Failure To Prevent Battery
In the Supreme Court of the United States
TANYA ENGLISH, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
THEODORE B. OLSON
Solicitor General
Counsel of Record
STUART E. SCHIFFER
Acting Assistant Attorney General
ANTHONY J. STEINMEYER
E. ROY HAWKENS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether a plaintiff can avoid the statutory bar under the Federal Tort
Claims Act on recovery for claims arising out of assault and battery, 28
U.S.C. 2680(h), by pleading that the government was negligent in supervising
the government employee who committed the assault or battery.
2. Whether under Virginia law the government had a duty to prevent an off-duty
service member, who was not on military premises, from committing a battery
upon the plaintiff.
In the Supreme Court of the United States
No. 00-1898
TANYA ENGLISH, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-2a) is unpublished, but
the decision is noted at 238 F.3d 411 (Table). The opinion of the district
court (Pet. App. 3a-14a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on December 20, 2000. A
petition for rehearing was denied on March 20, 2001 (Pet. App. 15a-16a).
The petition for a writ of certiorari was filed on June 18, 2001. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
This is an action under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b),
2671 et seq. (1994 & Supp. V 1999), alleging that the United States
negligently failed to prevent a battery upon petitioner by her husband,
Michael A. English. Petitioner alleges that English, who was a Navy petty
officer stationed in Chesapeake, Virginia, shot her with a gun and then
turned the
gun on himself and committed suicide. Pet. App. 3a-4a. The incident occurred
shortly after midnight in the Englishes' off-base residence when English
was off duty. Pet. 8; C.A. App. 5. Petitioner further alleges that on several
occasions she requested English's supervisors to order him to undergo counseling
because of his suicidal ideations, violent temper, and mood swings. Pet.
App. 3a-4a. Petitioner claims that the government negligently failed to
control or counsel English. Id. at 8a. She also argues that because English's
violent outbursts led the Navy to suspend him from participating in intramural
basketball games, the Navy took charge of English, so as to render it liable
for negligence under Virginia law. Id. at 9a-10a.
The district court granted the government's motion to dismiss. Pet. App.
3a-14a. It held (id. at 6a-8a)
that petitioner's claim was barred by the exception to the FTCA excluding
coverage for "[a]ny claim arising out of assault [or] battery."
28 U.S.C. 2680(h). Alterna-tively, the district court held that the government
was not liable under Virginia law for English's conduct because the Navy
lacked a "special relation" to English that would impose a duty
on it to control his behavior. Pet. App. 9a-13a.
The court of appeals affirmed on the reasoning of the district court in
an unpublished opinion. Pet. App. 1a-2a.
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of this Court. Every court of appeals that has considered the
issue except the Ninth Circuit has held that a plaintiff cannot avoid the
FTCA's bar on recovery for claims arising out of assault or battery by pleading
that the government negligently supervised the assailant. Although a circuit
split exists on this issue, the unpublished decision below does not deepen
the split. Moreover, this case is not an appropriate vehicle to resolve
the conflict because there is an adequate state-law ground supporting the
judgment.
1. The FTCA provides the exclusive remedy for tort actions against the United
States, but only to the limited extent that the FTCA clearly and explicitly
waives sovereign immunity. 28 U.S.C. 2679(a) and (b)(1). In providing this
remedy, Congress expressly barred recovery for a number of intentional torts,
including "[a]ny claim arising out of assault [or] battery." 28
U.S.C. 2680(h).1
This Court considered the scope of the intentional tort exception in Sheridan
v. United States, 487 U.S. 392 (1988). Contrary to petitioner's suggestion
(Pet. 4), Sheridan did not hold or even suggest that a plaintiff may circumvent
the statutory bar on recovery for injuries arising out of an assault or
battery by pleading that the United States was negligent in supervising
the assailant.2 In Sheridan, this Court held that claims based on an independent
duty, such as a duty to protect a victim or a good-samaritan duty, are not
barred by the assault and battery exception where the assailant (1) is not
a federal employee or (2) is a federal employee acting outside the scope
of his employment. 487 U.S. at 400-401. Notably, the majority expressly
declined to consider whether claims based on an employment relationship
(negligent hiring, supervision, or training) are barred by the assault and
battery exception. Id. at 403 n.8. In a concurring opinion, Justice Kennedy
explained that he would have reached the reserved question and would have
held that a plaintiff may not maintain a claim based only on the employment
relationship between the intentional tortfeasor and
the government. Id. at 408 (Kennedy, J., concurring). Thus, there is no
conflict between the decision below and the decision of this Court in Sheridan.
With the exception of the Ninth Circuit, every court of appeals that has
considered the issue since Sheridan has held, consistent with the decision
of the Fourth Circuit below, that the statutory bar on recovery for claims
arising out of assaults and batteries cannot be circumvented by pleading
that the assault or battery that injured the plaintiff was caused by the
government's negligent supervision. See, e.g., Billingsley v. United States,
251 F.3d 696, 698 (8th Cir. 2001) (barring claim of negligent supervision
of a Job Corps enrollee if the battery he committed occurred within the
scope of his employment and government did not breach a duty unrelated to
employment relationship); Leleux v. United States, 178 F.3d 750, 757 (5th
Cir. 1999) (barring claim of negligence against United States in seduction
of recruit by Navy serviceman because negligence
did not arise out of "an independent, antecedent duty unrelated to
the employment relationship between
the tortfeasor and the United States"); Perkins v. United States, 55
F.3d 910, 916-917 (4th Cir. 1995) (rejecting "negligent supervision"
and "negligent retention" claims); Franklin v. United States,
992 F.2d 1492, 1498-1499 (10th Cir. 1993) (barring claim of negligence against
United States in case of medical battery by VA hospital employee because
claim was contingent on employment relationship); Guccione v. United States,
847 F.2d 1031, 1034 (2d Cir. 1988) (barring claim that United States was
negligent in failing to supervise undercover agent because claim was not
independent of employment relationship), cert. denied, 493 U.S. 1020 (1990).
These decisions are consistent with pre-Sheridan decisions of numerous courts
of appeals. See, e.g., Thigpen v. United States, 800 F.2d 393, 395-396 (4th
Cir. 1986) (barring assertion of a negligent supervision claim against United
States by children who were sexually assaulted by naval hospital employee);
Hoot v. United States, 790 F.2d 836, 838 (10th Cir. 1986) (dismissing suit
alleging that assault occurred because of government negligence in denying
soldier's request for mental examination and treatment); Metz v. United
States, 788 F.2d 1528, 1534 (11th Cir.) (holding that negligence claim arose
out of excepted claim where underlying conduct, which constituted intentional
tort, essential to claim), cert. denied, 479 U.S. 930 (1986); Johnson v.
United States, 788 F.2d 845, 850-854 (2d Cir.) (dismissing suit alleging
that assault occurred because of government negligence in employment and
supervision of postal employee who assaulted infant), cert. denied, 479
U.S. 914 (1986); Garcia v. United States, 776 F.2d 116, 118 (5th Cir. 1985)
(dismissing claim of negligent supervision of military recruiter who sexually
assaulted a prospective recruit).
As noted, however, the Ninth Circuit has held that the statutory bar on
recovery for claims arising out of assaults and batteries can be avoided
by pleading that the assault or battery that injured the plaintiff was caused
by the government's negligent supervision
or hiring. See Senger v. United States, 103 F.3d 1437, 1442 (9th Cir. 1996)
(jurisdiction over negligent hiring and supervision claims); Brock v. United
States, 64 F.3d 1421, 1425 (9th Cir. 1995) (same); see also Bennett v. United
States, 803 F.2d 1502, 1503-1504 (9th Cir. 1986) (negligent hiring and supervision).3
2. This case is not an appropriate vehicle for this Court to resolve this
conflict between the Ninth Circuit and the other courts of appeals that
have considered the question. The unpublished opinion below does not contribute
to the split, and an adequate state-law ground supports the judgment. The
FTCA provides that the tort law of the state where the act or omission occurred
governs liability. 28 U.S.C. 1346(b) (1994 & Supp. V 1999). The Fourth
Circuit correctly held that even if petitioner could state a claim that
was not barred by Section 2680(h), she would have no cause of action because
Virginia law does not impose a duty on the Navy to control English's off-duty
actions to prevent him from harming others by the battery alleged. Pet.
App. 9a-13a.
Following the Restatement (Second) of Torts §§ 315, 319 (1965),
the Virginia Supreme Court has held that a person ordinarily has no duty
to control a third person to prevent harm to another. Marshall v. Winston,
389 S.E.2d 902, 904 (Va. 1990). This general rule does not apply, however,
if there is (1) a "special relation" between the defendant and
the third party which imposes a duty on the defendant to control the conduct
of the third party, or (2) a "special relation" between the defendant
and the plaintiff which imposes a duty on the defendant to protect the plaintiff.
Ibid. The requisite special relation exists if the defendant takes charge
of or exercises control over the third party whom he knew or should have
known to be likely to cause bodily harm to another. Nasser v. Parker, 455
S.E.2d 502, 504-505 (Va. 1995). The Virginia Supreme Court has construed
the "taking charge" requirement narrowly, holding that the mere
existence of an employer-employee relationship does not suffice. See Chesapeake
& Potomac Tel. Co. v. Dowdy, 365 S.E.2d 751, 754 (Va. 1988). See also
Fox v. Custis, 372 S.E.2d 373, 376 (Va. 1988) (holding parole officers did
not take charge of parolee); Wise v. United States, 8 F. Supp. 2d 535, 549
(E.D. Va. 1998) (holding government had no special relation that would give
rise to duty under Virginia law to control the off-duty conduct of service
members).
This Court "do[es] not normally disturb an appeals court's judgment
on an issue so heavily dependent
on analysis of state law." UNUM Life Ins. Co. of Am. v. Ward, 526 U.S.
358, 368 (1999) (citing Runyon v. McCrary, 427 U.S. 160, 181-182 (1976)).
Moreover, this Court generally defers to the lower federal courts' interpretations
of state law. Propper v. Clark, 337 U.S. 472, 486-487 (1949) ("In dealing
with issues of state law that enter into judgments of federal courts, we
are hesitant to overrule decisions by federal courts skilled in the law
of particular states unless their conclusions are shown to be unreasonable.").
Accordingly, the district court properly dismissed petitioner's complaint
because it did not state a claim under Virginia law. That state-law ground,
upheld by the court of appeals, adequately supports the judgment. Certiorari
is therefore inappropriate to consider the alternative federal-law ground
that Section 2680(h) bars jurisdiction over this case because it arises
out of an assault or battery.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
THEODORE B. OLSON
Solicitor General
STUART E. SCHIFFER
Acting Assistant Attorney General
ANTHONY J. STEINMEYER
E. ROY HAWKENS
Attorneys
AUGUST 2001
1 Section 2680 provides, "The provisions of this chapter and section
1346(b) of this title shall not apply to * * * [a]ny claim arising out of
assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or interference
with contract rights." 28 U.S.C. 2680(h).
2 In United States v. Shearer, 473 U.S. 52, 55 (1985), the opinion of the
four Justices who reached the issue specifically rejected this theory by
stating that a plaintiff:
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.
Three Justices concurred in the judgment and the remainder of the opinion,
but did not join this part of the opinion. Justice Marshall concurred in
the judgment only. Justice Powell took no part in the decision.
3 A separate line of cases holds that the government's negligent breach
of an independent, antecedent duty to protect the victim, as distinct from
a duty to control the assailant, states a claim under the FTCA. See, e.g.,
Bembenista v. United States, 866 F.2d 493, 498 (D.C. Cir. 1989) (breach
of duty to protect blind, comatose hospital patient from sexual assault);
Doe v. United States, 838 F.2d 220, 224 (7th Cir. 1988) (breach of duty
to supervise children in government daycare). Although petitioner asserts
that the government breached a duty to protect her (Pet. 4), she does not
contend that the government owed any special duty to her, as distinct from
any other member of the public. Rather, she argues only that the government
had a duty to control English to prevent him from harming anyone. See Pet.
4-9.
