Doe v. United States
| Decision Date | 24 January 2023 |
| Docket Number | 22-1703 |
| Citation | 58 F.4th 955 |
| Parties | Jane DOE, Plaintiff - Appellant v. UNITED STATES of America, Defendant - Appellee |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who presented argument on behalf of the appellant and appeared on the brief was David Damick, of Saint Louis, MO.
Counsel who presented argument on behalf of the appellee and appeared on the brief was Roger Alan Keller, Jr., AUSA, of Saint Louis, MO.
Before SMITH, Chief Judge, KELLY and GRASZ, Circuit Judges.
Jane Doe sued the government after being sexually assaulted by an employee of the United States Department of Veterans Affairs (VA). The government moved to dismiss for lack of subject matter jurisdiction. The district court1 granted the government's motion. Doe appeals the district court's determination that the assault occurred outside the scope of the employee's employment. We affirm.
Doe was being treated for a hip injury at the St. Louis VA Medical Center. She was referred to the battlefield acupuncture (BFA) therapy group. BFA is a form of therapy that involves placing needles or tacks into five spaces in a patient's ear.
The incident in question occurred during a private BFA session. William B. Luchtefeld, a nurse practitioner employed by the VA, was treating Doe. Luchtefeld performed the BFA therapy and then asked Doe if she wanted the hip pain "massaged out." Doe v. United States , No. 4:21-CV-00173-AGF, 2022 WL 898788, at *1 (E.D. Mo. Mar. 28, 2022). Luchtefeld instructed Doe to lay on her side. He began massaging Doe's lower back, hip, and stomach. He then instructed Doe to remove her pants to expose her injured hip area. Luchtefeld moved his hands between Doe's legs and groped and digitally penetrated her vagina. Luchtefeld also placed his hands under Doe's shirt and groped her breast. Luchtefeld documented the BFA therapy, not the massage and subsequent sexual assault.
After the incident, Doe went to the front desk with tears in her eyes. She asked another VA employee to see Luchtefeld's supervisor and a VA staff psychiatrist. A doctor purporting to be Luchtefeld's supervisor arrived, but Luchtefeld interrupted the conversation. Luchtefeld offered Doe his business card and prevented her from fully reporting the assault.
In a statement given to a special agent of the VA Office of Inspector General, Luchtefeld admitted to touching Doe's vagina because he "got kind of excited." R.
Doc. 34-5, at. 4. He admitted that it was inappropriate for him to massage a patient. Doe also gave a statement, in which she stated Luchtefeld was not wearing gloves and was breathing hard. She noted that he had an erection.
Doe filed a complaint, pursuant to the Federal Tort Claims Act (FTCA), asserting multiple negligent and intentional tort causes of action. The government moved to dismiss for lack of subject matter jurisdiction. It argued that Luchtefeld's job responsibility during his appointment was limited to treating Doe with BFA. It asserts that Luchtefeld was neither acting within the scope of his employment nor furnishing medical care or treatment when he ceased performing BFA and began to massage and sexually assault Doe. Based on Luchtefeld's unauthorized conduct, the government argued that Doe failed to establish jurisdiction under the FTCA.
After Doe responded to the government's dismissal motion, the parties jointly moved for limited discovery on the issue of subject matter jurisdiction and for additional time to allow Doe to supplement her response. The district court granted the joint motion.2
Doe's supplemental response argued that Luchtefeld had broad authority and duties, such that he was acting within the scope of his employment when he assaulted Doe. She further argued that her allegations that Luchtefeld committed intentional torts while furnishing medical care or treatment suffice to establish jurisdiction. Doe maintained that Luchtefeld was furnishing medical care or treatment when he assaulted her. She asserted that to hold otherwise would nullify the FTCA because negligence and intentional torts are never authorized by an employer.
The district court granted the government's motion. It concluded that jurisdiction under the FTCA requires a showing that the tortfeasor acted within the scope of employment as defined by state law. The district court further concluded that under Missouri law, sexual misconduct is generally never within the scope of employment because it only serves the interests of the tortfeasor, not the employer. The district court found that Luchtefeld's treatment authority was limited to BFA therapy and that any massage that he performed was not authorized nor intended to treat her hip pain. The district court concluded that Luchtefeld's actions were motivated wholly by his personal desires, such that he was not acting within the scope of his employment under Missouri law. The court's rulings eliminated the FTCA's sovereign immunity waiver with respect to Doe's claim.
Doe brings three arguments on appeal challenging the district court's order. First, she argues that the district court relied on an interpretation of 38 U.S.C. § 7316 that nullified both the letter and intent of the statute. Second, she argues that the district court misinterpreted applicable Missouri law on the liability of an employer for the intentional torts of its employees. Third, she argues that the district court erred in (1) concluding the VA limited Luchtefeld's duties to BFA and (2) in determining that he was not acting within the scope of his employment.
"We review de novo a district court's decision to dismiss a complaint for lack of subject matter jurisdiction." Magee v. United States , 9 F.4th 675, 680 (8th Cir. 2021). "The burden of proving the existence of subject matter jurisdiction rests with the party invoking federal jurisdiction." Id.
We review the district court's interpretation of both federal statutes and state law de novo. Dowd v. United Steelworkers of Am., Loc. No. 286 , 253 F.3d 1093, 1099 (8th Cir. 2001) (federal statutes); Dupps v. Travelers Ins. Co. , 80 F.3d 312, 313 (8th Cir. 1996) (state law). "When the district court makes findings of fact on disputed issues, we review those findings for clear error." Magee , 9 F.4th at 680.
28 U.S.C. § 1346(b)(1).
Section 7316(a)(1) applies this waiver to claims against employees of the VA Veterans Health Administration. It makes § 1346(b)(1) the exclusive remedy "for damages for personal injury, including death, allegedly arising from malpractice or negligence of a health care employee of the Administration in furnishing health care or treatment while in the exercise of that employee's duties in or for the Administration." 38 U.S.C. § 7316(a)(1). " ‘[H]ealth care employee of the Administration’ means a physician, dentist, podiatrist, chiropractor, optometrist, nurse, physician assistant, expanded-function dental auxiliary, pharmacist, or paramedical (such as medical and dental technicians, nursing assistants, and therapists), or other supporting personnel." Id . § 7316(a)(2).
However, intentional torts are excepted from the § 1346(b)(1) waiver. Section 2680(h) of the FTCA states that, "[t]he provisions of ... section 1346(b) of this title shall not apply to ... any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h).
Conversely, § 7316(f) provides an exception to § 2680(h) :
The exception provided in section 2680(h) of title 28 shall not apply to any claim arising out of a negligent or wrongful act or omission of any person described in subsection (a) in furnishing medical care or treatment (including medical care or treatment furnished in the course of a clinical study or investigation) while in the exercise of such person's duties in or for the Administration.
38 U.S.C. § 7316(f). "[S]ubsection (a)" refers to § 7316(a), stated above.
Doe contends that the district court erred in its analysis of § 7316(f). She asserts that it placed too much focus on the language, "while in the exercise of such person's duties in or for the Administration," but ignored the language, "wrongful act or omission of any person described in subsection (a) in furnishing medical care or treatment." She argues that the latter gives the statute practical meaning. Doe maintains that "the express words of the statute and their plain meaning indicates that, if an intentional tort is committed by a VA employee who is supposed to be delivering medical care as part of their duties, and is delivering medical care, then federal jurisdiction under the FTCA is mandated." Appellant's Br. at 16. The district court's analysis, according to Doe, nullifies the statute because wrongful acts will never be defined in a person's job duties. The government replies that Doe's interpretation is inconsistent with the FTCA's general design that only waives sovereign immunity for acts committed...
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