Lins v. United States, 051319 FED4, 18-1637

Docket Nº:18-1637
Opinion Judge:PER CURIAM:
Party Name:WILLIAM R. LINS, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.
Attorney:Emily C. Malarkey, BEKMAN, MARDER & ADKINS, LLC, Baltimore, Maryland, for Appellant. Robert K. Hur, United States Attorney, Roann Nichols, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Judge Panel:Before GREGORY, Chief Judge, and KEENAN and THACKER, Circuit Judges.
Case Date:May 13, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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WILLIAM R. LINS, Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA, Defendant-Appellee.

No. 18-1637

United States Court of Appeals, Fourth Circuit

May 13, 2019

UNPUBLISHED

Submitted: April 12, 2019

Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, District Judge. (1:17-cv-02163-ELH)

Emily C. Malarkey, BEKMAN, MARDER & ADKINS, LLC, Baltimore, Maryland, for Appellant.

Robert K. Hur, United States Attorney, Roann Nichols, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before GREGORY, Chief Judge, and KEENAN and THACKER, Circuit Judges.

Dismissed and remanded with instructions by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

William R. Lins appeals from the district court's order dismissing his complaint without prejudice for lack of subject matter jurisdiction. On appeal, we requested supplemental briefing regarding this court's jurisdiction. Although the parties conclude that the district court's dismissal without prejudice was a final, appealable order, we disagree. Finding that the district court's order is interlocutory, we dismiss the appeal.

In his complaint, Lins alleged negligent supervision/retention, in violation of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671-80 (2012) (FTCA), and medical malpractice. His claims arose out of an alleged sexual relationship with his therapist, who worked for the Baltimore Veterans Association Medical Center. The district court granted the Government's motion to dismiss.

The district court found that, in general, Lins' negligent supervision/retention claim was barred by the discretionary function exception. However, the court recognized the possibility that the claim could succeed if the Government "had notice of an illegal act by [Lins' therapist] and failed to respond." Nonetheless, the court ruled that the complaint's allegations did not support such a conclusion. Thus, the court permitted Lins to file an amended complaint should factual support exist or if Lins wished to assert a negligence claim against his therapist's supervisor.

Turning to the vicarious liability claim, the court found that Lins' therapist was acting...

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