                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2814
                                   ___________


Joe Billingsley,                        *
                                        *
                   Appellant,           *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Arkansas.
United States of America,               *        [PUBLISHED]
                                        *
                    Appellee.           *
                                   ___________

                             Submitted: March 13, 2001

                                 Filed: June 5, 2001
                                  ___________

Before MORRIS SHEPPARD ARNOLD, and HEANEY, Circuit Judges,
      and TUNHEIM1, District Judge.
                                ___________

PER CURIAM.


      Appellant Joe Billingsley filed an action in district court alleging negligent
supervision of a government employee pursuant to the Federal Tort Claims Act


      1
      The Honorable John R. Tunheim, United States District Judge, for the District
of Minnesota, sitting by designation.
(FTCA), 28 U.S.C. §§ 2671-2680. The district court granted the government’s motion
to dismiss, concluding that Billingsley’s claim was barred by an exception to the FTCA
precluding, in part, suits “arising out of assault, battery, or false imprisonment.” 28
U.S.C. § 2680(h). Billingsley appeals. We remand because on its face, the complaint
states a claim.

      Billingsley was seriously injured when Thomas Saquawn,2 an enrollee in the
United States Job Corps, struck Billingsley over the head with a glass bottle and kicked
him repeatedly. The government states in its brief that Saquawn was not acting within
the scope of employment at the time of the battery. Job Corps enrollees are
government employees under 29 U.S.C. § 2897(a)(4).

       In Sheridan v. United States, 487 U.S. 392 (1988), the Court allowed a cause of
action for governmental negligence to proceed when the government employee who
committed the battery was not acting within the scope of his employment. In that case
an off-duty serviceman fired several rifle shots into plaintiffs’ car near the Bethesda
Naval Hospital, the defendant’s place of employment, causing physical injury to the
plaintiffs inside. The government was held to be potentially liable for the tort because
it had “a duty to prevent a foreseeably dangerous individual from wandering about
unattended.” Id. at 403. The Court found that “neither [defendant’s] employment
status nor his state of mind” had any bearing on plaintiffs’ request for damages, and
that the intentional tort exception was not applicable because the cause of action was
based on the government’s breach of a separate legal duty. Id.

      Billingsley’s complaint alleged that Saquawn was in the presence of other Job
Corps enrollees and a Job Corps employee when he battered Billingsley. There has
been no finding regarding the government’s alleged negligence or whether Saquawn


      2
      The briefs inconsistently identify the assailant as Saquawn Thomas and Thomas
Saquawn.

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was off-duty, but based on the information supplied in the complaint alone, appellant
may have a cause of action against the government under Sheridan.

       Sheridan specifically reserved the issue as to when the government is liable for
its negligent oversight of its employees who are acting within the scope of their
employment, and the circuits appear to be split on this matter. See Brock v. United
States, 64 F.3d 1421, 1425 (9th Cir. 1995) (holding that § 2680(h) does not bar suits
based on negligent supervision of government employees who commit battery); but see
Leleux v. United States, 178 F.3d 750, 757 (5th Cir. 1999) (holding that § 2680(h) bars
suit unless duty breached does not arise from the employment relationship).

       We find the Fifth Circuit’s analysis persuasive. If Saquawn was acting within
the scope of employment when he battered Billingsley, the government would be liable
for the tort if Billingsley can show that “the negligence ar[ose] out of an independent,
antecedent duty unrelated to the employment relationship between the tortfeasor and
the United States.” Leleux, 178 F.3d at 757. For example, the government would be
liable if the Jobs Corps employee responsible for the enrollees knew that Saquawn
acted violently in public prior to his commission of the battery. The government would
not be liable, however, for its negligent hiring and supervision of Saquawn, as such a
claim pertains to the government’s employment relationship with Saquawn. To find the
government liable for negligent hiring and supervision of an employee who commits a
tort would frustrate the purpose of § 2680(h), which is to bar suits resulting from
“deliberate attacks by Government employees.” Tort Claims Against the United States:
Hearings on S. 2690 Before a Subcomm. of the Comm. of the Judiciary, 76th Cong. 39
(1940).

        At the very minimum, Billingsley is entitled to discovery regarding the nature of
the government’s alleged negligence and whether Saquawn was acting within the scope
of his employment at the time of the tort. Whether this complaint can survive summary


                                          -3-
judgment under Arkansas law is not a question before us. We remand for further
proceedings consistent with this opinion.

     A true copy.

           Attest:

              CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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