896 F.2d 1168 (9th Cir. 1990), 88-15120, Sheehan v. United States

Docket Nº:88-15120.
Citation:896 F.2d 1168
Party Name:5 Indiv.Empl.Rts.Cas. 667 Joan SHEEHAN, formerly known as Joan Wycoff, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:February 16, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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896 F.2d 1168 (9th Cir. 1990)

5 Indiv.Empl.Rts.Cas. 667

Joan SHEEHAN, formerly known as Joan Wycoff, Plaintiff-Appellant,


UNITED STATES of America, Defendant-Appellee.

No. 88-15120.

United States Court of Appeals, Ninth Circuit

February 16, 1990

Argued and Submitted June 26, 1989.

Jerry K. Cimmet, San Francisco, Cal., for plaintiff-appellant.

George C. Stoll and Sandra L. Willis, Asst. U.S. Attys., San Francisco, Cal., for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, PREGERSON and THOMPSON, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

Joan Sheehan appeals (1) the grant of summary judgment for the government on Sheehan's claim under the Federal Tort Claims Act ("FTCA") for intentional infliction of emotional distress, on the ground that recovery for this tort is excluded from FTCA by 28 U.S.C. Sec. 2680(h), and (2) the dismissal of her claim under that act for negligent infliction of emotional distress on

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the ground that recovery under FTCA for this tort is preempted by the Federal Employees Compensation Act ("FECA"). We reverse.

Sheehan was an Army civilian employee at the Presidio in San Francisco. Clifton Hunt was her supervisor. Sheehan asserts (1) Hunt subjected her to unwanted sexual advances, conditioned employment decisions on submission to such advances, and attempted to fire her when she complained; (2) after she rejected his advances Hunt slandered her, had her assigned to undesirable projects, created a hostile work environment, and prevented her promotion; and (3) her supervisors did not take action against Hunt even after she complained, but instead suggested she transfer to another job and sought to dissuade her from seeking other relief.

Sheehan sued the United States under FTCA. Sheehan's first cause of action alleged Hunt's conduct was intended to and did cause Sheehan humiliation and emotional distress. Sheehan's second cause of action alleged her supervisor's negligent failure to take action and breach of the duty of due care owed Sheehan caused Sheehan humiliation and emotional distress. Sheehan sought $100,000 general damages.

The district court granted summary judgment against Sheehan on the first cause of action and dismissed the second.



FTCA waived the sovereign immunity of the United States from suit for injuries caused by government employees, 28 U.S.C. Sec. 1346(b), 1 but with specified exceptions. Under Sec. 2680(h), 2 the United States retains its immunity from suit for certain enumerated intentional torts. The district court granted summary judgment on Sheehan's cause of action for intentional infliction of emotional distress because it felt bound by our holding in United States v. Hambleton, 185 F.2d 564, 567 (9th Cir.1950), that such a claim is beyond the scope of the FTCA because of the express exclusion from the act of "[a]ny claim arising out of assault." Sec. 2680(h).

Sheehan argues Hambleton is not controlling because California, the state in which the alleged conduct occurred, recognizes a cause of action for intentional infliction of emotional distress that is independent of a cause of action for assault. Although this would satisfy the provision of FTCA limiting liability to "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," Sec. 1346(b), it does not answer the question whether the state cause of action is one excluded from FTCA coverage by Sec. 2680(h). The answer to the latter question turns not upon what rights state law may have created, but rather upon what Congress meant by the phrase "claim arising out of assault" in Sec. 2680(h). United States v. Neustadt, 366 U.S. 696, 705-06, 81 S.Ct. 1294, 1299-1300, 6 L.Ed.2d 614 (1961); Metz v. United States, 788 F.2d 1528, 1535 n. 8 (11th Cir.1986).

We are satisfied, however, that a claim for intentional infliction of emotional distress is not excluded from FTCA by Sec. 2680(h), and that the interpretive analysis by which Hambleton reached the contrary conclusion has been rejected in subsequent Supreme Court decisions.

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The Supreme Court made it clear in Rayonier Inc. v. United States, 352 U.S. 315, 320, 77 S.Ct. 374, 377, 1 L.Ed.2d 354 (1957), decided seven years after Hambleton, that "[t]here is no justification for this Court [or any court] to read exemptions into the [Federal Tort Claims] Act beyond those provided by Congress." 3 Following Rayonier the Supreme Court established a test for determining whether suit based on particular conduct is barred by one of the exemptions established in Sec. 2680(h).

In essence, the Court has inquired whether the conduct upon which the claim is based falls within the definition of a tort enumerated in Sec. 2680(h) that was "traditional," "commonly understood," or "established" when FTCA was enacted. See Block v. Neal, 460 U.S. 289, 296, 103 S.Ct. 1089, 1093, 75 L.Ed.2d 67 (1983); Neustadt, 366 U.S. at 705-08, 81 S.Ct. at 1299-1301.

Neustadt alleged government employees negligently inspected and appraised the home Neustadt purchased, and Neustadt paid an excessive price in reliance on government reports based on this negligent inspection and appraisal. The Supreme Court held Neustadt's claim barred as one "arising out of ... misrepresentation" as that tort was commonly understood. Neustadt, 366 U.S. at 706-07, 81 S.Ct. at 1301-02.

In Neal, the Court developed in some detail the approach initially suggested in Neustadt. Neal had obtained a government loan to build a home. Neal's contract with the builder granted the government the right to inspect and test materials and workmanship. After construction was completed plaintiff brought suit under FTCA alleging defects due in part to negligence of government employees in inspecting and supervising construction. The government relied upon Neustadt and argued the suit was barred by Sec. 2680(h) as a "claim arising out of ... misrepresentation."

The Court distinguished Neustadt from Neal on the basis of an analysis of the conduct upon which the causes of action alleged in the two cases rested. Neustadt based his claim on an alleged breach of a duty to use due care in obtaining and communicating information upon which Neustadt might reasonably be expected to rely. Because the conduct upon which Neustadt rested his claim was in essence a negligent misrepresentation, the claim was barred by the "misrepresentation" exception. Neal, 460 U.S. at 296-97, 103 S.Ct. at 1093. Neal, on the other hand, did not rest her claim "on the Government's failure to use due care in communicating information, but rather on the Government's breach of a different duty." Id. at 297, 103 S.Ct. at 1094. Neal alleged and would be required to prove the government voluntarily undertook to supervise the construction of her home and failed to discharge a duty imposed by the Good Samaritan doctrine to exercise due care in doing so. The government's "duty to use due care to ensure that the builder adhere to previously approved plans and cure all defects before completing construction is distinct from any duty to use due care in communicating information to respondent." Id. Thus the misstatements by government employees were "not essential" to Neal's claim. Id.

The Court in Neal noted that were it not for Sec. 2680(h), Neal might also have a claim for misrepresentation, and that this claim and Neal's Good Samaritan claim had factual and legal issues in common. But, the court said, "the partial overlap between these two tort actions does not support the conclusion that if one is excepted under the Tort Claims Act, the other must be as well. Neither the language nor history of the Act suggests that when one aspect of the Government's conduct is not actionable under

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the 'misrepresentation' exception, a claimant is barred from pursuing a distinct claim arising out of other aspects of the Government's conduct." Id. at 298, 103 S.Ct. at 1094.

In short the Supreme Court has focused inquiry on the conduct upon which plaintiff's claim is based. Regardless of the plaintiff's characterization of the cause of action, Sec. 2680(h) bars suit for claims based on conduct which constitutes one of the excepted torts, and bars suit for no other claims.

Thus the issue in this case is whether the conduct upon which plaintiff rests her claim for intentional infliction of emotional distress constitutes an assault as that tort is traditionally defined. If it does, then the claim is barred by Sec. 2680(h) because Congress excluded governmental liability for assaults committed by government employees. Such a claim is barred even though the conduct may also constitute a tort other than assault; to hold otherwise would permit evasion of the substance of the exclusion of liability for assaultive conduct. If, however, the aspect of the conduct upon which plaintiff relies did not constitute an assault, suit is not barred even though another aspect of that conduct may have been assaultive.


Hambleton did not follow this approach. Hambleton based her claim upon the egregious manner in which she was interrogated by a government investigator and the severe emotional disturbance that resulted. Hambleton alleged no actual or threatened violence or trespass upon her person or property. 185 F.2d at 565. Thus the conduct upon which she relied did not involve a threat of imminent battery--an essential element of assault. 4 No act that might have supported a claim for assault was necessary to Hambleton's claim of intentional infliction of emotional distress, and no such act was alleged.

While the court...

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