Opposition Brief — Johnson v. United States

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No. 86-114 4 pren |

“| | JOSEPH F. SPANIOL, JR, |

CLERK i.

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Ju the Supreme Court of the United States

OCTOBER TERM 1986

MELISSA JOHNSON, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

ee O, Be EE bb cceciceccccseses 3

Garcia v. United States, 776 F.2d 116 .......... 4

Gibson v. United States, 457 F.2d 1391 ......... 4

Kosak v. United States, 465 U.S. 848 ........... 3

Miele vy. United States, No. 85-6403 |

Se eee ee eee 4

Satterfield v. United States, 788 F.2d 395 ....... 4

Underwood v. United States, 356 F.2d 92 ....... 4

United States v. Shearer:

No. 84-194 (June 27, 1985) ............ 23,4

Gr CAG bse s 6000p veene cesses 4

Statute:

Federal Tort Claims Act:

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SP SEE cas ccccetuccesvscecesees 2

EE Svicchoecsscbavcese sence 3

Be Cs ED kb edncaccacsecisas 1, 2, 3,4

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Iu the Supreme Court of the Hnited States

OCTOBER TERM 1986

No. 86-114

MELISSA JOHNSON, ET AL., PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

Petitioners contend that the United States is liable under

the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et

seq., for a sexual assault committed by a letter carrier

employed by the United States Postal Service. This conten-

tion is without merit, for the FTCA preserves sovereign

immunity for “{a]ny claim arising out of assault [or] bat-

tery” by a federal employee other than an “investigative or

law enforcement officer.” 28 U.S.C. 2680(h).!

‘An issue similar to that presented here is raised in the petition for a

writ of certiorari filed in Metz v. United States, No. 86-189 (filed Aug.

5, 1986), an FTCA action for invasion of privacy and intentional

infliction of emotional distress allegedly resulting from the arrest and

detention of the plaintiff.

(1)

2

1. In June 1982 a mailman sexually assaulted five-year-

old Melissa Johnson.’ After the Postal Service denied their

administrative claim, petitioners (Melissa and her mother)

filed this action seeking damages from the United States.

Petitioners contend that the Postal Service negligently

employed and supervised the mailman (Pet. App. A44-

A45). The United States moved to dismiss for lack of sub-

ject matter jurisdiction, asserting that it had not waived

sovereign immunity for causes of action “arising out of”

assault or battery. 28 U.S.C. 2680(h). |

The district court dismissed on the ground that the claim

raised by the complaint had not been submitted to the

Postal Service as required by 28 U.S.C. 2675(a). The court

pointed out that petitioners’ administrative claim did not

mention facts “even hinting of negligent supervision,” or

that anyone other than the mailman “might be culpable for

the[] injuries” (Pet. App. A33). The court therefore held

that petitioners had “failed to comply with the presentment

requirement of Section 2675(a)” (id. at A35).

The court of appeals, contrary to the district court, held

that the administrative claim was sufficient to put the Postal

Service on notice of the negligent supervision claim (Pet.

App. A5-A9). However, the court of appeals affirmed the

dismissal on the ground that the district court lacked juris-

diction because the government had not waived sovereign

immunity with respect to claims arising out of assault and

battery. The court agreed with Chief Justice Burger and

three other Justices who concluded in United States v.

Shearer, No. 84-194 (June 27, 1985), that a plaintiff “ ‘can-

not avoid the reach of § 2680(h) by framing her complaint

?Postal Service files show that the mailman entered a plea of guilty in

New York State court to sexual abuse in the first degree and was

sentenced to a term of imprisonment of one to three years.

+ @24

3

in terms of negligent failure to prevent the assault and

battery’ ” (Pet. App. A1l0 (quoting Shearer, slip op. 2-3)).'

The court of appeals here concluded that “the plain lan-

guage of § 2680(h) prohibits claimants from clothing

assault and battery actions in the garb of negligence by

claiming negligent failure to prevent the attack” (Pet. App.

A10).‘

2. For the reasons stated by Chief Justice Burger in

Shearer, the court of appeals’ decision is correct. “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” (slip op. 3 (emphasis in original)). In this

case, as in Shearer, “[n]o semantical recasting of events can

alter the fact that the battery was the immediate cause of

[the damage] and, consequently, the basis of [the] claim”

(id. at 2). See also Kosak v. United States, 465 U.S. 848

(1984) (28 U.S.C. 2680(c) exception for claims arising in

respect of detention of goods extends to claims for destruc-

tion during detention); Block v. Neal, 460 U.S. 289, 297

(1983) (28 U.S.C. 2680(h) exception for claims arising out

of misrepresentation does not bar claims for negligent

supervision of construction of home where “the Govern-

ment’s misstatements are not essential to plaintiff’s negli-

gence claim”).

3Four Justices did not join the portion of Chief Justice Burger’s

opinion in Shearer addressing Section 2680(h), and the remaining

Justice did not participate in the decision. The Court held in Shearer

that the plaintiff’s claim was barred by the Feres doctrine, which pro-

vides that service members may not recover under the FTCA for

injuries incurred incident to military service.

‘Judge Pratt dissented. He would have held that “a proper interpreta-

tion of the FTCA, consistent with its broad and remedial purpose,

would be to hold the government liable, as would be a private person,

when its supervisors negligently hire an assaultive employee, assign him

to an area of temptation, and negligently fail to foresee and prevent the

harm he is likely to inflict on the public” (Pet. App. A22).

4

As we explained in our petition in Shearer (at 7-9),° the

Third Circuit’s decision in that case (723 F.2d 1102

(1983))—that a plaintiff may bring a suit alleging negligent

failure to supervise a government employee who committed

an intentional tort—was inconsistent with the decisions of

every other court of appeals that had considered the issue.

Since this Court’s decision in Shearer, the Fifth and Sixth

Circuitsylike the court below, have concluded that Section

2680(h) bars claims alleging negligent failure to supervise a

government employee. Garcia v. United States, 776 F.2d

116 (Sth Cir. 1985); Satterfield vy. United States, 788 F.2d

395, 399-400 (6th Cir. 1986). No court, other than the Third

Circuit in its decision in Shearer (which this Court reversed

on other grounds), has reached a contrary conclusion.’

Accordingly, there is no warrant for review by this Court.

5We are serving a copy of each of our briefs in Shearer upon counsel

for petitioner.

In addition, the Second Circuit recently followed its decision in this

case in Miele v. United States, No. 85-6403 (Sept. 3, 1986).

7’The only court of appeals decisions petitioners cite (Pet. 9) in sup-

port of their claim other than the Third Circuit’s decision in Shearer—

Gibson v. United States, 457 F.2d 1391 (3d Cir. 1972), and Underwood

v. United States, 356 F.2d 92 (Sth Cir. 1966)—are clearly distinguisha-

ble. As we explained in our petition in Shearer (at 12-13 n.6) and our

reply brief at the petition stage (at 1-2), those cases rest on the principle

that when the government undertakes a special responsibility for pro-

tecting the public from a person known to be dangerous, such as the

juvenile delinquent in Gibson or the dangerous mental hospital patient

in Underwood, it must exercise due care in discharging that responsibil-

ity. No such special responsibility was undertaken here. Moreover, the

Fifth Circuit “retreat{ed] from Underwood” in its recent decision in

Garcia in light of Chief Justice Burger’s opinion in Shearer (776 F.2d at

118).

5

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

CHARLES FRIED

Solicitor General

SEPTEMBER 1986

DOJ-1986-09