Lins v. United States

• Decision Date: 17 February 2021
• Docket Number: No. 19-2069,19-2069
• Parties: WILLIAM R. LINS, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

WILLIAM R. LINS, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee.

No. 19-2069

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: October 26, 2020

February 17, 2021

UNPUBLISHED

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

Before AGEE, FLOYD, and THACKER, Circuit Judges.

Affirmed in part; reversed and remanded in part by unpublished per curiam opinion. Judge Agee wrote an opinion concurring in part and dissenting in part.

ARGUED: Emily Claire Malarkey, BEKMAN, MARDER & ADKINS, LLC, Baltimore, Maryland, for Appellant. Roann Nichols, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

After his therapist at the Baltimore Veterans Affairs Medical Center ("VA") engaged in a sexual relationship with him, William Lins ("Appellant") filed a Federal Torts Claim Act ("FTCA") action against the United States. Appellant alleged that the United States was responsible for negligently hiring, supervising, and retaining his therapist. Appellant also sought to hold the United States vicariously liable for his therapist's actions.

Appellant appeals the district court's dismissal of his claims against the United States for lack of subject matter jurisdiction. Appellant argues that the district court erred in holding that his negligent hiring, supervision, and retention claims were barred by the discretionary function exception to the FTCA. Appellant further argues that the district court erred in holding that Appellant's therapist was not acting in the scope of her employment when she engaged in a sexual relationship with him, and that, therefore, the United States could not be held vicariously liable.

We hold that the district court erred in holding that the discretionary function exception established a categorical bar to negligent hiring, supervision, and retention claims and, as a result, erred in dismissing Appellant's negligent supervision claim for lack of subject matter jurisdiction. However, we agree with the district court that Appellant's therapist was not acting within the scope of her employment. Therefore, we affirm the district court's dismissal of Appellant's vicarious liability claim.

I.

A.

Appellant served in the United States Marine Corps Reserves from 2004 until 2016. During this time, he was deployed to both Iraq and Afghanistan. While deployed to Afghanistan, Appellant's squad was attacked by a suicide bomber, killing several of his fellow Marines and leaving Appellant with damaged hearing and a suspected traumatic brain injury. As a result of his service and deployments, Appellant suffered post-traumatic stress disorder, major depressive disorder, and alcohol addiction.

To treat his mental illness, Appellant was admitted to the Baltimore VA Psychosocial Residential Rehabilitation Treatment Program ("PRRTP") in September 2014. There, he began to see Dr. Erin Elizabeth Burns, Ph.D., for treatment. Dr. Burns was an employee of the VA and Appellant's primary therapist. During the course of his therapeutic relationship with Dr. Burns, Appellant confided in her that he had a history of childhood abuse. Appellant was ultimately discharged from the PRRTP in February 2015 but relapsed in his alcohol addiction and was readmitted into the PRRTP in August 2015. Dr. Burns was again his primary therapist.

In November 2015, Dr. Burns accompanied Appellant to Washington, D.C. because he wanted to visit Arlington National Cemetery, one of his therapeutic goals. Following the visit to Arlington National Cemetery, Dr. Burns took Appellant to a hotel where she suggested he needed to get his mind off of the day, and the two had their first sexual encounter. In the following weeks, their sexual relationship continued. Dr. Burns told Appellant that having sexual relations with her was a way to cure his aversion to intimacystemming from his childhood abuse. Further, she told him, "he needed to practice making eye contact during sex as a way to cure his aversion to intimacy, and that if he did not, the childhood perpetrator would 'win.'" J.A. 21.¹ Finally, Dr. Burns told him, "he needed to have more sex in order to stop feeling 'gay' about what happened to him as a child." Id.

During the course of their relationship, Dr. Burns would insist that Appellant have sexual intercourse with her in the middle of the day in her office at the VA nearly every day. She would remove him from his group therapy sessions to take him to her office to have sex. Dr. Burns lied to the other counselors about the true purpose of removing Appellant from his group therapy sessions. Even when Appellant would leave the VA for the weekend, Dr. Burns would continue to call and text him. During this time, Dr. Burns' supervisors became aware that she planned to attend a wedding with Appellant. As a result, Dr. Burns' supervisors met with her and told her this behavior was inappropriate. Nonetheless, Dr. Burns' supervisors allowed her to continue to treat Appellant.

In December 2015, Appellant was again discharged from the PRRTP, but he continued to see Dr. Burns for outpatient therapy. Dr. Burns used these outpatient "therapy sessions" for the purpose of having sex. In late 2015 or early 2016, Dr. Burns had her private office taken away by the VA. She told Appellant that it was because another patient made a false complaint alleging that she inappropriately touched him. Still, Dr. Burns continued her sexual relationship with Appellant, meeting him at his house, her house, or a hotel. She threatened Appellant would lose his VA benefits, lose custody of his children,and that she would not support his application for disability benefits if he told anyone about their relationship.

In early 2016, Dr. Burns stopped working at the VA and told Appellant it was due to the other patient's false complaints and the VA's investigation of her. But still, Dr. Burns continued her relationship with Appellant. Ultimately, Appellant told a social worker in his outpatient therapy at the VA about his relationship with Dr. Burns. In turn, the social worker told Appellant about a number of other complaints against Dr. Burns and warned him to stay away from her. Appellant ended his relationship with Dr. Burns and reported her to the VA and the Maryland Department of Health and Mental Hygiene. In response, Dr. Burns continued to contact Appellant via phone and text message in an attempt to continue the relationship and "clear the air." J.A. 24.

B.

Appellant filed suit against the United States in the District of Maryland in August 2017. Appellant's complaint alleges the United States was negligent in hiring, supervising, and retaining Dr. Burns and is vicariously liable for Dr. Burns' negligent acts because Dr. Burns was acting within the scope of her employment in pursuing a sexual relationship with Appellant. Appellant argues that the United States waived sovereign immunity for these claims pursuant to the FTCA.

The United States moved to dismiss Appellant's complaint pursuant to Federal Rule of Civil Procedural 12(b)(1). The district court granted the United States' motion. The district court held that the discretionary function exception to the FTCA applied to Appellant's negligent hiring, supervision, and retention claims, and therefore, the districtcourt lacked jurisdiction because the United States did not waive sovereign immunity as to these claims. The district court further held that Dr. Burns was not acting in the scope of her employment in pursuing a sexual relationship with Appellant, and thus, the district court did not have jurisdiction over Appellant's vicarious liability claim.

II.

We review a district court's dismissal of a complaint for lack of subject matter jurisdiction de novo. See Pornomo v. United States, 814 F.3d 681, 687 (4th Cir. 2016).

III.

Pursuant to the FTCA, Congress waived the United States' sovereign immunity for claims arising out of torts committed by federal employees to the extent that a private party would be liable under state law. See 28 U.S.C. § 1346.² "Being a waiver of sovereign immunity, the FTCA is strictly construed, and all ambiguities are resolved in favor of the United States." Williams v. United States, 50 F.3d 299, 305 (4th Cir. 1995). Further, "exceptions to immunity under the FTCA are narrow, thereby preserving congressional intention to immunize the United States from various classes of suits." Id.

A.Negligent Hiring, Supervision, and Retention Claims

1.

Congress has not waived sovereign immunity for suit against the United States for

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a). The purpose of the discretionary function exception is to prevent "judicial second-guessing" of administrative and legislative decisions grounded in policy. United States v. Gaubert, 499 U.S. 315, 323 (1991) (internal quotation marks and citations omitted). Therefore, "the exception 'protects only governmental actions and decisions based on considerations of public policy.'" Id. (quoting Berkovitz v. United States, 486 U.S. 531, 537 (1988)).

In determining whether the discretionary function exception bars a claim, a court should consider whether a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536). Thus, the...