Doe v. U.S.

Decision Date01 July 1985
Docket NumberNo. 84-2121,84-2121
Citation769 F.2d 174
PartiesMary DOE, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Francis T. Draine, Columbia, S.C., for appellant.

Glen E. Craig, Asst. U.S. Atty., Columbia, S.C. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Before WINTER, Chief Judge, and WIDENER and HALL, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

Plaintiff, a military dependent, sues under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671, et seq. She alleges that the deviant sexual conduct of an Air Force clinical social worker, who was treating her for "blackouts," made her a victim of medical malpractice. The district court ruled that the United States had not waived its sovereign immunity to plaintiff's suit because the conduct complained of constituted an assault under applicable South Carolina law, and 28 U.S.C. Sec. 2680(h) preserves immunity from suit on "[a]ny claim arising out of assault...." The court further held that Sec. 2680(h) had not been superseded in this case by the Medical Malpractice Immunity Act, 10 U.S.C. Sec. 1089, because the officer's conduct was not within the scope of his duties or employment. Accordingly, it dismissed plaintiff's claim.

Plaintiff appeals and we affirm. We agree with the district court that Andrews v. United States, 732 F.2d 366 (4 Cir.1984), is inapposite. In that case, the plaintiff consented to sexual advances offered as "treatment", and hence there was neither assault nor battery. In this case, plaintiff did not consent to the Air Force social worker's perverted behavior, so that the officer's conduct did constitute assault. Thus the Sec. 2680(h) assault exception to the waiver of sovereign immunity is fully applicable. We also agree that 10 U.S.C. Sec. 1089 does not permit plaintiff's suit. That provision waives governmental immunity only for claims involving a medical professional acting "within the scope of his duties or employment." Sec. 1089(a). Here, if plaintiff's allegations are true, the Air Force officer clearly was acting for his personal gratification rather than within the scope of his employment.

Plaintiff's other theories of recovery either were not raised administratively in satisfaction of the condition precedent to suit, or are so closely related to the barred assault claim that they also are barred by sovereign immunity.

AFFIRMED.

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21 cases
  • Patterson v. Augat Wiring Systems, Inc.
    • United States
    • U.S. District Court — Middle District of Alabama
    • 28 Octubre 1996
    ...personal and outside the line and scope of his employment. Id. at 1211-12 & n. 3 (citing Joyner, 477 So.2d 364 (same); Doe v. United States, 769 F.2d 174 (4th Cir.1985) (same); Andrews v. United States, 732 F.2d 366 (4th Cir.1984) (same); Hoover v. University of Chicago Hosps., 51 Ill.App.3......
  • Wood v. U.S.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 8 Octubre 1992
    ...job performance); Doe v. United States, 618 F.Supp. 503, 505-06 (D.S.C.1984) (sexual harassment outside the line of duty), aff'd, 769 F.2d 174 (4th Cir.1985); Turner v. United States, 595 F.Supp. 708, 710 (W.D.La.1984) (same). And, the court added, the government did not deny that the acts ......
  • Franklin v. U.S., 92-6056
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 5 Mayo 1993
    ...the action is specifically excluded from the government's waiver of sovereign immunity under the FTCA. See, e.g., Doe v. United States, 769 F.2d 174, 175 (4th Cir.1985); Lojuk v. Quandt, 706 F.2d 1456, 1460-61 (7th Cir.1983), appeal after remand, 770 F.2d 619, 622 (1985), cert. denied, 474 ......
  • Doe v. Durtschi
    • United States
    • Idaho Supreme Court
    • 10 Febrero 1986
    ...is in turn alleged to be the proximate cause of an assault or battery committed by a government employee. See, e.g., Doe v. United States, 769 F.2d 174 (4th Cir.1985); Hughes v. United States, 662 F.2d 219 (4th Cir.1981); Naisbitt v. United States, 611 F.2d 1350 (10th Cir.1980) cert. denied......
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