Daberkow v. U.S.

• Decision Date: 11 September 1978
• Docket Number: No. 76-1994,76-1994
• Citation: 581 F.2d 785
• Parties: Elaine Ann DABERKOW, surviving widow of Bernd Paul Heinrick Daberkow, Deceased, and Brian David Daberkow, a minor and surviving son of Bernd Paul Heinrick Daberkow, Deceased, by Sylvia E. Johnson, his guardian ad litem, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 785

581 F.2d 785

Elaine Ann DABERKOW, surviving widow of Bernd Paul Heinrick Daberkow, Deceased, and Brian David Daberkow, a minor and surviving son of Bernd Paul Heinrick Daberkow, Deceased, by Sylvia E. Johnson, his guardian ad litem, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.

No. 76-1994.

United States Court of Appeals Ninth Circuit.

Sept. 11, 1978.

J. Stephen Simon, Scottsdale, Ariz., for plaintiffs-appellants.

Michael Kimmel, Washington, D.C., Francis S. Ainsa, Jr., of Ainsa & Ainsa, El Paso, Tex., for defendant-appellee.

On Appeal from the United States District Court for the District of Arizona.

Before KILKENNY, Senior Circuit Judge, TRASK, Circuit Judge, and HAUK, District Judge. ^*

HAUK, District Judge:

I. INTRODUCTION

This appeal from the District Court's order granting the defendant's motion for summary judgment raises the heretofore unanswered question of whether a tort claim lies against the United States for the death or injury of a foreign serviceman when his injury or death occurs as a result of performing duties incident to joint military activities. The District Court ruled that the doctrine enunciated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), barred such a claim. We affirm.

II. STATEMENT OF FACTS

In May of 1971, the United States and the Federal Republic of Germany executed a contract, pursuant to which the United States was to provide F-104G aircraft flight training to German Air Force student pilots. The two governments then further specified their respective rights and duties regarding F-104G pilot training in a document entitled "An Agreement Between the Federal Minister of Defense of the Federal Republic of Germany and the United States."

Pursuant to the contract and agreement, the Second German Air Force Training Squadron was, during the period relevant to this case, stationed at Luke Air Force Base, Arizona, for F-104G flight training of its members. In managing this program, the two governments divided responsibilities. The commanding officer of the German Squadron, Lt. Col. Horst H. Wilhelms, German Air Force, had responsibility for administrative supervision of the Squadron members. The German government was responsible for supplying the requisite number of aircraft for training and maintenance. The United States Air Force was responsible for providing base support facilities and instructional training in order to produce approximately 100 combat capable F-104G pilots per year.

Lt. Bernd Paul Heinrick Daberkow was an officer in the West German Luftwaffe assigned to the Second German Air Force Training Squadron at Luke Air Force Base. On June 22, 1972, Lt. Daberkow was piloting an F-104G jet on a solo training flight originating from Luke Air Force Base. In a separate aircraft, Major Lawrence E. Knox, United States Air Force, accompanied and instructed Lt. Daberkow. At approximately 9:45 a. m. on that date, Lt. Daberkow attempted a loop maneuver after entering a cloud and apparently lost visual contact and spatial reference. Lt. Daberkow's F-104G crashed to the ground, killing him instantly.

Following the accident, the widow and surviving son of Lt. Daberkow, both United States citizens, sought relief from both the West German and United States governments. Since July 1, 1972, the Federal Republic of Germany, after finding that Lt. Daberkow's death resulted from the performance of military service, has paid a monthly award of 256 DM and 71 DM to the widow and child, respectively, pursuant to the Soldiers Assistance Act and the Federal Public Assistance Act of that nation. In addition, the West German government paid the survivors a lump death benefit of 7,161.82 DM and an interim assistance award of 11,936.89 DM under the Soldiers Assistance Act. Furthermore, the widow and son have been receiving annuities of 360.80 DM and 160.30 DM, respectively, under the West German government's insurance system for governmental employees.

In this country, the United States Air Force investigated the accident in accordance with standard procedures and prepared a Collateral Board Report and an Aircraft Accident Report. The widow and child then filed a tort claim with the United States Air Force on December 15, 1972. The Department of the Air Force denied the claim on June 27, 1973.

Lt. Daberkow's widow and child then filed suit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 Et seq., in the District Court for the District of Arizona. The complaint alleged that members of the United States Air Force, particularly Major Knox, acted negligently in permitting Lt. Daberkow to fly under the weather conditions; in ordering him to perform the loop maneuver, given all the circumstances; in failing to maintain proper radio and visual contact; and by violating safety regulations and procedures. The United States denied the allegation of negligence and raised affirmative defenses.

The plaintiffs then served subpoenas duces tecum on the Squadron and on Lt. Col. Wilhelms, its commanding officer. Counsel for these parties moved for an order (1) limiting the testimony of Lt. Col. Wilhelms; (2) precluding him from producing any official documents; and (3) quashing the subpoena served on the Squadron. On February 19, 1974, the District Court issued an Order severely limiting the plaintiffs' discovery. Primarily relying on a Diplomatic Note presented to the United States Department of State by the Federal Republic of Germany stating that Lt. Col. Wilhelms is not authorized to testify with regard to his official duties or to produce official records, the District Court ordered that plaintiffs should not examine Lt. Col. Wilhelms on oral deposition on matters relating to performance of his official duties; that Lt. Col. Wilhelms need not produce any official records of the Federal Republic of Germany; and that the subpoena duces tecum served on the Squadron be quashed. Plaintiffs sought immediate appellate review of this Order, but this Court dismissed plaintiffs' interlocutory appeal on March 10, 1975, as premature.

The United States then moved for summary judgment on the ground that no tort claim against the United States lies for the death or injury of a foreign serviceman when his death or injury occurs as a result of performing duties incident to joint military activities. Agreeing with the government's position, and relying on Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the District Court dismissed plaintiffs' action and rendered judgment in favor of the defendant United States on February 25, 1976.

III. ISSUES ON APPEAL

On appeal, the plaintiffs challenge both the District Court's discovery order of February 19, 1974 and its judgment dismissing the action of February 25, 1976. Since we agree with the District Court that the Feres doctrine bars their Federal Tort Claims Act action, we affirm the District's Court's judgment of February 25, 1976, dismissing the action, and find it unnecessary to reach the appeal from the February 19, 1974, discovery order.

IV. DISCUSSION

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1953), the Supreme Court held that the United States "is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. at 159. Accord, e. g., Henninger v. United States, 473 F.2d 814 (9th Cir. 1973), Cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973); United States v. Lee, 400 F.2d 558 (9th Cir. 1968), Cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969); Callaway v. Garber, 289 F.2d 171 (9th Cir. 1961). While this case would fall directly within the scope of the Feres rule if Lt. Daberkow had been a member of the United States military, neither the Feres decision nor any decisions subsequent thereto have resolved the question presented in this appeal of whether the same rule should apply to a foreign serviceman with American survivors, who is injured or killed while performing duties incident to joint military activities in the United States.

In cases decided subsequent to Feres, both the Supreme Court and this Court have looked to the factors underlying the Feres decision as the basis for determining, in fact situations not precisely identical with Feres, whether the Feres rule should apply. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); United States v. Brown, 348 U.S. 110, 75 S.Ct. 141,...