Bodin v. Vagshenian

• Decision Date: 24 August 2006
• Docket Number: No. 05-50707.,05-50707.
• Citation: 462 F.3d 481
• Parties: Kent BODIN, Plaintiff-Appellant, v. Gregory S. VAGSHENIAN M.D.; et al., Defendants, United States of America, Defendant-Appellee. Gordon L. Meyers, Plaintiff-Appellant, v. United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 481

462 F.3d 481

Kent BODIN, Plaintiff-Appellant, v. Gregory S. VAGSHENIAN M.D.; et al., Defendants, United States of America, Defendant-Appellee.

Gordon L. Meyers, Plaintiff-Appellant, v. United States of America, Defendant-Appellee.

No. 05-50707.

United States Court of Appeals, Fifth Circuit.

August 24, 2006.

Scott Alan Ozmun (argued), Whitehurst, Harkness, Ozmun & Archuleta, Jeffrey S. Edwards, Whitehurst, Harkness, Ozum & Brees, Austin, TX, for Plaintiff-Appellant.

Daniel M. Castillo (argued), Austin, TX, for Defendant-Appellee.

Appeals from the United States District Court for the Western District of Texas.

Before GARZA, PRADO and OWEN, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

In these consolidated cases, plaintiffs Kent Bodin and Gordon Meyers appeal judgments on partial findings pursuant to Federal Rule of Civil Procedure 52(c) in favor of the defendant United States on their claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.

I

Bodin and Meyers were psychiatric patients of Dr. Gregory Vagshenian at an outpatient facility in Austin operated by the Department of Veterans Affairs ("VA"). The plaintiffs alleged and presented evidence that during regularly scheduled visits, Dr. Vagshenian performed illegal, inappropriate, and unnecessary physical examinations of their genitalia.¹ They claimed that the United States was liable for Dr. Vagshenian's assault and malpractice and for failing to take steps to prevent Dr. Vagshenian's actions.

After a bench trial, the district court dismissed the complaints for lack of subject matter jurisdiction. The district court observed that the United States has waived sovereign immunity for the tortious acts or omissions of its employees only when they occur within the scope of employment. 28 U.S.C. § 1346(b)(1). Applying Texas law, the district court found that Dr. Vagshenian was not acting within the scope of his employment when he committed the assaults. The district court reasoned that assaults on third persons fell outside the scope of authority granted to Dr. Vagshenian by the United States, particularly in light of the VA's "zero-tolerance policy" against the abuse of patients. The district court also found:

Dr. Vagshenian assaulted Bodin and Meyers for his own personal gratification, and not, in any way, for the purpose of carrying out the Clinic's treatment of patients. . . . Dr. Vagshenian's assault of Bodin and Meyers was an expression of Dr. Vagshenian's personal animosity. Thus, by assaulting Bodin and Meyers, Dr. Vagshenian turned away from treating patients, and instead he pursued his own sexual pleasure.²

The plaintiffs moved for a new trial or, in the alternative, to alter or amend the district court's judgment. They argued that although the district court resolved any claim against the United States based on a theory of respondeat superior, it did not dispose of their claims that other VA employees were negligent when they failed to prevent the foreseeable acts of abuse. It was undisputed that Dr. Vagshenian's coworkers were acting within the scope of their employment when they failed to prevent the assaults.

The district court denied the motion. It reasoned that, pursuant to 28 U.S.C. § 2680(h), the United States had not waived sovereign immunity for claims arising out of assault or battery. Although the plaintiffs' claims sounded in negligence, the district court reasoned that they nevertheless arose out of the assault.

In this appeal, the plaintiffs argue that the district court erred in dismissing both their claims based on Dr. Vagshenian's wrongful conduct and Dr. Vagshenian's coworkers' wrongful failure to intervene.

II

Rule 52(c) provides that "[i]f during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party." We review findings of fact made pursuant to Rule 52(c) for clear error and conclusions of law de novo. Bursztajn v. United States, 367 F.3d 485, 488-89 (5th Cir.2004).

Except when waived, the United States has sovereign immunity from suit, United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). This immunity deprives federal courts of subject matter jurisdiction. Chapa v. United States Dept. of Justice, 339 F.3d 388, 389 (5th Cir.2003). The FTCA waives that immunity for 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.

28 U.S.C. § 1346(b)(1). By its terms, this waiver of sovereign immunity only applies when the tortfeasor acts within the scope of his employment. But even if the tortfeasor's conduct is within the scope of his government employment, the FTCA does not waive sovereign immunity for certain enumerated intentional torts, including "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights" unless the government actor was an investigative or law enforcement officer. 28 U.S.C. § 2680(h).

A

The plaintiffs argue that the district court erred in dismissing their claims against the United States based on Dr. Vagshenian's wrongful conduct. The district court did so because it found that Dr. Vagshenian was not acting within the scope of his employment when he committed the assaults. The issue of whether an employee is acting within the scope of his employment for purposes of the FTCA is governed by the law of the state in which the wrongful act occurred. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); Rodriguez v. Sarabyn, 129 F.3d 760, 766 (5th Cir.1997).

Under Texas law, "an employee's conduct is considered to fall within the scope of his employment if his actions were `(1) within the general authority given him; (2) in furtherance of the employer's business; and (3) for the accomplishment of the object for which the employee was employed.'" Counts v. Guevara, 328 F.3d 212, 214 (5th Cir.2003) (quoting Williams v. United States, 71 F.3d 502, 506 (5th Cir.1995)).³

Where an "intentional tort is committed in the accomplishment of a duty entrusted to the employee, rather than because of personal animosity, the employer may be liable." GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.1999). "A principal is responsible for an unlawful act of his agent where the act is committed by the agent for the purpose of accomplishing the mission entrusted to him by his principal." Southwestern Bell Tel. Co. v. Wilson, 768 S.W.2d 755, 759 (Tex.App.—Corpus Christi 1988, writ denied) (Benavides, J.). "If the purpose of serving the master's business actuates the servant to any appreciable extent his acts are within the scope of his employment." Howard v. Am. Paper Stock Co., 523 S.W.2d 744, 747 (Tex.Civ.App.—Fort Worth 1975), reformed and aff'd, 528 S.W.2d 576 (Tex. 1975). However, "when the servant turns aside, for however short a time, from the prosecution of the master's work to engage in an affair wholly his own, he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone." Tex. & P. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 241 (1952) (quoting Galveston, H & S.A. Ry. Co. v. Currie, 100 Tex. 136, 96 S.W. 1073, 1074 (1906)). "It is not ordinarily within the scope of a servant's authority to commit an assault on a third person." Id. at 239. The plaintiff bears the burden of proving that the employee acted for reasons other than personal animus. Garrett v. Great W. Distrib. Co. of Amarillo, 129 S.W.3d 797, 800 (Tex. App.—Amarillo 2004, pet. denied). This is generally a question of fact, not law. Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 720 (Tex.App.—Austin 2004, no pet.); see Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880, 882 (1948) (holding that whether assault is within scope of employment is a factual question depending "in large measure" on the assailant's motivation in acting).

Applying these principles in a similar case, Buck v. Blum, 130 S.W.3d 285 (Tex. App.—Houston [14th Dist.] 2004, no pet.), the Texas Court of Appeals affirmed a summary judgment for a hospital on a claim based on a doctor's sexual assault of a patient. Buck testified that while performing a grip test, Dr. Yen placed his penis in her hand and told her to squeeze. Id. at 288. Buck argued that "since the procedure itself was part of the examination, and thus within the scope of Yen's authority, the use of Yen's body part was simply an inappropriate exercise of delegated authority." Id. at 289. The court of appeals reasoned:

While it is undisputed Yen's alleged action was inappropriate, it cannot be fathomed that the action was in furtherance of the employer's business or for the accomplishment of an object for which he was employed. At the very moment Yen placed his body part in her hand (assuming he did), he was acting in his own prurient interest and ceased to be acting for the employer. The neurological examination at that point was only a pretense or a means for Yen's inappropriate personal gratification. Nor can it be said the assault was so connected with and immediately arising out of Yen's employment tasks as to merge the activities into one indivisible tort. A club bouncer has an inherently confrontational job that may well require physical force; whereas, neurology is not an inherently sexual profession and never requires the action allegedly perpetrated by Yen. As a matter of law, Yen's alleged conduct did not arise out of the course and scope of his employment . . . .

Id. at 289-90 (citations omitted).

...