UNITED STATES OF AMERICA, PETITIONER V. LOUISE SHEARER,
INDIVIDUALLY AND AS ADMINISTRATRIX FOR THE ESTATE OF VERNON SHEARER,
DECEASED

   No. 84-194

   In the Supreme Court of the United States

   October Term, 1984

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Third Circuit

   Reply Memorandum for the United States

   1. Respondent relies on a series of decisions -- Hicks v. United
States, 511 F.2d 407 (D.C. Cir. 1975);  Gibson v. United States, 457
F.2d 1391 (3d Cir. 1972);  Rogers v. United States, 397 F.2d 12 (4th
Cir. 1968);  Underwood v. United States, 356 F.2d 92 (5th Cir. 1966);
Fair v. United States, 234 F.2d 288 (5th Cir. 1956);  and Panella v.
United States, 216 F.2d 622 (2d Cir. 1954) -- in which, respondent
asserts, a negligent failure by the government to supervise a person
it knew to be dangerous was held to be actionable under the Federal
Tort Claims Act.  See. Br. in Opp. 7-9, 11, 12.  As we explained in
the petition(Pet.12-13, n.6), these cases rest on the principle that
when the government undertakes a special responsibility for protecting
the public from a person known to be dangerous -- such as a prisoner
(in Rogers) or a dangerous patient in a mental hospital (in Hicks,
Underwood, Fair, and Panella) -- it must exercise due care in
discharging that responsibility.  None of these cases suggests that
the government is responsible for supervising the off-duty activities
of civilian or military employees generally.

   Indeed, several of the cases cited by respondent are from the
Fourth and Fifth Circuits, which have specifically adopted the
position we urge here -- that the government may not be held liable
under the FTCA for the off-duty torts of its employees.  See Hughes v.
United States, 662 F.2d 219 (4th Cir. 1981), aff'g Hughes v. Sullivan,
514 F.Supp. 667 (E.D. Va. 1980);  United States v. Shively, 345 F.2d
294 (5th Cir. 1965).  Moreover, as Judge Garth pointed out in his
dissenting opinion below, in Gibson the Third Circuit itself was
careful to confine its holding to cases in which the government
accepted responsibility for protecting the public from persons known
to be dangerous.  See Pet. App. 19a-20a.

   2. Respondent, like the court of appeals, attempts to distinguish
the cases that conflict with the decision below -- Hughes v. United
States, supra;  United States v. Shively, supra;  Naisbitt v. United
States, 611 F.2d 1350 (10th Cir.), cert. denied, 449 U.S. 885 (1980);
and Wine v. United States, 705 F.2d 366 (10th Cir. 1983) -- by
asserting that "there was a total absence of facts in these cases to
suggest that the government knew or should have known either of the
prior violent actions by the assailants or of the assailant's
potential violence" (Br. in Opp. 9).  As we demonstrated in the
petition (Pet. 9), these cases cannot be distinguished in this
fashion.  In Hughes, the complaint alleged that the government
employee whose off-duty acts damaged the plaintiff had previously
engaged in precisely the same kind of behavior, and that the
government had refused a request that the employee be assigned to a
new position in which he would be less likely to injure members of the
public.  See 662 F.2d at 219-220.  In Shively, not only was there a
sufficient allegation that the government was negligent in its
supervision of the off-duty serviceman, but the district court ruled
that the government was liable, and the court of appeals specifically
agreed that the government's "negligence * * * was the proximate cause
of the plaintiff's injury" (345 F.2d at 296).  The court of appeals
nevertheless held that the intentional tort exception to the FTCA
barred the plaintiff's claim (id. at 297).  In Naisbitt, the court of
appeals noted that the plaintiff had alleged that "it was reasonably
foreseeable" by the government that the off-duty serviceman who
injured the plaintiffs "would, unless restrained, perpetrate serious
injuries" (611 F.2d at 1351);  the court of appeals nowhere suggested
that this complaint, which was dismissed, was inadequate because it
did not allege supporting facts with sufficient detail or specificity.
 In Wine, the government admitted, for purposes of its motion to
dismiss, the facts underlying the plaintiff's claim of negligent
supervision;  the court of appeals affirmed the dismissal of the
complaint on the ground that it was barred by the intentional tort
exception.

   3. Although respondent contends that "maintenance of the instant
cause of action is not an attempt to 'second guess' military
decisions" (Br. in Opp. 13), respondent's description of her suit
belies this claim.  Respondent concedes that her cause of action "is
premised on the failure of Government officials to separate Private
Heard from military service once they learned he was unfit for such
service" (Br. in Opp. 11) and "attacks * * * the specific failure to
remove Heard from active duty" (Br. in Opp. 13).  These allegations
constitute a direct challenge on behalf of the injured serviceman to
military decision-making -- how long a serviceman should service,
where he should serve, and in which capacity -- and are precisely the
sort of claim that is barred by Feres.

   For these reasons and the reasons stated in the petition, it is
respectfully submitted that the petition for a writ of certiorari
should be granted.

   REX E. LEE

      Solicitor General

   OCTOBER 1984