Opinion · Court of Appeals for the Fourth Circuit

Mary Doe v. United States

Mary Doe v. United States, 769 F.2d 174 (4th Cir. 1985)

Type: Opinion
Court: Court of Appeals for the Fourth Circuit
Jurisdiction: Federal
Date: 1985-07-01
Topic: bankruptcy

How later courts describe this case

affirming district court finding that an Air Force social worker who sexually assaulted minors was acting to further his own self-interest and was not acting within the scope of his employment
employer not liable for sexual misconduct of an Air Force social worker because he was “acting for his personal gratification”

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Cited by: 24 opinions

DOE v. UNITED STATES,769 F.2d 174(4th Cir. 1985)

MARY DOE, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE.

No. 84-2121.

United States Court of Appeals, Fourth Circuit.

Argued April 4, 1985.

Decided July 1, 1985.

Page 175

Francis T. Draine, Columbia, S.C., for appellant.

Glen E. Craig, Asst. U.S. Atty., Columbia, S.C. (Henry Dargan McMaster, U.S. Atty., Columbia, S.C., on brief), for appellee.

Appeal from the United States District Court for the District of South Carolina.

Before WINTER, Chief Judge, and WIDENER and HALL, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

[1] Plaintiff, a military dependent, sues under the Federal Tort Claims Act,28 U.S.C. § 2671,et seq.She alleges that the deviant sexual conduct of an Air Force clinical social worker, who was treating her for "blackouts," made her a victim of medical malpractice. The district court ruled that the United States had not waived its sovereign immunity to plaintiff's suit because the conduct complained of constituted an assault under applicable South Carolina law, and28 U.S.C. § 2680(h) preserves immunity from suit on "[a]ny claim arising out of assault...." The court further held that § 2680(h) had not been superseded in this case by the Medical Malpractice Immunity Act,10 U.S.C. § 1089, because the officer's conduct was not within the scope of his duties or employment. Accordingly, it dismissed plaintiff's claim.

[2] Plaintiff appeals and we affirm. We agree with the district court thatAndrews v. United States,732 F.2d 366(4 Cir. 1984), is inapposite. In that case, the plaintiff consented to sexual advances offered as "treatment", and hence there was neither assault nor battery. In this case, plaintiff did not consent to the Air Force social worker's perverted behavior, so that the officer's conduct did constitute assault. Thus the § 2680(h) assault exception to the waiver of sovereign immunity is fully applicable. We also agree that10 U.S.C. § 1089does not permit plaintiff's suit. That provision waives governmental immunity only for claims involving a medical professional acting "within the scope of his duties or employment." § 1089(a). Here, if plaintiff's allegations are true, the Air Force officer clearly was acting for his personal gratification rather than within the scope of his employment.

[3] Plaintiff's other theories of recovery either were not raised administratively in satisfaction of the condition precedent to suit, or are so closely related to the barred assault claim that they also are barred by sovereign immunity.

[4] AFFIRMED.