1

Appendix to opinion of BRENNAN, J., dissenting

47. Act of Mar. 2, 1897, 29 Stat. 619, 48 U. S. C. § 1506. 48. Interstate Commerce Act, 49 U. S. C. § 11708(c). 49. Household Goods Transportation Act of 1980, 94 Stat. 2016, as amended, 49 U. S. C. §§ 11711(d) and (e).

C. "Costs and Expenses, Including Attorney's Fees" 1. Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 88 Stat. 2189, 15 U. S. C. § 2310(d)(2).

2. Multiemployer Pension Plan Amendments Act of 1980, 94 Stat. 1263, 29 U. S. C. § 1451(e).

3. Federal Mine Safety and Health Act of 1977, 91 Stat. 1303, 92 Stat. 183, 30 U. S. C. §§ 815(c)(3), 938(c). 4. Surface Mining Control and Reclamation Act of 1977, 91 Stat. 511, 520, 30 U. S. C. §§ 1275(e), 1293(c). 5. Uniform Relocation Assistance and Real Property Acquisition Policies Act, 84 Stat. 1906, 42 U. S. C. §§ 4654(a) and (c).

6. Nuclear Regulatory Commission Appropriations Authorization of 1978, 92 Stat. 2953, 42 U. S. C. § 5851(e)(2).

7. Railroad Revitalization and Regulatory Reform Act of 1976, 90 Stat. 122, as amended, 45 U. S. C. § 854(g).

UNITED STATES v. SHEARER, INDIVIDUALLY AND AS ADMINISTRATRIX FOR THE ESTATE OF SHEARER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 84-194. Argued February 25, 1985-Decided June 27, 1985 Respondent's decedent, her son who was an Army private, was off duty at Fort Bliss and away from the base when he was kidnaped and murdered by another serviceman, who was convicted of the murder in a New Mexico court and who had also been convicted by a German court of manslaughter in 1977 while assigned to an Army base in Germany. Respondent brought this action against the Government in Federal District Court under the Federal Tort Claims Act (Act), claiming that the Army's negligence caused her son's death. Respondent alleged that, although the Army knew that the other serviceman was dangerous, it "negligently and carelessly failed to exert a reasonably sufficient control over" him, "failed to warn other persons that he was at large, [and] negligently and carelessly failed to . . . remove [him] from active military duty." The District Court granted summary judgment for the Government, but the Court of Appeals reversed, concluding, inter alia, that Feres v. United States, 340 U. S. 135-which held that a soldier may not recover under the Act for injuries that "arise out of or are in the course of activity incident to service," id., at 146-did not bar respondent's suit. Held: Recovery under the Act is barred by the Feres doctrine, which is based, inter alia, on the special relationship of the soldier to his superiors, the effects of the maintenance of suits under the Act on discipline, and the extreme results that might obtain if such suits were allowed for negligent orders given or negligent acts committed in the course of military duty. The Court of Appeals erroneously placed great weight on the fact that respondent's son was off duty and away from the base when he was murdered; the situs of the murder is not nearly as important as whether the suit requires the civilian court to second-guess military decisions, and whether the suit might impair essential military discipline. Respondent's complaint strikes at the core of these concerns; her allegations go directly to the "management" of the military, calling into question basic choices about the discipline, supervision, and control of a serviceman. To permit this type of suit would mean that commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions. Nor is the Feres doctrine rendered inapplicable by respondent's focusing only

on this case with a claim of negligence, and by characterizing her claim as a challenge to a "straightforward personnel decision." By whatever name it is called, it is a decision of command. Pp. 57-59.

723 F. 2d 1102, reversed.

BURGER, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-B, and III, in which BRENNAN, WHITE, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined, and an opinion with respect to Part II-A, in which WHITE, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN and STEVENS, JJ., joined, post, p. 59. MARSHALL, J., filed an opinion concurring in the judgment, post, p. 60. POWELL, J., took no part in the decision of the case.

Deputy Solicitor General Geller argued the cause for the United States. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Willard, David A. Strauss, Anthony J. Steinmeyer, and Robert V. Zener. William T. Cannon argued the cause and filed a brief for respondent.

CHIEF JUSTICE BURGER delivered the opinion of the Court, except as to Part II-A.

We granted certiorari to decide whether the survivor of a serviceman, who was murdered by another serviceman, may recover from the Government under the Federal Tort Claims Act for negligently failing to prevent the murder.

I

Respondent is the mother and administratrix of Army Private Vernon Shearer. While Private Shearer was off duty at Fort Bliss and away from the base, he was kidnaped and murdered by another serviceman, Private Andrew Heard. A New Mexico court convicted Private Heard of Shearer's murder and sentenced him to a term of 15 to 55 years' imprisonment.

Respondent brought this action under the Federal Tort Claims Act, 28 U. S. C. §§ 1346(b) and 2671 et seq., claiming

Opinion of BURGER, C. J.

473 U. S.

that the Army's negligence caused Private Shearer's death. Respondent alleged that Private Heard, while assigned to an Army base in Germany in 1977, was convicted by a German court of manslaughter and sentenced to a 4-year prison term. Upon his discharge from that confinement in Germany, the Army transferred Private Heard to Fort Bliss. Respondent alleged that, although the Army knew that Private Heard was dangerous, it "negligently and carelessly failed to exert a reasonably sufficient control over” him and "failed to warn other persons that he was at large." App. 14.

The United States District Court for the Eastern District of Pennsylvania granted summary judgment in favor of the Government. The Court of Appeals reversed. 723 F. 2d 1102 (CA3 1983). The court held that Feres v. United States, 340 U. S. 135 (1950), did not bar respondent's suit because "[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." 723 F. 2d, at 1106. The court also held that respondent's suit was not precluded by the intentional tort exception to the Act, 28 U. S. C. § 2680(h). The Court of Appeals noted that respondent's complaint alleged negligence 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." Id., at 1107.'

We granted certiorari. 469 U. S. 929 (1984). We

reverse.

II
A

The Federal Tort Claims Act's waiver of sovereign immunity does not apply to "[a]ny claim arising out of assault [or] battery," 28 U. S. C. § 2680(h), and it is clear that re

'Judge Garth dissented on the ground that respondent's claim is barred by Feres and the intentional tort exception to the Act.

52

Opinion of BURGER, C. J.

spondent's claim arises out of the battery committed by Private Heard. No semantical recasting of events can alter the fact that the battery was the immediate cause of Private Shearer's death and, consequently, the basis of respondent's claim.

Respondent cannot avoid the reach of § 2680(h) by framing her complaint in terms of negligent failure to prevent the assault and battery. Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery. We read this provision to cover claims like respondent's that sound in negligence but stem from a battery committed by a Government employee. Thus "the express words of the statute" bar respondent's claim against the Government. United States v. Spelar, 338 U. S. 217, 219 (1949).

The legislative history of § 2680(h), although sparse, is entirely consistent with our interpretation. There is no indication that Congress distinguished between "negligent supervision" claims and respondeat superior claims, with only the latter excluded under the Act. Instead it appears that Congress believed that § 2680(h) would bar claims arising out of a certain type of factual situation-deliberate attacks by Government employees. For example, Congress was advised by the Department of Justice that the exception would apply "where some agent of the Government gets in a fight with some fellow . . . [a]nd socks him." Tort Claims: Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., 33 (1942).

It is clear that Congress passed the Tort Claims Act on the straightforward assurance that the United States would not be financially responsible for the assaults and batteries of its employees. See Tort Claims Against the United States: Hearings on S. 2690 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 3d Sess., 39 (1940). No one suggested that liability would attach if the Government negligently failed to supervise such an assailant.