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Lins v. United States

United States District Court, D. Maryland

May 10, 2018

WILLIAM R. LINS, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge.

         Plaintiff William R. Lins, a retired Sergeant in the U.S. Marine Corps Reserves, filed a medical malpractice and negligence suit against the United States of America (the “Government”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. ECF 1 (Complaint). Lins alleges that while he was a patient at the Veterans Affairs (“VA”) Medical Center in Baltimore, Maryland, a VA psychologist initiated and maintained an inappropriate sexual relationship with him over the course of several months. Id. In particular, plaintiff brings claims against the Government for Negligent Hiring, Supervision and/or Retention (Count I) and Vicarious Liability (Count II), alleging that he has suffered economic, emotional, and psychological harm as a result of the conduct of the psychologist. Id.[1]

         Defendant has moved to dismiss the Complaint, pursuant to Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, asserting sovereign immunity. ECF 9. The motion is supported by a memorandum of law (ECF 9-1) (collectively, “Motion”), and several exhibits. Plaintiff opposes the Motion. ECF 15 (“Opposition”). Defendant replied. ECF 18 (“Reply”).

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion.

         I. Factual and Procedural Background[2]

         Plaintiff is a Marine Corps veteran who, as a result of events that occurred during his deployment in Iraq and Afghanistan, now suffers from post-traumatic stress disorder (“PTSD”), major depressive disorder, and alcohol addiction. ECF 1, ¶¶ 10-11. He was admitted to the Baltimore VA Medical Center for residential treatment beginning in September 2014 and continuing through April 2015. Id. ¶ 12; ECF 9-2 at 4 (Form 95 Supplemental Attachment). There, he was treated by Erin Elizabeth Burns, Ph.D., a psychologist. ECF 1, ¶ 13; ECF 9-2 at 4. Plaintiff alleges that he relapsed and was readmitted in August 2015, where he was again treated by Dr. Burns. ECF 9-2 at 4; ECF 1, ¶ 16.

         Plaintiff and Dr. Burns developed a close relationship, which became sexual in November 2015. ECF 1, ¶ 17. According to plaintiff, his first sexual encounter with Dr. Burns occurred on Veterans' Day in 2015, when Dr. Burns accompanied plaintiff to Arlington National Cemetery and then to a hotel in Washington, D.C., where she suggested that “he needed to get his mind off of the significance of the day.” Id. Lins alleges that Dr. Burns subsequently “developed an inappropriate relationship” with him, and “regularly made sexual advances towards him under the guise of providing therapy.” Id. ¶ 18. At times, Dr. Burns allegedly used the childhood abuse that plaintiff experienced “as a means of coercing him into having sexual intercourse, ” suggesting “sexual relations with her was a way to cure his problems.” Id. ¶ 19.

         These interactions allegedly occurred “on an almost daily basis, ” and Dr. Burns would take plaintiff out of group therapy to her office for “‘private counseling.'” Id. ¶ 20.

         According to plaintiff, Dr. Burns' supervisors were aware of an inappropriate relationship between Dr. Burns and plaintiff, and the supervisors discovered Dr. Burns' plans to attend a wedding with plaintiff. Id. ¶ 21. Lins asserts that Dr. Burns' supervisors met with her “to inform her that her conduct was not appropriate, ” but “the VA allowed Dr. Burns to continue to treat Mr. Lins as a patient.” Id.[3] Dr. Burns allegedly continued her sexual relationship with plaintiff after she lost her private office, which was taken from her following complaints from another male patient. Id. ¶¶ 23-24. Thereafter, Dr. Burns “would arrange to meet [plaintiff] at her house, at his house, or at a hotel” for sex. Id. ¶ 24.

         Plaintiff claims that as the relationship continued, Dr. Burns became “increasingly forceful, ” even after she resigned from the Baltimore VA in April 2016. Id. ¶¶ 26-27; see ECF 9-4. He claims that she “would make up emergencies and crises to convince him to see her” instead of allowing him to spend time with his children. ECF 1, ¶ 27.

         Eventually, on an unidentified date, plaintiff informed a social worker of the relationship, and the social worker allegedly told plaintiff about complaints lodged against Dr. Burns by other male patients. Id. ¶ 28. Plaintiff avers that he terminated his relationship with Dr. Burns in June 2016. ECF 9-2 at 4: see also ECF 1, ¶ 29.

         On October 17, 2016, plaintiff filed an administrative claim with the Department of Veterans Affairs, as required by the FTCA, seeking $2, 000, 000. See ECF 1, ¶ 7; ECF 9-2 (Administrative Claim); see also 28 U.S.C. § 2675(a) (requiring presentment of claim to the appropriate agency before instituting a civil action).[4] In his administrative claim, plaintiff briefly recounted the history of his relationship with Dr. Burns. ECF 9-2 at 4. According to plaintiff, the claim was denied by letter dated February 6, 2017. ECF 1, ¶ 7. This suit followed.

         After the Motion was fully briefed, plaintiff moved to file a surreply. ECF 19 (“Motion for Surreply”). The Motion for Surreply stated that, simultaneously with the filing of this suit, plaintiff had filed a lawsuit against Dr. Burns in the Circuit Court for Baltimore City, Maryland. Id. ¶ 2. Dr. Burns had been recently deposed in the State-court case, and plaintiff requested leave to file a surreply, “limited to addressing the recent testimony of Dr. Burns as it relates to the issues raised by Defendant's Motion.” ECF 19, ¶ 6. Plaintiff offered “a brief preview” of the testimony, asserting that Dr. Burns “testified to a number of facts that support Plaintiff's argument that her conduct was perpetrated in the scope of her employment, and that the VA knew or should have known about her inappropriate relationship with the Plaintiff.” Id. ¶ 3.

         The United States opposed the Motion for Surreply. ECF 20. By Order of March 29, 2018, I denied the Motion for Surreply. ECF 21. However, I expressly allowed plaintiff to amend his Complaint by April 20, 2018, if he wished “to plead new facts supportive of his claim. . . .” Id. at 2. Notably, plaintiff did not amend his Complaint.

         II. Legal Standard

         As noted, the United States has moved to dismiss under Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction, asserting plaintiff's claims are barred by sovereign immunity. ECF 9. The Fourth Circuit recently affirmed that the defense of sovereign immunity is a jurisdictional bar, stating that “‘sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.'” Cunningham v. Gen. Dynamics Info. Tech., Inc., __ F.3d __, No. 17-1592, 2018 WL 1915162, at *6 (4th Cir. Apr. 24, 2018) (quoting Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)).

         A test of subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “‘that the jurisdictional allegations of the complaint [are] not true.'” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013). “When a defendant makes a facial challenge to subject matter jurisdiction, ‘the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.'” Kerns, 585 F.3d at 192 (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982)).

         A factual challenge, on the other hand, can also assert that facts outside the four corners of the complaint preclude the exercise of subject matter jurisdiction. Durden, 736 F.3d at 301. In considering a factual challenge, “the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192. In that circumstance, the court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009) (“Unless ‘the jurisdictional facts are intertwined with the facts central to the merits of the dispute, ' the district court may . . . resolve the jurisdictional facts in dispute by considering evidence . . . such as affidavits.”) (Citation omitted).

         The Government appears to bring both a facial and a factual challenge to plaintiffs allegations of subject matter jurisdiction. As to Count I, defendant asserts that plaintiff has failed adequately to present his administrative tort claim to the VA, which defendant attached to its Motion. ECF 9-1 at 7-9; see ECF 9-2 (Administrative Claim). And, defendant also asserts that the claim fails as a matter of law. See ECF 9-1 at 9-13. As to Count II, defendant argues that plaintiffs claim is barred based on the four corners of the Complaint. But, the Government also attached an exhibit, which it maintains supports its conclusion. Id. at 13-17; see ECF 9-5 (VA Policy Memorandum).

         The Government's challenge to Count I is in part a factual challenge to subject matter jurisdiction, and therefore I shall consider the Administrative Claim as evidence. ECF 9-2; see Velasco, 370 F.3d at 398. However, I shall construe defendant's challenge to Count II as a facial challenge, rather than a factual one, because for the purposes of the Motion it does not contest the allegations of the Complaint. Accordingly, I shall not address the other exhibits submitted by the Government with respect to Count II. See Kerns, 585 F.3d at 192-93.

         III. Discussion

         A. The FTCA

         “Absent a statutory waiver, sovereign immunity shields the United States from a civil tort suit.” Kerns, 585 F.3d at 193-94 (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). A plaintiff may recover against the United States only to the extent that the United States has expressly waived sovereign immunity. See, e.g., Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citation omitted); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95 (1990) (holding that a waiver of sovereign immunity “cannot be implied but must be unequivocally expressed”) (citation and internal quotation marks omitted).

         Under the Federal Tort Claims Act, Congress has waived the sovereign immunity of the United States, exposing it to tort liability for claims “for money damages . . . for injury or loss of property, or personal injury or death 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, ” so long as certain conditions are satisfied. 28 U.S.C. § 1346(b)(1); see Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18 (2008). But, the United States may be liable under the FTCA only to the extent that 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), and only “in the same manner and to the same extent as a private individual under like circumstances.” Id. § 2674. Thus, “the substantive law of each state establishes the cause of action.” Anderson v. United States, 669 F.3d 161, 164 (4th Cir. 2012).

         However, the United States is not liable for all torts committed by federal employees. Section 1346(b) of Title 28 “grants the federal district courts jurisdiction over a certain category of claims for which the United States has waived its sovereign immunity.” F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994). For a claim to fall within that “certain category, ” it must be, id. (quoting 28 U.S.C. § 1346(b)(1)) (alterations in original):

[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] 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.

         Because these elements are prerequisites for consideration under the FTCA, each one of them must be considered jurisdictional. See Kerns, 585 F.3d at 194 (stating that “if [the federal employee] was acting outside the scope of her employment with the Government, the district court lacks jurisdiction”). Similarly, the exceptions to the Government's waiver of sovereign immunity, enumerated in 28 U.S.C. § 2680, are also jurisdictional. Welch, 409 F.3d at 651.

         In accordance with the sixth element of an FTCA claim, state law, not federal law, serves as the source of substantive liability. See United States v. St. Louis Univ., 336 F.3d 294, 300 (4th Cir. 2003) (citation omitted). Notably, “[t]he Supreme Court has concluded that the ‘law of the place' refers to the ‘whole law, ' including choice-of-law principles of the state where the ...


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