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 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 Third Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-23a) is reported at 723 F.2d 1102. The statements on denial of rehearing (App., infra, 33a-36a) are reported at 729 F.2d 266. The opinion of the district court (App., infra, 24a-29a) is reported at 576 F. Supp. 672. JURISDICTION The judgment of the court of appeals (App., infra, 31a-32a) was entered on December 19, 1983. A petition for rehearing was denied on March 7, 1984 (App., infra, 33a-36a). On June 4, 1984, Justice Brennan extended the time for filing a petition for a writ of certiorari to August 4, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 28 U.S.C. 1346(b) provides in part: Subject to the provisions of (28 U.S.C. 2671-2680), the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages * * * for injury or loss of property, or personal injury or death 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. 28 U.S.C. 2680 provides in part: The provisions of this chapter and section 1346(b) of this title shall not apply to -- * * * * * (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law. QUESTIONS PRESENTED 1. Whether the survivor of a serviceman who was murdered by another serviceman, while both were off duty and off base, may sue the government for damages under the Federal Tort Claims Act even though the Act bars "(a)ny claim arising out of assault (or) battery." 2. Whether such a suit, alleging that the negligence of the servicemen's superior officers was responsible for the murder, is precluded by the doctrine of Feres v. United States, 340 U.S. 135 (1950), which bars suits by servicemen for alleged torts incident to military service. STATEMENT 1. Respondent is the mother and administratrix of a serviceman, Private Shearer, who was stationed at Fort Bliss, Texas. While Shearer was on authorized leave and off the base, he was kidnapped and murdered by another serviceman, Heard, who was also stationed at Fort Bliss and was also off duty at the time. This crime occurred in Otero County, New Mexico, which is adjacent to Fort Bliss. App., infra, 2a-3a; C.A. App. 5a, 22a. Heard was subsequently convicted of murder in a New Mexico state court and sentenced to a term of 15 to 55 years' imprisonment (C.A. App. 16a). Respondent subsequently brought this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., seeking damages from the United States. She claimed that the Army's negligent failure to prevent Heard from murdering Shearer was responsible for Shearer's death. Specifically, respondent alleged (C.A. App. 17a-18a; Complaint paras. 40-41): /1/ 40. The United States Government, acting through its Department of the Army, * * * negligently and carelessly failed to exert a reasonably sufficient control over Andrew Heard, or take any action to prevent him from endangering other persons, in spite of the defendant's knowledge of his dangerous and murderous propensities, and further failed to warn other persons that he was at large, and of the danger which he presented. 41. The United States Government, acting through its Department of the Army, * * * negligently and carelessly failed to then remove Andrew Heard from active military duty, in spite of its knowledge of his dangerous and murderous propensities, with a reasonable degree of promptness given the great danger potential that he posed to other active duty service members, including (Shearer), none of whom were warned of the dangers posed. Respondent asserted that in 1977, while Heard was assigned to an Army base in Germany, he was convicted by a German court of manslaughter and sentenced to a four-year prison term. In February 1979, when German authorities granted Heard an early release from that term, the Army promptly removed him from Germany and transferred him to Fort Bliss. By the time Heard killed Shearer, in June 1979, the Army had initiated proceedings to have Heard discharged. C.A. App. 13a-15a. 2. The United States District Court for the Eastern District of Pennsylvania granted summary judgment in favor of the government (App., infra, 24a-30a). The district court did not address the government's contention that respondent's claim is barred by 28 U.S.C. 2680(h), the intentional tort exception to the FTCA, which provides in part that the government is not liable for "(a)ny claim arising out of assault (or) battery * * *." /2/ See App., infra, 29a n.4. Instead, the court held that respondent's claim is precluded by Feres v. United States, 340 U.S. 135 (1950), which held that a serviceman may not sue the government under the FTCA for alleged torts incident to military service. The district court stated that under Feres, the "question is not whether decedent was engaged in activity incident to military service when he incurred his injuries. Rather, the 'focus ... is upon when and how the negligent act occurs'" (App., infra, 26a (citation and emphasis omitted)). The court reasoned that because respondent "allege(d) that the Army was negligent in failing to exert reasonable control over" Heard, respondent's claims "relate directly to decisions of military personnel made in the course of the performance of their military duty and, therefore, are barred by Feres" (ibid.). The district court also noted that respondent is entitled to receive veterans' benefits (id. at 29a) and explained that "the existence of a no fault compensation scheme" for servicemen, veterans, and their survivors is another reason to apply the Feres doctrine (App., infra, 28a-29a, citing Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673 (1977), and Hatzlachh Supply Co. v. United States, 444 U.S. 460, 464-465 (1980)). 3. A divided panel of the court of appeals reversed (App., infra, 1a-23a). The majority overturned the district court's ruling that Feres bars respondent's claim, explaining that "(g)enerally, an off-duty serviceman not on the military base and not engaged in military activity at the time of injury, can recover under FTCA" (App., infra, 5a-6a) and that "being kidnapped off base at gun point can never be perceived as one of the activities or anticipated * * * benefits of being in the armed services" (id. at 7a (emphasis omitted)). The court also held that the intentional tort exception to the FTCA does not bar respondent's claim. The majority noted that respondent's complaint alleged that the government was negligent and reasoned that "if an assault and battery occurred as a 'natural result' of the government's failure to exercise due care, the assault and battery may be deemed to have its roots in negligence and therefore it is within the scope of the FTCA" (App., infra, 8a). Judge Garth dissented (App., infra, 10a-23a). He noted his disagreement with the majority on the Feres issue (App., infra, 11a & n.1) but principally discussed the intentional tort exception. Judge Garth noted that Section 2680(h) applies to claims "arising out of" assault or battery and not just claims "for" assault or battery (see App., infra, 13a-14a) and accordingly, by its terms, precludes respondent's claim. Judge Garth also stated that respondent's claim, "although appearing on the surface to charge negligence is, in truth, no more than a complaint seeking monetary recovery for an assault and battery" (id. at 11a). Judge Garth remarked that "'negligence' claims such as (respondent) asserts have been filed with greater and greater frequency" (App., infra, 12a), and he observed that "(b)y far the greater number of courts that have dealt with claims similar to this one have found section 2680(h) to bar liability" (id. at 14a). Judge Garth stated that, in particular, the majority erred by not following Naisbitt v. United States, 611 F.2d 1350 (10th Cir.), cert. denied, 449 U.S. 885 (1980); Hughes v. United States, 662 F.2d 219 (4th Cir. 1981), aff'g Hughes v. Sullivan, 514 F. Supp. 667 (E.D. Va. 1980); and United States v. Shively, 345 F.2d 294 (5th Cir. 1965). The court of appeals denied rehearing en banc by a vote of 6-4 (App., infra, 33a-36a). Judge Garth wrote a dissenting statement in which he noted that "all of the other Courts of Appeals which have considered the issue presented here have held that (Section) 2680(h) bars recovery of claims similar to (respondent's)" (id. at 34a). Judge Adams, in his dissenting statement, urged that rehearing be granted for the following reasons (id. at 35a (citations omitted)): (T)he majority opinion in this case decides two questions of exceptional importance that deserve in banc consideration. The panel's affirmative answer to the first question, whether the intentional tort exception to the Federal Torts Claims Act, 28 U.S.C. 2680(h), allows a claim against the government for a murder committed by an off-duty serviceman, brings this Court into conflict with the law of several other Circuits. The panel's negative answer to the second question, whether the Feres doctrine precludes the kind of litigation that underlies this appeal, raises serious policy concerns about judicial review of military decisions. REASONS FOR GRANTING THE PETITION The court of appeals' holding that the intentional tort exception does not bar respondent's claim is inconsistent with the language and the manifest purposes of that provision and conflicts with the decisions of every other court of appeals that has considered the issue. In addition, the court of appeals' approach, if it were to prevail, would be likely to precipitate frequent FTCA actions alleging that the government's negligence was responsible for a crime committed off duty by one of the government's several million servicemen or civilian employees, and would hold the government liable whenever it was found not to have adequately supervised the off-duty activities of one of its employees -- an expansive and burdensome liability that is not imposed on ordinary employers by the common law. The court of appeals' holding that the Feres doctrine does not bar respondent's claim is also in error and would require courts to second-guess military officers' decisions about the discipline, morale, control, and discharge of servicemen. Further review is therefore warranted. 1. a. The court of appeals' principal holding -- that the intentional tort exception of the FTCA, 28 U.S.C. 2680(h), does not bar respondent's claim -- conflicts with the decisions of every other court of appeals that has considered this issue. In Naisbitt v. United States, 611 F.2d 1350, cert. denied, 449 U.S. 885 (1980), the Tenth Circuit refused to entertain a claim indistinguishable from respondent's: the victims of crimes committed off the base by two off-duty servicemen, which had resulted in the death of three persons and serious injury to two others, brought suit under the FTCA, alleging that "the United States was guilty of actionable negligence in failing to supervise and curtail the two airmen in question" (id. at 1351). The court of appeals held that the claim was barred by the intentional tort exception (id. at 1353-1356), remarking that "(t)here is a dearth of authority" to the contrary (id. at 1356). The Tenth Circuit has recently reaffirmed this holding. Wine v. United States, 705 F.2d 366 (1983). In Hughes v. United States, 662 F.2d 219 (4th Cir. 1981), aff'g Hughes v. Sullivan, 514 F. Supp. 667 (E.D. Va. 1980), the complaint charged that a postman on his delivery route took indecent sexual liberties with two minors and that the government had "acted negligently in failing to relieve (the postman) of his delivery duties" after a previous, similar incident (662 F.2d at 220). The court of appeals held that "the claims, although framed in terms of negligence, actually arose out of the assaults and batteries committed by (the employee). * * * (G)overnment liability was thereby precluded under 28 U.S.C. Section 2680(h)." 662 F.2d at 220. The district judge, whose reasoning was adopted by the court of appeals (ibid.), relied in part on Naisbitt. See 514 F. Supp. at 668. Finally, in United States v. Shively, 345 F.2d 294 (5th Cir. 1965), a person who was shot and injured by a serviceman sued under the FTCA, claiming that the Army negligently issued a pistol to the serviceman even though it had reason to know that he would use it to assault the plaintiff. The court of appeals, reversing a judgment in favor of the plaintiff, stated that the plaintiff's claim "is a 'claim arising out of assault,' which is, in those words, specifically excepted from recovery under the Federal Tort Claims Act, 28 U.S.C. Section 2680(h)." Id. at 297. The court below attempted to distinguish Naisbitt on the ground that the "complaint (in Naisbitt) failed to assert any facts" substantiating the allegation of negligence (App., infra, 10a). The court of appeals did not expressly distinguish Hughes and Shively, although it suggested that those cases also involved "artful pleadings with conclusionary allegations" (App., infra, 8a). There is no basis for these distinctions. Nothing in the opinions in Naisbitt or Wine -- both of which affirmed the dismissal of complaints -- suggests that the Tenth Circuit was concerned that the pleadings lacked factual substantiation; those decisions make it entirely clear that the Tenth Circuit will not entertain claims like respondent's, however they are pled. In Hughes, the opinions themselves recite facts that would support an allegation of negligence at least as well as the facts asserted by respondent (see 662 F.2d at 220; 514 F. Supp. at 667-668). Shively reversed a judgment in favor of the plaintiff, and the court of appeals expressly agreed with the district court's finding that the government was negligent (345 F.2d at 296). b. The court of appeals' decision is also inconsistent with the language and the purposes of the intentional tort exception. Section 2680(h) bars "(a)ny claim arising out of assault (or) battery" (emphasis added). As Judge Garth noted in his dissent, "'Congress could easily have excepted claims for assault. It did not; it used the broader language excepting claims arising out of assault.'" App., infra, 14a, quoting Collins v. United States, 259 F. Supp. 363, 364 (E.D. Pa. 1966). Respondent's claim "arises out of" an assault and battery within the plain meaning of that term. This Court has recently interpreted another FTCA exception that is similarly phased according to its literal meaning. Kosak v. United States, No. 82-618 (Mar. 21, 1984), slip op. 5-7. The court of appeals erred in not interpreting Section 2680(h) according to its plain meaning and affirming the dismissal of respondent's claim. Moreover, a central purpose of Section 2680(h) is, indisputably, to exempt the government from liability for the intentional torts of its employees when they are acting within the scope of their employment. It is evident that a claimant could not attempt to circumvent this limitation on the government's respondeat superior liability by alleging that the government was negligent in its supervision of the employee in question. But if Congress meant to bar claims based on the intentional torts of government employees acting within the scope of their duties, it could not possibly have intended that the government be responsible for intentional torts committed by employees who were acting outside the scope of their duties and were therefore even less subject to the government's supervision and control. /3/ Justice (then Judge) Harlan explained that a purpose of Section 2680(h) is to exempt the government from liability for "activities which practically, even though not legally, speaking are outside the scope of a government employee's proper official functions" (Panella v. United States, 216 F.2d 622, 625 (2d Cir. 1954)); a fortiori, the government should not be held responsible for acts like Heard's that are without question wholly outside the scope of the tortfeasor's duty and have no connection whatever to his government service. Indeed, the court of appeals' decision imposes on the government a novel form of liability that is unknown at common law -- a result that Congress could not have intended when it enacted the FTCA. At common law, if an employee is acting outside the scope of his authority, the employer has no general duty to exercise reasonable care to prevent the employee from injuring others. See Restatement (Second) of Torts Sections 315, 317 (1965). /4/ This is true even if the employer knows of the employee's dangerous proclivities (see Restatement (Second) of Torts Section 314 (1965) /5/ ) and even if the employer is fully able to control the employee's off-duty activities. See, e.g., Restatement (Second) of Torts Section 317 comment b ("(A) factory owner * * * is not required * * * to exercise any control over the actions of his employees while on the public streets or in a neighboring restaurant during the lunch interval, even though the fact that they are his servants may give him the power to control their actions by threatening to dismiss them from his employment if they persist."); Prosser, Torts 275 (4th ed. 1971) ("It must be remembered that the mere fact that misconduct on the part of another might be foreseen is not of itself sufficient to place the responsibility upon the defendant."). At common law, therefore, a private employer of Heard would not be liable in the circumstances alleged in respondent's complaint. There is no reason whatever to believe that Congress intended to subject the government to such a wholly novel form of liability. To the contrary, it is clear from the language of the Act itself that the government's liability under the FTCA is to be no broader than that of a private party in similar circumstances (see 28 U.S.C. 1346(b) and 2674). Moreover, an authoritative source on the meaning of the FTCA (see Kosak, slip op. 8-9) explained to Congress that the "theory" of the intentional tort exception "is that, since this bill is a radical innovation, perhaps we had better take it step by step." Tort Claims: Hearings on H.R. 7236 Before Subcomm. No. 1 of the House Comm. on the Judiciary, 76th Cong., 3d Sess. 22 (1940) (statement of Alexander Holtzoff). Since, as this statement shows, the intentional tort exception was designed to exempt the government even from certain well-established forms of liability to which private parties are subject, Congress could not have intended to subject the government to a form of liability unknown at common law. /6/ 2. The court of appeals also erred in reversing the district court's holding that the Feres doctrine bars respondent's claim. Feres established that the FTCA does not waive the government's sovereign immunity from suits by servicemen for alleged torts that are incident to military service. This Court has explained that the Feres doctrine is principally based on the following considerations: (T)he "peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty. . . ." United States v. Muniz, 374 U.S. 150, 162 (1963), quoting United States v. Brown, 348 U.S. 110, 112 (1954). See Chappell v. Wallace, No. 82-167 (June 13, 1983), slip op. 3. The Court has also explained that the purpose of the Feres doctrine is to avoid a trial at which courts must engage in "second-guessing military orders" and at which the "issue would be the degree of fault, if any, on the part of the Government's agents and the effect upon the serviceman's safety." Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673 (1977). The court of appeals' decision is inconsistent with each of these objectives of the Feres doctrine. Respondent's claim, which is made on behalf of a serviceman, /7/ directly challenges several military orders. Specifically, respondent alleges that Shearer's superiors at Fort Bliss and elsewhere in the Army injured him because they: (i) "negligently and carelessly failed to exert a reasonably sufficient control over Andrew Heard," (ii) failed to "take any action to prevent (Heard) from endangering other persons," (iii) "failed to warn other persons that (Heard) was at large, and of the danger which he presented(,)" and (iv) "negligently and carelessly failed to then remove Andrew Heard from active military duty" (C.A. App. 17a-18a). Respondent thus seeks to have the courts inquire into basic decisions about the discipline, control, and discharge of Heard and into whether Shearer's superior officers exercised a sufficient degree of care in protecting him from another serviceman. These are principal examples of "'(t)he complex, subtle, and professional decisions as to the composition, training, * * * and control of a military force (that) are essentially professional military judgments'" (Chappell, slip op. 6, quoting Gilligan v. Morgan, 413 U.S. 1, 10 (1973)) and that should not be second-guessed by a court at the behest of a serviceman. The court of appeals ruled that respondent's claim was not barred by Feres because Shearer was off the base and on personal business at the time he was murdered. See App., infra, 5a-7a. But the location of the murder committed by Heard and Shearer's off-duty status at the time are immaterial, because respondent cannot establish her claim simply by showing that Heard's actions were tortious. Rather, respondent seeks to demonstrate that Shearer's superior officers committed a tort against him by failing to give him adequate warnings about a dangerous fellow serviceman and by failing to ensure that that serviceman was discharged. These actions and decisions of Shearer's superior officers were clearly "incident to (Shearer's) service" (Feres, 340 U.S. at 146); according to respondent, they constitute a breach of a duty that Shearer's superior officers owed to their subordinates. As the district court explained (App., infra, 26a), it is of no significance that the asserted consequence of the military decisions that allegedly constituted a breach of this duty did not befall Shearer until he happened to be off base and off duty. /8/ The court of appeals relied (App., infra, 5a-7a) on Brooks v. United States, 337 U.S. 49 (1949), which held that an off-duty serviceman can sue under the FTCA for injuries sustained in an off-base automobile accident with a military vehicle. But in Brooks, the duty breached by the driver was not a duty owed to the plaintiff because he was a serviceman (see 337 U.S. at 52), but a duty owed equally to all members of the general public. /9/ The suit therefore would not have required courts to second-guess a military decision about the degree of care to be shown to a serviceman. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General DAVID A. STRAUSS Assistant to the Solicitor General ANTHONY J. STEINMEYER ROBERT V. ZENER Attorneys AUGUST 1984 /1/ "Complaint" refers to the Proposed Amended Complaint (C.A. App. 11a-18a). "C.A. App." refers to the Appendix to Appellant's Brief in the court of appeals. /2/ Aproviso to the intentional tort exception specifies that the government can be sued for assualt, battery, and certain other intentional torts committed by "investigative or law enforcement officers." There is no suggestion that any of the government employees whose actions are at issue in this case were investigative or law enforcement officers. /3/ There is no suggestion in this case that Heard was acting within the scope of his authority. /4/ Section 315 provides: There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection. Section 317, which describes the extent to which such a "special relation" exists between an employer and an off-duty employee who harms another, provides that "(a) master is under a duty to exercise reasonable care * * * to control his servant while acting outside the scope of his employment * * * if * * * the servant * * * is upon the (master's) premises * * * or (premises) * * * the servant is privileged to enter only as his servant, or * * * is using a chattel of the master * * *." There is no allegation that Heard was on government premises or was using a chattel belonging to the government when he killed Shearer, and the court of appeals' decision accordingly is not limited to cases in which, for example, a serviceman uses his service weapon to commit a tort. In any event, since Section 2680(h) would exempt the government from liability if a service weapon were used to commit an intentional tort by a serviceman who was on duty, and acting within the scope of his employment, Congress could not have intended that the government be held liable for the tortious off-duty use of such a weapon. /5/ Section 314 provides: The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action. /6/ Where the government undertakes the responsibility of supervising a person known to be dangerous -- such as by operating a prison, school, or hospital for dangerous persons -- several cases have held that it will be liable if its agents fail to discharge that responsibility with due care. See, e.g., Muniz v. United States, 305 F.2d 285 (2d Cir. 1962), aff'd, 374 U.S. 150 (1963) (prisoner); Panella v. United States, supra (inmate at public health service hospital). See also Restatement (Second) of Torts Section 319 (1965): One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. There is, however, no suggestion in this case that the government had "take(n) charge" of Heard in this sense or otherwise assumed any special responsibility for protecting others from him (see App., infra, 21a (Garth, J., dissenting)); the military, unlike a prison or a psychiatric ward, is not an institution established to supervise persons known to be dangerous. The court of appeals relied (App., infra, 8a-9a) on a decision in this line of cases, Gibson v. United States, 457 F.2d 1391 (3d Cir. 1972). But as Judge Garth pointed out in dissent (App., infra, 19a-21a), the court in Gibson carefully explained that it was not imposing on the government a general duty to supervise all those whose behavior it might be able to influence (see 457 F.2d at 1394). /7/ It is immaterial that the suit was brought not by the serviceman but by a party claiming on his behalf; Feres itself was a suit by the executrix of the injured serviceman (see 340 U.S. at 136-137). See also App., infra, 25a n.1. /8/ The court of appeals' decision on the Feres issue cannot be reconciled with Brown v. United States, No. 83-1234 (8th Cir. July 20, 1984). The plaintiff in Brown sued on behalf of a member of the National Guard, Briscoe, who was allegedly the victim of a racially motivated intentional tort committed by other members of the Guard. The incident occurred at a party on the military base where all the servicemen were stationed, but all the servicemen were off duty at the time. The plaintiff alleged, among other things, that superior officers negligently failed to prevent the incident and failed to perform an adequate investigation. The court of appeals held (slip op. 13-14) that these claims were barred by Feres: The claim that various officers negligently failed to prevent the incident directly calls into question the disciplinary decisions of Briscoe's superior officers. Presumably what would be litigated is whether the officers should have issued some type of order, or otherwise taken disciplinary action, to prevent any type of racially motivated actions. Under the Feres doctrine such a lawsuit cannot be maintained -- it strikes precisely at the type of command relationship between a service member and his or her superior officers that is at the heart of the military disciplinary structure. Similarly, the claim that various officers failed to perform a proper investigation strikes directly at military decisionmaking with respect to a disciplinary matter. The Feres doctrine will not permit a court to second-guess the military decisions as to how an investigation into a disciplinary matter should have been conducted. The court of appeals did not consider it decisive that the injury in Brown, unlike the injury to Shearer, was inflicted on a military base. See slip op. 10-11. Other circuits have similarly applied Feres to preclude claims for injuries that occurred while the serviceman was off the base. See, e.g., Johnson v. United States, 631 F.2d 34, 37 (5th Cir. 1980), cert. denied, 451 U.S. 1018 (1981) (Feres bars a claim for injury that occurred when serviceman was off duty and off base because "all the government actions that resulted in (the serviceman's) death were directly and substantially related to his military service."). It also was not significant that Briscoe was a member of the National Guard (see slip op. 7). Accordingly, it appears that the Eighth Circuit would have held that respondent's claim was precluded by Feres. /9/ Here, as we have noted, respondent appears to have alleged only a breach of duties owed to Shearer by virtue of his status as a serviceman, and in any event it is clear -- as the courts of appeals rules in Naisbitt v. United States, supra, and United States v. Shively, supra -- that respondent's claim cannot be based upon a breach of a duty owed to the public at large. APPENDIX