Melissa Johnson, an Infant by Barbara Johnson, Her Mother and Natural Guardian and Barbara Johnson, Individually v. United States

gоod process, tion to take the without the valid service of he did trying of bad, thereby right waive his contest the sweet without the bitter.” en- foreeability foreign judgment Spann, 611. 131 F.2d at on public grounds policy. of The increasing twenty As to fifteen requires internationalization of commerce comprise days that the bulk of of work recognize American “that courts re- files,” study project of “basic fee for judgments spect foreign entered reflects no evidence of an autho record greatest courts to extent consistent or the existence rization to do such work of justice with our own ideals of and fair product. The mere fact that any of work Takan, light play.” 662 F.2d at 868. In of files is possessed project Ackermann important imрerative, hold the that we Ger- not know inconsequential since Levine did judgment to in all man be enforceable re- given that had files to Acker Bauer those except spects the first item of DM find do we authorization mann. Nor 89.347,50 “[bjasic for the fee for the study June, May early or office visit of late files, project client discussion with had court found that visit since the district counsel,” for no his which there was evi- only the of a misun accomplished creation product. dence of authorization or of work if derstanding. Even there had been an judgment the district court is ac- authorization, there was not a scintilla cordingly, part affirmed in and reversed in product. Ackermann of evidence of work and the part, cause is remanded to the memoranda, no memoranda fered no client entry district court for of an order not notes, files, to his handwritten no mark no opinion.16 inconsistent with this given ings papers on the Bauer part part. Affirmed in and reversed him, perform no other indicia of actual Indeed, was tak deposition ance. when

en, prepared conceded that he Ackermann

no he did not formal memoranda and that product any that there was work

believe in his files. do not chal

whatsoever We

lenge finding Aek district court’s as to JOHNSON, However, need an infant ermann’s character. we Melissa Barbara JOHNSON, attorney her say fraudulently mother and natural acted Johnson, hold, guardian here, and Barbara indi dishonestly do we vidually, Plaintiffs-Appellants, adduce of work evidence product requires of claimed disallowance legal Silver, fees. Newman v. America, UNITED STATES grounds, other modified Defendant-Appellee. (1983).15 F.2d 14 No. 84-6335. Docket

(cid:127) IY. CONCLUSION Appeals, United States Court of involved an dis- Second Circuit. This case unfortunate agreement parties between of different Argued April 1985. As the dis- countries and cultures. April Decided found, parties trict both behaved hon- dispute mutu- orably, and their was born of

al chose mistake. the defendant in a German commenced default action portion fee initial no evidence the record of an authoriza- 15. That that reflects the cern First, payment. tion to consult is also Acker- consultation untenable. provides which this mann no mechanism court did not reach the 16. Since district separate aspect court could de minimis exchange opin- rates in its issues of interest and ion, twenty days the Second, the "basic fee” from fifteen to judge we leave those issues for the district again subsequent can dis- work. we resolve on remand. (FTCA), 1346(b), Claims Act 28 U.S.C. §§ damages seq. 2671 et The Johnsons seek stemming Postal from ‍‌‌​​​​‌​​​‌​‌​‌​​​‌‌​‌​‌‌​‌​​​​‌​‌​​​​‌​​​​​‌​​‌‍the United States alleged negligence employ- Service’s supervision ment and letter carrier of a sexually who assaulted the infant Melissa. Judge Nickerson ruled that the court subject jurisdiction lacked matter because comply the failed to with 28 2675(a),1 requires U.S.C. which § against claims the United States be presented appropriate agency to the before may an action be maintained. We hold require- that the Johnsons’ claim met the ments of the statute and that the district However, respect. in court erred we conclude that the district court lacked sub- ject jurisdiction matter over suit be- cause it out of” an assault and “aris[es] by and is therefore barred 2680(h).2 Accordingly, U.S.C. we affirm. § On October Barbara Johnson submitted a claim to Postal Service for Peratis, (Rich- Kathleen York City New injury damages, utilizing appropri- and Frank, P.C., ard City, New York of coun- page prepared by ate one standard form sel), plaintiffs-appellants. for government. .28 the federal See C.F.R. Simmons, Kevin P. Atty., Asst. U.S. response question 14.2 Brooklyn, (Raymond Dearie, N.Y. J. U.S. “[sjtate requires applicant which be- E.D.N.Y., Atty., Tepper, Miles M. Asst. low, detail, in all known facts and circum- Atty., N.Y., Brooklyn, counsel), for attending damage, injury, or stances defendant-appellee. dеath, identifying persons property in- and and the cause thereof” she stated volved MANSFIELD, KEARSE Before “and various dates that on June PRATT, Judges. Circuit prior thereto” MANSFIELD, Judge: Circuit sexually molested “Melissa Johnson was Johnson, and, belief, and Melissa mother Barbara assaulted on information and daughter respectively, appeal by from a and threatened Postman sodomized Ojeda. District of New Luis judgment of the Eastern York, Eugene H. Nicker damage sustained for “Barbara Johnson son, Judge, dismissing psychological their claims treatment and medical and under the Federal Tort loss of services.” the United States 2675(a) agency writing by provides pertinent part: and sent certified or 1. 28 U.S.C. registered mail.” Disposition agency by "§ 2675. federal prerequisite; evidence provides part: 2. 28 U.S.C. 2680 "(a) upon a An action shall not be instituted Exceptions “§ 2680. money against the United States for claim provisions chapter "The of this and section damages injury property or loss of or 1346(b) apply of this title shall not to— injury personal death caused or ****** wrongful gent em- act or omission acting ployee "(h) of the Government while within Any arising claim out of bat- arrest, employment, scope his office or unless imprisonment, tery, false mali- false libel, presented first process, the claimant shall have prosecution, cious abuse agency slander, deceit, appropriate to the Federal misrepresentation, claim or interfer- ____” finally by the shall have been denied rights: his claim with contract ence Judge granted further stated that Melissa Nickerson the motion but “vaginal genital inju- grounds Johnson suffered proffered did not address the ries, psychiatric Instead, and emotional defendant. court [of district ruled which full nature extent un- the] [are] claim raised present.” known It stated that Barbara been submitted Postal Service as “expenses incurred for medical Johnson 2675(a). required U.S.C. and psychological treatment” and suffered that, although complaint alleged noted sought “loss of services”. The Johnson’s negligent supervision, the administrative $6,000,000. claim made no mention of such a theory or suggesting “anyone of facts January 6,1984, By the Post- letter dated might than Ojeda culpable other First, al claim. Service denied the injuries”. the[] Ojeda agency maintained that acted outside assaulting employment of his Second, the Melissa letter stated: Johnson. DISCUSSION you “The incident describe as the basis Sufficiency the Administrative Claim your battery. claim is an assault and Congress generally While has waived Appellants contend that the admin immunity Government’s certain Service, istrative claim filed with the Postal wrongful employees acts of its commited alleging only sexual assault and employ- of their within stemming it, [sic] from was sufficient to enable ment, Congress specifically provided, has them to maintain court a action 2680(h), in 28 that the U.S.C. Govern- negligent supervision. United States for immunity suit and ment’s from con- 2675(a) filing 28 U.S.C. makes the of a sidering personal injury claims for has appropriate claim with agency prereq аrising not claim been waived for out jurisdiction uisite of the courts. As we an, battery.” (Emphasis in have stated original). designed, conjunction “Section 2675 is in 4, 2672, April provide procedure On filed com- Section action, plaint alleging in may this that the sexu- which under investi al on gate, assault Melissa was “caused evaluate and consider settlement of carelessness, recklessness and purpose requires a claim. This defendant, agents, its provide servants Notice of Claim sufficient infor employees” and/or their “employment, permit investigation mation both to an supervision assignment Ojeda”. Al- estimate the claim’s worth.” though plaintiffs alleged generally that the Corp. Keene v. United agents acted defendant its “with notice knowledge Ojeda’s per- criminal and propensities verted no tendencies” see Shipek United facts supporting these assertions or fur- (9th Cir.1985); F.2d Bush v. specification provided ther com- were States, 703 F.2d 493-94 United plaint. (11th Cir.1983); Douglas v. United (6th Cir.1981); com- Defendant moved to dismiss the Adams v. United plaint subject jurisdic- for lack of matter (5th Cir.), clarified, 622 F.2d 197 tion, contending that the United States sovereign immunity not waived its in this “arising Thus, case an need because it was one out of” administrative claim battery. pleading requirements. assault or 28 U.S.C. formal All meet provides exceptions specific necessary a number of that is a claim be sovereign enough purposes broad em- intended immunity waiver serve FTCA, including enacting 2675(a) Congress bodied in the ease bar —“to “arising battery.” congestion unnеcessary suits out of assault and avoid liti- [and] gation, making possible familiarity, it for the en this and the well settled while expedite the fair settlement principle legal Government theories need not be against the of tort claims asserted agency, Broudy submitted Congress, S.Rep. No. 89th States.” (9th Cir.1983); reprinted 2d Sess. Rise, agency 630 F.2d at (“USCCAN”) 2515, Cong. Code & Ad.News reasonably required could be to have antici- end, 2516. Toward pated appellants’ encompassed claims requires all claimants to submit Standard recovery supervision based on requesting form page Form a one claim investigation according- and to conduct an and the “nature “description of accident” ly- injury”. and extent of alleged postal employ- conduct of the Appellants’ administrative normally prompted ee should in- requirements. By stating the met these quiry prior into the Postal Service’s knowl- name of the em injury, cause of the edge propensities experience of his since assault, and the ployee who committed the indicates that it is the kind of conduct that attack, date and location of the the claim may repetitive. 2675(a) Section does not agency notified the of sufficient factual require pleadings formal or that a valid investigate it to circumstances enable alleged claim be “the basic supplied the claim the matter. injury elements of notice of accident and supervision evidencing negligent no facts representing damages” and а sum certain allege all the factual elements and did agency may investigate so that it. liability, reasonably theory such a of of Broudy, supra, (citing 722 F.2d at 568 thorough investigation of the incident 608, Avery v. United any pertinent should have uncovered infor (9th Cir.1982)). Although require- these government’s possession re mation jurisdictional ments are and must be ad- lating agency’s knowledge, or lack of Keene, strictly, hered to F.2d at knowledge, any prior of sexual misconduct 841, extending erred in the district court employee Ojeda. its See Rise v. United require ground liability them to that a of (5th Cir.1980)(admin cannot maintained unless factual ele- alleging negligent istrative claim failure to uniquely theory ments related to that were diagnose and treat illness sufficient to presented in the claim. first administrative negligent action for referral to maintain Our decision of this issue accords with private hospital supervise and failure that of other courts which have held that treatment). stating plainly-barred causes of ac- claims presented by A more difficult issue is may sufficiently tion nevertheless be de- Judge Nickerson’s conclusion that 2675(a) permit scribed under claimants § because, inadequate claim was sub- to maintain suits on alternative theories of mitted, alleged only it a tort clear- liability. Shipek, supra, Thus in 2680(h), ly barred therefore Broudy, supra, permit- the Ninth Circuit agency reasonably could refrained ted widows of veterans to maintain suits investigating from the claim at all. Al- against government for failure to warn logic though position might have some husbands, discharge upon their from mili- strictly if the claimant were to be held service, dangers of tary radiation pleading principles of common law we be- exposure the hus- which occurred while in- lieve that a more liberal standard was military. In cases bands were both 2675(a) enacting Congress tended. alleged only the administrative claim aware that the Postal Service-was one radiation, wrongful exposure to a claim agencies few that dealt with the vast clearly by the Feres doctrine. barred See against govern- the federal of claims bulk 135, Feres acquired familiarity with the ment and 153, (1950) (government claims, settling S.Rep. 95 L.Ed. tort task of immune suit under the Federal Tort supra, at 2517. Giv- is from supra, at USCCAN Claims Act for servicemen aris- committed employee. Government ing activity out or in course of express Thus 'the words of the statute’ Nonetheless, service). relating to respondent’s against bar courts require declined to that the adminis- Spelar, Government. United States 10, 11, trative claims state alternative theories of 338 U.S. 70 S.Ct. liability (1949).” solely (Em- or facts related to such L.Ed. 105 S.Ct. grounds permitted phasis original). government.3

maintain actions join Four other Justices declined The Claim Arises Out Assault and portion of the Chief Justice’s ad- Battery dressing this issue but did not dissent from it. Id. at remaining 3044. The Justice did remand the district participate in the case. usually required court is when its dismissal error, agree predicated of a is that We with Chief Justice that the plain course unnecessary language herе because ‍‌‌​​​​‌​​​‌​‌​‌​​​‌‌​‌​‌‌​‌​​​​‌​‌​​​​‌​​​​​‌​​‌‍the dis prohibits claim subject trict court lacked jurisdic clothing matter ants assault and ac tion proceed case. garb Defendant’s tions negligence by claiming motion to dismiss contended that the John- the attack. Cf. fell excep sons’ claims within the FTCA’s Lambertson v. United retaining tion immunity (2d Cir.), denied, as to “aris claims cert. 426 U.S. battery”. out of assault U.S.C. 96 S.Ct. 49 L.Ed.2d 374 [or] 2680(h). The district did not reach v. Boog, Blitz However, Cir.), issue. we address it in the 379 U.S. 85 S.Ct. presents ques first it instance because 13 L.Ed.2d 58 In interpreting statute, tion jurisdiction of law addressed to the starting point analy- of our “[t]he the district court. itself”, We conclude that the sis is the language the statute claims »here “arise out of” assault bat American Textile Insti- Manufacturers tery are excepted tute, Donovan, 490, 508, thеrefore from the Inc. v. grant of jurisdiction. FTCA’s 28 U.S.C. 1346(b). clearly expressed legisla- a

§ “[a]bsent tive intention the contrary, lan- — Shearer, In United States v. U.S. guage ordinarily regarded must be as con- -, (1985), 105 87 L.Ed.2d 38 clusive.” Safety Consumer Product Com- in Burger, portion Chief Justice a of an Inc., Sylvania, mission GTE by concurred in three other Jus- 2051, 2056, 64 100 S.Ct. L.Ed.2d tices, negligence concluded that a claim of (1980); American Federation La- of very type here of asserted arises out an Donovan, 330, 344, bor v. 757 F.2d battery meaning assault and within the of (D.C.Cir.1985). In this case we find the 2680(h). He noted that § statutory language sufficiently clear to re- “Respondent cannot avoid the of reach the issue. solve 2680(h) by framing her in § plain terms of language, statute’s “aris 2680(h) of,” battery. assault and ing by Congress Section out reflects intent merely against does not bar claims or a government assault to bar battery; sweeping language in injuries government it ex- aby employ caused any arising claim battery. cludes out assault ee’s commission of an assault and of battery. provision equally We read It is clear that the claim here is for respondent’s injuries cover claims like that sound by employee’s caused that, negligence battery in stem absent the assault warn, (9th relating dy 3. The claims moni- to failure 661 F.2d Cir. 1981); tor doc- and treat were not barred the Feres see Kohn v. United they negligence occurring trine because claimed Cir.1982). military. after the Brou- decedents left battery, no claim important could exist. The “It is distinguish ... 2680(h) of is a matter of federal sought cases in § which it was to hold the Neustadt, law. See United States v. Gоvernment negligence liable on a theo- 696, 705-06, 1294, 1299-1300, U.S. 81 S.Ct. ry for by govern- assaults committed permit 6 L.Ed.2d 614 To such a employees. ment See Moos v. United negligence claim to stated in terms of a States, D.C.Minn.1954, 275; theory prior foreseeability, based on see States, Cir., 1953, cf. Jones United Torts, (Second) Restatement of 563; certiorari denied 347 U.S. Prosser, Torts, W. Law 921, 74 S.Ct. 518 L.Ed. In this [98 1075]. (4th 1971), ed. would defeat Con- case, however, negligence action is not gress’ 2680(h). purpose enacting in merely an alternative form remedy claim, although stated in terms of an action for assault but is gence, injuries would still be for caused rather plaintiff’s essence of the arising battery. out of the assault and claim. holding phrase “arising Our out “To person illustrate: in one case a battery” encompasses of assault ac- [and] assaulted employee grounded tions on alternative theories of angered who becomes by a discussion liability support Supreme finds jurisdiction; about a matter within his interpretation phrase Court’s “aris- another, a visitor to a prison exceptions out of” as used in other by prisoner is assaulted as a result of the FTCA. In Kosak v. United prison guards being improperly off duty. Since in the absence of § interpreted 2680(c), the Court the assault in the might give first case “any arising which in respect bars rise to an action the Government any goods ... detention of or merchan- any showing negligence, without isit prohibiting dise” as all claims for imply not difficult to that the § detention, during including sustained those exception was intendеd to exonerate the alleging negligence. reaching this con- liability Government from all of this na rejected clusion the Court the view that ture, no matter what the form of the “arising in respect of detention” cov- implication action. But that is not so damage ers claims for caused the deten- easily reached the second case where Instead, tion itself. the Court concluded negligence, absent would not “arising respect equivalent of” is give any liability part rise to on the “arising out of” and therefore should be (Em the Government.” 216 F.2d at 624 barring relating construed as all claims phasis original); see Muniz v. United ‍‌‌​​​​‌​​​‌​‌​‌​​​‌‌​‌​‌‌​‌​​​​‌​‌​​​​‌​​​​​‌​​‌‍goods. the detention of Id. at Similarly, S.Ct. at 1524. conclude we grounds, on other 374 U.S. 83 aff'd S.Ct. “arising battery” out of assault bars [and] 10 L.Ed.2d 805 injuries directly clаims where the result battery. from the assault and rejected attempts Other courts have also battery to circumvent the assault and ex States, In Panella v. United 216 F.2d ception by framing the as one for (later Justice) Judge 624 negligent supervision. recently, Most the expressed 2680(h) Harlan the view that § States, Fifth Circuit Garcia v. United suit when the result from an bars (5th Cir.1985), 118 cited the by government em- assault committed a Shearer, Chief Justice’s ployee, if the action is based on alter- even alleging negli and concluded that claims holding In native theories. that gent by an assault a 2680(h) negligence does not bar suit for § government employee by are barred leading by non-government to an assault 2680(h). suits, The 10th Circuit in distinguished Naisbitt v. employee, he like this § States, one, by on assaults committed United based (10th Cir.), denied, employees: 449 U.S. 101 government cert. 852 66 111 relied on “arising language

S.Ct. L.Ed.2d the view that its out of” barring Panella, supra, in a suit for prohibited suits the bars where claims court gent supervision. The looked the could, in of the exception, absence have injury rather than immediate cause prosecuted. Motors, been Formula One theory and stated liability the that “[i]n (2d v. Ltd. United employee inten- any case which the has Cir.1985) (affirming dismissal of claim for another, injured tionally tort asserted detained). goods destruction of In Klein v. against government, regardless United 64 Cir. negligence, whether it is called is indeed an 1959), negligent a claim exposure for to the govern- tort intentional attributable 2680(h) elements was barred by held § 1356; ment.” Id. at see Wine v. Unitеd “arising out of ... false arrest” because (10th Cir.1983). States, 70S F.2d 366 alleged consequences plaintiff “the di Sullivan, F.Supp. In 667 Hughes v. rectly flowed from the detention.” (E.D.Va.1980), (4th aff'd, 662 Cir. Kane, (E.D. F.Supp. Davidson v. 1981), the court dealt with facts similar to Va.1972), the held court that the false ar 2680(h) alleged held those here and that § provision prevented plaintiff rest prohibited against suit the U.S. Postal Ser maintaining claiming a suit that the arrest negligent supervision of letter vice for negligently supervised. officers were allegedly as carrier who committed sexual although These cases demonstrate that plain saults on two children. 2680(h) primarily deals with intentional § knowledge alleged tiff that the service general policy torts and the of the FTCA is assailant, previous misconduct permit negligence suits, provision court stated “there have been no would interpreted nonetheless to except has been except separate for inde assault negligence leading based claims to in pendent acts of Without [the assailant]. tentional torts. v. United States Neus Cf. independent there would be no tadt, 6 L.Ed.2d F.Supp. cause of action.” 514 (action (1961) negligent misrepre for court applied Thus the a “but for” test 2680(h)); Dupree sentation barred determine that the arose out of assault suit (3d Cir.), F.2d 140 battery recognized even 69, 4 L.Ed.2d though plaintiff may cause had a (1959) (action for interference against of action under state law the em rights contractual barred ployer negligence, the suit was barred 2680(h)). by the statute.4 The Fourth Circuit af adequately firmed “for reasons stated meager legislative history The available the district court.” 662 F.2d at 220. interpretation consistent with merely by cannot be avoided interpreting exceptions Courts other provided have, alleging that an FTCA like the assault was Supreme Kosak, supra, adopted negligent supervision.5 Court in due to See Shear- 4. reasoning adopted by gun, employee carry same the court was even F.Supp. though in Collins United committed was while assail- (E.D.Pa.1966). held off-duty); that § ant was cf. Moffitt (E.D.Tenn.1976) blocked action (permitting hiring retaining postman proceed plaintiff alleged employee where allegedly “pushed, plain- who and struck” incapable forming hit intent commit ap- tiff. Other courts proach. taken the have same battery). assault and See, States, e.g., Gale United 525 legislative history mostly 5. The consists of state- (D.S.C.1981) F.Supp. (dismissing 260 suit by congressmen ments individual or administra- negligent supervision raped of marine who officials which to tion FTCA, on bills were similar States, plaintiff); Taylor F.Supp. v. United 513 rarely but were enacted. Discussion (D.S.C.1981) (dismissal negligent 647 of suit for upon battery exception. touched and assault provide psychological failure to lead- treatment Panella, (describ- supra, See 216 at 625-26 murder); ing Pennington to commission of Collins, legislative history "meagre”); as States, (E.D.N.Y.1976) F.Supp. United 406 850 (legislative history supra, F.Supp. 259 at 364 is (dismissing claiming negligence allowing suit

853 — U.S.-, er, ligent supervision alleged is supra, 105 S.Ct. at 3042. as well as sug- report congressional No statement battery or where assault and stand alone. gests representative of the otherwise. One negligence easy Assaults due to are as Department referred to assault Justice exaggerate general.7 as assaults “torts which would be difficult 2680(h) interpretation Our of § against, and which are to make a defense In Shear universally has not been shared. Against easily exaggerated.” Tort Claims States, 1102, 1106-08 er v. Hearings on S. 2690 the United States: — grounds, rev’d on other of the Senate Com- Before a Subcommittee -, U.S. 87 L.Ed.2d 38 Judiciary, Cong., 3d mittee on the 76th supra, a divided panel of the Third (1940) (Statement of Alexander 39 Sess. negligent Circuit reinstated a Holtzoff, Special Attorney Assistant supervision led to the murder of General). corresponds This reference by son a soldier. Court held that objectives often оne of the “three most actions does bar where the legislative history as ra- mentioned “which, plaintiff alleges sufficient if facts exceptions tionales for the enumerated [to proven, would demonstrate avoiding exposure of the ... FTCA:] reasonably should have antici liability for excessive United States claims”, Kosak, pated employees that one of their would supra, fraudulent commit an intentional tort.” 723 F.2d at n. 104 S.Ct. at 1525-26 n. at 858-59 & neg- Although we and at This concern is warranted where 1107.8 least four Su- 17.6 event, any majority helpful”). In statements of 8. The Third Circuit in Shearer relied not "at all legislators States, (3d not accorded the are individual on Gibson v. United weight given legislative reports, Cir.1972), committee permitted by in which the court discuss the matter at issue here. none of which plaintiff Corps Job assaulted trainee. It is v. International Union United ‍‌‌​​​​‌​​​‌​‌​‌​​​‌‌​‌​‌‌​‌​​​​‌​‌​​​​‌​​​​​‌​​‌‍United States debatable whether the assailant in Gibson can Automobile, Agricultural Implement government employee. Aircraft be considered a event, 567, 585-86, America, 352 U.S. 77 Workers Collins, distinguished court the Gibson 529, 538, (1957); 1 Banco S.Ct. L.Ed.2d 563 by noting that the had un- Farr, de Cuba v. Nacional duty caring controlling dertaken a for and 1967), Cir. trainees, knowing drug their addictions Airline, American instability. 457 F.2d at 1396. No such C.A.B., (D.C.Cir.1966). Inc. v. duty alleged extensive is to have been under- employment postal of the taken in the worker “ensuring The other concerns are that ‘certain case. issue in this governmental disrupted by not be activities’ damage extending adopted ap- suits” and "not threat of coverage Several othеr courts adequate Act suits for which proach Circuit in taken the Third Shearer. Kosak, already su- (E.D. remedies available.” were F.Supp. v. United Liuzzo 858-59, pra, U.S. at 104 S.Ct. at 1525-26. Mich.1981); Bryson F.Supp. v. United Report accompanying The Senate the bill ulti- (E.D.Pa.1978). signed mately those two into law refers to apply A of courts have declined to number Cong. S.Rep. No. 79th 2d Sess. rationales. appear similar to in contexts which (1946). case, significant the facts of this but differ in Rogers respects. F.2d 12 colloquy battery excep- on the assault and 7. A (4th 1968) (permitting alleged claim that Cir. Judiciary hearing of the House Com- tion at by non-government negligence led to singularly unenlightening. The Justice mittee employee); DeLong v. United panel Department spokesman told the (D.Alaska 1984) (distinguishing suits remedying exception would bar suits "deliberate general supervise employ- based on failures assault”, "negligent as- but not those based on negligent permitting fail- ees and suit based Hearings on H.R. saults”. See Tort Claims: acts). specific perform In Loritts v. Unit- ure to Before the House Commit- 5373 and H.R. 6463 (D.Mass.1980), F.Supp. 1030 ed Cong., Judiciary, 77th 2d Sess. 33-34 tee on the negligent pro- permitted suit for spokesman concluded that “[a]n campus leading security on West Point vide injury be considered caused could rape plaintiff a cadet. The under the bill” Id. Yet in his references however, independent gence alleged, was negligence, spokesman clear that the it was employees government’s supervision accidents, of its referring and did not to automobile employee, than a non-em- that an rather contemplate fact that interweave situations ployee, the assault was "fortuitous". committed intentional torts. 854

preme therefore, disagree case, Court Justices is “the classic case of an Shearer, holding Third battery of the Circuit in except intentional assault and appellants’ conclusory complaint allegation is insufficient sur- the Government propounded by postal vive even the cir- knew or should have that the test known ”, propensities’ cuit clerk had court. The Third Circuit there noted ‘malicious Gib- son, supra, 457 plaintiff merely that “a cannot to an F.2d at point falls clearly 2680(h). within claim, the ambit of battery assault and and then based We are plaintiffs forced conclude that the simply on the occurrence of the intentional alleged have tort, supporting not facts con- that was that negligence clusion their repre- for action____ having anticipated not the offensive ... sents a “belief formed after in- reasonable plaintiff allege suffi- must quiry grounded it is well in fact” as independent cient [that] facts to demonstrate that required allega- Fed.R.Civ.P. 11. The knew or should have negligence appears tion of therefore to be employee dangerous known that the pure speculation. based on prior Otherwise the (citing act.” injurious Id. Gib essential facts would been alleged. have States, son v. 1395- United Courts not countenanced such at- Cir.1972)). requirement 96 This stems tempts transform 2680(h). assault and jurisdictional nature of § claims into actions. See Lam- Because is a jurisdiction, bar to bertson, 444; supra, Gaudet, ap facts which claimed to are circumvent 1035; Blitz, supra, 517 F.2d at supra, plication provision pleaded must be F.2d at 599. Therefore, at the outset of the case. even contexts, though pleading may, in other Lastly, appellants maintain be sufficient dismissal under apply does not they hope because 12(b)(6), complaint brought Fed.R.Civ.P. assailant, prove Ojeda, was un allege enabling under the must FTCA facts necessary form able to the intent to commit language court to look beneath the battery. the tort assault and See Mof complaint determine the substance F.Supp. v. United fitt of the claim. Emсh See (E.D.Tenn.1976); Nicoletto, v. Albicocco (7th Cir.1980), cert. de A.D.2d N.Y.S.2d 566 aff'd, nied, 9 N.Y.2d 217 N.Y.S.2d 176 N.E.2d L.Ed.2d 614 Gaudet United v. claim, This which borders on (5th Cir.1975); Coffey frivolous, must rejected. only Not 387 F.Supp. United appellants provide did the fail sup facts (D.Conn.1975) (quoting Nichols porting the contention sexual at F.Supp. (N.D.Miss. tack was not an 1964)). conclusory even allegations did not contain raising this issue. contention This there only here offered a fore does alter our conclusion that the defendant, conclusory allegation that “the essence the claim out of arises assault agents, its employees servants and as battery. signed Ojeda to the area notice or ... with knowledge Ojeda’s pervert appellants argue criminal and that we propensities ed policy tendencies ...” should follow “sound considerations” provided suit, no basis urged support permitting factual for this conclu They indicating sion. properly did state facts contention addressed to Ojeda past Congress, Kosak, had committed offenses not to this court. See previous manifested aberrant behavior that 465 U.S. at 104 S.Ct. at 1528. employers accordingly should have This subject detected. We affirm for lack of gence encompasses govern- n. 3. at 1032 The situation there- solely negli- allegations employee. fore did not involve ment gent supervision where the States, (2d Cir.), judgment denied, of the dis- jurisdiction matter the cert. 921, complaint. dismissing 426 U.S. 96 S.Ct. trict L.Ed.2d 374 (1976); Blitz Boog, F.2d 596 PRATT, Judge, GEORGE C. Circuit dis- Cir.), 379 U.S. 85 S.Ct. senting: (1964); and Gaudet v. (5th Cir.1975), government I dissent and would hold the upon majority all in opinion, relied employees of its liable for the government employee of another who was majority The alleged in this case. has responsible hiring, assigning, and su year old Melissa barred this claim six pervising the assaulter. Johnson, in sexually was molested her who neighborhood by postal own a worker Prior to case the open issue was rounds, “arising his as one out of an as- this circuit. Panella v. United 2680(h). battery”. sault and 28 U.S.C. § F.2d 622 established that so, neglects facts, doing In 2680(h) governmental did not im- retain here, deemed to true it was a munity against injuries arising a claim for assigned the government employee who battery by from an assault and one inmate worker, postal Ojeda, as a letter carrier in another, hospital against of a neighborhood with Melissa’s residential negligently since the knowledge perverted propensities of his perform duty supervision. failed to its tendencies, Ojeda “on various oc- here, majority as have some other * * * sexually and sodom- courts, casions molested e.g., Collins v. United Melissa, Ojeda’s superiors ized” and that (E.D.Pa.1966), interpret negligent hiring, assigning, (later Justice) and Judge example pos- were Harlan’s Panella, him. supervising tulated in authority barring any involving terms, general In the Federal Tort government employee. But (“FTCA”) govern Claims Act waived Judge Harlan’s view does not seem to have sovereign immunity and ment’s historic fatally been so restrictive. What was miss- provided that the United States shall be view, ing, hypothecated his negligent liable for the acts of of its claim on an assault committed based employees “in the same manner and to government employee, was conduct whose private same extent as a individual under negligence. example essence But his was like circumstances”. U.S.C. § possibility negligent did consider repeatedly Supreme 2674. The Court has nothing analysis supervision, and in his re- rejected policy of strict construction for quires to encom- the extension of § this act and has held that it should be pass supervisory conduct. generously accomplish so as to construed 2680(h)’s congress’s purpose policy waiving exemption of section immunity, giving regard, open Supreme an archaic due also remains an issue in the course, problem squarely statutory exceptions to that Court. While the policy. presented term in Surety United States v. Aetna last Shearer v. United — 366, 383, 207, 216, -, Co., 338 U.S. 105 S.Ct. (1949); expansive reading Rayonier, L.Ed. 171 Inc. v. United L.Ed.2d 38 2680(h) exemption strongly urged by n. 352 U.S. 320 & S.Ct. 374,377 Burger, adopted by n. Un Chief Justice and now & L.Ed.2d 354 court, ited States v. Co., majority in this not ‍‌‌​​​​‌​​​‌​‌​‌​​​‌‌​‌​‌‌​‌​​​​‌​‌​​​​‌​​​​​‌​​‌‍entice Yellow Cab could 399, 406, majority Supreme support 95 L.Ed. 523 of a Court, disposed of on and the case was Specifically at issue here is whether grounds. other exception in section of claims aris- view, my proper interpretation should bar a out of assault FTCA, “negligence”, consistent with its broad on the based hold the assaulter, purpose, remedial would be to as in Lambertson v. United government liable, private as would abe able if the action should survive the person, supervisors negligently whеn its inevitable Rule 12 govern- motion assign result, employee, requiring plaintiff hire an assaultive him to ment. As a plead the temptation, negligently an additional information area of fail mentioned majority opinion in the likely the harm he erects a 22” foresee and is “Catch terms, barrier: no public. practical litigation, information until inflict on the litigation no without liability in information. such a situation would create no distinguishable problems are Further, pleading requirement the strict many govern- for which the other claims suggested by majority opinion ignores held routinely ment is liable. Claims for Rule 9 of the Federal Rules of Civil Proce- negligent supervision prone are no more 9(b), dure. Under Rule while averments of exaggeration more and no difficult to de- fraud or mistake must par- be stated “with accidents; fend than most automobile ticularity”, the rule specifically permits jury absence of a leaves the case under the malice, intent, and the state of mind at firm judge; control of a federal district knowledge—to issue “averred be here— available, punitive damages are not 28 generally.” short, U.S.C. 2674. In on this issue I Finally, majority acknowledges even the agree majority opinion with the of the third type charged that the of conduct Ojeda circuit in Shearer v. United 723 “may repetitive”, sufficiently so to have Cir.1983), (3rd “normally prompted inquiry by post- tort intentional exclusion of section possible al prior service into incidents.” apply was not intended to to a case of this Opinion, page experience 7. The behind type. readily judi- observation translates to point majority opinion One other view, least, cial in my notice and when requires pleading coupled comment: the repeated burden with the fact of assaults majority plaintiff impose may assignment would on a Ojeda continued to a prove Pointing neighborhood, provides well to be insurmountable. residential a suffi- plaintiffs’ allegations good-faith cient complaint that the defendant basis for this assigned negligent supervision Ojeda knowledge postal notice of this worker satisfy perverted requirements propensities, opinion his Rule 11. notes that there is no factual basis for this

“conclusion”. The notes that the indicating does not state faсts Ojeda past had “committed offenses or previous

manifested aberrant behavior that employers should have detected.” And majority are “forced to conclude” that America, Appellee, UNITED STATES of requirements the claim does not meet the “pure Fed.R.Civ.P. and is based on LaCHANCE, William G. William F. speculation”. Zimmerli, Schlagenhauf John majority suggest Nowhere does the how Ciccaglione, Appellants. Thomas plaintiff, presuit, could ever obtain such 84-1415, 84-1435, No. Dockets source, information. One authoritative 84-1451 and 84-1453. file, Ojeda’s personnel govern- control, usually ment’s but it would be re- Appeals, United States Court of garded quasi-confidential and una- Second Circuit. practical to an As a vailable outsider. mat- Argued June 1985. ter, therefore, plaintiffs’ attorney would April Decided probably be unable to the informa- obtain required by tion majority satisfy compelled

Rule 11 without some form of

discovery, discovery which would be avail-

Case Details

Case Name: Melissa Johnson, an Infant by Barbara Johnson, Her Mother and Natural Guardian and Barbara Johnson, Individually v. United States

Court Name: Court of Appeals for the Second Circuit

Date Published: Apr 8, 1986

Citation: 788 F.2d 845

Docket Number: 939, Docket 84-6335

Court Abbreviation: 2d Cir.