BARRY DOE, individually and as Next Friend of his minor children M.D. (2006), E.D. (2008) and K.D. (2009), Plaintiff - Appellant,
DAVID J. MERON, individually and in his official capacity as Navy Officer and former Commanding Officer at NSA Bahrain (DOD); BARBARA R. CRAIG, individually and in her official capacity as Director of Armed Forces Center for Child Protection (DOD); KRISTEN E. WEBB, individually and in her official capacity as social worker at Armed Forces Center for Child Protection (DOD); TERRY GREENE, individually and in her official capacity as Principal of Bahrain School (DOD); DAVID LASPISA, individually and in his official capacity as current or former Executive Office, NSA Bahrain (DOD); STEVEN STUTZMAN, individually and in his official capacity as Regional Counseling and Advocacy Coordinator, Navy Installations Command (EURAFSWA); JOHN SCORBY, individually and in his official capacity as a U.S. Navy Rear Admiral and Commander of Navy Installation Command, EURAFSWA; CLARK JACKSON, individually and in his official capacity as current or former Family Advocacy Representative (FAR), NSA Bahrain (DOD); UNITED STATES OF AMERICA, Defendants - Appellees.
Argued: May 8, 2019
from the United States District Court for the District of
Maryland, at Greenbelt. Paula Xinis, District Judge.
Christopher Edwin Brown, BROWN FIRM, PLLC, Alexandria,
Virginia, for Appellant.
Aguilar, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees.
Frazer II, FRAZER PLC, Nashville, Tennessee; Roy L. Mason,
SMOUSE & MASON, LLC, Towson, Maryland; Marie Celeste
Bruce, RIFKIN WEINER LIVINGSTON, LLC, Bethesda, Maryland, for
H. Hunt, Assistant Attorney General, Mary Hampton Mason,
James R. Whitman, Torts Branch, Mark B. Stern, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees.
KING, DIAZ, and QUATTLEBAUM, Circuit Judges.
QUATTLEBAUM, CIRCUIT JUDGE
Doe claims officers of the United States Navy and employees
of the Department of Defense ("DOD") conspired to
seize, interrogate and batter his three minor children and to
seize and batter him. In response, Doe, individually and on
behalf of his three minor children, (collectively
"Doe") sued those officers and employees alleging
intentional torts under state law and constitutional
violations under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971).
district court dismissed Doe's claims under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). Regarding Doe's
tort claims, the district court determined that the
individual defendants were acting within the scope of their
employment and were, therefore, immune from suit under the
Federal Employees Liability Reform and Tort Compensation Act
of 1988 (the "Westfall Act") and the Medical
Malpractice Immunity Act (the "Gonzalez Act").
Under those acts, the district court determined that the
government was properly substituted for the individual
defendants for the tort claims. The district court then held
that the government was not subject to suit because the tort
claims arose in a foreign country, an exception to the
government's limited waiver of sovereign immunity under
the Federal Tort Claims Act (the "FTCA").
the constitutional claims, the district court declined to
extend Bivens to the circumstances of this case,
and, accordingly, dismissed those claims for failure to state
a claim. For the reasons set forth below, we affirm.
of their importance to the background of this case, we first
describe the applicable provisions of the Westfall Act, the
Gonzalez Act and the FTCA. The Westfall Act immunizes federal
employees from personal liability for claims that arise
within the scope of their employment. Maron v. United
States, 126 F.3d 317, 321 (4th Cir. 1997). To provide
this immunity, the Attorney General of the United States, or
his delegee, must certify that the defendant employees were
acting within the scope of their employment at the time of
the incident out of which the claim arose. 28 U.S.C. §
2679(d)(1). Following certification, the proceeding is deemed
a tort action against the United States under the provisions
of the FTCA. 28 U.S.C. § 2679(d)(1).
the Gonzalez Act immunizes federal employees in the medical
field from personal liability for claims arising from the
performance of medical or related health care functions. 10
U.S.C. § 1089(a). It does this by allowing the United
States to substitute itself as a defendant upon certification
by the Attorney General that the medical employee was acting
within the scope of his employment at the time of the
incident out of which the suit arose. 10 U.S.C. §
certification, the ball is in the plaintiff's court. If a
plaintiff does not challenge the Attorney General's
certification, the certification is conclusive. Gutierrez
de Martinez v. Drug Enforcement Admin., 111 F.3d 1148,
1153 (4th Cir. 1997). If a plaintiff challenges the Attorney
General's certification, he must prove that the
defendants were not acting within the scope of their
employment. Maron, 126 F.3d at 323. If the plaintiff
presents persuasive evidence refuting certification, the
government must provide evidence and analysis supporting its
conclusion that the conduct at issue was carried out within
the scope of employment. Id. If the plaintiff's
evidence carries the burden of proof, the district court may
allow any discovery it deems appropriate. Gutierrez de
Martinez, 111 F.3d at 1155.
district court determines that the employees were acting
within the scope of their employment, the government is
substituted as the defendant for the individual employees.
Normally, the government would be immune from civil liability
for these tort claims under the sovereign immunity doctrine.
However, the FTCA is a limited waiver of the government's
sovereign immunity for injury or loss caused by the negligent
or wrongful act or omission of government employees acting
within the scope of their employment. Medina v. United
States, 259 F.3d 220, 223 (4th Cir. 2001).
waiver is limited because Congress has provided several
exceptions to this waiver under 28 U.S.C. § 2680.
Relevant here, Congress excluded from the FTCA waiver of
immunity "[a]ny claim arising in a foreign
country." 28 U.S.C. § 2680(k). If an exception
applies, a court must dismiss a complaint for lack of
jurisdiction. Medina, 259 F.3d at 223.
these legal principles in hand, we turn to the facts and
procedural history. In 2017, Doe sued David J. Meron, Barbara
R. Craig, Kristen E. Webb, Terry Greene, Clark Jackson, David
LaSpisa, Steven Stutzman and Josh Scorby in the District of
Maryland. Doe's suit arose from conduct which allegedly
occurred at Naval Support Activity Bahrain ("NSA
Bahrain"), a United States Navy installation in the
Kingdom of Bahrain, in 2015. At the time of the alleged
conduct, Doe was employed as a federal civil servant by the
Navy at NSA Bahrain. Meron was the Installation Commanding
Officer at NSA Bahrain. Craig and Webb were employees of the
DOD or the Defense Health Agency ("DHA") in
Bethesda, Maryland. Greene was an employee of the Department
of Defense Education Activity in Bahrain, serving as the
Principal of the Bahrain School. Jackson was an employee of
the Navy at NSA Bahrain, serving as a clinical social worker
in the DOD's Family Advocacy Program. LaSpisa was a
commissioned officer in the Navy at NSA Bahrain, serving as
Meron's second-in-command. Stutzman was an employee of
the Navy. Scorby was a Rear Admiral, serving as Commander,
Navy Region Europe, Africa, Southwest Asia.
allegations in Doe's complaint arise from a 2015
investigation at NSA Bahrain into complaints that Doe abused
and neglected his three minor children. Jackson reported the
allegations to Meron in April 2015. Meron then authorized
Craig and Webb to interview and examine Doe's three minor
children based on the allegations against Doe. They did so on
the same day, interviewing and physically examining the three
children. During the interview and examinations, Craig and
Webb found no evidence of sexual abuse. 
complaint alleges the investigation was illegitimate. He
alleges that Meron, Craig, Webb, Greene, Jackson, LaSpisa and
other unnamed individuals in Maryland conceived a plan to
seize Doe's minor children without a court order and to
interrogate and batter each of them. He further alleges that
Scorby was consulted on aspects of the plan and did not
to Doe, this plan was brought to fruition when Doe's
three minor children were twice seized, interrogated and
battered. Doe alleges that Greene allowed Craig and Webb to
seize, detain and interrogate Doe's three minor children
at the Bahrain School. He further alleges that LaSpisa
forcibly seized the three minor children a second time later
the same day. He contends that the children were then taken
to another location, where Craig sexually battered all three
minor children during the course of their physical