# John Doe, Alexis Doe v. United States

> Court of Appeals for the Seventh Circuit · June 30, 1988 · 838 F.2d 220

URL: https://www.frixlaw.com/law-library/cases/9477171

## Case

- **Full name:** John DOE, Alexis Doe, Et Al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** June 30, 1988
- **Citations:** 838 F.2d 220
- **Precedential status:** Published
- **Opinion:** Dissent by Manion
- **Judges:** Cudahy, Manion, Will
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9477171

## How later opinions describe it (automated extraction)

- holding the plaintiffs.’ claims arise when the defendant breaches its duty, and the facts of the assault merely go to the measure of damages

## Opinion text

MANION, Circuit Judge,
dissenting.
I respectfully dissent from the majority’s conclusion that the plaintiffs can bring their claims against the United States. The district court correctly concluded that plaintiffs failed to establish jurisdiction under the Federal Tort Claims Act and properly entered summary judgment in favor of the government. I would affirm.
The Federal Tort Claims Act waives the federal government’s sovereign immunity to suits for injuries to persons or property that would otherwise be recoverable under state tort law. 28 U.S.C. § 1346 (b). That waiver is qualified by 28 U.S.C. § 2680 (h) which bars suits against the United States for “[a]ny claim arising out of assault [or] battery____” As an exception to the government’s waiver of sovereign immunity, § 2680(h) is jurisdictional in nature, see Johnson v. United States, 788 F.2d 845, 850 (2d Cir.), cert. denied, — U.S. —, 107 S.Ct. 315 , 93 L.Ed.2d 288 (1986), and all ambiguities must be resolved in favor of the government. Thigpen v. United States, 800 F.2d 393, 394 (4th Cir.1986). “Only when Congress has clearly and unequivocally expressed its consent to suits against the United States may courts entertain such actions.” Id. (citing United States v. King, 395 U.S. 1, 4 , 89 S.Ct. 1501, 1502 , 23 L.Ed.2d 52 (1969)).
As the party invoking the district court’s jurisdiction, plaintiffs had to establish that § 2680(h) did not bar their claims. See generally Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). Plaintiffs could have met this burden by showing that their negligence claims “arose out of” an assault committed by a person who is not employed by the government. See Panella v. United States, 216 F.2d 622, 624-26 (2d Cir.1954) (Harlan, J.); see also United States v. Shearer, 473 U.S. 52, 56-57 , 105 S.Ct. 3039, 3042-43 , 87 L.Ed.2d 38 (1985) (plurality). Because the plaintiffs did not meet their preliminary burden of establishing that someone other than a government employee committed the assault, the district court correctly entered judgment in favor of the government.
In United States v. Shearer, 473 U.S. 52 , 105 S.Ct. 3039 , 87 L.Ed.2d 38 (1985), a four-member plurality of the eight sitting justices stated that the assault and battery exception barred a suit, brought by the survivor of a serviceman, which alleged that the government negligently failed to prevent the serviceman’s kidnap and murder by another serviceman. Writing for the plurality, Chief Justice Burger reasoned:
The Federal Tort Claims Act’s waiver of sovereign immunity does not apply to ‘[a]ny claim arising out of assault [or] battery,’ 28 U.S.C. § 2680 (h), and it is clear that respondent’s claim arises out of the battery committed by [the serviceman guilty of murder]. No semantical recasting of events can alter the fact that the battery was the immediate cause of [the victim’s] death and, consequently, the basis of respondent’s claim.
Respondent cannot avoid the reach of § 2680(h) by framing her complaint in terms of negligent failure to prevent the assault and battery. Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery. We read this provision to cover claims like respondent’s that sound in negligence but stem from a battery committed by a Government employee. *226 Thus, ‘the express words of the statute’ bar respondent’s claim against the government. United States v. Spelar, 338 U.S. 217, 219 [ 70 S.Ct. 10, 11 , 94 L.Ed. 3 ] (1949).
473 U.S. at 54-55 , 105 S.Ct. at 3042 (plurality opinion) (emphasis in original). Although the four other justices participating in the case failed to join in this portion of the Chief Justice’s opinion, none of them wrote separately on this issue. Rather, these justices simply agreed with an alternative ground for decision in the Chief Justice’s opinion — that the claims were also barred by the Feres doctrine (barring claims by servicemen that arise out of or in the course of activity incident to service).
The plurality opinion in Shearer is not an isolated view on this issue. Except for the Ninth Circuit, see Kearney v. United States, 815 F.2d 535, 537 (9th Cir.1987) (§ 2680(h) does not bar claim based on alleged negligent supervision that resulted in sexual assault and murder by a serviceman), all the circuits addressing this issue have held that § 2680(h) bars such claims. See Thigpen v. United States, 800 F.2d 393 (4th Cir.1986) (§ 2680(h) bars negligence claims by minor patients in naval hospital who were sexually assaulted by naval corpsman who had entered the Navy in lieu of serving a sentence for indecency with a child); Johnson v. United States, 788 F.2d 845 (2d Cir.1986) (§ 2680(h) bars claim based on negligent supervision of postal worker who sexually assaulted a child); Satterfield v. United States, 788 F.2d 395, 399-400 (6th Cir.1986) (§ 2680(h) bars negligent supervision and negligent failure to warn claims brought by estate of serviceman beaten to death by three off-duty servicemen); Garcia v. United States, 776 F.2d 116 (5th Cir.1985) (§ 2680(h) bars claim based on negligent supervision of military recruiter who sexually assaulted a potential recruit); Wine v. United States, 705 F.2d 366, 367 (10th Cir.1983) (§ 2680(h) bars claim based on negligent supervision of serviceman who shot and sexually assaulted plaintiff).
The majority states that it does not matter whether the assault was committed by a government employee because the claims are based on the breach of an “affirmative duty” arising out of a “special relationship” between the government and the victim prior to the assault. This distinction has no foundation in the statutory language. Section 2680(h) plainly and unambiguously bars claims “arising out of assault [or] battery.” It does not exempt negligence claims arising from breaches of “affirmative duties” imposed as a result of “special relationships.” See Thigpen, 800 F.2d at 395-96 (rejecting “affirmative duty” distinction in cases where minor patients were sexually assaulted after being placed in the care of a naval hospital). By focusing on the government’s duty the majority fails to take into account that the plain language of the statute focuses on the immediate cause of the injuries, not the actions of remote individuals. As the Second Circuit stated in Johnson :
The statute’s plain language, ‘arising out of,’ reflects an intent by Congress to bar a suit against the government for injuries caused by a government employee’s commission of an assault and battery. It is equally clear that the claim here is for injuries caused by the employee’s assault and battery and that, absent the assault and battery, no claim could exist. The scope of § 2680(h) is a matter of federal law. To permit such a claim to be stated in terms of a negligence theory based on prior foreseeability would defeat Congress’ purpose in enacting § 2680(h). The claim, although stated in terms of negligence, would still be for injuries caused by and arising out of the assault and battery.
788 F.2d at 850-51 (citations omitted) (emphasis in original).
The majority’s “affirmative duty” distinction also cannot be reconciled with the plurality’s reasoning in Shearer or with Thigpen, Johnson, Satterfield, Garcia and Wine . In each of those cases plaintiffs sought relief based upon a breach of an “affirmative duty” to protect them from the acts that resulted in their injuries. As the majority notes, the law does not impose a general duty on individuals or entities to protect persons from the intentional torts *227 of another. See Prosser and Keeton on Torts, § 56 at 373-85 (5th ed. 1984). In negligence cases seeking recovery for an assault by a third party, the plaintiff must establish that the allegedly negligent defendant had an affirmative obligation to take steps to prevent the assault. Without establishing some “affirmative duty” there is no duty and, therefore, no negligence. While plaintiffs argue in terms of “relationships” between the government, the attacker and the victims, such relationships only go to whether an “affirmative duty” exists and the extent of that duty. Those relationships do not change the nature of the tort theory under which relief is sought or the immediate cause of the injuries.
The majority attempts to distinguish the numerous decisions holding that § 2680(h) bars negligent supervision claims arising out of an assault or battery on the ground that those decisions involved negligent supervision of the tortfeasor, not the victim. Although the majority has succeeded in creatng a factual distinction between this case and other appellate decisions, the distinction has no relevance under the statute. The statute unambiguously bars any claim arising out of an assault or battery. It does not permit a distinction between various negligent supervision claims. Cf. Shearer, 473 U.S. at 55 , 105 S.Ct. at 3042 (“There is no indication that Congress distinguished between ‘negligent supervision’ claims and respondeat superior claims, with only the latter excluded under the Act. Instead it appears that Congress believed that § 2680(h) would bar claims arising out of a certain type of factual situation — deliberate attacks by Government employees.”)
Finally, I do not believe that the hypothetical example of the child who wanders out into the street demonstrates the “absurdity” of the government’s position. If the child is accidentally struck by a car, her injuries do not “arise out of” an assault or battery. If the child is sexually assaulted, her injuries do “arise out of” an assault and battery. This distinction is mandated by the statutory language and is reasonable.
The assault and battery exception prevents the Federal Treasury from acting as a deep pocket for intentional torts committed by government employees. The exception is drawn broadly to prevent the government from paying for the same damages simply because plaintiffs recast their claims in negligence to recover based on the actions of other, less culpable employees. While the majority’s “exception-to-the-exception” may be a reasonable policy choice, Congress, not the courts, must make that choice by amending the statute.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9477171. Public record. Not legal advice.