Barry Doe v. Meron, 18-2024

• Decision Date: 03 July 2019
• Docket Number: No. 18-2024,18-2024
• Citation: 929 F.3d 153
• Parties: Barry DOE, individually and as Next Friend of his minor children M.D. (2006), E.D. (2008) and K.D. (2009), Plaintiff – Appellant, v. David J. MERON, individually and in his official capacity as Navy Officer and former Commanding Officer at NSA Bahrain (DOD); Barbara R. Craig, individually and in her official capacity as Director of Armed Forces Center for Child Protection (DOD); Kristen E. Webb, individually and in her official capacity as social worker at Armed Forces Center for Child Protection (DOD); Terry Greene, individually and in her official capacity as Principal of Bahrain School (DOD); David Laspisa, individually and in his official capacity as current or former Executive Office, NSA Bahrain (DOD); Steven Stutzman, individually and in his official capacity as Regional Counseling and Advocacy Coordinator, Navy Installations Command (EURAFSWA) ; John Scorby, individually and in his official capacity as a U.S. Navy Rear Admiral and Commander of Navy Installation Command, EURAFSWA; Clark Jackson, individually and in his official capacity as current or former Family Advocacy Representative (FAR), NSA Bahrain (DOD); United States of America, Defendants – Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

929 F.3d 153

Barry DOE, individually and as Next Friend of his minor children M.D. (2006), E.D. (2008) and K.D. (2009), Plaintiff – Appellant,

v.David J. MERON, individually and in his official capacity as Navy Officer and former Commanding Officer at NSA Bahrain (DOD); Barbara R. Craig, individually and in her official capacity as Director of Armed Forces Center for Child Protection (DOD); Kristen E. Webb, individually and in her official capacity as social worker at Armed Forces Center for Child Protection (DOD); Terry Greene, individually and in her official capacity as Principal of Bahrain School (DOD); David Laspisa, individually and in his official capacity as current or former Executive Office, NSA Bahrain (DOD); Steven Stutzman, individually and in his official capacity as Regional Counseling and Advocacy Coordinator, Navy Installations Command (EURAFSWA) ; John Scorby, individually and in his official capacity as a U.S. Navy Rear Admiral and Commander of Navy Installation Command, EURAFSWA; Clark Jackson, individually and in his official capacity as current or former Family Advocacy Representative (FAR), NSA Bahrain (DOD); United States of America, Defendants – Appellees.

No. 18-2024

United States Court of Appeals, Fourth Circuit.

Argued: May 8, 2019

Decided: July 3, 2019

ARGUED: Christopher Edwin Brown, BROWN FIRM, PLLC, Alexandria, Virginia, for Appellant. Daniel Aguilar, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: T. Roe Frazer II, FRAZER PLC, Nashville, Tennessee; Roy L. Mason, SMOUSE & MASON, LLC, Towson, Maryland; Marie Celeste Bruce, RIFKIN WEINER LIVINGSTON, LLC, Bethesda, Maryland, for Appellant. Joseph H. Hunt, Assistant Attorney General, Mary Hampton Mason, James R. Whitman, Torts Branch, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees.

Before KING, DIAZ, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge King and Judge Diaz joined.

QUATTLEBAUM, Circuit Judge:

Barry Doe claims officers of the United States Navy and employees of the Department of Defense ("DOD") conspired to seize, interrogate and batter his three minor children and to seize and batter him. In response, Doe, individually and on behalf of his three minor children, (collectively "Doe") sued those officers and employees alleging intentional torts under state law and constitutional violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The district court dismissed Doe’s claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Regarding Doe’s tort claims, the district court determined that the individual defendants were acting within the scope of their employment and were, therefore, immune from suit under the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the "Westfall Act") and the Medical Malpractice Immunity Act (the "Gonzalez Act"). Under those acts, the district court determined that the government was properly substituted for the individual defendants for the tort claims. The district court then held that the government was not subject to suit because the tort claims arose in a foreign country, an exception to the government’s limited waiver of sovereign immunity under the Federal Tort Claims Act (the "FTCA").

Regarding the constitutional claims, the district court declined to extend Bivens to the circumstances of this case, and, accordingly, dismissed those claims for failure to state a claim. For the reasons set forth below, we affirm.

I.

Because of their importance to the background of this case, we first describe the applicable provisions of the Westfall Act, the Gonzalez Act and the FTCA. The Westfall Act immunizes federal employees from personal liability for claims that arise within the scope of their employment. Maron v. United States , 126 F.3d 317, 321 (4th Cir. 1997). To provide this immunity, the Attorney General of the United States, or his delegee, must certify that the defendant employees were acting within the scope of their employment at the time of the incident out of which the claim arose. 28 U.S.C. § 2679(d)(1). Following certification, the proceeding is deemed a tort action against the United States under the provisions of the FTCA. 28 U.S.C. § 2679(d)(1).

Similarly, the Gonzalez Act immunizes federal employees in the medical field from personal liability for claims arising from the performance of medical or related health care functions. 10 U.S.C. § 1089(a). It does this by allowing the United States to substitute itself as a defendant upon certification by the Attorney General that the medical employee was acting within the scope of his employment at the time of the incident out of which the suit arose. 10 U.S.C. § 1089(c).

After certification, the ball is in the plaintiff’s court. If a plaintiff does not challenge the Attorney General’s certification, the certification is conclusive.

Gutierrez de Martinez v. Drug Enforcement Admin ., 111 F.3d 1148, 1153 (4th Cir. 1997).¹ If a plaintiff challenges the Attorney General’s certification, he must prove that the defendants were not acting within the scope of their employment. Maron , 126 F.3d at 323. If the plaintiff presents persuasive evidence refuting certification, the government must provide evidence and analysis supporting its conclusion that the conduct at issue was carried out within the scope of employment. Id . If the plaintiff’s evidence carries the burden of proof, the district court may allow any discovery it deems appropriate. Gutierrez de Martinez , 111 F.3d at 1155.

If the district court determines that the employees were acting within the scope of their employment, the government is substituted as the defendant for the individual employees. Normally, the government would be immune from civil liability for these tort claims under the sovereign immunity doctrine. However, the FTCA is a limited waiver of the government’s sovereign immunity for injury or loss caused by the negligent or wrongful act or omission of government employees acting within the scope of their employment. Medina v. United States , 259 F.3d 220, 223 (4th Cir. 2001).

The waiver is limited because Congress has provided several exceptions to this waiver under 28 U.S.C. § 2680. Relevant here, Congress excluded from the FTCA waiver of immunity "[a]ny claim arising in a foreign country." 28 U.S.C. § 2680(k). If an exception applies, a court must dismiss a complaint for lack of jurisdiction. Medina , 259 F.3d at 223.

II.

With these legal principles in hand, we turn to the facts and procedural history. In 2017, Doe sued David J. Meron, Barbara R. Craig, Kristen E. Webb, Terry Greene, Clark Jackson, David LaSpisa, Steven Stutzman and Josh Scorby in the District of Maryland. Doe’s suit arose from conduct which allegedly occurred at Naval Support Activity Bahrain ("NSA Bahrain"), a United States Navy installation in the Kingdom of Bahrain, in 2015.² At the time of the alleged conduct, Doe was employed as a federal civil servant by the Navy at NSA Bahrain. Meron was the Installation Commanding Officer at NSA Bahrain. Craig and Webb were employees of the DOD or the Defense Health Agency ("DHA") in Bethesda, Maryland. Greene was an employee of the Department of Defense Education Activity in Bahrain, serving as the Principal of the Bahrain School. Jackson was an employee of the Navy at NSA Bahrain, serving as a clinical social worker in the DOD’s Family Advocacy Program. LaSpisa was a commissioned officer in the Navy at NSA Bahrain, serving as Meron’s second-in-command. Stutzman was an employee of the Navy. Scorby was a Rear Admiral, serving as Commander, Navy Region Europe, Africa, Southwest Asia.

The allegations in Doe’s complaint arise from a 2015 investigation at NSA Bahrain into complaints that Doe abused and neglected his three minor children. Jackson reported the allegations to Meron in April 2015. Meron then authorized Craig and Webb to interview and examine Doe’s three minor children based on the allegations against Doe. They did so on the same day, interviewing and physically examining the three children. During the interview and examinations, Craig and Webb found no evidence of sexual abuse.³

Doe’s complaint alleges the investigation was illegitimate. He alleges that Meron, Craig, Webb, Greene, Jackson, LaSpisa and other unnamed individuals in Maryland conceived a plan to seize Doe’s minor children without a court order and to interrogate and batter each of them. He further alleges that Scorby was consulted on aspects of the plan and did not prevent it.

According to Doe, this plan was brought to fruition when Doe’s three minor children were twice seized, interrogated and battered. Doe alleges that Greene allowed Craig and Webb to seize, detain and interrogate Doe’s three minor children at the Bahrain School. He further alleges that LaSpisa forcibly seized the three minor children a second time later the same day. He contends that the children were then taken to another location, where Craig sexually battered all three minor children during the course of their physical examinations. Doe claims that he was also seized, battered, detained and unlawfully imprisoned the following day in the presence of his children.

In the complaint, Doe alleges five constitutional claims under Bivens . First, he alleges that the defendants violated the Fourth Amendment rights of his three minor children when LaSpisa allegedly seized the children and Craig and Webb allegedly battered them. Second, Doe alleges the defendants violated the Fourth Amendment rights of his three minor children when Greene, Craig and Webb allegedly seized and interrogated the children at the Bahrain School. Third, he alleges the defendants violated his Fourth...