Thigpen v. United States , 800 F.2d 393 ( 1986 )

WILKINSON, Circuit Judge:

Appellants Tamara Jo Thigpen and Lisa Marie Kramber brought suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671-2680, to recover damages for the sexual abuse they encountered as minor patients in the United States Naval Hospital in Beaufort, South Carolina. The district court dismissed these claims for want of jurisdiction under Fed.R.Civ.P. 12(b)(1), because they arose out of an assault and battery and thus fell within the intentional tort exception to the FTCA, 28 U.S.C. § 2680(h). Thigpen v. United States, 618 F.Supp. 239 (D.S.C.1985). Appellants challenge this conclusion here, primarily asserting that no assault and battery occurred because they consented to the sexual advances. The district court rejected this contention, and we affirm its dismissal of this action.

I.

Appellants Thigpen and Kramber each suffered from a ruptured appendix. They shared a room at the Beaufort hospital in March, 1981, when they were admitted as dependents of retired military personnel. Thigpen was fourteen years old and Kram-ber was twelve. Both were treated by Corpsman Edmundo Rodriguez, who monitored their vital signs after the surgery and who subjected them to the depraved and abusive behavior at issue in this case.

According to Kramber’s testimony at a subsequent criminal trial, Rodriguez entered her room during the early morning hours of March 18, 1981, stating that he needed to check her vital signs. Kramber was alone, because Thigpen was not yet sharing the room with her. Under the guise of determining Kramber’s blood pressure, Rodriguez held her hand against his genitals, telling her to open and close her hand. She refused and grabbed the bed rail. Rodriguez asked to see Kramber’s incision, and when she lifted her nightgown, he pulled down her underpants and fondled her genitals. Kramber became frightened, pulled up her underpants and told Rodriguez to stop.

Rodriguez returned the next night, after Thigpen had joined Kramber. Thigpen was asleep when Rodriguez entered, but woke to find Rodriguez examining the intravenous needle in her arm. Rodriguez went around the bed and grabbed Thigpen’s other arm, forcing her hand to his genital area and asking her to open and close her hand so he could take her blood pressure the “Spanish way.” Thigpen realized what was happening and pulled her hand away. Rodriguez proceeded to Kramber’s bed and again tried to force her hand to his groin, when another corpsman looked into the room and interrupted the attack.¹

After learning of these incidents, Kram-ber’s mother contacted law enforcement officials, and criminal charges were filed against Rodriguez. He was convicted of one count of contributing to the delinquency of a fourteen-year-old child and two counts of committing a lewd act upon a twelve-year-old child. State v. Rodriguez, 279 S.C. 106, 302 S.E.2d 666 (1983). It was revealed at trial that Rodriguez had pled guilty to a Texas charge of indecency with a child in 1980, before he entered the Navy. Plaintiffs contend that Rodriguez, with the consent of Navy officials, was allowed to enter the Navy rather than serve his 30-day sentence.

Thigpen and Kramber filed suits against the United States under the FTCA, asserting negligence on the part of physicians, hospital staff, and supervisory Naval personnel. The district court, relying on United States v. Shearer, — U.S. -, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), found that plaintiffs’ claims, though sounding in negligence, were barred by § 2680(h) as claims “arising out of assault [or] battery.”²

II.

The Federal Tort Claims Act, like all waivers of sovereign immunity, must be strictly construed in favor of the sovereign. Radin v. United States, 699 F.2d 681, 685 (4th Cir.1983). Exceptions to such waivers, accordingly, receive a generous construction, with ambiguities resolved against those seeking recovery from the government. Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985). Only when Congress has clearly and unequivocally expressed its consent to suits against the United States may courts entertain such actions. United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969); Radin, 699 F.2d at 684-85. In 28 U.S.C. § 2680(h), Congress excepted from the grant of jurisdiction in 28 U.S.C. § 1346(b) “[a]ny claim arising out of assault [or] battery.” Despite plaintiffs’ attempts to avoid this exception by bringing actions in negligence, we hold that 28 U.S.C. § 2680(h) erects a bar to all claims which rely on the existence of an assault or battery by a government employee.³

This interpretation has been the law of this circuit since at least Hughes v. United States, 662 F.2d 219 (4th Cir.1981), aff'g, Hughes v. Sullivan, 514 F.Supp. 667 (E.D.Va.1980). Hughes involved a postal employee, previously convicted on charges of sexual assault, who took indecent sexual liberties with two young girls. Suit was brought charging the government with “negligent retention ... of a dangerous employee.” Hughes v. Sullivan, 514 F.Supp. at 668. The district court held that § 2680(h) barred the claim because the employee’s assault was an integral part of plaintiffs’ action. Id. at 670. This court affirmed the judgment of the district court that the action was barred by 28 U.S.C. § 2680(h). Hughes, 662 F.2d 219. See also, Andrews v. United States, 732 F.2d 366, 371 (4th Cir.1984) (explaining Hughes). Hughes established that § 2680(h) not only covers actual claims for assault and battery but, as its broad language indicates, also bars any claim that depends on the existence of an assault and battery. Accord, Garcia, 776 F.2d at 118; Doe v. United States, 769 F.2d 174 (4th Cir.1985); Wine v. United States, 705 F.2d 366, 367 (10th Cir.1983); Lambertson v. United States, 528 F.2d 441 (2d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976).

Four Justices of the Supreme Court took this same view in Shearer, 105 S.Ct. at 3042-43 (four others voted to rest decision on another ground, and Justice Powell did not participate). The Court there considered the FTCA claim of a plaintiff that the Army’s negligence caused her son to be murdered by a fellow serviceman. As in this case, the perpetrator of the crime in Shearer had a prior record which might have caused authorities to consider him dangerous. Yet four Justices found this action barred by § 2680(h). Their opinion first noted that the plain language of the provision “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 ... that sound in negligence but stem from a battery committed by a Government employee.” 105 S.Ct. at 3042 (emphasis in original). The opinion found further support in both legislative history and in prior constructions of parallel exceptions to the FTCA. See, e.g., Kosak v. United States, 465 U.S. 848, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984); United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). Whether or not technically bound by this view, we find its analysis persuasive. Congress intended that “§ 2680(h) would bar claims arising out of a certain type of factual situation — deliberate attacks by government employees.” Shearer, 105 S.Ct. at 3042.

Section 2680(h) thus bars FTCA claims that allege the negligence of supervisors but depend upon the existence of an assault or battery by a government employee. Many assaults can be attributed easily enough to someone’s negligence in permitting the attack to take place. To hold such allegations actionable under the FTCA would undermine Congress’ clear intent to limit its waiver of immunity in § 2680(h).

Our position is not consistent with that of the concurring opinion. We reject its view that § 2680(h) is inapplicable whenever the government can be found to owe plaintiff “an independent affirmative duty.” To begin with, this duty is elastic and would stretch to cover most claims against the governmental employees for assault and battery, as the examples in footnote 8 of the concurrence make apparent.

Moreover, the statutory derivation of our brother Murnaghan’s position remains obscure. Section 2680(h) directs unequivocally that no recovery lies under the FTCA for claims “arising out of assault [or] battery.” It draws no distinction for cases involving an “affirmative duty” owed by government to plaintiffs. Here there would be no claim of any sort without the fact of the assault by Corpsman Rodriguez. If the language chosen by Congress is to have meaning, this claim must be one that arises out of an assault and battery and hence is barred by § 2680(h). So long as the factual predicate of the claim is one of assault and battery, adroit pleading of negligence or breach of duty on the part of government supervisors will not suffice to circumvent the statutory mandate.

III.

Appellants apparently recognize the total bar of 28 U.S.C. § 2680(h) in the event of assault or battery, for they focus on the preliminary question of whether there was in fact an assault or battery here.⁴ South Carolina defines battery as “the actual infliction of any unlawful, unauthorized violence on the person of another____” Gathers v. Harris Teeter Supermarket, Inc., 282 S.C. 220, 317 S.E.2d 748, 754 (App. 1984). An assault occurs “when a person has been placed in reasonable fear of bodily harm by the conduct of the defendant.” Id., 317 S.E.2d at 754-55. Appellants assert that neither assault nor battery occurred here because they consented to the actions of Corpsman Rodriguez, believing them to be part of their medical care. The district court, however, found that “both girls resisted the advances” of Rodriguez, Thigpen, 618 F.Supp. at 245, and appellants challenge both this conclusion and the procedures used by the district court to reach it. Upon review of the district court’s actions, we affirm.

Appellants initially contend that the court erred in failing to accept the allegations of consent found in their complaint.⁵ A district court, however, is under no duty to accept factual allegations as true for purposes of a motion to dismiss for want of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). In contrast to its treatment of disputed issues of fact when considering a Rule 12(b)(6) motion, a court asked to dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of the motion. Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 1011 n. 4, 91 L.Ed. 1209 (1947); Espinoza v. Missouri Pacific Railroad Co., 754 F.2d 1247, 1248 n. 1 (5th Cir.1985); Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1519 n. 1 (D.C.Cir.1984), cert. denied, 470 U.S. 1051, 105 S.Ct. 1751, 84 L.Ed.2d 815 (1985); 2A Moore’s Federal Practice, fl 12.07 [2.-1], at 12-45, 46 (1985). Were it otherwise, a party could bootstrap jurisdiction simply by the use of artful pleading. The nature of jurisdiction requires that courts establish in fact, rather than assume blindly, their power to hear a dispute. Because the FTCA is jurisdictional in nature, see 28 U.S.C. § 1346(b), the district court was required to consider whether the facts of this case brought it within the statute. Accordingly, the court did not err by determining for itself whether appellants consented to Rodriguez’s action or whether there was an assault and battery that defeated jurisdiction under the Federal Tort Claims Act.

Nor did the court err by granting the government’s motion under Fed.R.Civ.P. 26(c) to stay discovery pending disposition of the 12(b)(1) motion. Appellants assert that discovery on the issue of consent would have revealed the facts necessary to show that no assault or battery occurred. We recognize that a 12(b)(1) motion is a dispositive one and that ordinarily a trial court should allow plaintiffs the opportunity to discover facts to support jurisdictional allegations. See, e.g. Majd-Pour v. Georgiana Community Hospital, Inc., 724 F.2d 901, 903 (11th Cir.1984); 2A Moore’s Federal Practice, ¶ 12.07 [2.-1], at 12-50. Trial courts, however, are given wide discretion to control this discovery process, Land v. Dollar, 330 U.S. at 735 n. 4, 67 5. Ct. at 1011 n. 4; Prakash v. American University, 727 F.2d 1174, 1179-80 (D.C. Cir.1984), a discretion that extends to whether to hear oral testimony on the motion itself. Fed.R.Civ.P. 43(e).

The facts do not reveal an abuse of that discretion in the limitation of discovery here. Corpsman Rodriguez had been tried and convicted in state court on charges that form the basis for this action. This process produced both affidavits and extensive testimony by appellants as to the events of March, 1981. These statements, made under oath, were certainly credible accounts of the relevant facts, and the district court properly relied upon them. See, Thigpen, 618 F.Supp. at 242-44. We cannot say that it was an abuse of discretion to limit discovery where reliable pre-existing sources made available to the court statements of the parties involved in the actions that generated the lawsuit. On the contrary, this limitation prudentially avoided duplicative proceedings from which the court could realistically expect to gain little but cumulative insight.⁶

Finally, appellants challenge the court’s conclusion that “both girls resisted the advances” of Rodriguez, id. at 245, asserting instead that they consented to his actions because they believed them to be part of their medical care. They rely on Andrews v. United States, 732 F.2d 366 (4th Cir.1984) where we found 28 U.S.C. § 2680(h) inapplicable because “the plaintiff consented to sexual advances offered as ‘treatment,’ and hence there was neither assault nor battery.” Doe v. United States, 769 F.2d 174, 175 (4th Cir.1985). Andrews involved claims that a physician’s assistant employed by the government had sexual intercourse with a patient. The district court concluded that the patient, suffering from severe depression, “was convinced by [the physician’s assistant] that the best course of treatment for her was to engage in sexual intercourse with him.” Andrews v. United States, 548 F.Supp. 603, 609 (D.S.C.1982). The patient’s consent was obtained over the course of a five month relationship. Here, by contrast, the district court found that “both girls resisted the advances of a corpsman who entered their room for a few minutes, returned the next night, and then was gone forever.” Thigpen, 618 F.Supp. at 245.

We must affirm unless we can conclude that this factual finding was clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). See also 2A Moore’s Federal Practice, ¶ 12.07 [2.-1] at 1249 (appellate review of factual disputes concerning jurisdiction is on a clearly erroneous basis). Our review of the evidence does not leave us with a “definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). In fact, we think the affidavits and testimony of appellants establish conclusively that they resisted and feared the advances of Rodriguez. Kramber, for example, testified that Rodriguez “was pushing my arm and told me to open and close my hand and I wouldn’t do it so I grabbed the side of the bed on the bar and he was trying to pull my hand off and I wouldn’t let him.” Thigpen explained that Rodriguez “was feeling my arm, and then he started moving it toward him ... forcing me until I [touched] his private parts and he told me to open and close my hand. I opened it and I just kinda realized what he was doing and then I pulled away.” In their complaints, moreover, each appellant alleges that Rodriguez molested her “by fondling her and forcing her to touch and fondle his genitals” (emphasis added). These accounts, and other evidence before the district court, establish clearly that the events here were unlike the consensual relationship found in Andrews to remove the case from 28 U.S.C. § 2680(h). To find consent to these advances would be to indulge a legal fiction, one that would detract from the dignity of those who obviously wanted no part of such offensive overtures.

To find a fictional consent would also undermine the intent of Congress in § 2680(h) throughout the field of health care. Congress in 1974 amended that section to make actionable the intentional torts of law enforcement officers. See 28 U.S.C. § 2680(h) (West’s Supp.1985). It has not made actionable such claims against physicians and medical personnel. Unless and until it does so, we shall interpret the statute as Congress wrote it.

IY.

There are many times when a court lacks the luxury of consulting its preferences and must value foremost its role as a servant of higher authority and law. This is one of those times. We deeply regret the trauma and indignity suffered by appellants, but we find ourselves bound by the principles of sovereign immunity, the broad language of Congress in the FTCA, and the weight of Supreme Court and circuit precedent. Accordingly, the judgment of the district court is hereby

AFFIRMED.

1 . Kramber does not assert the facts of this second encounter as part of her complaint in this case.

2 . The district court also concluded that plaintiffs were barred by the “scope of employment” requirement in 28 U.S.C. § 1346(b). Thigpen, 618 F.Supp. at 245. Because we agree that the actions are barred by the assault and battery exception, we do not reach the alternative ground for dismissal.

3 . We note that a different rule may obtain where the alleged assailant is not an employee of the government. See Rogers v. United States, 397 F.2d 12 (4th Cir.1968); Panella v. United States, 216 F.2d 622 (2d Cir.1954). The distinction was examined in Hughes v. Sullivan, 514 F.Supp. 667 (E.D.Va.1980) aff'd sub nom. Hughes v. United States, 662 F.2d 219 (4th Cir.1981).

4 . In their reply brief, appellants note that Shearer “simply re-affirms what this Court had already held in Hughes." Those cases, however, are said to differ from the instant case because they "obviously arose out of assaults and batteries."

5 . The concept of consent, as detailed in Restatement (Second) of Torts §§ 892-892D, is one of legally effective assent. Appellants' allegation of consent, however, necessarily included factual allegations about their behavior. We accordingly treat the allegation of consent as factual. The district court, moreover, disposed of the claim on a factual finding — that appellants resisted — and therefore did not consider the legal issues of whether any assent given was effective.

6 . The district court in fact weighed an additional affidavit submitted by appellant Kramber that had been prepared for this litigation. See, Thigpen, 618 F.Supp. at 243.