UNITED STATES OF AMERICA, PETITIONER V. BARBARA ANN WASHINGTON, AS
GUARDIAN AD LITEM FOR CHRISTA M. WASHINGTON, A MINOR

   No. 89-482

   In the Supreme Court of the United States

   October Term, 1989

   The Solicitor General, on behalf of the United States, petitions
for a writ of certiorari to review the judgment of the United States
Court of Appeals for the Ninth Circuit.

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

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-7a) is
reported at 868 F.2d 332.  The opinion of the district court (App.,
infra, 8a-15a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 21,
1989.  A petition for rehearing was denied on June 9, 1989 (App.,
infra, 16a).  On September 5, 1989, Justice O'Connor extended the time
for filing a petition for a writ of certiorari to and including
September 21, 1989.  The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   Section 1346(b) (28 U.S.C.) provides, in pertinent part:

         (T)he district courts * * * shall have exclusive jurisdiction
      of civil actions on claims against the United States, for money
      damages * * * for * * * personal injury * * caused by the
      negligent or wrongful act or omission of any employee of the
      Government while acting within the scope of his office or
      employment, under circumstances where the United States, if a
      private person, would be liable to the claimant in accordance
      with the law of the place where the act or omission occurred.

   Section 2671 (28 U.S.C.) provides, in pertinent part:

         "Acting within the scope of his office or employment," in the
      case of a member of the military or naval forces of the United
      States * * *, means acting in line of duty.

   Section 2674 (28 U.S.C.) provides, in pertinent part:

         The United States shall be liable, respecting the provisions
      of this title relating to tort claims, in the same manner and to
      the same extent as a private individual under like circumstances
      * * *.

                          QUESTION PRESENTED

   In this case, the court of appeals held that while two off-duty
servicemen on a military base were working on a car owned by one of
them, they were acting "within the scope of (their) * * * employment"
within the meaning of the Federal Tort Claims Act, 28 U.S.C. 1346(b).
The question presented is whether, in grounding this determination on
the assertedly "unique" character of a military base, the court of
appeals erroneously failed to determine whether under state law an
analogous private employer would be liable under similar
circumstances.

                               STATEMENT

   The facts are not disputed.  On the evening of September 19, 1980,
Larry Bartole and Neil Cleaves were in the garage of Cleaves'
residence on the Point Mugu, California, naval base, attempting to
start the engine of Cleaves' 1964 Rambler.  Both men were active-duty
members of the Navy on authorized liberty status, having completed
their work for the day.  In attempting to start the car, "neither Mr.
Bartole nor Mr. Cleaves (was) performing any action connected with any
of their official United States Navy duties." App., infra, 9a;  see
id. at 2a-3a;  Tr. 25-26 (Pltf. Stip.)).  When Bartole poured gasoline
from a coffee can into the carburetor in an attempt to prime it, the
engine backfired.  Flames shot from the carburetor, igniting the
gasoline in the can Bartole was holding.  Gasoline spilled as Bartole
jerked the can back, and his hand caught fire.  Bartole then turned
toward the side door of the garage, tripped, and spilled the can of
flaming gasoline out of the door.  Ten-year-old Christa Washington was
just outside the door playing in the adjacent yard.  She was struck by
the flaming gasoline and was seriously burned.  App., infra, 2a-3a,
9a-10a.

   Suit to recover for Christa Washington's injuries was brought
against the United States under the Federal Tort Claims Act (FTCA), 28
U.S.C. 1346(b), 2671 et seq.  That Act provides, in Section 1346(b),
that the United States is liable for "personal injury * * * caused by
the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the
place where the act or omission occurred." Following a trial, the
district court held that "(n)o act or omission of any employee of the
United States of America, while acting within the course and scope of
his office or employment, caused, or in any way contributed to, the
accident." App., infra, 15a.  The court first noted that "(s)cope of
employment for an active duty military employee means 'acting in the
line of duty.' See 28 U.S.C. Section 2671.  The phrase 'line of duty,'
in turn, is defined by the applicable state law of respondeat
superior." Id. at 12a (citing Williams v. United States, 350 U.S. 857
(1955)).  It then concluded that, "(u)nder the principles of
respondeat superior, in California, the acts of Mr. Bartole and Mr.
Cleaves herein, in attempting to start the privately owned Rambler
automobile in their off-duty hours, were clearly their own, and done
for personal purposes, totally unrelated to any United States Navy job
or duty(,) * * * (and) thus (were) not within the course and scope of
the employment of Mr. Bartole and Mr. Cleaves with the United States."
App., infra, 12a.  The district court added:  "The imposition of
respondeat superior liability upon the United States in this case
would clearly be an imposition upon the military of a liability far
broader than that of a private employer, and would be clearly contrary
to the limited waiver of sovereign immunity attended by the Federal
Tort Claims Act." Id. at 13a.  /1/

   The court of appeals reversed.  App., infra, 1a-7a.  It noted that
base regulations in effect at the time of the accident provided that
residents were not to conduct "'Fire Hazardous Operations * * * prior
to the establishment of adequate fire prevention measures.'" Id. at
4a.  /2/ The court then added that, in Lutz v. United States, 685 F.2d
1178, 1183 (9th Cir. 1982), it had concluded that "(m)ilitary housing
presents a unique situation'" (App., infra, 5a), and in that case
found that "the control of a serviceman's dog was * * * a military
duty imposed for the benefit of the Air Force by Air Force regulations
on the dog's owner who was in base housing" (id. at 6a).  The court
here held:  "In our case the duty to adhere to fire regulations and
not to engage in fire hazardous operations without the establishment
of adequate fire prevention measures was a military duty imposed for
the benefit of the Navy by Navy regulations * * *.  The Navy is
therefore responsible for (Bartole's and Cleaves') actions." Ibid.
After concluding that Bartole and Cleaves had negligently violated the
regulations, the court remanded "for the limited purpose of
determining" the amount of respondent's damages.  Id. at 7a.

                   REASONS FOR GRANTING THE PETITION

   In three recent cases, including this one, the Ninth Circuit has
expanded the liability of the United States by making the government
responsible whenever damage results from conduct that violates a base
regulation.  In each instance, the court reversed a district court
dismissal of the action based on a determination that an analogous
private employer would not be liable under state law.  Here, the court
concluded that two servicemen working on a personal car on their own
time were acting within the scope of their employment because a base
regulation governed "fire hazardous operations." In Lutz, on which the
court here relied, it concluded that a base regulation governing the
control of privately owned pets made an airman's failure to control
his dog an activity performed within the scope of his employment.  And
in Doggett v. United States, 875 F.2d 684, 688 (9th Cir. 1989), the
court, also relying on Lutz, concluded that servicemen drinking in a
tavern on a naval base were acting within the scope of their
employment when they failed to detain an intoxicated companion, as
authorized by a base regulation.  These decisions, which contrast
sharply with the approach followed in other circuits, have the effect
of turning the United States into a virtual insurer of the conduct of
members of the service on military bases.  They ignore the vital
distinction between, on the one hand, housekeeping and safety
regulations -- regulations resulting from the fact that many people
not only work on a military base but also live there (often with their
families) -- and, on the other hand, rules governing the conduct of
service members on the job.

   1. In each of these cases, the Ninth Circuit has erred, as a matter
of federal law, by failing to consider whether an analogous private
employer would be liable under state law.  The FTCA provides that
"(t)he United States shall be liable * * * in the same manner and to
the same extent as a private individual under like circumstances." 28
U.S.C. 2674.  Howver, rather than analyzing the case under state law,
the court in Lutz stated that "(m)ilitary housing presents a unique
situation." 685 F.2d at 1183.  The court repeated that statement in
this case.  App., infra, 5a.  In Doggett, also relying on Lutz, the
court "emphasize(d) that the regulation governs conduct only on the
military base." 875 F.2d at 688.  Having concluded that military bases
are "unique," in none of the three cases did the court of appeals
satisfy the requirement of the FTCA by determining whether a state
court would hold a private employer liable in similar circumstances.
/3/

   Military bases are not unique in the respects noted by the court of
appeals.  Private employers likewise own property and make rules to
govern the conduct of employees while on that property, even when they
are not on duty;  indeed, private employers sometimes house employees
(and their families) on company property.  /4/ The court of appeals
should therefore have considered whether a private employer in
California would be liable if an employee, while off duty and engaged
in personal affairs on the employer's property, caused an injury
because he did not take adequate safety precautions as required by the
employer's regulations.  /5/ Here, the district court judge, who
formerly sat on the California Superior Court and the California
Municipal Court, stated that "(t)he imposition of respondeat superior
liability upon the United States in this case would clearly be an
imposition upon the military of a liability far broader than that of a
private employer" under California law.  App., infra, 13a.  /6/

   2. In addition, the Ninth Circuit's repeated reliance on base
regulations is misplaced.  Servicemen cannot be said to be acting
within the scope of their employment merely because they reside on a
base and are subject to base regulations.  That the Navy was not
acting as Bartole's and Cleaves' employer in issuing the regulations
on which the Ninth Circuit relied is made clear in this case by the
fact that the fire regulations are not directed solely to employees
but to all "Public Quarters Residents." C.A. E.R., Exh. D, at 3.
Surely, a service member's spouse or child who violates a fire
regulation while trying to fix the family car could not be held on
that basis to have been acting within the scope of anyone's
employment.

   In a case very much like Lutz, involving an attack by a dog owned
by a serviceman, the District of Columbia Circuit understood the
difference between regulations governing employees and regulations
governing residents.  After noting that, in addition to pet-control
requirements, the base regulations "require(d) base residents to use
certain size pots and pans, to replace electrical fuses, and to
refrain from smoking in bed," the court stated that "(t)hese duties
are not imposed by the military in its role as an employer and they do
not run to the employer's benefit." Nelson v. United States, 838 F.2d
1280, 1283-1284 (D.C. Cir. 1988).  /7/ The District of Columbia
Circuit expressly disagreed with the approach taken by the Ninth
Circuit.  It stated:  "There seems * * * to be no principled limit to
the reasoning in Lutz, so that the case would seem to make the
government an insurer as to all manner of bizarre incidents.  * * * To
hold the government potentially liable for all damage done by conduct
on a military base that violates any one of the many base regulations
would expand liability in ways inconsistent with the idea that the
FTCA must be strictly interpreted as a limited relinquishment of
sovereign immunity." Id. at 1284.  /8/ Thus, there is an express
conflict in the circuits on the question presented.  /9/

   Although the Ninth Circuit stated in Lutz that it was "not
suggest(ing) that every act of a base resident is within the scope of
his employment" (685 F.2d at 1183), that suggestion is contradicted by
the decisions here and in Doggett.  At least when there is a relevant
base regulation governing the conduct of those on base property, the
prediction of the D.C. Circuit in Nelson (838 F.2d at 1284) is being
fulfilled:  in the Ninth Circuit, the government has become "an
insurer as to all manner of bizarre incidents" occurring on military
bases.  /10/ Indeed, under Lutz, this development was almost
inevitable, since "(m)ilitary regulations typically govern a wide
range of base residents' activities, touching most aspects of private
and public life." 838 F.2d at 1284.  /11/ The Ninth Circuit's
unwarranted expansion of the federal government's waiver of sovereign
immunity requires correction by this Court.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART E. SCHIFFER

      Acting Assistant Attorney General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   CHRISTOPHER J. WRIGHT

      Assistant to the Solicitor General

   ROBERT S. GREENSPAN

   MARC RICHMAN

      Attorneys

   SEPTEMBER 1989

   /1/ The district court also held that the United States was not
liable under California law as Christa Washington's landlord or as the
owner of the land on which she was injured, because it "had no
knowledge of the danger, (and did not) participate in any way in
creating it." App., infra, 15a.

   /2/ The court also referred to a regulation providing that "'only
repairs of a minor nature * * * may be accomplished in public
quarters, garages, or the hobby shop spaces'" (App., infra, 3a), and
noted that the regulations further stated:  "'(T)he prevention of fire
in administrative and quarters areas is a moral and legal
responsibility of all personnel, requiring alertness, strict adherence
to fire regulations, and intelligent application of fire prevention
safeguards.  Fire hazards are not acceptable within the naval
establishment.  The goal of fire prevention and protection programs is
the total prevention of loss of life and property by fire.'" Id. at
3a-4a.

   /3/ In this case, the only citation to state law in the court of
appeals' opinion is to a case stating a general proposition of
California law.  App. infra, 5a (citing Jeffrey Scott E. v. Central
Baptist Church, 197 Cal. App. 3d 718, 243 Cal. Rptr. 128 (1988)).

   /4/ See, e.g., Martinez v. Hagopian, 182 Cal. App. 3d 1223, 1230,
227 Cal. Rptr. 763, 767 (Cal. App. 1986) (refusing to hold an employer
liable for a tort caused by a farmworker, since "(t)o hold otherwise
would be to essentially impose a theory of strict liability on the
employer for all employee torts during after-hours social activities
on the employer's premises, a result not permitted under settled
law").

   /5/ As the district court in this case recognized (App., infra,
12a), the significance of the distinction between a service member's
on-duty and off-duty activities is underscored by 28 U.S.C. 2671,
which limits "scope of his office or employment" for active duty
military employees to actions "in (the) line of duty." For the
relevance of state law to this determination, see Williams v. United
States, 350 U.S. 857 (1955).

   /6/ We are not asking the Court to decide whether the district
court's understanding of state law is correct.  Rather, since we
contend that the court of appeals erroneously failed to determine
whether an analogous private employer would be liable under state law,
we ask the Court to reverse and remand with instructions that the
court of appeals make that determination.

   /7/ The court in Nelson went on hold that the government was liable
as landowner for failure to remove or control a dog that responible
officials knew was dangerous.  838 F.2d at 1285-1286.

   /8/ In criticizing the Ninth Circuit's approach, the District of
Columbia Circuit noted that "whether a breach of military regulations
subjects the government to tort liability must depend upon whether
analogous duties exist under local tort law." 838 F.2d at 1284.  It
thus rejected the notion that military bases are unique, so that state
law need not be consulted in determining whether the United States is
liable under the FTCA.

   /9/ In Piper v. United States, 694 F. Supp. 614, 618 (E.D. Ark.
1988), another case involving injuries caused by a dog, the court
concluded that since a base regulation governed control of pets,
"(t)he analysis by the Ninth Circuit Court of Appeals in Lutz * * * is
applicable to the facts developed." The court added, "but compare,
Nelson v. U.S." Ibid.  Piper is currently pending on appeal in the
Eight Circuit.  No. 88-2612 (argued June 16, 1989).

   /10/ The First Circuit long ago rejected the argument that
"anything (a serviceman) was doing in the residence was in the scope
of his employment." Merritt v. United States, 332 F.2d 397, 399
(1964).  In that case, a fire was caused by a serviceman who was
smoking in bed.

   /11/ The base regulations in this case confirm the District of
Columbia Circuit's statement.  For example, regulations at the Point
Mugu Naval Base prohibit the attachment of extension cords to
coffeemakers, require lint traps in clothes dryers to be cleaned
often, and warn residents to "religiously" observe speed limits on the
base.  C.A. E.R., Exh. B, at 34, 35.

   Appendix