Shearer, Louise, Ind. And as Administratrix of the Estate of Shearer, Vernon, Deceased v. United States of America C/o Peter F. Vaira, U.S. Attorney
723 F.2d 1102
3rd Cir.
1984
Check Treatment

*2 GIBBONS, and HIGGIN- Before GARTH BOTHAM, Judges. Circuit COURT OPINION OF THE HIGGINBOTHAM, Jr., A. LEON Circuit Judge. we asked to decide the again,

Once are' who, of a serviceman while rights autho- base, in New Mexico Private Andrew Heard. leave and off suffered fatal rized alia, of, inter off-duty.2 years because Heard was also Three be- within the command persons fore, Heard Germany, while stationed hierarchy prosecuted also had been for what was al- the tra- We are confronted with (“Army”). leged gruesome to be a murder of a German defenses of the Feres1 doctrine and ditional alleged that he woman. The indictment *3 the inapplicability a claim of the Federal injuries had “inflicted serious head on the Act. Tort Claims Hess on the occasion 38-year-old Margarete a wrench and of sexual actions means of Louise Plaintiff-appellant at 13a. lifting jack.” Appendix (“App.”) defendant-ap- brought this action year under the Federal Heard served three of a four pellee, years 28 (“FTCA”), Torts Claim Act U.S.C. Sec- on Germany. sentence in His attack Shear- 2671-2680, 1346(b), claiming that the tions after er occurred less than four months his caused the murder Army prison release from for the murder of Mar- Rely- of her son Private Vernon Shearer. garete Hess. doctrine,

ing on the Feres the district court At the time the mur- kidnapping granted government’s motion for sum- Shearer, Army der of was well aware of mary judgment. Appellant challenges the violence, Heard’s record but had disre- presenting district court’s decision two is- rec- garded superiors three of Heard’s who sues for appeal: consideration on this ommended that “Heard be eliminated from whether either the Feres or the doctrine 14, Chapter Regu- under Army Service to the FTCA bars App. lations 635-200.” at 14a. His Battal- appellant’s action. in Germany, ion Commander Lieutenant We hold that neither Feres doctrine Storvall, Rayburn C. Colonel December nor the intentional tort to the 7, 1978had declared that “Private Heard is appellant’s FTCA bars claim. therefore We military unsuitable for service as his record will reverse the grant district court’s order discloses.” Id. at 15a. That Lieu- day same ing judgment summary tenant Colonel Storvall’s recommendation and will States remand this case to the adopted by superiors two other district court. Heard, Eckelbarger Colonel Donald E. Brigadier Canidy. General Charles E. In- I. deed, Eckelbarger once Colonel wrote that For the of this we purposes appeal, must discharge Heard’s “would be in the best accept following pleaded as true the interest of Private Heard and the United by appellant party against whom sum- —the Army.” Id. States judgment mary has been ordered: the dece- Despite precise unequivocal rec- dent, Shearer, Vernon was an eighteen-year ommendations, the failed to make a Army private Army old stationed at Fort discharge. “final determination” on Heard’s Bliss, Having Texas. in the Army been important, More not until after Heard had months, 2, 1979, four barely on June while Army even both- murdered Shearer did military off the reservation on an authoriz- (cid:127) unit, ed leave from his er to conduct a mental evaluation of Heard. Shearer was “kid- napped point gun at and shot to death” Id. U.S., Nonetheless, 153, (1979). Feres v. Supreme

1. 71 S.Ct. (1950). The Feres doctrine has been L.Ed. 152 Court has indicated no desire to reconsider subjected to severe criticism some commen- judicially created doctrine. tators. See Tort Remedies for Servicemen In- jured Military Equipment: A for Fed- Case separate pleaded nolo con- In a action Heard Law, eral Common 55 N.Y.U.L.Rev. 629- degree tendere to the crime of “second murder Note, (1980); From Feres 631 n. 173 and firearm enhancement.’.’ Stencel: Should Military Personnel Have Ac- Appendix (“App.”) at 16a. Recovery? cess to FTCA 77 Mich.L.Rev. 2054, 2057, argued L.Ed.2d 665 Appellant Brown, Heard failing discharge at negligent U.S. 75 S.Ct. at U.S. failing to warn other Army, Accordingly, from Feres insulates the mili- pro- Heard’s violent personnel enlisted from FTCA out of tary “negli- suits restrict Heard. failing and in pensities, gent given orders acts commit- ,the Appellant’s arguments concluded -an injured ted course of” service- Army’s regards proximately failure in these military duty. Engi- man’s Stencel Aero caused death. Shearer’s neering Corp. v. at U.S. Brown, at S.Ct. U.S. responded appel- The United 112, 75 pivotal question 143. The allegations moving lant’s to dismiss analysis Feres is whether complaint grounds: on two Shearer’s serviceman sustained the either in injury military was “incident of” or military the “course “incident to” his service” and therefore barred under the Brown, service. alternative, Feres doctrine. In the U.S. at *4 143; U.S., 146, at Feres v. argued appellant’s United States claim S.Ct. 340 at U.S. 159; was “arising U.S., one out of assault and bat- 71 at S.Ct. Jaffee v. 663 at F.2d tery” and thus barred the intentional

tort of the FTCA. These terms “in the of” and course “inci- district court granted The to,” however, dent are not self-evident motion summary judgment States’ for that leap any truths out to illuminate factu- based on the Feres doctrine. The court did al Consequently, situation. courts must not decide the issue of the intentional probe conclusionary beneath these state- to the FTCA. ments and must identify specific more to determine whether injury an or death II. was in the sustained “course of” or “inci- The permits against FTCA suits dent to” one’s service. military Application “negligent United States for or wrong of the relationship doctrine focuses on the government ful act” of a 28 employee. between the military serviceman and the at 1346, 2674. The scope U.S.C. of the §§ place the time and sustained. FTCA, as it applies military, has injured The status and of the activity ser- been narrowed in a series of decisions viceman often controlling seem to be the together comprise the Feres doctrine. The factors. prevents thrust of the Feres doctrine an action “injuries important distinguishing factors injuries to servicemen where the arise out accounting for the different outcomes in activity of or are in the course of incident these two cases are: the status of the in Brown, 110, to service.” U.S. v. 348 U.S. jured injury, place soldier at the time of 112, 141, 143, (1954); 75 99 L.Ed. 139 S.Ct. injury, activity and the nature of the U.S., 135, 146, Feres v. 340 71 U.S. S.Ct. in, injured party and whether the engaged 153, 159, 95 U.S., (1950); L.Ed. 152 Jaffee v. acting compulsion. or orders 1226, (3d Cir.1981), 663 F.2d 1227 cert. de These factors control Feres doctrine cases. nied, 972, 2234, 456 102 72 U.S. S.Ct. Brown, 112, 348 at 75 at U.S. U.S. S.Ct. U.S., (1982); L.Ed.2d 845 Brooks v. 337 See 143; U.S., 146, Feres v. 340 at 71 U.S. S.Ct. 52, 49, 918, 920, U.S. 69 93 L.Ed. 1200 S.Ct. U.S., at Jaffee v. 663 F.2d at 1232. (1949). 1007, U.S., Parker See U.S., principle judicially (5th Cir.1980); this Woodside v. underlying denied, 134, (6th Cir.1979), 445 exemption created is that the FTCA man- cert. 63 L.Ed.2d 320 judicial dates minimum interference U.S. S.Ct. Coons, “peculiar relationship Harten v. special ” denied, (10th Cir.1974), cert. 420 U.S. superiors. soldier to his ... Aero Stencel (1975). U.S., 43 L.Ed.2d Engineering Corp. v. S.Ct. is, nature, off-duty hospital very an serviceman its considered Generally, engaged service,” and not military not on the base “incident to activity military injury, at the time of can military activity barred under Feres.3 Both John therefore FTCA; on-duty an service recover under Henning injuries son and concerned to ser man, however, from recov usually is barred allegedly stemming vicemen from their Brooks, serviceman hit off-duty an ery. treatment Al Army hospitals. medical engaged vehicle while he was by military though receiving medical treatment in mili business recovered under FTCA. personal tary hospitals may activity be considered an Brooks, 50-52, at U.S. service” military and benefit “incident to hand, Feres, at 919-920. In on the other Feres, certainly and therefore barred under serviceman killed in an on-base fire on-duty point off at can being kidnapped gun base Feres v. recovery. was barred from perceived never as one of the activities 136-38, 146, 154-55, being free benefits of anticipated Thus, there no legiti armed services. appel mate basis on which Feres can bar case, appellant argues In this lant’s claim. the Feres improperly applied district court Specifically, they doctrine to their claim. reasons, For these we reverse the district argue neglected that the court to focus on court on issue. the time activity and status at review, place injury. of his On III. record indicates that Shearer was not en- separate The United States offers a *5 gaged acting any military incident to ground, the activity at the time of his murder. To the . FTCA, independent up- as an basis to contrary, Shearer was on leave in another summary judgment. hold district court’s (New Mexico) state when he was kid- ' provide The does not for recovery FTCA napped. The United States does not dis- the intentional tort of assault and battery. pute Shearer was on authorized leave 2680(h) of the Act carves out an Section and off the base at the time of his murder. exception: provisions intentional tort “The The district court’s error stems from its 1346(b) this not chapter of and Section shall singular focus on the status and activity (h) apply [a]ny to ... claim out of allegedly negligent (i.e. Heard’s parties ” battery assault .... 28 U.S.C. [and] superior officers) considering without status and activity injured party. of the argues appellant’s The United Consequently, the district improperly court wrongful death claim falls within the inten- appellant’s “allegations concluded that re- tional tort exception because it “arises out late directly military person- decisions of battery of” the assault and committed nel made the course of the performance Appellant disagrees, arguing Heard. in- and, of their military duty therefore are stead this action “arises out of” mili- barred.” App. at 25a. tary negligence which proximately caused conclusion, In support of its the district Shearer’s death. court erroneously U.S., relied on Johnson v. 34, (5th 631 F.2d Cir.1980) 36-37 and Hen- does not necessarily FTCA U.S., ning 774, v. (3d Cir.1971). F.2d bar a if negligence, cause action even These two cases did not adopt injury directly a tortfeasor caused the assault status-activity analysis as the lower court and a battery government employee. suggested. merely simply requires Instead these cases re- The that the inten FTCA stated a govern basic Feres doctrine rule: Mal- tional tort must “have its roots in practice U.S., duty to an active soldier in an ment 457 F.2d army negligence,” Gibson v. Coons, cases, 153, 3. See Feres’ two companion Jefferson v. See Harten v. 95 L.Ed. 152 U.S., U.S., 153, 340 U.S. Lowe v. 71 S.Ct. 95 L.Ed. 152 440 F.2d 502 F.2d at 1365 n. Griggs, (1950) (5th Cir.1971). and U.S. v. 452-53 ment, (3d Cir.1972); plain- v. even if the immediate cause of 1391, 1395-97 Underwood (5th Cir.1966). U.S., F.2d 99-100 tiff’s It could thus be Recovery government this reasoned that because the negligence was a remote cause employees barred if the knew that the assailants’ class of sick,” plaintiff, through or if the were injury, “dangerously and because the conclusionary allega pleadings artful “failed to take government reasonable tions, to create a issue. attempts plaintiff’s safety, measures” to insure “[t]he U.S., Gibson v. 457 F.2d 1395-96. See a consequence attack ... was foreseeable Sullivan, v. Hughes also failure to exercise due government’s nom., sub (E.D.Va.1980), aff’d 669-70 intervening care... is not such an act [I]t U.S., (4th Hughes v. Cir. as will casual relation necessary sever U.S., v. 1981); Naisbitt appellant’s and the between Cir.1980); (10th Shively, v. U.S., injuries.” v. 457 F.2d at 1395. Gibson (5th Cir.1965). U.S., Accord 356 F.2d at 99- Underwood In order to withstand dismissal tort exception a under the intentional suit case, appellant Similarly, FTCA, plaintiff allege must suffi government alleges specific indicating which, would proven, cient facts if demon Heard’s knowledge propensities. violent should have strate following facts are critical: Heard had anticipated that one of their em reasonably imprisoned killing been convicted would commit an intentional tort. ployees civilian He was re Army. while 345 F.2d at 296. For exam Shively, prison leased less than from four as a

ple, battery if an assault and occurred killing months prior Shearer. Several result” of failure government’s “natural murdered, high- months before care, battery due the assault exercise officers, military aware of Heard’s ranking negli deemed to have its roots in may be violent recommended his disposition, dis gence scope it is within therefore Nevertheless, charge. Heard remained in Id.; 457 F.2d at the FTCA. and was as a member in treated 1395-96. *6 good Despite previous Heard’s standing. claim, however, bringing In a a Army’s knowledge murder and the of his plaintiff cannot to an merely point assault men, Shearer, disposition, including enlisted claim, and based on battery simply and then past were about violent not warned his tort, the occurrence of the intentional that these present disposition. We believe al for government the was not hav leged are withstand facts sufficient to a anticipated ing had the offensive action. on summary judgment motion based the 1356; U.S., v. See Naisbitt 611 F.2d Gib exception tort to the FTCA. U.S., 457 plain son v. F.2d at 1395-96. The The on Naisbitt United States relies v. allege independent tiff must sufficient facts U.S., (10th Cir.1980), to sup- 611 F.2d that the knew government demonstrate the port its motion to dismiss under inten- have the employee or should known that exception. tional tort This reliance mis- prior injurious dangerous was act. placed. 1395-96; U.S., v. 457 F.2d at Gibson Under U.S., 356 99-100. wood v. F.2d at of a Naisbitt concerned dismissal suit under U.S., In 457 F.2d at the intentional tort supra, alleged negligence government employee assaulted another FTCA where was allegations. employee. summary conclusionary district court’s based on mere There, judgment dismissing plaintiff’s off-duty order FTCA two air force servicemen claim, murders, appeal. on The court a number of and rapes reversed committed complaint held the intentional tort but the failed to assert appeals plaintiff’s that necessarily any suggesting did not that FTCA govern- bar a knew have either of action or should known recovery. my opinion, or of predicate the assailants violent actions prior violence. Naisbitt potential case, however assailant’s circumstances Shearer’s U.S., Naisbitt v. cannot surmount the Feres hur- analyzed, 1979). (D.Utah However, even if Feres were not to dle.1 unques- I believe it bar action as Shearer’s if case, allegations, appellant’s In this does, cannot tionably escape still a court to find that proven, permit would that bars claims provision FTCA negligence proximately government’s tort —in this thus, this case falls out of an intentional injury, caused Shearer’s facts, not to case, closer the rubric of Gibson an assault and 28 U.S.C. See reject therefore that of Naisbitt. We § summary contention United States’ complaint, although appearing Her

judgment justified Section is, truth, no charge negligence surface to 2860(h), exception. the intentional monetary complaint seeking more than a judgment therefore reverse We will recovery battery perpe- for an assault and of the district court and re- of dismissal a fellow soldier her son. trated for further con- proceedings mand this case however, permit has refused to Congress, opinion. sistent with this recovery against the Government for such reason intentional actions. It is for this GARTH, Judge, dissenting: Circuit Shearer, plaintiffs like Mrs. Feres v. majority holds neither barred, have claims that are otherwise States, to overcome the obstacle of Feres sought (1950), nor the intentional torts L.Ed. 152 2680(h), by framing complaints their exception to the Federal Tort Claims Act terms of the Government’s breach 2680(h) (1976), [FTCA], 28 U.S.C. bars substantively rather than in the duty, agree cause of action. I cannot They correct terms of an intentional tort. action that Shearer has stated cause of the neces- provide have done so in' order to Feres section is not barred ac- sary predicate of a cause of 2680(h), require and which would a trial. tion. Thus, majority’s holding I dissent from the Even a review recent case law cursory to that effect. here, reveals involving presented the issue “negligence” I. claims such as Shearer greater asserts have been filed with Under the majority’s analysis, Shear- See, cases collected greater frequency. e.g., er to recover the face of Feres and in Lambertson v. United 2680(h), it must demonstrated Cir.1976); (2d see also Wine negli- that her cause of action sounds (10th *7 gence, of is United showing negligence because FTCA, Sullivan, required Cir.1983); the as a 662 F.2d 219 Hughes Feres and v. place alleged negli- agree and of the 1. While I that the courts that have em- ed to the time case, place ployed analysis gence. a Feres time and have reached results In this consistent, prior always appear logical alleged negligence that do not was some months place necessary for me to address Feres in and took it is not Shearer’s induction supra. majority presented. my Germany. See note 5 the circumstances here As sub- in reveals, sequent any recognize opinion apparently I believe does not this doc- discussion do not effect, trine, opin- negligence by giving bona fide claim has been framed for rather than Shearer, place nor I and that the do believe that the decision re- ion addresses time Maj.Op. Typescript was sustained. See specting discharge at Heard’s can be characteriz- However, any of Feres v. military ed as other than a decision committed further discussion States, note, Army. 95 United of I command function moreover, meaningless (1950), be- has relied 152 would be that' the Government L.Ed. States, Henning cause, noted, legitimate heavily requires a v. United as the FTCA court, sounding negligence (3d Cir.1971), by in in order 774 this cause of action a case decided proper inquiry against I therefore held that the to be made to recover the Government. 2680(h). my negligence inquiry discussion to section when is is an direct- limit

1109 II. F.Supp. Cir.1981), aff’g 514 (4th States, v. United (E.D.Va.1980); Naisbitt 2680(h) provides of Title 28 Section (10th Cir.1980), cert. 1350, 1353-56 apply shall not of FTCA provisions 240, 66 885, 101 449 denied assault, of bat- claim out “any * * (1980); Taylor v. United 111 L.Ed.2d added). Because (Emphasis *.” tery, (D.S.C.1981); 647 States, F.Supp. 513 to be has not consented the Government 922, 923 Kane, F.Supp. tort, v. 337 is Davidson a federal court for such a sued Shively, to entertain (E.D.Va.1972); jurisdiction United States therefore without (5th Cir.1965). pat A of an assault and F.2d arises out any 345 suit which by Thus, being pressed which the the claim apparently developed if tern has negligence not in but (intentional tort) .of a claim sounds true nature battery, unquestionably then it the Govern assault and ant’s cause of action statutory exception this must be barred cause purported ment is subordinated to a liability under the FTCA. to federal The ef sounding negligence. of action attempt in these cases is an obvious fort Shearer, course, that her Mrs. stresses Supreme consequences escape of action is not with the cause concerned Congress’ de decision in Feres and Court’s Heard, her son an attack upon attack termination to limit the Government’s in her son’s death. Rather she that resulted 2680. Prior to liability. See 28 U.S.C. § that her cause of action is focused claims yet this court has to confront today, Government although ap we have problem directly, super- Heard or otherwise discharging not tangentially the issue proached him The Government vising adequately.2 States, Cir.1972), (3d however, United responds, which I discuss in this dissent. just really is a cloak for what is claim claim heart. Be- battery (1) important I it is Because believe realistically, logically, I cause believe legislative command implement char- the Government’s precedentially, this issue to rest Congress put and to thus understanding of acterization and Shearer’s v. United (compare Bryson once and for all correct, I would find Mrs. cause of action is States, (E.D.Pa.1978) with F.Supp. claim to be barred States, F.Supp. v. United Collins I believe that (E.D.Pa.1966), (2) because incompatible with majority’s analysis A. analyses of other better-reasoned number of courts that 7-11, By greater far the Appeals, typescript see Courts this one with claims similar to have dealt infra, another con- thereby leading to still liability. to bar have found section Courts, I among (3) flict these because cases, first such Collins In one of the claims constantly recurring believe that the (E.D.Pa.1 United some require under Feres and the FTCA Lord, III, said: Judge Joseph S. 966),3 in this jurisprudential consistency degree predi- here is court, It is true that claim nothing consistency say However, neg- negligence. I find it cated on Appeal, of other Courts of decisions legal without would have been ligence to dissent. necessary F.Supp. 363 In Collins v. argument, limited Shearer’s counsel 2. At oral “acting *8 1966), employee, (E.D.Pa. a Post Office grounds alleged to these two of employment, ‘pushed, scope hit his Proposed aspects, though even Id. at 364. plaintiff.” and struck’ paragraph Complaint charges 41 Amended complaint alleged was the Government ... United States Government “[t]he employee hiring retaining persons he failed to warn other [Heard] have known of his it knew or should “when ‘violent, danger large, which he and of the was ” propensities.’ vicious and malicious presented.” App. 17a. based motion to dismiss Id. Government’s 2680(h) granted. was on section retail store in significance privately-owned Ogden, absent act that, Utah, Without would have Brosz. there and “committed a variety of atro- been no actionable It was negligence. assault,, acts including rapes, cious batteries the, legal attack which served to attach against and murders and the plaintiffs alleged neg- to defendant’s consequences plaintiffs’ decedents. Five persons were ligence. Congress could have ex- easily shot and three were killed.” 611 F.2d at not; cepted claims for assault. It did plaintiffs 1351. The based their case on the language excepting used the broader that “the theory guilty United States was arising plain claims out of assault. It is failing super- of actionable only the claim arose because of the vise and curtail the two airmen in question battery, equally plain assault and reasonably in that it was foreseeable that that it is a claim out of the assault would, restrained, they unless perpetrate so, being This battery. injuries.” serious Id. The district court immunity States has not waived its as granted the Government’s motion to dismiss respects this claim. ground on the that the claim actually arose Id. 364. Other courts have reached the from assaults and batteries and was there- purport same conclusion when faced with a 2680(h), fore barred section inten- ed negligence claim that followed an inten 421, exception. F.Supp. tional tort See 469 tional tort such as assault and (D.Utah 1979). That court found that See, States, e.g., Wine v. negligence theory “merely was an alter- 366, (10th Cir.1983); Hughes 366-67 native theory liability.” Id. (4th Cir.1981), 662 F.2d 219 aff’g The Tenth Circuit affirmed the district F.Supp. (E.D.Va.1980); Naisbitt holding, court’s concluding that States, v. United 2680(h) barred the action then before it. (10th Cir.1980), cert. denied 449 U.S. discussing After the cases from other courts 66 L.Ed.2d 111 Taylor dealing problem, with this the Tenth Circuit States, (D.S.C. v. United F.Supp. stated: 1981); Kane, Davidson v. 337 F.Supp. In summary: strong There is a thread 923 (E.D.Va.1972). These cases remind us running through most of these cases [and that, when we are called to decide recognizes is that which the immunity it] whether the exception for intentional torts where the assailant is is applicable, we must look not to the theory employee an of thé government. This is plaintiff have may selected. Rath applied regardless of whether the em- er, whether, “the decisive factor is in sub ployee duty.... is on There is a dearth essence, stance and the claim arises out of an authority allowing action to be an battery.” Nichols United prosecuted against government under (N.D.Miss. 236 F.Supp. the Tort Claims Act where the interven- 1964), quoted Coffey v. United ing employee. any assailant an In (D.Conn.1975) (empha employee case in has intention- added). sis another, injured ally the tort asserted An examination of the Naisbitt case from government, regardless Hughes Tenth Circuit and the case from whether negligence, it is called is indeed the Fourth Circuit reveals Iwhat believe to an intentional tort attributable to the proper analysis and thus the proper government. disposition of a case such as the one before us. 611 F.2d at 1356.4 Naisbitt,

In supra, two off-duty Hughes, supra, postal members a uniformed em- of the United Air ployee Force entered a with tak- charged arrested and 4. The Court went on to conclude: basis of the lawsuit sub- was intentional and ject was, Finally, particular because it as a matter of this case lead law, intervening great force conclusion that the tort which is the of such

lili that the States had allege does United with a twelve- sexual liberties ing indecent the knowledge He of indecent conduct on girl in between mail routes. year-old in kept of in but him part Sullivan charge and to a lesser guilty pleaded request a of oth- employ, its and refused treatment. psychiatric to to submit ordered posi- to transfer Sullivan to another thereafter, ers person- father Shortly girl’s the tion; him negligent keeping the of supervisor the requested employee’s ally his and the failure to employment in post- his be relieved of perpetrator that the cause of the proximate was the and transfer duties, was denied request but the al there would have been no assault. But his duties. Several employee the resumed inde- separate for the and except his assault later, while on employee, the same years his his acts of Sullivan. Without route, girls pendent into young two other lured assault, there would be no independent liber- took sexual truck and indecent postal It the of action. is to action suit cause brought Their mother ties them. immunity. the statute not waive claiming that does against the United fail- in supervisor negligently acted postal (E.D.Va.1980) Hughes, 514 delivery employee the of his ing relieve added).5 (emphasis first incident. The district duties after the holding in that 28 majority opinion, The ground the the court dismissed suits on bar 2680(h) does not U.S.C. claims, sounding negligence, in although the claim, heavily on the Fifth Circuit relies assaults and bat- actually arose out the Shively, of United case States employee, by postal teries committed the I (5th Cir.1965). find this citation and by were the they and that therefore barred it puzzling. the reliance majority’s exception found in section intentional Lancaster, who was off- Shively, Sergeant clothes, was duty negligently and in civilian that decision The Fourth Circuit affirmed pistol the non-commissioned of- issued dis- stated the adequately “for reasons in of the Arms Room. The charge ficer at 220. The district trict court.” 662 F.2d weapon of a under such circum- issuance cases from other court had similar analyzed regu- both prohibited by Army stances was follow the lead of courts and had chosen to custom, and and held both Army lations court, saying: the Naisbitt appeals and court of the district court the proceeded to Lancaster govern- negligent. of the alleged negligence kill his wife and retaining perpe- recently in shoot divorced employee ment [the the Appeals the himself. The Court of proximate was not Sullivan trator] (1) intervening held that: proximate cause the assault. The Fifth Circuit ex-wife, not on his and cause of the assault is the wilful assault Lancaster weapon act of .. The ba- issuance Sullivan.. Sullivan, him, proximate was the sole cause negligence is that of sis (2) injured injury, 345 F.2d at postmaster retaining not of Sulli- True, claim “is ‘claim out [complaint] van in service. ex-wife’s Naisbitt, magnitude 611 F.2d at as a causal force. See rendered Shively, failing as- to control insignificant comparison. (5th Cir.1965). go not unmen sailants It should predominantly in- character of the act is so time Heard was convict tioned that at the force as a causal Germany, leading tentional to an ed confined virtually nonexistent. Army that he be dis officer’s recommendation 1356. Service, yet charged Shearer had from the join Service Shearer entered the Service. Indeed, been no assault 5. there would have Knox, Kentucky. January 1979 in Ft. independent” except “separate and here for the Germany and trans Heard released from (here, intervening act of Such act Heard. February States on ferred murder) has been the intentional Texas, Bliss, transferred to Ft. Heard was not significance if the that even held to be of such was not transfer 1979. Shearer until March initially negligent, subse- had been 5,May Ft. until red to Bliss negligence insignificant quent act renders *10 words; assault,’ is, dangerous situation. This specifical- in those aware court held: recovery from under the Feder- ly excepted Act, 2680(h).” First, a fore- upon al Tort the attack Gibson was Claims U.S.C. § consequence seeable of the Government’s Id. failure to exercise due care under the that, Thus, where the inter- Shively holds and, therefore, circumstances it is not cause of the vening act was the —as an act as will sever the intervening such negligence was the case here —even if has necessary causal relation between claim, alleged, been because arises out negligence appellant’s injuries. and the assault, shooting excepted is from Here, very risk which constitutes Naisbitt, Hence, Hughes, and recovery. negligence prob- the defendant’s is the are consistent in their Shively completely such ability action. It is clear that 2680(h) section analysis holdings occurs, when such action it should not any recovery damages bars for claims insulate the defendant’s un- out of an intentional assault. der the In other causation formula.

words, it is unsound to clearly afford immunity to a defendant be- B. force, intervening very cause the Naisbitt, analysis Hughes, in anticipation of which made his conduct finds in this court as well. Shively support negligent, has about brought ex- In analysis, a case decided under a Feres harm. pected Rosenn, court, Judge writing for took our omitted). (footnote Id. at 1395 In distin- great pains distinguish the circumstances guishing Gibson situation from the Col- States, that occurred in Gibson situation, Judge lins Rosenn wrote: (3d Cir.1972), 457 F.2d 1391 from the cir is the case classic inten- ] [Collins present Hughes. cumstances in Naisbitt and tional assault and battery except for the doing, In so he explained why exception allegation that the Govern- conclusory found did not U.S.C. bar ment knew or should have known the Gibson’s recovery recovery but would bar clerk had postal propensities.” “malicious by an individual such as Shearer who was statement, however, conclusory This the victim of an assault and battery. very based assault for which the case, Gibson had been- brought. hired the Federal action is In this we are concerned with drug Electric Co. to train trainees who are Corps Job enrollees at problems, addicts and have behavioral un- the Raritan Arsenal Jersey. New On der the care of the Government in a November Corps (Jessie, Job enrollee program controlled environment and de- juvenile delinquent with a known addiction signed to rehabilitate them. The Govern- narcotics), while under the influence of accepted duty caring ment for and narcotics employed by and while drug them controlling knowing of their States, “plunged a through screwdriver instability. obliged addiction and It was appellant’s temple while the latter was en- to exercise prevent reasonable care to gaged performance of his duties as a them harming from others. Corps Job leader and instructor.” Id. at added).6 (emphasis Id. addition, 1393. In that there had been other incidents at the Arsenal and Here the record discloses that the circum- the supervising federal office surrounding stances unfortunate 6. See also Loritts v. United F.Supp. Army move soldier which resulted in death of (D.Mass.1980) (rape private at hands of fellow serviceman held to choral negligence). campus by member on West Point state a cause of action in Government employee Bryson attributable to analysis of Govern- Neither Loritts nor affect the Loritts, providing adequate protection ment not which I advocate here. the district guest); Bryson Academy v. United expressly invited court had found that (E.D.Pa.1978) (alleged negli- voluntarily providing undertaken the task of gence failing group, having of United States to re- escorts to the choral as- negligence against a cause of action for within the death come well perpetrator’s employer. is ex- 2680(h), as that *11 opinion. Heard was plained in the Gibson employer I am aware that when the or behavioral not known to have a medical Government, that result the United States to mind-con- such as an addiction problem Congress is even more unfortunate because All that was known trolling drugs. federal govern- has seen fit to limit the crime— single had committed a that Heard to ex- liability completely ment’s tort so as manslaughter— the serious crime of albeit arising out of intentional liability clude to and in He had been sentenced Germany. by are committed Government torts which period had served a of incarceration already 2680(h) (1976). employees. See U.S.C. § part was not of a Germany. in Heard However, exceptions to the merits program. Government rehabilitation Act,7 like the the Federal Tort Claims mer- accepted duty never Government doctrine, of the Feres are not issue its him in a “controlled care for or control before us is a before this court. What is program.” environment” or “rehabilitation cause of action framed in terms of negli- Therefore, be could not Government is, in gence, my opinion, nothing accepted any special obliga- found to have a for an intentional subterfuge more than regard tion to exercise reasonable care with battery claim that is barred as preventing harming Heard from Judge such under the FTCA. As Van anyone supra. else. note 5 See said, writing for the Graafeiland Second Circuit, in Based on these critical factual distinc- Lambertson United Naisbitt, tions, (2d Cir.1976), say I find the rationale of “[t]o ‘arising out of’ Hughes, (distinguishing plaintiff’s claim was not one Shively Gibson at the exclu- Collins), battery as well as the other cases that a would be to blink vein, After exceedingly sionary provisions listing in a 2680.” proceed similar § plaintiffs event a of cases in which persuasive. distressing collection the intentional tort exclu- gave culminating sought rise to the chain of events to avoid 2680(h) claiming negli- com- by in this lawsuit was the heinous murder sions of section id., crime contin- gence, Judge mitted Andrew Heard. For this Van Graafeiland a to recover prison permit plaintiff Heard has been sentenced to ued: “[T]o battery in the fifty-five years. recog- ‘dressing up term of fifteen to I the substance’ of ‘judi- would be to punishment ‘garments’ nize that often the received that which has a convicted criminal little solace or at the back door provides cially admit at the front legislatively away to the victims of the crime. been turned compensation ” Nelms, Laird v. Yet, quoting this result still does not door.’ Id. at unfortunate 797, 802, essentially convert what is automatically (1972). into battery cause of action for assault and L.Ed.2d Bryson carry analysis responsibility, the Feres is as flawed sumed that its failure to subjected obligation conclusory holding regard out that the Government to section as its court, liability. Indeed, the district acknowl- edging those which seek to circumvent cases 2680(h) by pleading, statute, (1976), excepts section artful addressed 7. The 28 U.S.C. § very (a) discretionary issue and found that such was not the in or out of claims situation in Loritts’ case. functions, matters, (c) (b) postal tax collections Similarly, Bryson persuasive is not because (d) admiralty, duty, certain suits in or customs analyze failed Government’s 1-31, (f) (e) sections administration of Title 2680(h) other than to refer to Gib contention (h) government, quarantine established (3d v. United son 457 F.2d 1391 Cir. (the exception that is relevant torts indeed, and, 1972), non-analytic in a fashion (j) case), (i) operations Treasury, my opinion, to misread the critical distinction activities, (k) foreign country, (1) wartime made in and referred to in text above. Valley Authority, the Tennessee activities of addition, Bryson concentrated on Feres rath Compa- (m) the activities of the Panama Canal permitting er than on § 28 U.S.C. ny, (n) banks. certain Federal recovery against the Government. I believe negli- Because I can discern no bona fide

gence predicated claim on which Shearer action,

her cause of I have not addressed doctrine, supra;

the Feres see note 1 and I court’s judgment

would affirm the district ground

in favor of the on the Government FTCA, 29 U.S.C. 2680(h), bars action.8 respectfully I dissent.

Accordingly,

COMMONWEALTH OF

PENNSYLVANIA,

Petitioner

, v.

DEPARTMENT OF HEALTH AND SERVICES, Respondent.

HUMAN

No. 82-3547. of Appeals, States Court

Third Circuit.

Argued Sept.

Decided Dec.

Rehearing and En Rehearing Banc 15, 1984.

Denied Feb. Counsel, (argued), Asst.

Stanley Slipakoff Office, Field Litigation, Chief of Southeast Welfare, Pa., Dept, Philadelphia, of Public petitioner. for Moskal, James Regional Atty., Diane C. Jr., Asst. Javier Feight, Regional Atty., S. (argued), Dept, Arrastia of Health and Hu- Pa., Services, Philadelphia, respon- man dent. 2680(h),

8. Because the district court ruled in favor of tion to the FTCA found 28 U.S.C. § doctrine, holding the Government on the Feres which would bar a claim out of an claim, that Feres barred Shearer’s it did not reach, address, excep- and therefore did not