Unpublished Disposition, 904 F.2d 41 (9th Cir. 1990)

MEMORANDUM^* 

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 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. International Telephone and Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).

DISCUSSION

The Sonnenbergs contend that the Disneyland trip was private in nature because it 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 trip); id., Weninger Depo. at 16 (head-and-head attachment 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 relationship with the Department of Defense or with the [Electronic 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. In support, they claim that the driver of the van was not subject to military regulations.

We disagree with the factual assertion that no regulations were applicable to the driver of the van. Concededly 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.

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 benefit 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 reasons. First, the Disneyland trip was carefully controlled 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 weekends." 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., Eggleston 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 servicewoman 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 recreational 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.

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.