. Muniz,
supra, 374 U.S. 150.

The third rationale of Feres was based on the fact that
servicemen receive veteran’s benefits if they are injured
incident to service. Therefore, Congress could not have
intended an additional recovery. Shearer also rejected this
rationale. 473 U.S. at 58. In resurrecting it in Johnson, the
Court again ignored Scherer and relied on its earlier deci-
sion in Stencel. In fact, the Court was correct to reject this
rationale in Shearer, and should do so again, for the
following reasons.

Servicemen injured or killed in the line of duty are
compensated under the Veterans’ Benefits Act (VBA), 72
Stat. 1118, as amended, 38 USC § 301 et seq. (1982 ed. and
Supp.III). Fercs described the absence of any provision to
adjust dual recoveries under the Act and VBA as ’ persua-
sive [evidence] that there was no awareness that the Act
might be interpreted to permit recovery for injuries inci-
dent to military service.” 340 U.S. at 144.

The credibility of this rationale is undermined by the
fact that the Court has permitted some injured service-
men to recover under the Act, even where they are com-
pensated under the VBA. See, e.g., Brooks v. United States,
supra, 337 U.S. at 53 which stated “nothing in the Tort
Claims Act or the veterans’ laws . . . provides for exclu-
siveness of remedy”. The Court refused to call either
remedy exclusive, when Congress had not done so. It
even noted that Congress had included three exclusivity
provisions in the Act, 28 USC §§ 2672, 2676, 2679, but had
said nothing about servicemen plaintiffs. Ibid.

16

The correct approach is contained in Brooks’ state:
ment that VBA compensation should be taken into |
account, in adjusting recovery under the Act. 337 U.S. at |
53-54. Indeed, making the VBA the exclusive recovery for
service-connected injuries cannot be reconciled with the |
text of the VBA because it compensates servicemen with- |
out regard to whether their injuries occurred “incident to
service”, as Feres defined that term. See 38 USC § 105.

Moreover, the VBA is not, as Feres assumed, identical
to federal and state workers’ compensation statutes,
which almost invariably contain exclusivity provisions.
See e.g., 5 USC § 8116(c). Recovery is possible under
workers’ compensation statutes more often than under
the VBA, and VBA benefits can be terminated more easily
than can workers’ compensation. See Note, From Feres to
Stencel: Should Military Personnel Have Access to FTCA
Recovery?, 77 Mich.L.Rev. 1099, 1106-1108 (1979). The
presence of an alternative compensation system neither
explains nor justifies the Feres doctrine; it only makes the
effect of the doctrine more palatable. See Hunt v. United
States, supra, 204 U.S.App.D.C. at 326; 636 F.2d at 598.

The foregoing three rationales were the only ones
actually relied on in Feres. Given their weakness, it is
hardly surprising that the “military discipline” rationale
first stated in United States v. Brown, supra, 348 U.S. at 112,
has often been cited as the “best” explanation for the
doctrine. See United States v. Shearer, supra, 473 U.S. at 57,
Chappell v. Wallace, 462 U.S. 296, 299, 103 S.Ct. 2362, 76
L.Ed.2d 586 (1983); United States v. Muniz, supra, 374 U.S.
150 at 162. The argument is that permitting recovery |
under the Act would undermine military discipline

17

because civilian courts would then be second-guessing
military decision making. See Stencel Aero Engineering
Corp. v. United States, supra, 431 U.S. at 671-672, 673.

The Court might justifiably have taken this problem
into account, if it were interpreting an ambiguous statute.
The effect on military discipline is not so certain, or so
certainly substantial, that the Court was justified holding
Congress did not mean what it plainly said in the Act.?

Congress, which expressly excluded recovery for
combat injuries, did not recognize this rationale. Feres did
not suggest it, either. Accordingly, the most reasonable
inference is that the likely effect of tort actions upon
military discipline is speculative, uncertain, and amor-
phous. See Bennett, The Feres Doctrine, Discipline, and the
Weapons of War, supra, 29 St. Louis U.L.J. at 407-411.

Contrary to the assumption made in Stencel, Con-
gress might have believed that the Act’s explicit exclu-
sions would bar the actions most threatening to military
discipline, such as claims based upon combat command
decisions, § 2680(j); claims arising in foreign countries,
§ 2680(k); intentional torts, § 2680(h) and claims based
upon performance of “discretionary” functions, § 2680(a).
Perhaps Congress thought that military decision making

3 As discussed in Section II, the “effect on military disci-
pline” test became the preferred method of analysis in the
Ninth Circuit Court of Appeals. See Johnson v. United States
(9th Cir. 1983) 704 F.2d 1431, 1436. Yet it has been applied to
bar actions involving recreational activities that had little, if
anything, to do with second-guessing military decision-making
and discipline.

18

was unlikely to be affected significantly because the Act
imposes monetary liability on the Government, not on
individual employees. It is barring recovery for injuries to
servicemen that might adversely affect military disci-
pline.

In sum, there is no valid reason to retain the judicial
exception to the Act created in Feres. The “widespread,
almost universal criticism” Feres has received is justified.
See In re “Agent Orange” Product Liability Litigation, 580
F.Supp. 1242, 1246 (E.D.N.Y.), appeal dismissed, 745 F.2d
161 (2d Cir. 1984).

D. The Fact That Congress Has Not Amended The
Act To Overturn Feres Does Not Establish That
The Court Interpreted Congressional Intent
Correctly.

The majority in Johnson noted that Congress has not
acted to amend the Act, nor to overturn Feres. 481 U.S. at
688-689, n.9. As Justice Scalia’s opinion pointed out, the
unlegislated desires of later Congresses with regard to
one thread in the fabric of the Act does not have any
bearing on the proper interpretation of the entire fabric of
compromises that their predecessors enacted into law in
1946. Even if they could have a bearing, intuiting those
desires from a congressional failure to act is an uncertain
enterprise. Not all of the desires of a majority of Congress
find their way into law. 481 U.S. at 702-703. See also Boys
Market, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235,
240-242, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970) [prior deci-
sion interpreting a section of the Norris-La Guardia Act
overruled, notwithstanding Congressional inaction].

19

Il. ALTERNATIVELY, THE FERES DOCTRINE
SHOULD BE LIMITED SO THAT IT DOES NOT
BAR ALL CIVIL ACTIONS ARISING OUT OF
NEGLIGENCE OF A GOVERNMENT EMPLOYEE
DURING MILITARY SPONSORED RECRE-
ATIONAL ACTIVITIES.

The issue in United States v. Johnson, supra, was
whether the Feres doctrine should be extended to bar a
civil action against the government based on the negli-
gence of a non-military employee which killed a service-
man. The dissent would have limited “ . . . our clearly
wrong decision in Feres and confine[d] the unfairness and
irrationality that decision has bred.” 481 U.S. at 703. If a
majority of the Court is unwilling to overrule Feres, the
present case is an appropriate one in which to limit the
“unfairness and irrationality” that the doctrine continues
to breed. Indeed, the decision in United States v. Johnson
has broadened that unfairness and irrationality, in the
following manner.

Feres precluded an action based on medical malprac-
tice. In United States v. Shearer, supra, 473 U.S. 52 the Court
narrowed the Feres doctrine by focusing on the extent to
which the action would interfere with military discipline.
Accordingly, the Ninth Circuit responded to this develop-
ment in Johnson v. United States, supra, 704 F.2d 1431, by
evaluating four factors to determine whether Feres would
bar a particular action. Those factors are: 1) where the
negligent act occurred; 2) the duty status of the service-
man when he was injured; 3) whether the activity during
which the serviceman was injured was only available to
him because of his military service; 4) whether the nature
of the plaintiff’s activities at the time the negligent act

20

occurred are of the sort that could harm the military
disciplinary system, if litigated in a civil action. At
1436-1439.

The Ninth Circuit applied this analysis where a ser-
viceman sustained injuries in an automobile accident
which occurred during return to his quarters following
an after hours party at an officer’s club on the base. It
held that the action was not barred. At 1436-1441.

If the Ninth Circuit’s analysis, or a similar approach,
were applied to cases involving recreational activities,
some actions would be barred and some would not,
depending on the particular circumstances. For instance,
an injury during an official sports competition on the
base would probably be barred. By contrast, the present
lawsuit would be allowed.‘

Even the Ninth Circuit’s four factor analysis is now
itself in doubt. For instance, that court originally applied
its approach in Atkinson v. United States, 804 F.2d 561 (9th
Cir. 1986) to hold that a servicewoman on active duty,
who received negligent prenatal care at a military hospi-
tal could bring a medical malpractice action under the
act. The Ninth Circuit’s approach was derailed when the
Court decided United States v. Johnson, supra, 481 U.S. 681,
which breathed new life into the old Feres rationales. The
Ninth Circuit then granted rehearing in Atkinson, and

* Petitioners explained at length in the District Court why
application of the Ninth Circuit’s analysis should allow the
present action. If certiorari is granted, petitioners will address
the specifics of what rule the Court should articulate to guide
lower courts in resolving these issues.

21

held that it could no longer apply its four factor analysis.
It was compelled to hold that the medical malpractice

action was barred. Atkinson v. United States, 825 F.2d 202
(9th Cir. 1987).

In the present case, the Ninth Circuit simply relied on
its earlier decisions involving recreational activities. It

did not apply its four part analysis to determine whether
the present action was barred.®

Petitioners submit that certiorari should be granted
to address these problems. If the Feres doctrine must
survive, its rationales should be articulated in a manner
that does not preclude lawsuits against the government
for injuries that were negligently caused during recre-
ational, or other activity that has very little connection
with military service.

5 By relying on its previous decisions in the recreational
area, Roush and Bon, the Ninth Circuit demonstrated the addi-
tional confusion which has arisen in this area. Roush had
reversed and remanded a judgment in the government's favor
for further consideration. Bon precluded the plaintiff’s action.
Each decision, however, made the four-part analysis discussed
above. In light of this court’s decision in United States v. John-
son, that approach itself appears to be precluded.

a

22

CONCLUSION

For all of the foregoing reasons, it is respectfully
submitted that certiorari be granted.

Respectfully submitted,

THOMAS T. ANDERSON
De Gorr AND SHERMAN

By Victoria J. De Gorr

Counsel of Record
for Petitioners

} la

APPENDIX A

ROBERT C. BONNER
) United States Attorney Filed
FREDERICK M. BROSIO, JR. February
\ Assistant United States Attorney 5, 1988
; Chief, Civil Division
: JIMMYE S. WARREN Entered
Assistant United States Attorney February
1200 United States Courthouse 8, 1988

312¢North Spring Street
. Los Angeles, California 90012
Telephone: (213) 894-2480

Attorneys for Respondent
United States of America
| UNITED STATES DISTRICT COURT
! FOR THE CENTRAL DISTRICT OF CALIFORNIA

CAROLYN SONNENBERG, et al.,

) No. CV 85-
Petitioner, ‘

)

)

4537-JSL(Px)
FINDINGS OF

CONCLUSIONS
OF LAW

v.
UNITED STATES OF AMERICA, )
Respondent. )

FINDINGS OF FACT

1. In July, 1979, permanent team personnel for the
Electronic Warfare Close Air Support (EWCAS) joint test
arrived at Nellis Air Force Base, Las Vegas, Nevada.
Deposition of Major Ronald Weninger (Weninger) 4:8-5:2.

et a ADELE et NRE cast

GSA Sell ite

2. Deputy Test Director for the joint test of elec-
tronic warfare during close air support was Col. Edward
H. Roberts. Deposition of Col. Roberts (Robert) 7:17-20

2a

3. The primary test period was August, 1981 to
November, 1981. Weninger 5:2-25.

4. Marine, Air Force and Army personnel were used
at various points to test the effectiveness of penetrating
defenses, using aircraft or helicopters. Weninger 6:3-8.

5. Major Weninger was in charge of acquiring the
resources and personnel outside of normal staff members
that were needed to conduct the test. Weninger 6:11-17.

6. Once a need was identified, it was Major
Weninger’s responsibility to identify personnel for all
three services and bring them to Nellis for temporary
duty (TDY). A TDY person is one with official orders who
is brought from his home station or post or base to

perform a specific duty to another location. Weninger
9:24-10:1,

7. Major Weninger monitored the headquarters
operation that took care of the TDY personnel, fed them,
clothed them, took care of disciplinary problems, etc.
Weninger 6:18-7:9.

8. TDY personnel assigned to EWCAS were not per-
mitted to bring family with them. Weninger 9:20-22;
19:11-20,

9. TDY personnel were not permitted to bring pri-
vate transportation. They were provided with housing,
transportation, and additional funds. Weninger 10:24-25.

10. TDY personnel were allowed to leave the base
evenings or weekends if their duty schedules permitted
it. Weninger 12:25-13:2.

ieee cen canna eaneniiinl

ee ne en

a et nae LE tt SOLEIL Bt i ld It

3a

11. There are more restrictions on the behavior of
TDY personnel than on active duty personnel who are at
their regular duty station. Weninger 37:21-38:7.

12. Vehicles either owned or leased by the military
were used to transport personnel during official functions
for the test program. Weninger 15:16-23.

13. Recreational activities for TDY personnel were
organized, both on and off base. There was a picnic and
softball game, and a trip to Hoover Dam. Weninger
16:14-16; Roberts 32:23-33:9.

i4. Military drivers. also TDY, were brought in to
drive the buses. Weninger 17:24-18:1.

15. In October of 1981, a recreational trip to Disney-
land was organized. It was officially approved by Col.
Roberts. Roberts 24:12-20.

16. The trip te Disneyland was announced in forma-
tion. Deposition of Sgt. Mark Eggleston (Eggleston),
16:16-24.

17. There was a sign-up sheet for the trip to Disney-
land in the orderly room. Eggleston 31:19-32:2.

18. There was no charge for transportation from
Nellis to Disneyland and back. Eggleston 39:10-22.

19. Discount admission coupons to Disneyland

were provided to those who signed up for the trip. Egg-
leston 17:4-6.

20. Only military personnel went on the trip. Fgg-
leston 39:23-40:3.

;

4a

21. A bus and a six passenger van were used to
transport the EWCAS personnel on a recreational trip to
Disneyland on October 31, 1981. The bus was driven by a
military driver. Eggleston 17:11-12.

22. On the morning in question, when the EWCAS
personnel arrived at Disneyland, they got into formation.
Eggleston 41:22-24. Standard operating procedure for for-
mation is that there would be a head count and any
appropriate orders would be given. Weninger 25:3-10.

23. There was another formation before leaving Dis-
neyland. Eggleston 41:25 through 42:3.

24. The purpose of the trip to Disneyland was to
enhance the morale and welfare of the troops. Weninger
32:5-13 and 34:18-25; Robert 44:21-25, 45:7. Such functions
are authorized under military regulations, such as AF
Regulation 215-21, 4-4. The use of military vehicles for
recreational purposes is also authorized. See DOD 4500.36
R 2-4 a and e, 5-9 and Chapter 1, AR 58-1.25.

25. The morale, welfare and recreation of the troops
are an important part of the military mission. Most mili-
tary bases have an office or officer who is charged with
providing for the moral [sic], welfare, and recreation of
the troops. Weninger 38:14-18. Specific regulations for
each service and/or DOD provide for MWR activities or
facilities. Weninger 38:19-23. See for example, DOD 4500.
36 R 5-9, AF Reg 215-21.

26. Private First Class Aaron Carhoun, Specialist
Kris Carroll, Sergeant Frederick Sonnenberg, Sergeant
Mark Eggleston, Sergeant Barnett, and Specialist Robert
Nagy were all TDY personnel assigned to Nellis AFB for

——_—_------s— St, O_O

Te ts a ee Sach a emt le i me

5a

the EWCAS joint test. All signed up for the trip, and rode
on the bus from Nellis to Disneyland. They were on the
bus for the return trip when a senior non-commanding
officer (NCO) asked Sgt. Barnett to drive a van back to
the base. Eggleston 18:1-6.

27. The van, leased by EWCAS for the duration of
the test, had been used to provide additional transporta-
tion to Disneyland, apparently for senior NCOs. Egg-
leston 17:23-25.

28. Sgt. Barnett invited his friends to ride in the van
with him, and they accepted. Eggleston 19:12-15.

29. When the van left Disneyland, Sgt. Barnett was
driving. Eggleston 20:6-8.

30. At approximately 12:30 a.m. the van went off the
road, rolled, crashed and burned. Sgt. Barnett, PFC Car-
houn, Spec. Carroll, and Sgt. Sonnenberg were killed.
Spec. Nagy and Sgt. Eggleston escaped the burning van,
but were unable to rescue their friends. Eggleston
29:16-25-30:1-14.

31. At the time of their deaths, plaintiffs’ decedents
were engaged in a militaty-sponsored recreational activ-
ity which was a benefit accruing to them solely because
of their military status.

32. The injuries suffered by plaintiffs’ decedents
arose out of atid were sustained in the course of an
activity incident to their military service.

33. Plaintiffs received and/or continue to receive
the statutory payments due to survivors of servicemen
who are killed in the line of duty.

aaa aati tata ia liieieial ican

6a

34. Proseci tion of this claim would require inquiry
into the propriety of military decisions, and would
impact upon military discipline. This case involves pre-
cisely the kind of judicial interference into military affairs
which Feres seeks to avoid.

35. This action was filed pursuant to the Federal
Tort Claims Act, 28 U.S.C. § 2671 et seq.

36. Any conclusion of law which is subsequently
deemed to be a finding of fact is incorporated herein and
shall be treated as a finding of fact.

CONCLUSIONS OF LAW

1. The passage of the Federal Tort Claims Act constitu-
ted a limited waiver of sovereign immunity. United
States v. Sherwod, 312 U.S. 584, 61 S.G. 767, 85 L.Ed
2d 1058 (941).

2. Congress, on granting a waiver of sovereign immu-
nity, may define the exact condition of such waiver,
and any waiver of immunity must be strictly con-
strued by the courts. Honda v. Clark, 386 U.S. 484, 501,
87 S.G. 1188, 18 L. Ed.2d 244 (1967); United States v.
Sherwood, supra.

3. Recovery under the Federal Tort Claims Act by or on
behalf of servicemen who sustained injuries which
arise out of or are in the course of activity incident to
service is barred for lack of subject matter jurisdic-
tion. Feres v. United States, 340 U.S. 135, 95 L.Ed. 152,
71 S. Ct. 153 (1950).

4. “Where an acitivity [sic] is provided directly by the
military or where there is substantial involvement by

Nee Oe RE belt ae ee oe

7a

the Armed Forces in the activity, such will be deemed
incident to military service even though not essential
to the mission of the military.” Woodside v. United
States, 606 F.2d 134, 142 (6th Cir. 1979).

Where plaintiffs or their decedents had access to var-
ious recreational benefits only because of their status
as military personnel, injuries sustained during those
recreational activities were incident to service
because plaintiffs or their decedents would not have
been privileged to take advantage of the benefits but
for their military status. See Johnson v. United States,
704 F.2d 1431, 1438-1439 (9th Cir. 1983).

The application of the Feres doctrine is not limited
only to situations in which interference with military
discipline is threatened. See Uptegrove v. United States,
600 F.2d 1248, 1250 (9th Cir. 1979). United States v.
Johnson, 481 U.S. __, 95 L.Ed. 2d 648, 107 S.C. ___
(1987).

The Feres doctrine can be applied to bar a claim, even
if the serviceman was on leave at the time of the
injury. See Charland v. United States, 615 F.2d 508 (9th
Cir. 1980).

Recreational activities sponsored by the armed ser-
vices are activities incident to military service; tort
claims for injuries incurred during participation in
such recreational activities are therefore barred by the
Feres doctrine.

“Even if military negligence is not specifically alleged
in a tort action, a suit based upon service-related
activity necessarily implicates the military judgments

10.

11.

12.

8a

and decisions that are inextricably intertwined with
the conduct of the military mission.” United States v.
Johnson, 95 L.Ed. 2d at 659.

Even if the military discipline rationale did not sup-
port application of the Feres doctrine in this case, the
first two rationales of Feres would support its applica-
tion, as in Atkinson v. United States, 825 F.2d 202, 206
(9th Cir. 1987).

This action is barred by the doctrine of Feres v. United
States, 340 U.S. 135, 71 S.G. 153, 95 L.Ed.2d 152 (1950).
The action should be and hereby is dismissed for lack
of subject matter jurisdiction.

Any finding of fact which is subsequently deemed to
be a conclusion of law is incorporated herein and
shall be treated as a conclusion of law.

J. SPENCER LETTS
United States District Judge.

Feb 5, 1988
Submitted by:

ROBERT C. BONNER
United States Attorney

FREDERICK M. BROSIO, JR.
Assistant United States Attorney
Chief, Civil Division

/s/

amye S. Warren
JIM a ;

Assistant United States Attorney

Attorney for Respondent
United States of America

9a

APPENDIX B

ROBERT C. BONNER

United States Attorney

FREDERICK M. BROSIO, JR.

Assistant United States Attorney

Chief, Civil Division

JIMMYE S. WARREN

Assistant United States Attorney
1200 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-2480

Attorneys for Respondent
United States of America

Filed
February
5, 1988

Entered
February
8, 1988

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

CAROLYN SONNENBERG, et al.,

Petitioner,
v.
UNITED STATES OF AMERICA,

Respondent.

) No. CV
85-4537-JSL(Px)

ORDER OF
DISMISSAL

)
)
)
)
)
)
)

The motion in limine of plaintiffs that the doctrine of
res ipsa logquitur applies, and the motion of defendant
United Sates [sic] of America to dismiss for lack of subject
matter jurisdiction having come on regularly for hearing
before the Honorable J. Spencer Letts, United States Dis-
trict Judge, on the 7th day of December, 1987, plaintiffs
appearing through their attorney Steven J. Weinberg, and
defendant appearing through its attorneys, Robert C.
Bonner, United States Attorney, Frederick M. Brosio, JrNe
Assistant United States Attorney, Chief, Civil Division, by 2

10a

Jimmye S. Warren, Assistant United States Attorney, and
the Court having considered the pleadings herein, mem-
oranda submitted and the exhibits thereto, lodged depo-
sitions, and oral argument of counsel; and in accordance
with the “Findings of Fact and Conclusions of Law filed
herewith,

IT IS ORDERED that plaintiffs’ motion in limine that
the doctrine of res ipsa loquitur applies is granted.

IT IS FURTHER ORDERED that defendant’s motion

to dismiss for lack of subject matter jurisdiction is
granted;

The action is dismissed with prejudice.

DATED: This 5th day of February 1988.

/s/ J. Spencer Letts
United States District Judge

Submitted by:

ROBERT C. BONNER
United States Attorney

FREDERICK M. BROSIO, JR.
Assistant United States Attorney
Chief, Civil Division

/s/ Jimmye S. Warren

JIM

Assistant United States Attorney

Attorneys for Respondent
United States of America

lla

APPENDIX C
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CAROLYN SONNENBERG;

GORDON SONNENBERG; No. 88-5771
MARY CARHOUN
MCCORMICK; JEFF CARHOUN; D.C. No.

SCOTT CARHOUN;
GERRY CARROLL;
KATHERINE CARROLL;

CV-85-4537-JSL

KRISTOPHER CARROLL, MEMO-
Plaintiffs-Appellants, RANDUM
V. Filed

UNITED STATES OF AMERICA, ) June 1, 1990

Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding

Argued and Submitted May 8, 1990
Pasadena, California

Before: REINHARDT, LEAVY, and RYMER, Circuit
Judges.

Four members of the armed forces were killed in a
vehicle accident on a public highway. The decedents were
returning from a recreational trip during their off-duty
time. Survivors of the service members (collectively “The

* This disposition is not appropriate for publication and may
not be cited to or by the courts of this circuit except as
provided by Ninth Circuit Rule 36-3.

12a

Sonnenbergs”) filed this wrongful death action under the
Federal Tort Claims Act. The district court dismissed for
lack of jurisdiction under Feres v. United States, 340 U.S.
135, 146 (1950), where the Supreme Court held that the
Government is not liable for injuries to service members
when the injuries occur in the course of activity incident
to service.

STANDARD OF REVIEW

We review de novo the question of whether the Feres
doctrine is applicable to the facts. McGowan v. Scoggins,
890 F.2d 128, 129 (9th Cir. 1989). We review for clear error
the findings of fact of the district court. Kruso v. Interna-
tional Telephone and Telegraph Corp., 872 F.2d 1416, 1421
(9th Cir. 1989).

DISCUSSION
1. Factual Disputes

1. Trip Organized by the Military

The Sonnenbergs contend that the Disneyland trip
was private in nature because is was not organized by the
special services unit of Nellis Base. It is clear, however,
that the EWCAS administrative command organized the
trip. The Sonnenbergs stipulated as to this fact, see
Amended Pre-Trial Conference Order, Excerpt of Record
(ER), exhibit 31, at 3. The record also amply supports the
stipulation. See id. (stipulation that Nellis Base leased the
van in which decedents travelled); Supplemental ER
(SER), Roberts Depo. at 24 (Col. Roberts approved the

13a

trip); id., Weninger Depo. at 16 (head-and-head attach-
ment should have set up the trip).

2. The Trip as a Benefit Accruing Because of Military
Status

The district court found that the Disneyland trip was
a benefit accruing to the decedents solely because of their
military status. ER exhibit 48 at 5. The Sonnenbergs argue
that the trip was open to civilians, or at least that the
record is unclear as to whether the trip was restricted to
military personnel.

Given the record, we cannot say that the district
court’s finding is clearly erroneous. Roberts testified that
any trip participants would “have to have some relation-
ship with the Department of Defense or with the [Elec-
tronic Warfare Close Air Support (EWCAS)] test itself.”
Supplemental ER (SER), Roberts Depo. at 44. Weninger
testified that family members would not be allowed, and
that he would have gone directly to Roberts to discuss the
issue had he known that any family member meant to go
on the trip. Id., Weninger Depo. at 20. According to Sgt.
Eggleston, only military personnel went on the trip. Id.,
Eggleston Depo. at 40. In short, the district court could
reasonably conclude that a de facto policy restricted the
trip to service members.

3. Regulations Applicable to the Driver of the Van

The Sonnenbergs maintain that the decedents were
not under military control during the length of the trip.

14a

In support, they claim that the driver of the van was not
subject to military regulations.

We disagree with the factual assertion that no regula-
tions were applicable to the driver of the van. Con-
cededly the van’s driver was not a military driver
supplied specifically to drive the van. Nevertheless, the
van was leased by the Nellis Base. The leasing of such
vans is permitted by regulations. Department of Defense
Regulation 4500.36-R, 2-5(a), (e), SER tab 38, at 37-38. The
regulations require a certain course of conduct from
drivers involved in accidents. Id., 10-1 to 10-5, Id. at 85-86.
Other regulations require that the drivers of vehicles
leased by the military employ specific safety driving
practices. Appellee’s Brief Appendix, Field Manual No.
21-305, Air Force Regulation 77-2, Chapter 8.

II. Applicability of the Feres Doctrine

In Roush v. United States, 752 F.2d 1460, 1464-65 (9th
Cir. 1985), we held that for Feres to apply in a recreational
context (1) the plaintiff must enjoy the recreational bene-
fit solely by virtue of his military status; and (2) the
plaintiff must be subject to direct military control during
the recreation. As discussed previously, we uphold the
district court’s factual finding that the decedents in this
case enjoyed this trip solely by virtue of their military
status. The remaining issue is whether the decedents
were under direct military control during the recreational
activity.

We conclude that the decedents were under direct
military control during their trip to Disneyland for two

a

15a

reasons. First, the Disneyland trip was carefully con-
trolled by the EWCAS command. The record reveals that
the trip was organized to enhance the morale of TDY
personnel. It is undisputed that TDY personnel were
more closely monitored than permanent personnel.
According to Weninger, the participants were required to
sign up for the trip because it was necessary to “control
where [TDY personnel were] . . . even on their week-
ends.” SER, Weninger Depo. at 26. The trip participants
were required to assemble in formation on their arrival to
Disneyland and prior to leaving Disneyland. Id., Egg-
leston Depo. at 41-42. It is also undisputed that several
high-ranking non-commissioned officers were present on
the trip. Appellant’s Brief at 6. According to Weninger,
the head-and-head detachment normally ensures that an
officer or a senior-ranking non-commissioned officer is
present on this type of activity. Id., Weninger Depo. at 25.

Secondly, we think that Bon v. United States, 802 F.2d
1092 (9th Cir. 1986) compels the application of Feres to bar
the Sonnenberg’s action. In Bon, the plaintiff, a ser-
vicewoman acting off-duty, was injured when an off-duty
service member struck her canoe with a motorboat. The
plaintiff had rented the canoe from the military for recre-
ational purposes. To hold that the plaintiff was subject to
direct military control during her recreational activity, we
relied on the fact that the use of the canoe was subject to
government regulations. Id. at 1095. The regulations in
Bon do not appear to be more specific than the ones we
conclude above were applicable to the use of the van in
this case. We therefore conclude that the decedents were

under direct military control during their return trip to
Nellis Base.

16a

AFFIRMED.

Judge Reinhardt concurs on the ground that Bon v.
United States, 802 F.2d 1092 (9th Cir. 1982) is controlling as
to the return trip.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2902%3A1. Public record. Not legal advice.