pray for this case the one president that bother me most of all was vaughn versus united states and it troubled me for a long time as i was getting ready as to why it kept bothering me and i finally realize a couple of days ago it's because  unlike every other federal tort claims that case i have ever read doesn't tell us what the government's negligence was it gives us the facts of the case and it says the government was negligent and bond loses but it doesn't say what the government did wrong bond if you remember is the san diego case the sailor went in the canoe and was boating either on or just near the premises of the special services center when she was struck by a motor boat that was being operated by another active duty navy member who also got it from special services but the case doesn't tell us what the government did wrong i've thought maybe that they have the appellate race here on file they've they've put in to some place called el bruno there in the archives i ask an expert to get him back and i will make a motion to supplement the record on appeal with the actual reasons behind the court's decision in the car which do not appear anywhere on any any resource that i could get internet or otherwise i think fundamentally the reason for what must have been going on and on was that the government had negligently given the motorboat to the individual who was operating it or had negativities negligently set up its program in such a way that it did not supervise the motor boat operator and there you've got a tremendous amount of  government involvement in the management operation and discipline of the activity that's going on here by contrast you have the breach of a very simple ministerial duty we have a motor boat which throttle control cable that failed what we've alleged in the complaint and what we will prove a trial if we can get there is that this was simply negligent maintenance negligent inspection in arizona there is a non delta will duty when you  running out this kind of device to inspect it every once in a while to maintain it properly to make sure that it's all right it's a very simple duty it doesn't involve decision making it doesn't involve military discipline have to deal with the fact that the boat that you see in that that was pursuant to that i guess it would be called the m w r program or the morale welfare and recreation program how do you factor in that when the cable broke he there was no negligence on his part whatsoever the only empty the the the slightest of the negligence and the final culmination i think would be at the lake but if you look at the actual actions that led to the final culmination of  it's simply a failure on the part of the government to do the the nonvolatile duty that is imposed upon it as a matter of routine law in the fall but this sort of program seemed to be a factor in the c first of all and if it's only taken into parts the first was very short i think also it's a false trail because what happened at the luke air force base was simply the failure to take care of a piece of equipment cost though is is the river traps by the branches of the submerged log and they die and on the surface it looks a little bit like our case but what happened there it was a navy led navy devised they be supervised program in all aspects the navy hired the guides who went on the program they were civilian employees under the control of the navy and what was alleged there was a failure to get a rafting permit a failure to have to hire trained guy it's a failure to supervise the guy a failure to scout out the river fair to warn of the rivers dangers a failure to properly equip the raf's a failure to properly instruct the rafters of fire and then after the accident started a failure to rescue and a failure to give her state government involvement in costco it was all pervasive from the very inception of the program from the creation of the program from the from the supervision of the program to the supervision of that particular rafting trip answer all the steps that were taken or not tak and i know we're making a bit of a distinction here but that is what the federal tort claims act is about it is about making these fine distinctions while they are they are all very fine it's difficult area it's the place of the negligence is usually considered the place of the n relation to the accident and in relation to the status of the service member this boat was purchased in one thousand nine hundred we don't even have a clue as to when the actual negligence came through to get what's called a nation in the sense that the boat was have happened five years earlier we don't even know when the when the negligence culminated whether lieutenant mcconnell was in the service or not and he was after all a student pilot had not been in the military that long so i mean i think it's a false trail once again and the relationship is ten and when i talk about fine distinctions i also need to talk about qualifiers the faeries doctrine is based upon qualifications it's not just incident to service instance it's a reasonably incident to service or relevant to service and it's not just an effect on military discipline which is which has become the main justification for fairies it is an effect on essential military discipline it will not affect military discipline in the slightest or the mission of luke air force base or the united states air force in the slightest if the government is held responsible for the simple act of negligence not eligible duty that it failed to perform so you are arguing to distinguish those cases which is the only way we could only give relief to a felon if we could persuasively explain entire program not only in its inception all the details of the program plus its implementation and the actual events that occurred on the river every step of the way was under pervasive military control and involved scores literally of decisions that we set up a program like this in the first place if so how do we set it up how do we select the guys that are supposed to deal with the program what qualifications they need how do we select the rivers to go on how do we scout out the rivers how do we prepare the people who are going to go on the rafts what kind of raft we use and if there is a problem on the rafting trip what do we do not only is is is this there are a host of military decisions in the inception of construction and implementation the program there were actually government employees there they were civilian employees and designees of the united states navy they are from a to z right until they pull the bodies out of the water so i mean this is such a pervasive military control with so many pervasive military decisions that i believe that there would be an impact on the literary discipline if you were to question all of that we're not questioning all that sort of stuff in our case we're just saying you have a duty to take care of the boat maintain an inspector and that so i understand your distinction cost on i was understanding your argument to be that you think there may be a distinction in terms of the nature of the find they always say what the government which is once here involved they don't but i believe it is a logical imperative i don't i'm not just guessing here i'm making an educated assumption i'm making an educated formulation of what i know must be there it must be something that the special services did as far as selecting to whom it would give its vote or how the motor boat program would be operated and that would involve extensive military decisions not maintenance of the boat not a question of well did we take care of the throttle or not but to whom do we give it and how do we supervise operation of the motor boat i had thought possibly that boron was saying well the other sailor was negligent and the other sailor was on active duty and therefore acting as an agent of the united states government sorta like the brooks case but that would make any sense at all because the the bar in the station if it's clear on anything it's clear on the fact that these were off duty military members not acting within the scope and course of their military duties so it can't be that it's got to be something directly done by the special services center in relationship to them so they get to the actual operation of its program that is pervasive military control that would involve maybe not scores of military decisions but certainly more than a handful that would interfere with the military mission and military discipline to a great i need to ask you a question about that while you're on bond and while we're on the facts of our case that the record suggests that mr mcconnell received instruction on the use of the boat and i'm taking to bonn where the court found the plaintiff was subject to military orders and regulations for the particular activity no and i don't i don't think so for two reasons the first was when the short general ins anytime you're in the military you're subject to military orders when you're on active duty if you do things that are unbecoming to the service or that are contrary to military discipline and that would include such a thing as misusing government property then you were subject to military discipline but that is something that is always in the background it's just it's just a factor in every single federal tort claims act that involves active duty military personnel and therefore i don't think it's a factor that matters what's important is whether you are actually on duty in the sense of doing your military duties or off duty that's the important and i think we've used your time well we've gone over because we had additional questions can i finish my answer sure and then after that in my search for the questions i'm going to move to the tally the second part whether there was any i think the work was briefing they've looked at mcconnell they have received about the use of government property that is in this morale welfare program and i think that also is a false trail because once again there was no negligence no misuse by anybody a case relied on in the dryer decision the lang versus united states at eight seventeen a second five thirty three this was a picnic and i believe it was on a marine base your honors i where there are some horseplay and alcohol consumption and a small child almost and i was run over by a military jeep were marine then pushed the child out of the way and was killed this court found that that marine suit was barred under the fairness doctrine because everyone's access to that picnic you had to be either a co a service member or under the supervision of a service member that picnic your honour's is no different than the boat defense exhibit three paragraph eleven the declaration states that the servicemen were briefed on the relationship and their duties according to the  benefits of their service as civilians would not access the vote in or could they unless they were closely related or under the supervision of a military member so as to your question your honor this this case is part and parcel pilots at the air force base that did it improve morale it did help he's tension and was heavily regulated by access to these materials but now is to rent this boat someone had to be you know was part of the program but couldn't other people be along with them that were not pilots yes your honor and that is the exact same regulation which the bankers had that a civilian could have access to the boat so long as they were you know accompanied by and under the direct supervision of the servicemen and the plaintiff and his submissions with oh you didn't make a big deal out of it here today i did address that as one of the primary distinguishing factors i have between this case and difference here is the whole access to this recreation facility whether it's a fast ball court on the military base or care of rented water skis rope and a boat that you take a half hour drive away to lake pleasant to go waterskiing right correct and going in their favor it really helps us out your honor and if you look at the cost of the decision all of all of the military did with this off base wrecking trip were hired two independent contractors which more or less took over the whole trip for them no servicemen went out and plot of this course you know servicemen went out with the rafts except for the ones who were enjoying the recreation like timothy hired a couple people to do a boat trip and he screwed up when the when the when the bullets hit a log and what t of court with the ninth circuit found in that situation was the the full and that of military oversight was simply regulatory or supervisory and how to hire these people and deciding what navy servicemen went on those votes that happened here in the negligence was truly military regulations again the standards for air force instruction the moral welfare and recreation find it all happened on the base and it just happened to occur a couple miles down the road where they had access to water the second thing we need to point out of the incident the service test your honor has the duty status the fact that these men iran active duty at the time as this court stated in the johnson decision and in the dryer decision bears on the relationship between the plaintiffs and the military conceded the cost ok so his is controlling and that if you look at the distinctions between the relationship of the military servicemen in the dryer and johnson case compare i guess he said i mean that we have to follow it but because i think this case is almost more squarely within the fairness doctrine i bend the cost of the decision because that of the as you know if the government hired contractors to be out of the us at the places where the rafts were used so their agents are watching everything being very much still if you look at the citation the united states made to the air force and regulations for training services that they found that the recreational facilities in the use of recreational programs were an interval part of the training of the united states service and that's why you have a morale welfare and recreation fund because of that the whole access to these programs the governance of these programs the availability of them are part of the training mission of the united states military in order availability of recreation facilities or under the command of the fifty six fighter wing those are the dispositive issues and cost or not what type of negligence occurred whether or not we are alleging it was mr jackson's fault or the basis for really doesn't matter your that there were nine different ways that the government was negligent starting with the inception of the program its initial operations scouting the river all the way to rescue one to one of those negligence really have to do with that other than looking for the slightest of the negligence is one one element but once you decide slightest it doesn't really matter what the negligence was it matters a great deal because that's help us how much involvement there was as far as military decision making how much involvement there would be as far as military decision and as most or as military discipline and cost zero the conduct of the government and the decisions that were made were literally legion it controlled the entire program and it had its agents there actually when the accident happened both before during and after but if i wanted to make that contrail argument if the court felt that if the court felt in a published opinion that that was relevant to their reasoning why wouldn't they include it your honor you know i mean i  you know that's that's a judge question it is a judge question and i wish i wish i knew and it's one of those things like the dog that's not working in the night you don't even realize it's not there until you think about it long enough and realize that this is the only federal tort claims that case that doesn't tell us what the government did wrong if you don't know what the government did wrong you don't know what the decision making process is you don't know what the effect on discipline would be in bahrain for instance let's just i put my pocket size for just a moment opposed by the negligence was simply that the active duty sailor operating the motor boat was not acting in the best tradition the united states navy in running over a canoe and if that's it there's no connection at all with military discipline or military decisions but if it is that the government if they allegations were the government should never have rented out that motor boat to that particular class of operators or maybe that the government should not have rented out motor boats to anybody those involve a broad range of military decisions and that would have an effect on military discipline you'd be questioning the orders coming down from the lieutenant lieutenant commander commander captain all the way on up as far as how they set up this program and decided to operate it i think it's crucial to know what the kind of negligence was