United States District Court, D. Maryland
WILLIAM R. LINS, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
Lipton Hollander United States District Judge.
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.
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”).
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall grant
Factual and Procedural Background
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.
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.
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.
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. 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.
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.
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.
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). 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.
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. ¶
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.
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)).
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
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).
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
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.
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).
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).
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):
 against the United States,  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,  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.
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.
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