SHERIDAN v. UNITED STATES

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ORAL ARGUMENT OF MICHAEL J. KATOR, ESQUIRE ON BEHALF OF THE PETITIONERS

Chief Justice William H. Rehnquist: We will hear argument now in No. 87-626, Michael Sheridan against the United States.

We will wait just a moment, Mr. Kator, until the Court clears.

0....

Very well, Mr. Kator.

You may proceed whenever you are ready.

Mr. Kator: Thank you, Mr. Chief Justice, and may it please the Court, this statutory construction case presents the question of whether Congress intended that the intentional tort exception of the Federal Tort Claims Act would preclude all suits from which the government negligently failed to prevent an employee from committing an intentional tort.

The court below held that this is in fact what Congress intended.

Thus the Court below sanctioned a construction that would, for example, absolve the government of its negligence in allowing a child at a federally run day care center to be molested if the assailant happened to be a federal employee, or indeed if the victim couldn't prove that the assailant was other than a federal employee.

This construction would also absolve the government of liability for injuries resulting from a weapon possessed in contravention of a federal hospital's regulations if the injuries happened to be intentionally inflicted and if the assailant happened to be a federal employee.

This construction cannot be correct.

Congress could not have intended the government's liability to hinge on such fortuitous circumstances.

It could not have intended to create the fine spun and capricious distinctions which this construction requires.

Unidentified Justice: Would that necessarily follow?

I mean, in the day care center cases couldn't you say that the distinction turns on whether the obligation to the plaintiff arises from the government's status as an employer, or rather arises from the government's status as the runner of the center?

Wouldn't that be enough to throw one case into one category and the employment cases into another?

Mr. Kator: Certainly, Your Honor.

That is essentially the position that the dissent in the Court of Appeals took.

It is also a position that the government seems to endorse.

That is that the source of the duty controls the applicability of the intentional tort exception.

In the day care center case, the government owes its duty to the children at the day care center, not because it may or may not employ the assailant, but because it has chosen to run a day care center, and if indeed they do assume this task voluntarily, then it is hornbook law that they must use due diligence in performing that duty, so yes, certainly you can more narrowly define it and say, yes, the source of the duty determines the applicability of Section 2680(h).

Unidentified Justice: You don't disagree with that?

Mr. Kator: Not at all.

That was our principal argument in the Court of Appeals.

Duties can arise in one of two says.

They can arise directly to the victim, as they did in the day care center case, where we have children and we will watch out for you, or they can arise indirectly, as they do in a case of, for example, the instances the government cites, where we have to control a mental patient who is dangerous.

The government owes that duty to whomever that mental patient may come across and injure, so it owes that duty indirectly, but either way it owes the duty to the victim, and that--

Unidentified Justice: You are talking about a duty imposed by state law now.

Mr. Kator: --Absolutely, Your Honor, not a duty which grows out of the employment, out of the fact of employment of the assailant, but simply a duty imposed by state law, or, as in the day care center case, or in our case, by the promulgation of regulations, a duty which the government imposed upon itself.

Unidentified Justice: You suggest the promulgation of regulations by the government gives rise to a source of duty independent of state law.

Even if you... it seems to me you can win this case and still not be correct on that point.

It may be that the law of Maryland would say that government regulations make someone negligent per se for violating them.

I don't know if the Federal Tort Claims Act itself creates a... imposes a duty by virtue of government regulations.

Mr. Kator: The Federal Tort Claims Act would impose duty... would impose liability on the United States if there would be liability in Maryland.

Maryland does follow the doctrine of per se negligence and holds that if regulations or statutes are adopted for the protection of person and property and they are violated, then that can give rise to an action for negligence, negligence per se.

But you're quite right in saying that the Federal Tort Claims Act does not necessarily create the negligence per se claim.

We did principally argue in the court below that it was the source of the duty that controlled, but we also argue here, as the Ninth Circuit has held, that indeed the statutory language is broader than has been attributed to it by, for example, this Court in Shearer.

The Ninth Circuit held that Congress intended to distinguish between intentional torts and negligent acts.

Intentional acts were excluded from coverage and negligent ones were included, and that is the distinction that the Ninth Circuit held, allowing claims for what are characterized as negligent supervision to go forward, while saying, no, you may not hold the government responsible under the theory of respondeat superior for the intentional torts of its agents.

Unidentified Justice: If the Ninth Circuit is completely right, then you really wouldn't be giving full meaning, it seems to me, to 2680(h).

You wouldn't need the provision that the waiver of governmental tort immunity doesn't apply as it is set forth there.

Mr. Kator: There would be a distinction between the... if I understand your comment, you are suggesting that 2680(h) is somehow broader than simply for assault.

Unidentified Justice: Well, as I understand it, it's an exception to the liability imposed by the Federal Tort Claims Act.

Mr. Kator: Yes.

Unidentified Justice: Which makes the government ordinarily liable for negligence.

Mr. Kator: Yes.

Unidentified Justice: And so if there wouldn't be liability for negligence in the first place in this situation, you wouldn't need 2680(h).

Mr. Kator: I see.

Well, Your Honor, I think again what you have to do in that respect is go back into the historical perspective and see what Congress was considering when it was enacting this particular provision.

And what it was looking at was the fact that, A, there was a distinction between negligent supervision and intentional torts, and B, many commentators, some states, were expanding the doctrine of respondeat superior to reach intentional torts simply as a matter of social policy.

And the government cites and we cite to legislative history where the committee is stating, let's take it step by step.

Let's proceed cautiously.

Let's forestall adoption of the liability for intentional torts until considerable experience is had under the Act, and we submit that what Congress was talking about there was wanting to forestall the inclusion of respondeat superior for intentional torts of government agents, and that is all they were talking about.

That is why Congress saw it was necessary to say that, because some states do allow it.

The Congress didn't have the benefit, obviously, of this Court's decision in Laird versus Nelms.

It may have assumed that these... this conduct, wrongful conduct may have been attributed to the United States.

So that, I submit, is what Congress was after in adopting that language.

We have spoken briefly about the source of duty, and we have briefed that fully.

The only other point I'd like to make about that is that it, unlike any of the analyses the government has put forward, is consistent with underlying tort law, which the Federal Tort Claims Act was modeled after, and it doesn't have the internal consistencies, it doesn't have all the exceptions popping up that we have to navigate our way around.

That is the central advantage of the scope of the duty argument.

The final point I would like to make would be just to address myself briefly to the government's argument, which is that the intentional tort exception doesn't apply when an excluded action is an essential element of the claim.

That argument is inconsistent with... first of all, it's inconsistent with Panella, which says that federal employees... non-federal employees who commit intentional torts, that is not outside the scope.

Those acts are just as essential to a claim as would be the claim of a federal employee having committed that identical assault.

It is also inconsistent with the source of the duty argument which the government endorses.

There is no reason to say that this failing to control a prisoner or mental patient and allowing him to commit assault is not an essential element of a claim for negligence.

That doesn't follow.

And another point that we raised in our brief which I think is also important here is that the government characterizes the language as, when governmental conduct is essential, an essential element, and frankly, we don't have here governmental conduct.

What we have here is conduct of an individual who happens to be a federal employee, and there is, quite obviously, a distinction between the two.

Unidentified Justice: But if he had been in a private hospital, you clearly... and had done the same things he did, and the people had failed to restrain him, you would have no action against the government, you concede, don't you, even though he is in the service?

Mr. Kator: Sure.

There would have to be a duty on the part of the government.

The duty on the part of the government here arose out of the promulgation of regulations.

It arose out of three of its agents finding this particular assailant roaming around the hospital in a drunken state, brandishing a firearm.

That's where the government's duty arose in this case.

It couldn't... you know, at least it wouldn't seem that it could arise in a private hospital with private employees with private regulations.

Certainly a claim would lie against the private hospital.

Unidentified Justice: You would have a suit against the hospital but not against--

Mr. Kator: Exactly, and if you have a suit against the hospital, the primary motivation of the Federal Tort Claims Act, as made clear in the statutory language, was to hold the United States liable in situations where it would be liable if it were a private citizen, so that is something that the government conceded in the court below, that indeed all the facts being the same here, if this were a private individual instead of the government, there would be liability, and that's crucial.

Unidentified Justice: --But that isn't... that isn't the object of the Act, to the extent it has that exception.

I mean, a private individual would be held for claims arising out of assault, battery, false imprisonment, false arrest, et cetera, all the exceptions in (h).

I mean, obviously (h) intended to do something different from what would happen to the private individual.

Isn't that right?

Mr. Kator: What I submit that (h) intended to do, Your Honor, again was to say, you may have respondeat superior liability for intentional torts in this state.

You will not have it against the United States.

We are simply not comfortable with that potentially limitless incursion of liability onto the United States.

That's what we submit.

Unidentified Justice: So you think the only effect of that language is that in all government employment situations the claim for assault by a government employee will now not be based on respondeat superior but a claim of negligent failure to supervise?

Mr. Kator: If such--

Unidentified Justice: You can bring all of those things whenever there's a government employee, so long as you allege negligent failure to supervise?

Mr. Kator: --We made two arguments.

Our first argument, that the statute is that broad, yes, that would be a viable claim.

You could say the government was negligent in failing to prevent this, and if you could prove it, if you could prove that the government was negligent, then there's no reason to suggest that Congress intended to withhold liability in that situation.

Unidentified Justice: Except when they use the term "arising out of assault", you are giving it a very, very narrow meaning.

Certainly your client's claim arises out of assault.

There is not the slightest doubt about that.

Mr. Kator: Your Honor, that's correct.

It arises out of assault, and if it were not for the fact that it also arose out of antecedent negligence, then you could say that it arose only out of assault, but--

Unidentified Justice: The statute doesn't say, "arising only out of assault".

It says, "arises out of assault".

Mr. Kator: --What the statute says is, "arising out of assault", and what arising means, if you look in the dictionary, which is the first place we must look when we are construing these statutes, arising means originate or spring up.

This claim, this injury, even, originated in the government's negligence.

That was the first step.

So if you're going to look at arising out of and focus very narrowly on exactly what the words say, then we submit it must go to the genesis of the claim, not to the immediate act which preceded the injury.

So, no, I don't see that our reading of "arising out of" is in any way inconsistent with Congress's intent or artificial in any sense.

Unidentified Justice: Had there not been an assault, there wouldn't have been any case, would there?

Mr. Kator: That's correct, Your Honor.

There's no question that the assault is a cause in fact.

Unidentified Justice: And that's arising out of.

Mr. Kator: And it is one of the elements--

Unidentified Justice: It's arising out of.

Mr. Kator: --I guess my answer to that is, it's arising out of in the... in the sense that, yes, that is a central... it's an element which is a cause in fact, but my interpretation of arising out of says, don't look at the most immediate act.

But go back and look at the genesis of the claim.

Unidentified Justice: When he was born?

Mr. Kator: Well, I'm sure that there are some limitations, Your Honor, but my point would be that we can isolate governmental conduct, which is a cause in fact of this injury, and the first negligent governmental act presumably is where the claim arises.

That may be more a semantic argument than anything else, because principally it's clear what Congress was after, if you look again in the historical perspective.

Congress was trying to forestall respondeat liability for an intentional tort, and if that is what they're doing, then it's perfectly acceptable to read "arising out of" as the genesis of which, or indeed as the Shearer court said, read it as for assault, because that is indeed what Congress was after.

I think unless the Court has any more questions I might answer, I'll just reserve my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Kator.

We will hear now from you, Mr. Wright.

ORAL ARGUMENT OF CHRISTOPHER J. WRIGHT, ESQUIRE ON BEHALF OF THE RESPONDENT

Mr. Wright: Thank you.

Mr. Chief Justice, and may it please the Court, I'd like to begin with the language of the statute, where we recently ended.

It does indeed refer to any claim arising out of battery, and I think as Justice Marshall just pointed out, without the battery in this case there would be no claim.

Certainly Mr. Carr's action in taking a rifle and shooting it at the petitioner's car is where this claim originated.

Unidentified Justice: But this isn't an action for an assault.

It's an action for negligence, and it is claimed that the... that without the negligent act there never would have been an assault.

Mr. Wright: That's right, and it's also true that without the assault, without the battery there wouldn't be a claim, either, and this Court has said and held in Block v. Neal that where a claim is an... where an action is an essential element of the claim, the claim is part--

Unidentified Justice: Did Block hold that, or did Neustadt?

Mr. Wright: --Block held that in distinguishing Neustadt.

Unidentified Justice: What do you do with the escaped mental patient, who assaults someone?

There is negligence in letting him escape, and it is perfectly clear that if he escapes, he will assault someone.

Liability or no liability?

Mr. Wright: Well, under Panella, the government is liable, or section... the intentional tort exception doesn't bar that claim.

Unidentified Justice: Why not?

Mr. Wright: Because the Court--

Unidentified Justice: Doesn't it arise out of the assault in the same way?

Mr. Wright: --The Second Circuit in 1954 essentially read the phrase "committed by a government employee" into the statute.

It is right there on Page 624 of the opinion.

The government has not quarreled with that gloss on the statute in the last 34 years.

Unidentified Justice: But at least in terms of your literal argument it is equally inconsistent with it, isn't it?

Mr. Wright: Well, that's right, and I will say that if... Mr. Kator points to a number of difficult lines that are to be drawn, all of which I would submit are caused by that gloss on the statute.

We don't think that those line drawing problems are particularly difficult.

They occur in a fairly small number of cases.

The vast bulk of cases where the government is to be held liable are intentional torts committed by employees.

If the choice is between the gloss on the statute and the words of the statute, we think it's the gloss that has to go, but we think that the statute can... that the gloss added the phrase 34 years.

I'd also, while discussing the extremely sweeping language of this statute like to point to the Court's opinion in Kosak, too, where the Court... where the whole issue, the dispute between the majority and the dissent was whether "arising in respect of" is as broad as "arising out of", which everybody agreed was simply extremely broad language.

Petitioners have made three arguments designed to evade the sweeping language of the statute, and I'd like to address each in turn.

Their broadest argument is their argument that Congress meant to bar claims involving batteries only when the plaintiff asserts that the government is liable under respondeat superior.

There is no basis for the distinction petitioners urge and that the Ninth Circuit has reasonably found.

The language of the statute arising out of, any claim arising out of assault and battery doesn't hint at a distinction between respondeat superior and negligent supervision, as four Members of this Court noted in Shearer, and as petitioners demonstrated in their brief, and noted a few minutes ago, both theories, respondeat superior and negligent supervision, were known to courts at the time the Federal Tort Claims Act was passed in 1946.

Unidentified Justice: But the gloss words "committed by a federal employee" does kind of remind us of respondeat superior, doesn't it?

Mr. Wright: Well, but of course negligent supervision claims arise most frequently for a tort committed by an employee.

Section 317 of the restatement of torts sets out the broadest case where someone can be responsible for the tort... for the intentional tort of another, and that frequently occurs when an employee is diligently supervised.

We have reprinted Section 317 in a footnote in our brief, but the language covers both.

If Congress had intended to limit it in some way, it could have done so, as the plurality noted in Shearer, by saying any claim for assault and battery, because a respondeat superior claim is a claim for the battery rather than arising out of the battery.

If that's what Congress had meant, especially since it was well known that there were these two theories at the time the Act was passed, we think Congress would have done something to make that clear, and it certainly didn't.

Unidentified Justice: Let me just go back for a second to my mental patient.

If the mental patient were a government employee, the case would be different than if the mental... both of them, assuming they're in a government hospital, and one case involves an assault by an escaped mental patient who is an employee and the other an escaped mental patient who just happens to--

Mr. Wright: Well, that's the hardest case, and that is where the line has to be drawn.

Unidentified Justice: --Would you give a different result in the two cases?

Mr. Wright: I have two responses to that.

First, if you take the gloss added in Panella seriously, as if it were really part of the statute, then in the one case where with the government employee the intentional tort exception would bar the suit, in the other case, where there's a non-employee, the intentional tort exception would not bar the suit.

That, we think, is a perfectly reasonable reading of what Congress might have meant.

After all, the Court in Panella didn't just grab committed by a federal employee out of thin air, as I might say some of the other exceptions that have been proposed do come out of thin air.

It looked at what Congress was doing in 1946, and it is true that Congress was focusing on torts committed by federal employees.

That was what was uppermost in their mind.

The postal truck hitting a pedestrian was the prime case Congress was after.

I might note that if a postal driver purposely runs over somebody, the intentional tort exception bars that claim, which certainly would seem anomalous from the standpoint of the person who got hit, who suffers the same injury whether or not the driver negligently hit him or intentionally ran him over, and in cases like that the pedestrian has to argue that the... in order to collect, that the postal driver intentionally hit him... did not intentionally hit him, wasn't out to get him.

So there is that anomaly that flows from the language of the statute.

We think it's reasonable, Congress could well have decided, as the Panella gloss has it, that Congress wanted to preserve sovereign immunity in those vast bulk of cases where an intentional tort was committed by a federal employee.

Unidentified Justice: But on your intentional, your driver intentionally running over somebody, supposing he does it 20 times and his boss knows it and keeps him on the job.

There would be no claim against the boss for negligent supervision or negligent hiring, on the ground that each... the totality of the facts all arise out of intentional tort.

Mr. Wright: Well, that would be right.

Unidentified Justice: You think it's quite clear Congress would not have wanted liability in that extreme situation?

Well, I can't believe that that particular example would actually happen.

Well, but that's basically the underlying theory of all these cases, that there was notice to the government that the person might commit an assault if he were not adequately supervised, and all the rest of it.

Mr. Wright: Right.

Well, I think that the 1974 amendment to the Act makes quite clear that Congress understood the Act to bar negligent supervision claims.

After all, what the 1974 amendment did was, it's an exception to the exception, so that when batteries are committed by law enforcement officers under certain circumstances the government becomes liable, and the background of that amendment was that there were several incidents of no-knock raids repeated over time.

As the Court noted in Shearer, these obviously flowed from negligent supervision of the policemen doing that, and the amendment--

Unidentified Justice: But there's a proviso.

There's liability on the respondeat superior authority, isn't there?

Mr. Wright: --Excuse me?

Unidentified Justice: Am I wrong in thinking under the proviso there's a liability under respondeat superior.

You don't have to prove negligent supervision.

All you have to do is prove the law enforcement officer committed that one illegal search.

Mr. Wright: Well, within the scope of his employment.

Unidentified Justice: Right.

Mr. Wright: Or committed a battery within the scope of his employment.

Unidentified Justice: Correct.

Mr. Wright: It is actually much more difficult to prove that a battery was--

Unidentified Justice: But there doesn't have to be any negligent supervision, is what I am trying to say.

Mr. Wright: --Well, that's right, but the exception waives that as well, and indeed it's the negligent supervision cases that are far the greater number of cases.

It was very unusual in 1946--

Unidentified Justice: Surely you can forgive Justice Stevens for thinking that that maybe was all that it waived.

I mean, you say it waives that as well.

Maybe that's all that it waived, because... although you say that Congress understood that the rest couldn't be sued on.

Maybe Congress understood the rest could be sued on, and the only reason they added this was so you could get the FBI agent who though properly supervised goes crashing in and commits an intentional tort.

Mr. Wright: --Well, one would have thought that Congress would have said something about that, especially when the background seems to me to plainly be one of remedying negligent supervision cases rather than respondeat superior cases.

Unidentified Justice: On the facts of this case if... his name was Carr, the man that committed the assault?

Mr. Wright: Yes.

Unidentified Justice: If he'd have been a law enforcement officer, what result?

Mr. Wright: Well, he wasn't.

I have to remind myself of the exact words of the proviso.

It appears that if he had been a law enforcement officer, then the government would be liable, or stated another way, the intentional--

Unidentified Justice: For negligence?

Mr. Wright: --Well, liable for the injury caused to the... caused to the petitioners, which, yes, there would still have to be shown to be some negligence somewhere.

Unidentified Justice: But then you are suing for negligence.

Mr. Wright: That's right.

But the intentional tort exception doesn't apply in that case.

We admit--

Unidentified Justice: You are quite wrong, aren't you?

There wouldn't have to be negligence.

It would just be the intentional tort of the law enforcement officer who shot the gun.

Mr. Wright: --Well, under the basic provision of the Federal Tort Claims Act you have to show a negligent or wrongful act by some government actor.

Unidentified Justice: Well, Justice Kennedy is hypothesizing a law enforcement officer who did exactly what the--

Mr. Wright: I'm sorry.

Okay.

Unidentified Justice: --And that would just... all he has to do is prove that's who he was and he shot the guy.

Mr. Wright: I stand corrected.

If a federal law enforcement officer got drunk and started shooting people, I think that that's wrongful and we wouldn't need to show any additional negligence.

Of course, even if... if it were close to the line as to whether or not the battery was negligent or reasonable, nevertheless if it was a sort of repeated situation where this particular officer kept making these kinds of mistakes, you could establish liability to show that he was negligently supervised, and that these sorts of incidents were occurring with great regularity, and establish liability on that basis.

The proviso just reads the exception out of the Act in certain cases.

I'd like to note that petitioners say that one of the advantages of their rule is that there are no line-drawing problems.

That is because, I would submit, there would be very few cases in which the government would... where the intentional tort exception would bar liability, and as was pointed out, the whole point of the intentional tort exception is to bar government liability in cases where a private party would be liable under the same circumstances.

We don't think a--

Unidentified Justice: That isn't right, is it?

There must be a lot of cases in which a government employee without any notice to any of its supervisors or any reason for the government to expect this to happen goes out and beats somebody up.

That is just a typical assault and battery one-incident case.

There would be no government liability.

Mr. Wright: --You would have to show it was within the scope of employment, and the dissenting judge below--

Unidentified Justice: Well, he is driving a mail truck or something like that, gets in a fight, in a traffic dispute or something of that kind.

These things happen.

Mr. Wright: --Well, those cases, the courts are divided on those cases as to whether that is within the scope of employment.

It is by no means--

Unidentified Justice: Well, but this makes it perfectly clear there will be no liability in that kind of case, even if it is in the scope of employment.

Mr. Wright: --It does do that, but of course the government might not--

Unidentified Justice: And I would submit there must be quite a number of those cases where there really isn't any colorable basis for claiming negligent supervision or negligent employment.

They have no notice of this thing going to happen.

Mr. Wright: --Well, when a government employee commits a battery, it is always alleged that the employer should have known that.

Unidentified Justice: Yes, I know, but they have to prove it.

People can make false allegations.

Mr. Wright: And the fact that the employee was hired, and did this terrible thing usually goes a long way to proving that he was negligently supervised.

I'd like to point out in this connection, I think it's useful to take a look at exactly what the law is on when people can be responsible for batteries committed by third parties.

The restatement sections, 315 to 320, set that out in some detail, and it's worth noting that Section 315 is quite clear that there's no general duty to prevent someone from committing a battery.

It's only where a special circumstance exists, and Section 317, as I mentioned, is one of those that sets out the employer... employee relationship, and employers are liable for intentional torts committed by their employees outside the scope of their employment under that section in a number of circumstances.

And I'd like to note that under Panella, under the Panella gloss we think it quite clear at least that the government can never be liable under Section 317.

We think that it's enough that if the tort was committed by a federal employee, it's plainly... the action is plainly barred.

But in any event, it is certainly the case that the plaintiff cannot bring a suit based on the fact of the employee... employer relationship or anything like that, and I think that petitioners agree with that.

They, however, just sort of broadly state that of course the owner of the hospital in this case would be liable even if Carr were just a drunk who wandered in off the street.

We don't think that that's clear at all, and petitioners have never specified where they think that result comes from.

Nor did the dissenting judge below, who seemed to assume it as well, although the majority plainly agreed with us.

There are only a handful of exceptions, and none of them apply here.

There is no parent-child rule, or anything else of that nature.

Finally, I'd like to turn to the Doe v. United States argument, the argument that... is that when there is a special relationship to protect... a special duty to protect the victim, that those cases are different than others.

The Seventh Circuit in January did indeed essentially agree with that reading, and read, as the dissent in that case pointed out, the phrase

"except where the government has a special duty to protect the victim."

into the statute, that's based on Section 320 of the restatement of tort, which says that in such circumstances people can be liable for batteries committed by others.

We think, first, that that case was wrongly decided, that unlike the gloss added by the Court in Panella, the court... the Seventh Circuit in Doe v. United States simply did not identify any basis in the history or structure of the Federal Tort Claims Act for the... for what it was reading into the Act, and petitioners haven't identified any other reason for reading such an exception into the Act.

Unidentified Justice: I thought the... if you are questioning what the basis of the government's responsibility here would be if it wasn't just the employment, I thought what they are contending is the adoption of regulations, which perhaps they didn't have to be adopted, but the government was a volunteer, and of course it's an old tort theory that if you act as a volunteer you'd better do it right.

Mr. Wright: Well, that's right, and that's our second argument here, that in any event the special duty argument doesn't arise here because contrary to petitioner's... the enactment of a regulation, the regulation in this case anyway doesn't come close to establishing a duty to protect petitioners.

Under restatement section 320 you have a special duty to protect your wards, people you are custodians of, like children in a day care center.

Unidentified Justice: That all goes for the basis of imposing liability, which is a matter of state law.

I don't think that has anything to do with 2680(h).

Mr. Wright: Well, that's true.

And our first argument is that 2680(h) bars the claim on that basis.

But we don't think that the Court actually even needs to reach the issue of the day care center type case, because the facts here are so short of showing any special duty to protect the victim that... the Court of Appeals essentially dismissed this argument in one paragraph, and we think correctly, because there's just no basis here.

The Navy was never the custodians of petitioners.

Petitioners were driving down a public street in their car.

The regulation prohibits the keeping of firearms in the barracks.

It doesn't prohibit the keeping of firearms anywhere else.

The regulation was not aimed at protecting petitioners.

Mr. Kator mentioned negligence per se in connection with the regulation.

Negligence per se has nothing to do with this sort of claim.

Negligence per se is used to conclusively show negligence on the part of the actor in certain cases.

If Carr had kept the gun in his barracks and it had discharged and injured someone, negligence per se would be used to show that Carr was negligent.

Carr's culpability is not at issue here.

He was more than negligent, and the fact that the Navy--

Unidentified Justice: He didn't have the rifle by assignment.

He got it surreptitiously, didn't he?

Mr. Wright: --He kept it in his barracks.

Unidentified Justice: Wasn't that against the rules?

Mr. Wright: It was against the rules.

Unidentified Justice: And couldn't that be negligence?

Mr. Wright: For him it--

Unidentified Justice: Couldn't it be negligent that they allowed him to do it?

Mr. Wright: --Certainly it could be.

Unidentified Justice: Well, you just say it's not there.

Mr. Wright: It's not negligence per se that that aspect doesn't add anything to the case.

The government Carr was definitely negligent.

The government could have been negligent for not finding out, but we don't think negligence per se analysis adds anything to this case.

We don't think it would make any sense, moreover, for the Navy to become liable because--

Unidentified Justice: I think the Navy is liable for allowing people to take guns when they are not authorized to take them if they are loaded.

Mr. Wright: --He wasn't allowed to have the gun in the barracks, and he did so.

Unidentified Justice: And if it hadn't been for that, these people wouldn't have been injured.

Mr. Wright: That's true, but it seems that the regulation hardly matters one way or another here.

If the Navy hadn't had the regulation, it would seem backwards to make the Navy liable because it enacted this sort of regulation if it wouldn't have been liable in the absence of the regulation.

Unidentified Justice: I just don't want anybody giving people rifles.

That's all.

Unless there's a reason for it.

Mr. Wright: It is certainly the case that if Carr did not have a rifle, and did not get drunk and start shooting at Metro buses and cars passing by, no injury would have resulted here.

Unidentified Justice: Mr. Wright, I am trying to find some justification for the Panella gloss other than the gloss itself.

I'm not very happy with the notion that if somebody who breaks out of a mental institution because of poor supervision is a government employee you can't sue the government but if he is anything other than a government employee you can.

That seems to me purely an accidental distinction.

Would it be possible... I mean, you seem to be resigned to the gloss, if not enthusiastic about it.

Wouldn't it be a better gloss to say that if the government's negligence consists of its negligence in its capacity as an employer versus its negligence in its capacity as something else, why couldn't one adopt that gloss just as easily, if not more likely?

Mr. Wright: That is a gloss on the gloss.

We prefer just reading the gloss in its plain meaning, if you will.

I would like to point out, however, that if you add that gloss to the gloss, certainly then any negligent supervision claim based on the employment relationship goes out the window, and that... to our mind that includes all of this case.

It certainly includes much of it.

It certainly includes the claim made in the complaint that hasn't been repeated today that the Navy should have known that Carr was psychologically unstable and taken some step to do something about it, since that was based on the employee-employer relationship, and any other... and most of the other claims, it seems to us, could only have a chance to succeed ultimately if they were based on Section 317 of the restatement.

Has that been responsive, Justice Scalia?

Unidentified Justice: More than adequate.

Mr. Wright: Excuse me?

Unidentified Justice: More than adequate.

Mr. Wright: Thank you.

If there are no further questions, thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Wright.

Mr. Kator, you have 14 minutes remaining.

ORAL ARGUMENT OF MICHAEL J. KATOR, ESQUIRE ON BEHALF OF PETITIONERS -- REBUTTAL

Mr. Kator: Well, I hope I won't need them all, Your Honor, but I guess my first point was, I'm sure that there are a lot of people in Washington, D.C., who would be surprised to know that regulations at Bethesda Naval are not enacted for their protection.

I submit that they are.

In any event, that is a question for the District Court.

Justice Kennedy, you asked the question, what if the assailant had been an FBI agent, what would be the liability in this case, and the government said, well, if he is an FBI agent, therefore you could sue him directly for his intentional tort.

I don't think that that's correct.

The legislative history of the 1974 amendment makes it quite clear that Congress was only waiving that with respect to FBI agents, law enforcement individuals acting within the scope.

Now, there is nothing in 2680(h) that says acting within the scope, yet there is quite a bit elsewhere in the Federal Tort Claims Act that says that.

I believe it is 2674 and 1346(b) certainly says within the scope.

You asked about the Panella gloss and where does it come from.

Where it comes from is reading these provisions together.

There is nothing in 2680(h) admittedly that says it has to be a federal employee who commits the intentional tort, but it is all over 1346(b) and it is all over the rest of the Federal Tort Claims Act.

Indeed, what Congress was concerned with was federal employees acting within the scope of their employment, and that's the gloss that needs to be read into Panella, not federal employees, not people who happen to be federal employees, but people who are federal employees, and it matters that they are a federal employee, i.e., they are acting within the scope of their employment.

If you apply that gloss, if you will, you end up where we submit Chief Judge Winter was in the court below.

He says, if there is an independent duty, then the government must be held to it.

Now, I don't want to forsake my argument that the Ninth Circuit is correct because I believe that they are.

Historically, if you look at it, this is what Congress was up to.

It wanted to say, no respondeat superior for intentional torts.

That's what we're after in 2680(h).

Negligent claims may proceed.

That's what Congress was doing.

But you know, as to which of our claims survive depending on which, if any, of these arguments the Court adopts, certainly our first claim of the Navy knew or should have known that this man posed a threat would not be able to survive if the Court only went with the scope of the duty.

The scope of the duty would focus on whether there is a duty independent of the employment status, and that would be gone if you are talking about duties that arise solely out of employment.

On the other hand, of course, if you go with the Ninth Circuit approach, the broader approach, negligent supervision is allowed.

There is no reason to distinguish between the two, between negligent supervision and any other kind of tort claim, and therefore that case may proceed.

Those are our two principal allegations.

We present arguments which take the statute straight down.

You follow the statute, you end up with a result.

If you take the government's argument, you do a lot of this, you end up with all kinds of exceptions, you end up with all kinds of anomalies.

They suggest that it is merely line drawing, and is an acceptable amount.

It is clearly not.

Doe versus United States demonstrates the total lack of principle in the government's argument.

You simply can't say, well, if you can't prove that he was other than a federal employee you are out of here when in fact the government's duty is the same, the breach of the duty is the same, the injury is the same.

It simply doesn't make sense.

It is inappropriate to attribute that intent to Congress.

If there are no further questions.

Chief Justice William H. Rehnquist: Thank you, Mr. Kator.

The case is submitted.