*

Honorable Stanley Marcus, U.S. District Judge for the

Southern District of Florida, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-9262.

Sharon BENNETT, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

Dec. 30, 1996.

Appeal from the United States District Court for the Southern

District of Georgia. (No. CV194-083), Dudley H. Bowen, Jr., Judge.

Before DUBINA and BLACK, Circuit Judges, and MARCUS*

, District

Judge.

MARCUS, District Judge:

Plaintiff-Appellant Sharon Bennett appeals the district

court's grant of summary judgment in favor of the DefendantAppellee United States of America. Bennett brought this action

under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)

and 2671, et seq., alleging that she suffered permanent injuries

due to the negligent conduct of a United States Army soldier

stationed at Fort Gordon in Augusta, Georgia. Bennett's injuries

resulted from the soldier's discharge of a handgun that, in

violation of base regulations concerning privately-owned weapons,

had not been registered with the base Provost Marshal's office.

The United States moved for summary judgment, arguing, among other

things, that the soldier was not acting within the scope of his

employment at the time of the incident, and therefore no liability

could be imposed under the FTCA. The district court agreed that
the soldier had not acted within the scope of his employment.

Bennett insists that the district court erred in reaching this and

other conclusions concerning her negligence claim. For the reasons

detailed below, we affirm.

I. Background

This case arises out of an accidental shooting on the night of

January 14, 1993. Early in the evening, David Williams, a soldier

assigned to Company A of the 551st Signal Battalion at Fort Gordon

and residing on the base, attended the rehearsal of a band of which

he was a member. During the rehearsal, Williams told a fellow

soldier and band member, Adrian Risby, that he planned to visit a

local dance club later that night. Risby indicated that he would

like to go, and the two servicemen arranged to meet at Risby's

barracks room. Shortly after 11:00 p.m., Williams, off-duty at the

time, left his residence to meet Risby. When he arrived at Risby's

quarters, Williams was carrying a black nylon bag that concealed a

personal .380 caliber semi-automatic pistol. Bennett, an

acquaintance of both soldiers and a guest of Risby's, was in the

room along with Risby when Williams arrived. The trio discussed

which night club to visit and other plans for the evening. At some

point during the conversation, Williams removed the pistol from his

bag and inadvertently fired it. The bullet struck Bennett in the

back and severed her spinal cord, causing permanent paralysis below

her upper waist. Williams subsequently pled guilty at a court

martial in June, 1993 to charges of assault with a dangerous

weapon, negligent discharge of a loaded firearm and carrying a

concealed weapon.
Seeking to recover money damages for her injuries, Bennett

submitted an administrative claim to the Department of the Army.

After the Army denied her claim, she filed the instant FTCA lawsuit

against the United States on May 18, 1994. In her complaint,

Bennett alleges that the negligent acts of Williams may be

attributed to the United States on a theory of vicarious liability,

since Williams acted within the scope of his employment as a United

States Army soldier. Bennett also alleges that the Government was

liable for failing to adequately supervise the dormitory where she

suffered her injuries, and that Williams and other Government

employees exacerbated her injuries by moving her immediately after

the accident. The United States answered the complaint, and

thereafter moved to dismiss or in the alternative for summary

judgment. In an Order dated September 29, 1995, the district court

assumed that Williams' negligence caused Bennett's injuries, but

accepted the Government's argument that Williams had not been

acting within the scope of his employment at the time of the

shooting. The district court also concluded that the Army did not

willfully or wantonly fail to supervise the barracks. In a

subsequent Order, the court rejected as a matter of law Bennett's

claim that Army employees aggravated her condition, since neither

Williams nor Risby acted within the scope of their employment and

no evidence had been produced to show that any other employees

improperly moved her after the shooting. Bennett appeals the

district court's findings on these issues.

II. Standard of Review

 The district court construed the Government's motion as an
 1

The FTCA operates as a limited waiver of the United States'

sovereign immunity. See, e.g., Lawrence v. Dunbar, 919 F.2d

1525, 1528 (11th Cir.1990). Unless the United States may be held

liable pursuant to the terms of the statute, the sovereign's

immunity remains intact, and no subject matter jurisdiction

exists. Id. Rule 12(b)(1) of the Federal Rules of Civil

Procedure provides a vehicle for the dismissal of actions for

lack of subject matter jurisdiction. Nevertheless, where—as

here—the existence of subject matter jurisdiction is inextricably

intertwined with material facts affecting the merits of the

claim, a district court must be guided by the standard for

summary judgment motions under Fed.R.Civ.P. 56. Id. at 1528-30; 

Green v. Hill, 954 F.2d 694, 697-98 (11th Cir.), withdrawn and

superseded in part on reh'g, 968 F.2d 1098 (1992); Eaton v.

Dorchester Dev., Inc., 692 F.2d 727, 734 (11th Cir.1982). 

application for summary judgment.1 We review the district court's

grant of summary judgment de novo. Forbus v. Sears Roebuck & Co.,

30 F.3d 1402, 1404 (11th Cir.1994), cert. denied, --- U.S. ----,

115 S.Ct. 906, 130 L.Ed.2d 788 (1995). A summary judgment motion

should be granted when "the pleadings, depositions, answers to

interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to summary judgment as

a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986);

Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). An issue

of fact is "genuine" if the record as a whole could lead a rational

trier of fact to find for the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91

L.Ed.2d 202 (1986). An issue is "material" if it might affect the

outcome of the case under the governing law. Id. Like the

district court, we review the evidence in a light most favorable to

the non-moving party. Griesel v. Hamlin, 963 F.2d 338, 341 (11th

Cir.1992).
 2

In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981)

(en banc), the Eleventh Circuit adopted as binding precedent all

decisions of the former Fifth Circuit Court of Appeals handed

down prior to October 1, 1981. This Circuit also regards as

binding precedent all decisions of Unit B of the former Fifth

Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th

Cir.1982). 

III. Discussion

 The principal question presented in this appeal concerns

language in the FTCA that makes the United States' vicarious

liability for the negligence of its employees contingent on whether

the employee acted in the "line of duty." The FTCA waives the

Government's sovereign immunity for civil damages lawsuits against

the United States 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. § 1346(b). The statute defines "employee of

the government" as including "members of the military or naval

forces of the United States." For military personnel, "[a]cting

within the scope of ... employment" means acting in "line of duty."

Id. "Line of duty," in turn, draws its meaning from the applicable

state law of respondeat superior, Williams v. United States, 350

U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam), taking

into account the special factors and characteristics of military

activity and discipline. See, e.g., Bettis v. United States, 635

F.2d 1144, 1147 (5th Cir. Unit B 1981); Hinson v. United States,

257 F.2d 178, 181 (5th Cir.1958).2
 Since Williams' alleged negligence occurred in Georgia, we

look to Georgia's law of respondeat superior. While respondeat

superior is a slippery concept that eludes precise, universal

definition, Georgia courts will hold an employer responsible for

the conduct of its employee if the employee acted in the course of

the employer's business and with a desire to benefit the employer.

See Green, 954 F.2d at 698 (noting that, under Georgia law, "[t]he

tort of an employee is within the scope of his employment if it is

done in furtherance of his employer's business"); Wallace v. ARA

Servs., Inc., 365 S.E.2d 461, 463 (Ga.Ct.App.1988); Wittig v. Spa

Lady, Inc., 356 S.E.2d 665, 666 (Ga.Ct.App.1987); Southern Bell

Tel & Tel Co. v. Sharara, 167 Ga.App. 665, 307 S.E.2d 129, 131

(1983). By contrast, when an employee undertakes an act purely

personal in nature, no respondeat superior liability may be

imposed. Green, 954 F.2d at 698; see Worstell Parking, Inc. v.

Aisida, 212 Ga.App. 605, 442 S.E.2d 469, 470-71 (1994) (refusing to

hold employer liable for acts of a parking attendant who struck a

customer with a stick, and concluding that the employee's

"altercation with plaintiff and her boyfriend appears to have been

purely personal and not for any purpose beneficial to defendant");

Wallace, 365 S.E.2d at 463 (refusing to hold employer liable for

injuries resulting from an employee's unauthorized use of a company

van for personal errands); Wittig, 356 S.E.2d at 666 (finding that

employee who forged a purported customer's signature on a company

contract acted outside the scope of her employment). The question

of whether a given act falls within the scope of employment is

highly fact-specific, and turns on the unique circumstances of the
case at bar. See, e.g., Wallace, 365 S.E.2d at 463.

At the outset, Bennett seems to suggest that each and every

act by a military employee in or around military housing

necessarily falls within the scope of a soldier's employment. She

describes a military base as a "special type of business locale"

that is "open for business" at all times. She further maintains

that since soldiers may be called to duty on a moment's notice, all

of their activities relate to or are limited by their employer's

purpose. These arguments are unpersuasive.

 We are aware of no case law from this Circuit or elsewhere to

support so sweeping an application of respondeat superior under the

FTCA. To begin with, a great many acts by military personnel who

reside on base may be sufficiently outside the scope of their

employment to preclude vicarious liability on the part of the

Government. In Bettis v. United States, for example, the former

Fifth Circuit held that an off-duty Army soldier who caused an

accident while driving an Army vehicle off-base was not acting

within the scope of his employment. The soldier had driven the

vehicle to a nearby party. A superior officer attending the party

gave the soldier permission to drive the vehicle back to his

barracks. The soldier understood, however, that he was not

permitted to take the vehicle off base at any time without

permission. Nevertheless, after returning to his quarters, he used

the vehicle to drive to a neighboring town to see a girlfriend.

The accident occurred during this frolic. The district court

entered summary judgment in favor of the Government, holding that

the soldier had used the vehicle without authority and for his own
 3

Bennett cites the Second Circuit's opinion in Taber v.

Maine, 67 F.3d 1029 (2nd Cir.1995), for the proposition that the

military's pervasive control over the activities of its personnel

personal reasons. The former Fifth Circuit affirmed, holding that

since the soldier's "trip from beginning to end was totally

unauthorized, he was not acting in the scope of his employment."

Id. at 1148. As Bettis suggests, evidence that a negligent act is

attributable to a soldier who lives in military housing may be

insufficient to support the imposition of respondeat superior

liability.

Dictum from the United States Supreme Court's opinion in

Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101

L.Ed.2d 352 (1988) underscores this conclusion. Sheridan concerned

a serviceman who impermissibly kept a rifle and ammunition in his

barracks at a Navy medical center. After becoming intoxicated, the

serviceman walked to the edge of the base and began shooting at

passing vehicles on a public street. In the course of its opinion,

the Court remarked that the serviceman's conduct, standing alone,

did not provide a basis for imposing liability on the United

States, even though the tortfeasor lived in military housing and

committed his tortious acts while on base property. The Court

stressed that the "tortious conduct of an off-duty serviceman, not

acting within the scope of his employment, does not in itself give

rise to Government liability...." Id. at 401, 108 S.Ct. at 2455.

Sheridan, like Bettis, suggests that even if the alleged tortfeasor

is a member of the military, and commits the allegedly negligent

act on base property, it may not follow that the soldier has acted

within the scope of his employment.3
supports a broad application of respondeat superior. Taber, an

FTCA case arising under Guam and California law, involved an

off-duty soldier who became intoxicated after drinking alcoholic

beverages at several base parties and on-base recreation centers. 

The soldier subsequently struck and injured another soldier while

driving a vehicle off-base in search of a late-night snack. In

reversing the district court's finding that the intoxicated

soldier had not been acting within the scope of his employment at

the time of the accident, the Second Circuit explained that,

under California law, respondeat superior liability is proper

whenever the employee's "conduct is not so unusual or startling

that it would seem unfair to include the loss resulting from it

among other costs of the employer's business." Id. at 1036-37

(citation and emphasis omitted). The panel treated the damage

resulting from the intoxicated soldier's conduct as one of the

"costs of base operations" properly allocable to the Government,

especially since the military's "fairly lenient on-base drinking

policies" benefitted its interest in boosting soldiers' morale. 

Id. at 1037. Taber acknowledges the expansive nature of

California's respondeat superior law. Id. at 1034-35. But even

if we were to assume that the standard applied in Taber could be

squared with the more limited reach of the doctrine in Georgia,

the Second Circuit's opinion provides little guidance on the

issue before us. In particular, the Army did not provide

Williams with the weapon used to injure Bennett, or in any way

encourage or facilitate his acquisition, retention or concealment

of the gun. 

 There is no dispute that Williams was off-duty at the time of

the alleged incident. There is also no dispute that Williams

visited Risby's quarters on the night of January 14, 1993 for

purely personal reasons unrelated to his responsibilities as a

soldier. As the district court observed, Williams' subsequent

discussions with Risby and Bennett about which night club to visit

"fail to bear even the faintest connection with his duties as an

employee of the United States Army." Nor can Williams' possession

or concealment of the firearm prior to or during the night of

January 14th be linked in any way to his duties as a member of the

armed forces. In a statement given to military authorities,

Williams acknowledged that he carried the gun "just for common

practice. With all the things going on you never know who or what
you are going to run into." R3-Exh. 1. Quite simply, none of

Williams' acts on the evening of the shooting furthered, or were

intended to further, his employer's purpose.

 Bennett nevertheless argues that since Williams' possession

of the handgun implicated a base regulation that imposed certain

affirmative duties on him, his obligation to discharge those duties

may be considered within the scope of his employment. Bennett

contends that the United States' "employee's actions, in

possessing, carrying and concealing a personal firearm, were in

violation of Fort Gordon security regulations.... [and] suggests

the existence of vicarious liability." Appellant's Br. at 12.

Fort Gordon regulation 210-13, which relates to the "Control of

Firearms, Ammunition, and Other Dangerous Weapons," expressly

limits the kind of weapons that may be brought onto the

installation. Among other things, the regulation requires that all

privately-owned weapons be registered with the Provost Marshal's

office within three days after arrival on the base, subject to

certain exceptions not applicable here. R3-Exh. 4. The regulation

also forbids the carrying of concealed weapons. Violators of the

regulation are subject to military punishment.

As support for her position, Bennett places great emphasis on

the Ninth Circuit's analysis in Lutz v. United States, 685 F.2d

1178 (9th Cir.1982). In Lutz, the plaintiffs sought to hold the

Government liable for injuries attributable to an Air Force soldier

who failed to properly control his dog. Soldiers living in base

housing were permitted to own pets, but were required to comply

with a base regulation that directed pet owners to control their
animals. The Plaintiffs alleged that the soldier's negligent

handling of his dog allowed the dog to attack a small girl playing

in a nearby yard. The district court found that, by bringing his

pet on base, the soldier did not act in the line of duty, but

rather for his own benefit. As a result, the court concluded, no

respondeat superior liability could be imposed under the FTCA. On

appeal, the Ninth Circuit reversed, holding that since the soldier

"was delegated a specific military duty, the performance of which

furthered the interests of the Air Force," he acted in the line of

duty and within the scope of his employment. Id. at 1183. In

reaching this conclusion, the Ninth Circuit acknowledged that not

"every act of a base resident is within the scope of his

employment." Id. It nevertheless suggested that "[m]ilitary

housing presents a unique situation. Unlike employees and

residents of cities and towns, the employment relationship of

residents of military bases continues even during the off-duty,

at-home hours." Id.

The holding in Lutz has been rejected by three of our sister

Circuits and several district courts. See Chancellor v. United

States, 1 F.3d 438 (6th Cir.1993); Piper v. United States, 887

F.2d 861 (8th Cir.1989); Nelson v. United States, 838 F.2d 1280

(D.C.Cir.1988); Stanley v. United States, 894 F.Supp. 636

(W.D.N.Y.1995); Brotko v. United States, 727 F.Supp. 78

(D.R.I.1989). These opinions recognize that some regulations

governing the conduct of military personnel simply do not impose

requirements within a soldier's "scope of employment." In Nelson,

for example, the court considered a regulation almost identical to
the one at issue in Lutz. The regulation required pet owners to

control the animals they kept on the base. Plaintiffs alleged that

an Air Force soldier living on the base failed to prevent his dog

from attacking a neighboring child. The district court entered

judgment against the Government, partly on a theory of respondeat

superior and relying heavily on Lutz. The Court of Appeals

affirmed the judgment, but rejected the district court's respondeat

superior analysis. In so doing, it criticized the Ninth Circuit's

reasoning:

Under Lutz, all duties imposed by military regulation, no

matter how trivial, could fall within the employer-employee

relationship. In the unique context of life on a military

base, however, the government is much like an old-fashioned

"company town." Within this multi-faceted relationship, the

military imposes duties on personnel, not all of which are

plausibly viewed as imposed by the government in its role as

employer.... Because such duties, although established by

military regulations, do not run to the benefit of the

employer and are linked only incidentally with the employment

relationship, they cannot be said to be discharged within the

scope of employment.

Id. at 1283-84. The court added that the Ninth Circuit's opinion

provided no limiting principle on the Government's vicarious

liability, effectively making the United States an insurer for an

entire universe of bizarre accidents that might occur on a military

installation:

Military regulations typically govern a wide range of base

residents' activities, touching most aspects of private and

public life. To hold the government potentially liable for

all damage done on a military base that violates any one of

the many base regulations would expand liability in ways

inconsistent with the idea that the FTCA must be strictly

interpreted as a limited relinquishment of sovereign immunity.

Id. at 1284.

To the extent that Lutz can be read to suggest that every duty

imposed by base regulations falls within the employer-employee
relationship as a consequence of the military's pervasive interest

in fostering order and discipline, we think the Ninth Circuit's

opinion sweeps too broadly. Lutz imposes on the United States a

risk of respondeat superior liability far beyond that of its

private employer counterparts. We need not equate military housing

with a "company town" to recognize that while providing on-site

residences for soldiers may foster camaraderie, encourage

discipline and facilitate rapid mobilization in the event of a

crisis, it does not draw the entire panoply of soldiers' on-base

activities within the ambit of the employment relationship. The

connection between military service and trivial or housekeeping

regulations that benefit the military's purpose only in an indirect

sense may be far too tenuous to trigger vicarious liability under

the FTCA. And while Bettis, Hinson and other Circuit precedents do

suggest that the concept of "scope of employment" must be tailored

to the "special factors and characteristics of military activity

and discipline," these opinions nevertheless confirm that Congress,

when it waived the United States' sovereign immunity for FTCA

lawsuits, did not intend to sever the concept of respondeat

superior liability from its common law moorings. See 28 U.S.C. §

2674 (providing that the "United States shall be liable ... in the

same manner and to the same extent as a private individual under

like circumstances").

It follows that the existence of a base regulation governing

the manner and method of Williams' personal possession of the

handgun does not draw compliance with that regulation within the

scope of his employment. The regulation at issue in this case,
which pertains to private weapons that individuals may elect to

bring onto the base, bears a highly attenuated relationship to the

Army's purpose. Notably, the regulation applies not just to

soldiers, but rather to all individuals on the premises of Fort

Gordon. At the same time, the regulation does not apply to

servicemen who keep weapons off-base. The existence of the

regulation cannot, standing alone, convert a soldier's private act

of carrying a personal firearm into conduct somehow designed to

further or benefit his employer's purpose.

Our conclusion is not inconsistent with the former Fifth

Circuit's opinion in Craft v. United States, 542 F.2d 1250 (5th

Cir.), reh'g denied, 546 F.2d 906 (1977). Craft concerned an Army

soldier who inadvertently injured the child of a neighboring family

while mowing the lawn surrounding his assigned residence at a

military installation in Alabama. The soldier had been given

on-post housing in a multi-unit complex where the child lived with

his parents. Upon taking up residence, the soldier was advised

that he would be required to maintain the grounds immediately

surrounding his apartment. Base regulations governed the manner

and method by which the soldier was expected to maintain the lawn.

The soldier was given verbal and written instructions regarding

lawn care, and his yard work was inspected by Army officials. It

was in the midst of cutting his assigned portion of the lawn that

the soldier struck the child with the lawn mower.

The child and her parents thereafter filed suit against the

Government under the FTCA. The Government moved for summary

judgment, arguing that the soldier was not acting in the "line of
duty" at the time of his allegedly negligent conduct. The district

court agreed, and entered judgment in favor of the United States.

On appeal, however, the former Fifth Circuit reversed, holding that

the soldier was acting within the scope of his employment. The

panel explained that, under Alabama law, an employer may be liable

for acts committed "in or about the business or duties assigned to

him by his employer." Id. at 1254 (citing Wells v. Henderson Land

& Lumber Co., 200 Ala. 262, 76 So. 28, 29 (1917)). The court then

reiterated that the soldier undertook the task of mowing the lawn

pursuant to the command of base regulations and his superior

officers:

At the time of Child's injury, Soldier was performing a

specific duty which had been assigned to him—to cut his

portion of the lawn, was receiving a Governmental subsidy

through his living quarters, was subject to military

discipline, and was not on leave. Soldier's only choice was

the immaterial one of which type of Government permitted

mowing device he would use. Under Alabama law, once it is

recognized that Soldier was performing a duty specifically

assigned to him, the necessary conclusion is, and we hold as

a matter of law, that Soldier was acting within the scope of

his employment.

Id. at 1256.

The critical difference here is that, unlike the soldier in

Craft, who was required by specific regulation to mow the lawn

surrounding his quarters, Williams was not compelled in any sense

to own or bring onto the base a private weapon. Williams made a

voluntary decision to subject himself to the strictures of the

regulation; his employer took no part in this choice. It is the

absence of any specific requirement to perform the underlying

act—the soldier's threshold decision to possess a handgun—that
 4

In a narrow sense, the soldier in Craft did have a measure

of choice. He was not required to accept the on-post living

quarters assigned to him. If he declined the offer, however, he

would have forfeited the monthly housing allowance given to armed

forces members residing in non-governmental housing. 542 F.2d at

1252. In other words, the soldier "would have no on-base housing

and no [allowance] for an off-base residence.... [T]his is truly

a Hobson's choice." Id. at n. 5. At Fort Gordon, by contrast,

the Army did not offer privileges to those soldiers who brought

privately-owned weapons on base. Nor did it threaten to penalize

those soldiers who declined to bring otherwise permissible

weapons onto the base. It is this kind of freedom of choice that

separates Craft from the case at bar. 

 5

This logic underscores our difficulty with the Ninth

Circuit's analysis in Lutz. Since no soldier was compelled to

bring a dog or other animal onto the base, it is difficult to

conceive how the regulation requiring pet owners to control their

pets created duties within the soldier's "line of duty." 

distinguishes this case from Craft.4 More to the point, the

absence of compulsion is powerful evidence that the Army did not

think its purpose furthered by the soldier's possession of a

private handgun. The fact that Fort Gordon officials thought it

advisable to promulgate certain regulations governing those

soldiers who did choose to bring approved weapons onto the base

does not convert a personal choice to bear a personal firearm while

off-duty into an act designed to further the employer's business.5

Still another former Fifth Circuit case illustrates this

principle in an analogous context. In Hinson v. United States, an

Army medical officer, while driving his personal automobile en

route to his first duty assignment, collided with another

automobile off the premises of the base, and injured that car's

passengers. The victims sued the United States under the FTCA.

The district court granted the Government's motion for summary

judgment, holding that the soldier was not acting within the scope

of his employment at the time of the accident. The Court of
Appeals reached the opposite conclusion, and reversed. In so

doing, the panel stressed that the soldier was executing an

unequivocal order that commanded him to travel to the site of his

first assignment. "He was not going to work," the court explained,

"he was [instead] engaged in the performance of one of the very

duties specifically assigned to him, receiving Army pay, subject to

military discipline and not on leave. His only choice was the

immaterial one of route and means of travel." Id. at 182. For

these reasons, the court concluded that, under Georgia law, the

soldier had acted within the scope of his employment. Id. at 183.

In Hinson, as in Craft, the United States was exposed to respondeat

superior liability precisely because the act giving rise to the

alleged negligence had been undertaken not at the discretion of the

soldier, but rather at the command of the military in order to

further its purposes. See also Hallberg v. Hilburn, 434 F.2d 90,

92-93 (5th Cir.1970) (finding that soldier acted within the line of

duty while traveling on the last leg of his journey to report to a

new assignment, even though he had taken the previous several days

off); United States v. Culp, 346 F.2d 35, 36 (5th Cir.1965) (per

curiam) (following Hinson ).

IV. Conclusion

The scope of employment doctrine, in Georgia as elsewhere,

turns on whether the employee has acted to benefit his employer's

purpose. Simply put, the existence of a base regulation implicated

by a soldier's alleged negligence does not invariably transform an

act otherwise outside the soldier's line of duty into one for which

the United States may be deemed responsible under the FTCA. The
 6

Bennett's suggestion that the Army's failure to "properly

enforce the regulations constitutes negligence" and is "at the

very least, [a] question[ ] of fact for a jury," Appellant's Br.

at 19-20, is unpersuasive. There is no evidence in the record

tending to establish that the Government failed to enforce the

registration requirement, let alone that it knew prior to the

night of the shooting that Williams possessed an unregistered

weapon. There is no evidence suggesting that the Government was

negligent in its supervision of Risby's barracks on the night in

question. And there is no evidence on which a reasonable jury

could hold the Government vicariously liable for acts of Risby

and Williams immediately after the shooting that inadvertently

may have exacerbated Bennett's condition.

In her brief, Bennett argues that Williams' violation

of regulation 210-13 constituted negligence per se under

Georgia law. Since we find that the district court properly

concluded that the United States cannot be held directly or

vicariously liable to her under the FTCA, we need not

address whether Williams' conduct was negligent within the

meaning of the Act. 

key inquiry remains whether the regulation imposes duties that

directly and substantially serve the military's purpose. We

conclude, therefore, that the district court properly held that

Williams' conduct on the night of January 14, 1993 cannot be the

basis for vicarious liability under Georgia's law of respondeat

superior. Williams' activities on that evening were unrelated to

any employment relationship with the military, and were not

undertaken to further his employer's business. Since the district

court did not err in rejecting the other theories that Bennett

proffered in support of her claim, the decision below is

AFFIRMED.6