UNITED STATES OF AMERICA, PETITIONER V. LOUISE SHEARER,
INDIVIDUALLY AND AS ADMINISTRATRIX FOR THE ESTATE OF VERNON SHEARER,
DECEASED

   No. 84-194

   In the Supreme Court of the United States

   October Term, 1984

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Third Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-23a) is
reported at 723 F.2d 1102.  The statements on denial of rehearing
(App., infra, 33a-36a) are reported at 729 F.2d 266.  The opinion of
the district court (App., infra, 24a-29a) is reported at 576 F. Supp.
672.

                             JURISDICTION

   The judgment of the court of appeals (App., infra, 31a-32a) was
entered on December 19, 1983.  A petition for rehearing was denied on
March 7, 1984 (App., infra, 33a-36a).  On June 4, 1984, Justice
Brennan extended the time for filing a petition for a writ of
certiorari to August 4, 1984.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   28 U.S.C. 1346(b) provides in part:

         Subject to the provisions of (28 U.S.C. 2671-2680), the
      district courts * * * shall have exclusive jurisdiction of civil
      actions on claims against the United States, for money damages *
      * * for injury or loss of property, or personal injury or death
      caused by the negligent or wrongful act or omission of any
      employee of the Government while acting within the scope of his
      office or employment, under circumstances where the United
      States, if a private person, would be liable to the claimant in
      accordance with the law of the place where the act or omission
      occurred.

   28 U.S.C. 2680 provides in part:

         The provisions of this chapter and section 1346(b) of this
      title shall not apply to --

                      * * * * *

      (h) Any claim arising out of assault, battery, false
      imprisonment, false arrest, malicious prosecution, abuse of
      process, libel, slander, misrepresentation, deceit, or
      interference with contract rights:  Provided, That, with regard
      to acts or omissions of investigative or law enforcement
      officers of the United States Government, the provisions of this
      chapter and section 1346(b) of this title shall apply to any
      claim arising, on or after the date of the enactment of this
      proviso, out of assault, battery, false imprisonment, false
      arrest, abuse of process, or malicious prosecution.  For the
      purpose of this subsection, "investigative or law enforcement
      officer" means any officer of the United States who is empowered
      by law to execute searches, to seize evidence, or to make
      arrests for violations of Federal law.

                          QUESTIONS PRESENTED

   1. Whether the survivor of a serviceman who was murdered by another
serviceman, while both were off duty and off base, may sue the
government for damages under the Federal Tort Claims Act even though
the Act bars "(a)ny claim arising out of assault (or) battery."

   2. Whether such a suit, alleging that the negligence of the
servicemen's superior officers was responsible for the murder, is
precluded by the doctrine of Feres v. United States, 340 U.S. 135
(1950), which bars suits by servicemen for alleged torts incident to
military service.

                               STATEMENT

   1. Respondent is the mother and administratrix of a serviceman,
Private Shearer, who was stationed at Fort Bliss, Texas.  While
Shearer was on authorized leave and off the base, he was kidnapped and
murdered by another serviceman, Heard, who was also stationed at Fort
Bliss and was also off duty at the time.  This crime occurred in Otero
County, New Mexico, which is adjacent to Fort Bliss.  App., infra,
2a-3a;  C.A. App. 5a, 22a.  Heard was subsequently convicted of murder
in a New Mexico state court and sentenced to a term of 15 to 55 years'
imprisonment (C.A. App. 16a).

   Respondent subsequently brought this action under the Federal Tort
Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., seeking damages
from the United States.  She claimed that the Army's negligent failure
to prevent Heard from murdering Shearer was responsible for Shearer's
death.  Specifically, respondent alleged (C.A. App. 17a-18a;
Complaint paras. 40-41):  /1/

      40. The United States Government, acting through its Department
      of the Army, * * * negligently and carelessly failed to exert a
      reasonably sufficient control over Andrew Heard, or take any
      action to prevent him from endangering other persons, in spite
      of the defendant's knowledge of his dangerous and murderous
      propensities, and further failed to warn other persons that he
      was at large, and of the danger which he presented. 41. The
      United States Government, acting through its Department of the
      Army, * * * negligently and carelessly failed to then remove
      Andrew Heard from active military duty, in spite of its
      knowledge of his dangerous and murderous propensities, with a
      reasonable degree of promptness given the great danger potential
      that he posed to other active duty service members, including
      (Shearer), none of whom were warned of the dangers posed.

Respondent asserted that in 1977, while Heard was assigned to an Army
base in Germany, he was convicted by a German court of manslaughter
and sentenced to a four-year prison term.  In February 1979, when
German authorities granted Heard an early release from that term, the
Army promptly removed him from Germany and transferred him to Fort
Bliss.  By the time Heard killed Shearer, in June 1979, the Army had
initiated proceedings to have Heard discharged.  C.A. App. 13a-15a.

   2. The United States District Court for the Eastern District of
Pennsylvania granted summary judgment in favor of the government
(App., infra, 24a-30a).  The district court did not address the
government's contention that respondent's claim is barred by 28 U.S.C.
2680(h), the intentional tort exception to the FTCA, which provides in
part that the government is not liable for "(a)ny claim arising out of
assault (or) battery * * *." /2/ See App., infra, 29a n.4.  Instead,
the court held that respondent's claim is precluded by Feres v. United
States, 340 U.S. 135 (1950), which held that a serviceman may not sue
the government under the FTCA for alleged torts incident to military
service.

   The district court stated that under Feres, the "question is not
whether decedent was engaged in activity incident to military service
when he incurred his injuries.  Rather, the 'focus ... is upon when
and how the negligent act occurs'" (App., infra, 26a (citation and
emphasis omitted)).  The court reasoned that because respondent
"allege(d) that the Army was negligent in failing to exert reasonable
control over" Heard, respondent's claims "relate directly to decisions
of military personnel made in the course of the performance of their
military duty and, therefore, are barred by Feres" (ibid.).  The
district court also noted that respondent is entitled to receive
veterans' benefits (id. at 29a) and explained that "the existence of a
no fault compensation scheme" for servicemen, veterans, and their
survivors is another reason to apply the Feres doctrine (App., infra,
28a-29a, citing Stencel Aero Engineering Corp. v. United States, 431
U.S. 666, 673 (1977), and Hatzlachh Supply Co. v. United States, 444
U.S. 460, 464-465 (1980)).

   3. A divided panel of the court of appeals reversed (App., infra,
1a-23a).  The majority overturned the district court's ruling that
Feres bars respondent's claim, explaining that "(g)enerally, an
off-duty serviceman not on the military base and not engaged in
military activity at the time of injury, can recover under FTCA"
(App., infra, 5a-6a) and that "being kidnapped off base at gun point
can never be perceived as one of the activities or anticipated * * *
benefits of being in the armed services" (id. at 7a (emphasis
omitted)).

   The court also held that the intentional tort exception to the FTCA
does not bar respondent's claim.  The majority noted that respondent's
complaint alleged that the government was negligent and reasoned that
"if an assault and battery occurred as a 'natural result' of the
government's failure to exercise due care, the assault and battery may
be deemed to have its roots in negligence and therefore it is within
the scope of the FTCA" (App., infra, 8a).

   Judge Garth dissented (App., infra, 10a-23a).  He noted his
disagreement with the majority on the Feres issue (App., infra, 11a &
n.1) but principally discussed the intentional tort exception.  Judge
Garth noted that Section 2680(h) applies to claims "arising out of"
assault or battery and not just claims "for" assault or battery (see
App., infra, 13a-14a) and accordingly, by its terms, precludes
respondent's claim.  Judge Garth also stated that respondent's claim,
"although appearing on the surface to charge negligence is, in truth,
no more than a complaint seeking monetary recovery for an assault and
battery" (id. at 11a).

   Judge Garth remarked that "'negligence' claims such as (respondent)
asserts have been filed with greater and greater frequency" (App.,
infra, 12a), and he observed that "(b)y far the greater number of
courts that have dealt with claims similar to this one have found
section 2680(h) to bar liability" (id. at 14a).  Judge Garth stated
that, in particular, the majority erred by not following Naisbitt v.
United States, 611 F.2d 1350 (10th Cir.), cert. denied, 449 U.S. 885
(1980);  Hughes v. United States, 662 F.2d 219 (4th Cir. 1981), aff'g
Hughes v. Sullivan, 514 F. Supp. 667 (E.D. Va. 1980);  and United
States v. Shively, 345 F.2d 294 (5th Cir. 1965).

   The court of appeals denied rehearing en banc by a vote of 6-4
(App., infra, 33a-36a).  Judge Garth wrote a dissenting statement in
which he noted that "all of the other Courts of Appeals which have
considered the issue presented here have held that (Section) 2680(h)
bars recovery of claims similar to (respondent's)" (id. at 34a).
Judge Adams, in his dissenting statement, urged that rehearing be
granted for the following reasons (id. at 35a (citations omitted)):

      (T)he majority opinion in this case decides two questions of
      exceptional importance that deserve in banc consideration.  The
      panel's affirmative answer to the first question, whether the
      intentional tort exception to the Federal Torts Claims Act, 28
      U.S.C. 2680(h), allows a claim against the government for a
      murder committed by an off-duty serviceman, brings this Court
      into conflict with the law of several other Circuits.  The
      panel's negative answer to the second question, whether the
      Feres doctrine precludes the kind of litigation that underlies
      this appeal, raises serious policy concerns about judicial
      review of military decisions.

                   REASONS FOR GRANTING THE PETITION

   The court of appeals' holding that the intentional tort exception
does not bar respondent's claim is inconsistent with the language and
the manifest purposes of that provision and conflicts with the
decisions of every other court of appeals that has considered the
issue.  In addition, the court of appeals' approach, if it were to
prevail, would be likely to precipitate frequent FTCA actions alleging
that the government's negligence was responsible for a crime committed
off duty by one of the government's several million servicemen or
civilian employees, and would hold the government liable whenever it
was found not to have adequately supervised the off-duty activities of
one of its employees -- an expansive and burdensome liability that is
not imposed on ordinary employers by the common law.

   The court of appeals' holding that the Feres doctrine does not bar
respondent's claim is also in error and would require courts to
second-guess military officers' decisions about the discipline,
morale, control, and discharge of servicemen.  Further review is
therefore warranted.

   1. a. The court of appeals' principal holding -- that the
intentional tort exception of the FTCA, 28 U.S.C. 2680(h), does not
bar respondent's claim -- conflicts with the decisions of every other
court of appeals that has considered this issue.  In Naisbitt v.
United States, 611 F.2d 1350, cert. denied, 449 U.S. 885 (1980), the
Tenth Circuit refused to entertain a claim indistinguishable from
respondent's:  the victims of crimes committed off the base by two
off-duty servicemen, which had resulted in the death of three persons
and serious injury to two others, brought suit under the FTCA,
alleging that "the United States was guilty of actionable negligence
in failing to supervise and curtail the two airmen in question" (id.
at 1351).  The court of appeals held that the claim was barred by the
intentional tort exception (id. at 1353-1356), remarking that "(t)here
is a dearth of authority" to the contrary (id. at 1356).  The Tenth
Circuit has recently reaffirmed this holding.  Wine v. United States,
705 F.2d 366 (1983).

   In Hughes v. United States, 662 F.2d 219 (4th Cir. 1981), aff'g
Hughes v. Sullivan, 514 F. Supp. 667 (E.D. Va. 1980), the complaint
charged that a postman on his delivery route took indecent sexual
liberties with two minors and that the government had "acted
negligently in failing to relieve (the postman) of his delivery
duties" after a previous, similar incident (662 F.2d at 220).  The
court of appeals held that "the claims, although framed in terms of
negligence, actually arose out of the assaults and batteries committed
by (the employee).  * * * (G)overnment liability was thereby precluded
under 28 U.S.C. Section 2680(h)." 662 F.2d at 220.  The district
judge, whose reasoning was adopted by the court of appeals (ibid.),
relied in part on Naisbitt.  See 514 F. Supp. at 668.

   Finally, in United States v. Shively, 345 F.2d 294 (5th Cir. 1965),
a person who was shot and injured by a serviceman sued under the FTCA,
claiming that the Army negligently issued a pistol to the serviceman
even though it had reason to know that he would use it to assault the
plaintiff.  The court of appeals, reversing a judgment in favor of the
plaintiff, stated that the plaintiff's claim "is a 'claim arising out
of assault,' which is, in those words, specifically excepted from
recovery under the Federal Tort Claims Act, 28 U.S.C. Section
2680(h)." Id. at 297.

   The court below attempted to distinguish Naisbitt on the ground
that the "complaint (in Naisbitt) failed to assert any facts"
substantiating the allegation of negligence (App., infra, 10a).  The
court of appeals did not expressly distinguish Hughes and Shively,
although it suggested that those cases also involved "artful pleadings
with conclusionary allegations" (App., infra, 8a).  There is no basis
for these distinctions.  Nothing in the opinions in Naisbitt or Wine
-- both of which affirmed the dismissal of complaints -- suggests that
the Tenth Circuit was concerned that the pleadings lacked factual
substantiation;  those decisions make it entirely clear that the Tenth
Circuit will not entertain claims like respondent's, however they are
pled.  In Hughes, the opinions themselves recite facts that would
support an allegation of negligence at least as well as the facts
asserted by respondent (see 662 F.2d at 220;  514 F. Supp. at
667-668).  Shively reversed a judgment in favor of the plaintiff, and
the court of appeals expressly agreed with the district court's
finding that the government was negligent (345 F.2d at 296).

   b. The court of appeals' decision is also inconsistent with the
language and the purposes of the intentional tort exception.  Section
2680(h) bars "(a)ny claim arising out of assault (or) battery"
(emphasis added).  As Judge Garth noted in his dissent, "'Congress
could easily have excepted claims for assault.  It did not;  it used
the broader language excepting claims arising out of assault.'" App.,
infra, 14a, quoting Collins v. United States, 259 F. Supp. 363, 364
(E.D. Pa. 1966).  Respondent's claim "arises out of" an assault and
battery within the plain meaning of that term.  This Court has
recently interpreted another FTCA exception that is similarly phased
according to its literal meaning.  Kosak v. United States, No. 82-618
(Mar. 21, 1984), slip op. 5-7.  The court of appeals erred in not
interpreting Section 2680(h) according to its plain meaning and
affirming the dismissal of respondent's claim.

   Moreover, a central purpose of Section 2680(h) is, indisputably, to
exempt the government from liability for the intentional torts of its
employees when they are acting within the scope of their employment.
It is evident that a claimant could not attempt to circumvent this
limitation on the government's respondeat superior liability by
alleging that the government was negligent in its supervision of the
employee in question.  But if Congress meant to bar claims based on
the intentional torts of government employees acting within the scope
of their duties, it could not possibly have intended that the
government be responsible for intentional torts committed by employees
who were acting outside the scope of their duties and were therefore
even less subject to the government's supervision and control.  /3/
Justice (then Judge) Harlan explained that a purpose of Section
2680(h) is to exempt the government from liability for "activities
which practically, even though not legally, speaking are outside the
scope of a government employee's proper official functions" (Panella
v. United States, 216 F.2d 622, 625 (2d Cir. 1954));  a fortiori, the
government should not be held responsible for acts like Heard's that
are without question wholly outside the scope of the tortfeasor's duty
and have no connection whatever to his government service.

   Indeed, the court of appeals' decision imposes on the government a
novel form of liability that is unknown at common law -- a result that
Congress could not have intended when it enacted the FTCA.  At common
law, if an employee is acting outside the scope of his authority, the
employer has no general duty to exercise reasonable care to prevent
the employee from injuring others.  See Restatement (Second) of Torts
Sections 315, 317 (1965).  /4/ This is true even if the employer knows
of the employee's dangerous proclivities (see Restatement (Second) of
Torts Section 314 (1965) /5/ ) and even if the employer is fully able
to control the employee's off-duty activities.  See, e.g., Restatement
(Second) of Torts Section 317 comment b ("(A) factory owner * * * is
not required * * * to exercise any control over the actions of his
employees while on the public streets or in a neighboring restaurant
during the lunch interval, even though the fact that they are his
servants may give him the power to control their actions by
threatening to dismiss them from his employment if they persist.");
Prosser, Torts 275 (4th ed. 1971) ("It must be remembered that the
mere fact that misconduct on the part of another might be foreseen is
not of itself sufficient to place the responsibility upon the
defendant.").

   At common law, therefore, a private employer of Heard would not be
liable in the circumstances alleged in respondent's complaint.  There
is no reason whatever to believe that Congress intended to subject the
government to such a wholly novel form of liability.  To the contrary,
it is clear from the language of the Act itself that the government's
liability under the FTCA is to be no broader than that of a private
party in similar circumstances (see 28 U.S.C. 1346(b) and 2674).
Moreover, an authoritative source on the meaning of the FTCA (see
Kosak, slip op. 8-9) explained to Congress that the "theory" of the
intentional tort exception "is that, since this bill is a radical
innovation, perhaps we had better take it step by step." Tort Claims:
Hearings on H.R. 7236 Before Subcomm. No. 1 of the House Comm. on the
Judiciary, 76th Cong., 3d Sess. 22 (1940) (statement of Alexander
Holtzoff).  Since, as this statement shows, the intentional tort
exception was designed to exempt the government even from certain
well-established forms of liability to which private parties are
subject, Congress could not have intended to subject the government to
a form of liability unknown at common law.  /6/

   2. The court of appeals also erred in reversing the district
court's holding that the Feres doctrine bars respondent's claim.
Feres established that the FTCA does not waive the government's
sovereign immunity from suits by servicemen for alleged torts that are
incident to military service.  This Court has explained that the Feres
doctrine is principally based on the following considerations:

      (T)he "peculiar and special relationship of the soldier to his
      superiors, the effects of the maintenance of such suits on
      discipline, and the extreme results that might obtain if suits
      under the Tort Claims Act were allowed for negligent orders
      given or negligent acts committed in the course of military
      duty. . . ."

United States v. Muniz, 374 U.S. 150, 162 (1963), quoting United
States v. Brown, 348 U.S. 110, 112 (1954).  See Chappell v. Wallace,
No. 82-167 (June 13, 1983), slip op. 3.  The Court has also explained
that the purpose of the Feres doctrine is to avoid a trial at which
courts must engage in "second-guessing military orders" and at which
the "issue would be the degree of fault, if any, on the part of the
Government's agents and the effect upon the serviceman's safety."
Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673
(1977).

   The court of appeals' decision is inconsistent with each of these
objectives of the Feres doctrine.  Respondent's claim, which is made
on behalf of a serviceman, /7/ directly challenges several military
orders.  Specifically, respondent alleges that Shearer's superiors at
Fort Bliss and elsewhere in the Army injured him because they:  (i)
"negligently and carelessly failed to exert a reasonably sufficient
control over Andrew Heard," (ii) failed to "take any action to prevent
(Heard) from endangering other persons," (iii) "failed to warn other
persons that (Heard) was at large, and of the danger which he
presented(,)" and (iv) "negligently and carelessly failed to then
remove Andrew Heard from active military duty" (C.A. App. 17a-18a).
Respondent thus seeks to have the courts inquire into basic decisions
about the discipline, control, and discharge of Heard and into whether
Shearer's superior officers exercised a sufficient degree of care in
protecting him from another serviceman.  These are principal examples
of "'(t)he complex, subtle, and professional decisions as to the
composition, training, * * * and control of a military force (that)
are essentially professional military judgments'" (Chappell, slip op.
6, quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)) and that should
not be second-guessed by a court at the behest of a serviceman.

   The court of appeals ruled that respondent's claim was not barred
by Feres because Shearer was off the base and on personal business at
the time he was murdered.  See App., infra, 5a-7a.  But the location
of the murder committed by Heard and Shearer's off-duty status at the
time are immaterial, because respondent cannot establish her claim
simply by showing that Heard's actions were tortious.  Rather,
respondent seeks to demonstrate that Shearer's superior officers
committed a tort against him by failing to give him adequate warnings
about a dangerous fellow serviceman and by failing to ensure that that
serviceman was discharged.  These actions and decisions of Shearer's
superior officers were clearly "incident to (Shearer's) service"
(Feres, 340 U.S. at 146);  according to respondent, they constitute a
breach of a duty that Shearer's superior officers owed to their
subordinates.  As the district court explained (App., infra, 26a), it
is of no significance that the asserted consequence of the military
decisions that allegedly constituted a breach of this duty did not
befall Shearer until he happened to be off base and off duty.  /8/

   The court of appeals relied (App., infra, 5a-7a) on Brooks v.
United States, 337 U.S. 49 (1949), which held that an off-duty
serviceman can sue under the FTCA for injuries sustained in an
off-base automobile accident with a military vehicle.  But in Brooks,
the duty breached by the driver was not a duty owed to the plaintiff
because he was a serviceman (see 337 U.S. at 52), but a duty owed
equally to all members of the general public.  /9/ The suit therefore
would not have required courts to second-guess a military decision
about the degree of care to be shown to a serviceman.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   RICHARD K. WILLARD

      Acting Assistant Attorney General

   LAWRENCE G. WALLACE

      Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

   ROBERT V. ZENER

      Attorneys

   AUGUST 1984

   /1/ "Complaint" refers to the Proposed Amended Complaint (C.A. App.
11a-18a).  "C.A. App." refers to the Appendix to Appellant's Brief in
the court of appeals.

   /2/ Aproviso to the intentional tort exception specifies that the
government can be sued for assualt, battery, and certain other
intentional torts committed by "investigative or law enforcement
officers." There is no suggestion that any of the government employees
whose actions are at issue in this case were investigative or law
enforcement officers.

   /3/ There is no suggestion in this case that Heard was acting
within the scope of his authority.

   /4/ Section 315 provides:

         There is no duty so to control the conduct of a third person
      as to prevent him from causing physical harm to another unless

         (a) a special relation exists between the actor and the third
      person which imposes a duty upon the actor to control the third
      person's conduct, or

         (b) a special relation exists between the actor and the other
      which gives to the other a right to protection.

Section 317, which describes the extent to which such a "special
relation" exists between an employer and an off-duty employee who
harms another, provides that "(a) master is under a duty to exercise
reasonable care * * * to control his servant while acting outside the
scope of his employment * * * if * * * the servant * * * is upon the
(master's) premises * * * or (premises) * * * the servant is
privileged to enter only as his servant, or * * * is using a chattel
of the master * * *." There is no allegation that Heard was on
government premises or was using a chattel belonging to the government
when he killed Shearer, and the court of appeals' decision accordingly
is not limited to cases in which, for example, a serviceman uses his
service weapon to commit a tort.  In any event, since Section 2680(h)
would exempt the government from liability if a service weapon were
used to commit an intentional tort by a serviceman who was on duty,
and acting within the scope of his employment, Congress could not have
intended that the government be held liable for the tortious off-duty
use of such a weapon.

   /5/ Section 314 provides:

      The fact that the actor realizes or should realize that action
      on his part is necessary for another's aid or protection does
      not of itself impose upon him a duty to take such action.

   /6/ Where the government undertakes the responsibility of
supervising a person known to be dangerous -- such as by operating a
prison, school, or hospital for dangerous persons -- several cases
have held that it will be liable if its agents fail to discharge that
responsibility with due care.  See, e.g., Muniz v. United States, 305
F.2d 285 (2d Cir. 1962), aff'd, 374 U.S. 150 (1963) (prisoner);
Panella v. United States, supra (inmate at public health service
hospital).  See also Restatement (Second) of Torts Section 319 (1965):

      One who takes charge of a third person whom he knows or should
      know to be likely to cause bodily harm to others if not
      controlled is under a duty to exercise reasonable care to
      control the third person to prevent him from doing such harm.

There is, however, no suggestion in this case that the government had
"take(n) charge" of Heard in this sense or otherwise assumed any
special responsibility for protecting others from him (see App.,
infra, 21a (Garth, J., dissenting));  the military, unlike a prison or
a psychiatric ward, is not an institution established to supervise
persons known to be dangerous.

   The court of appeals relied (App., infra, 8a-9a) on a decision in
this line of cases, Gibson v. United States, 457 F.2d 1391 (3d Cir.
1972).  But as Judge Garth pointed out in dissent (App., infra,
19a-21a), the court in Gibson carefully explained that it was not
imposing on the government a general duty to supervise all those whose
behavior it might be able to influence (see 457 F.2d at 1394).

   /7/ It is immaterial that the suit was brought not by the
serviceman but by a party claiming on his behalf;  Feres itself was a
suit by the executrix of the injured serviceman (see 340 U.S. at
136-137).  See also App., infra, 25a n.1.

   /8/ The court of appeals' decision on the Feres issue cannot be
reconciled with Brown v. United States, No. 83-1234 (8th Cir. July 20,
1984).  The plaintiff in Brown sued on behalf of a member of the
National Guard, Briscoe, who was allegedly the victim of a racially
motivated intentional tort committed by other members of the Guard.
The incident occurred at a party on the military base where all the
servicemen were stationed, but all the servicemen were off duty at the
time.  The plaintiff alleged, among other things, that superior
officers negligently failed to prevent the incident and failed to
perform an adequate investigation.

   The court of appeals held (slip op. 13-14) that these claims were
barred by Feres:

         The claim that various officers negligently failed to prevent
      the incident directly calls into question the disciplinary
      decisions of Briscoe's superior officers. Presumably what would
      be litigated is whether the officers should have issued some
      type of order, or otherwise taken disciplinary action, to
      prevent any type of racially motivated actions.  Under the Feres
      doctrine such a lawsuit cannot be maintained -- it strikes
      precisely at the type of command relationship between a service
      member and his or her superior officers that is at the heart of
      the military disciplinary structure.  Similarly, the claim that
      various officers failed to perform a proper investigation
      strikes directly at military decisionmaking with respect to a
      disciplinary matter.  The Feres doctrine will not permit a court
      to second-guess the military decisions as to how an
      investigation into a disciplinary matter should have been
      conducted.

The court of appeals did not consider it decisive that the injury in
Brown, unlike the injury to Shearer, was inflicted on a military base.
 See slip op. 10-11.  Other circuits have similarly applied Feres to
preclude claims for injuries that occurred while the serviceman was
off the base.  See, e.g., Johnson v. United States, 631 F.2d 34, 37
(5th Cir. 1980), cert. denied, 451 U.S. 1018 (1981) (Feres bars a
claim for injury that occurred when serviceman was off duty and off
base because "all the government actions that resulted in (the
serviceman's) death were directly and substantially related to his
military service.").  It also was not significant that Briscoe was a
member of the National Guard (see slip op. 7).  Accordingly, it
appears that the Eighth Circuit would have held that respondent's
claim was precluded by Feres.

   /9/ Here, as we have noted, respondent appears to have alleged only
a breach of duties owed to Shearer by virtue of his status as a
serviceman, and in any event it is clear -- as the courts of appeals
rules in Naisbitt v. United States, supra, and United States v.
Shively, supra -- that respondent's claim cannot be based upon a
breach of a duty owed to the public at large.

                               APPENDIX