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KIMBERLY CARY HEVENER, t il
Cferk. U.S. Uis'tr.‘ct § R;~""~ ~i;~
P[aintiff, Caurts for tree D::_‘f;:§ct m
v. Civil Case No. 17-2577 (RJL)

UNITED STATES OF AMERICA,

VVVVV\/\/\/V

Defen dant.

MEMORAND ::M OPINION

(Januaryzi 2019) [Dkt. # 8]

Plaintiff Kimberly Cary Hevener brought this suit against defendant the
United States of America for damages arising from its allegedly negligent
supervision of Army Sgt. Jacknael Vazquez, Who sexually assaulted plaintiff in his
barracks room at Fort Lee, Virginia. See Complaint (“Compl.”) [Dkt. #l].
Defendant has moved to dismiss the complaint for lack of subject matter
jurisdiction and because plaintiff has failed to state a claim upon Which relief can
be granted. See Defendant’s Motion to Dismiss (“Def.’s Mot.”) [Dkt. # 8] (citing
Fed. R. Civ. P. 12(b)(l) and lZ(b)(6))§ Upon consideration of the pleadings,
record, and relevant law, l find that sovereign immunity bars this suit. As such,
defendant’s Motion to Dismiss is GRANTED, and all claims are dismissed with
prejudice

BACKGROUND
The alleged events that precipitated this complaint are about as despicable

as they come. On October l, 2014, Army Sgt. Jacknael Abdiel Vazquez, U.S.

Army, lst Battalion, 75th Ranger Regiment, invited Kimberly Hevener (nee Cary)
to meet at a local restaurant near Fort Lee, Virginia. Compl. il 8. Sgt. Vazquez
was on a temporary duty assignment at Fort Lee Army Base (hereinafter “Fort
Lee” or “Army Base”), but was stationed in Georgia. Compl. il 9. After dinner,
he allegedly invited Ms. Hevener back to his barracks at the Army Base to watch a
movie. Compl. W lO_ll. Ms. Hevener agreed to accompany him only after
receiving his assurances that they would not engage in any intimate activity that
ni.ght. Compl. il 12. Given her previous experience visiting her sister, who was in
the military, on Air Force bases in California and Maryland, Ms. Hevener believed
the base was a safe environment Compl. jill 15-16.

Once back in Sgt. Vazquez’s barracks room at Fort Lee, Ms. Hevener was
allegedly assaulted and raped. Compl. 1l 22. During and after the assault, no
Army personnel came to her aid. Compl. jljl 25-26, 29. Ms. Hevener reported the
assault immediately and submitted to a forensic examination that evening at an
emergency room. Compl. ‘W 30-31. Meanwhile, Sgt. Vazquez drove back to his
duty station in Georgia, where his body was recovered in an apparent suicide two
days later, on October 3, 2014. Compl 11 33.

Plaintiff filed a timely administrative claim via a SF-95 on September 21,
2016. Plaintiff’s Opposition to Defendant’s Motion to Dismiss (“Pl.’s Opp.”)

[Dkt. # 9] at 3; Compl. il 37. The Army acknowledged receipt, but, as of August

2017, had failed to adjudicate her claim.l Compl. jjjl 38_40. Plaintiff then filed a
complaint in this Court under the Federal Torts Claims Act (“FTCA”), claiming
that the Government is liable for the actions of Sgt. Vazquez because (l) the Army
negligently supervised and trained Sgt. Vazquez, (2) the Army was vicariously
liable for Sgt. Va;quez’s actions, (3) the Army violated the Virginia Innkeeper’s
Statute (Va. Code Ann. § 35.12) by failing to protect guests within the Army
barracks, and (4) the Army’s actions caused plaintiff intentional and negligent
infliction of emotional distress. See generally Compl. Currently before this Court
is the United States’ motion to dismiss the complaint. See Def.’s Mot. [Dkt. # 8].
STANDARD OF REVIEW

Defendant has moved to dismiss plaintiffs complaint for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure lZ(b)(l) and for failure
to state a claim under Rule 12(b)(6). See generally Def.’s Mot. In such a
situation, a court should consider the Rule lZ(b)(l) jurisdictional challenges
before the Rule lZ(b)(6) arguments See United States ex rel. Settlemire v. Distrz`ct
ofColuml)ia, 198 F.3d 913, 920.-21 (D.C. Cir. 1999).

When a defendant files a motion to dismiss a complaint for lack of subject
matter jurisdiction under Rule lZ(b)(l), the plaintiff bears the burden of
establishing jurisdiction by a preponderance of the evidence. See Lujan v.

Defenders of Wz'ldlz'fe, 504 U.S. 555, 561 (1992). Because “subject-matter

 

1 The government notably does not raise an exhaustion of administrative remedies
defense. Because l dismiss her claims with prejudice on sovereign immunity
grounds, l need not resolve whether, based on the scant record before this Court,
plaintiff adequately pursued her claims through the administrative process.

3

jurisdiction is an ‘Art[icle] III as well as a statutory requirement[,] no action of the

553

parties can confer subject-matter jurisdiction upon a federal court. Akz'nseye v.
Distrz'ct of Columl)ia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of
Ir., Ltd.\ v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). In
considering a lZ(b)(l) motion to dismiss for lack of subject-matter jurisdiction, a
court need not limit itself to the complaint, but rather “may consider such
materials outside the pleadings as it deems appropriate to resolve the question
whether it has jurisdiction in the case.” Bank of Amerz`ca, N.A. v. FDIC, 908 F.
Supp. 2d 60, 76 (D.D.C. 2012) (quotation marks omitted).
ANALYSIS

Defendant presents several arguments as to why this case should be
dismissed I need look no further, however, than the threshold jurisdictional issue
of sovereign immunity.

“The United States is generally immune from suit unless there is explicit

33

statutory waiver of its sovereign immunity. Scruggs v. Bureau ofEngraving &

Primz`ng, 200 F. Supp. 3d 78, 82 (D.D.C. 2016) (citation omitted). Since

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“[s]overeign immunity is jurisdictional in nature,’ a claim barred by sovereign
immunity lacks subject matter jurisdiction and is subject to dismissal under Rule
lZ(b)(l). F.D.I.C. v. Meyer, 510 U.S. 471 (1994). It is plaintiffs burden to
establish that sovereign immunity has been abrogated See Jackson v. Bush, 448

F. Supp. 2d 198, 200 (D.D.C. 2006) (quoting Tri-State Hosp. Supply Corp. v.

United States, 341 F.3d. 571, 575 (D.C. Cir. 2003)) (“[P]laintiff must overcome

the defense of sovereign immunity in order to establish the jurisdiction necessary
to survive a Rule 12(b)(l) motion to dismiss.”).

Plaintiff brings her claims under one avenue of statutory waiver-the
Federal Tort Claims Act (“FTCA”). “The FTCA operates as a limited waiver of
sovereign immunity, rendering the United States amenable to suit for certain tort
claims, subject to various exceptions set forth in 28 U.S.C. § 2680.” Scruggs, 200
F. Supp. 3d at 82 (citing Millbrook v. United States, 569 U.S. 50, 52 (2013);
Rz'chards v. United States, 369 U.S. l, 6 (1962)). Relevant to this case is the
FTCA’s so-called "‘intentional tort exception,” Which “preserves the Government’s
immunity from suit for ‘[a]ny claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.”’ Mz`lll)rook, 569
U.S. at 52-53 (quoting 28 U.S.C. § 2680(h)).

Plaintiff initially tries to argue around the intentional tort exception by
raising what she characterizes as a “negligent training and supervision” claim.
Pl.’s Opp. at 5. Namely, that the United States should have better trained or
supervised Sgt. Vazquez to prevent his brutal sexual assault. Yet plaintiffs claim
faces several problems.

First, plaintiffs negligent supervision claim “sound[s] in negligence but
stem[s] from a battery committed by a Government employee,” and so falls under

the intentional tort exception of § 2680(h). United States v. Shearer, 473 U.S. 52,

55 (1985).2 Plaintiff “cannot avoid the reach of § 2680(h) by framing her
complaint in terms of negligent failure to prevent the assault and battery.” Id.
This is because “[s]ection 2680(h) does not merely bar claims for assault or
battery; in sweeping language it excludes any claim arising out of assault or
battery.” Ia’. (emphasis in original). As the Supreme Court recognized in Shearer,
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
Ia’. (emphasis in original). lndeed, Courts have repeatedly rejected the idea that
Congress intended for “the Govemment’s liability for an assault and battery [to]
turn[] on the adequacy of supervision or Warnings.” Ia’. at 56.
Tellingly, in addition to her negligent supervision claim, plaintiff raises an
independent claim for vicarious liability. Pl.’s Opp. at 5. But these claims are

distinguishable in name only. Both stem from the same root_the intentional

“assault” and “battery” by a government employee, Sgt. Vazquez. “No semantic

 

2 Plaintiff argues that Shearer only applies in the context of suits by military
officials against the United States under something known as the Feres doctrine.
Pl.’s Opp. at 7. While Shearer itself did concern a suit by a military official for
damages against another member of the military, the Supreme Court’s
interpretation of the intentional torts exception has reached far beyond that
context, including to situations such as this where a civilian is suing the
government for the tortious actions of one of its employees. See, e.g., Sheridan v.
United States, 487 U.S. 392, 393-94 (1988) (“obviously intoxicated”
servicemember wandered out of Naval Hospital with loaded rifle and shot an
automobile); Bernl)enista v. United Siates, 866 F.2d 493, 497-98 (D.C. Cir. 1989)
(clinically blind patient alleged sexual assault by a medical technician employed
by a Naval Hospital); Doe v. United States, 838 F.2d 220, 223-24 (7th Cir. 1988)
(children at Air Force base day care center alleged sexual abuse by government
employee).

recasting of events can alter the fact that the [assault and] battery was the
immediate cause” of plaintiffs claimed damages, “and, consequently, the basis of
[her] claim.” Shearer, 473 U.S. at 55. “Take away the assault and there is no duty
and no breach, two central elements of a negligence claim.” Doe, 838 F.2d at 224.
Such attempts to “disguise respondeat superior claims as ‘negligent supervision’
claims, sneaking them in through the courthouse back door,” have been squarely
rejected by the Supreme Court and our Circuit. Doe, 838 F.2d at 223 (citing
Shearer, 473 U.S. at 55); see also Kugel v. United Siaies, 947 F.2d 1504, 1506-07
(D.C. Cir. 1991) (adopting the reasoning in Shearer to find that “[i]n both
cases...the intentional nature of the alleged torts...bars recovery”). Here,
plaintiffs negligent supervision and vicarious liability claims arise from the
employer-employee relationship between the Army and Sgt. Vazquez alone. As
such, they cannot form the basis for liability under the F'l`CA.3

Plaintiffs only remaining avenue of relief is to allege that a “government
duty [existed] to protect [her] prior to and independent of any assault” by Sgt.

Vazquez. Doe, 838 F.2d at 225. Courts have allowed “negligence claims related

 

3 Plaintiff also alleges that her IIED claim does not fall within the statutory
exceptions to liability under § 2680(h). Pl.’s Opp. at 7. However, like her other
claims, IIED stems from the intentional tort of assault and battery. As the
Government rightfully points out, “[a] litigant may not substitute the name of a
cause of action not included in Section 2680(h) for one that is included where the
alleged breach of duties is identical.” Def.’s Mot. at 8 (citing Kugel, 947 F.2d
1504). Her negligent infliction of emotional distress claim is no different Merely
alleging a negligent infliction of emotional distress does not mask the fact that her
distress stemmed from the same assault by Sgt. Vazquez, and is thus also barred as
a claim “arising from” an intentional tort.

to a Government employee’s § 2680(h) intentional tort [to] proceed where the
negligence arises out of an independent, antecedent duty unrelated to the
employment relationship between the tortfeasor and the United States.” Boa’in v.
Vagshenian, 462 F.3d 481, 488-89 (5th Cir. 2006) (quoting Leleux v. United
States, 178 F.3d 750, 757 (5th Cir. 1999) (citing Sheria’an, 487 U.S. at 402)); See
also Be)nbenista, 866 F.2d at 497 (citing Sheridan) (allowing plaintiff to “proceed
on a theory that the government is liable for breach of duty to a hospital patient to
whom it owed a special obligation of protective care”). Plaintiff must therefore
establish a separate duty of care that is unrelated to the unfortunate events that led
to Sgt. Vazquez’s alleged assault and battery. Doe, 838 F.2d at 224 (duty existed
where “if we remove the assault from the equation, the government’s duty still
exists”); Boa’in, 462 F.3d at 490 (citing Bembenista, 866 F.2d at 493) (“duty that
the United States allegedly breached therefore, was not one that stemmed from
the employment relationship with the assailant”). Unfortunately, she cannot.
Plaintiff attempts to establish such an independent duty under the arguably-
defunct Virginia Inkeeper’s Statute,4 Compl. jjjl 74-80, or alternatively under
“negligence at common law,” Compl. 1111 81-88, by virtue of her status as a visitor
on the Fort Lee Army Base. To evaluate these claims, I must look to Virginia law
as the law of the state where the incident occurred 28 U.S.C. § l346(b). Like

many states, Virginia does not recognize a general duty to control the conduct of

 

4 Plaintiff concedes that the Inkeeper’s Statute, Va. Code Ann. § 35.12, is
preempted by a newer provision, Va. Code. Ann. § 35.1, which regulates Hotels,
Restaurants, Summer Camps, and Campgrounds. See Pl.’s Opp. at l3.

8 .

third persons from causing physical harm to another “unless...a special relation
exists between the actor [the Government] and the other [the plaintiff] which gives
to the other a right to protection.” Harrison v. Bittler, 72 Va. Cir. 7 (Cir. Ct. 2006)
(quoting Restatement of Torts (Second) § 315 (1965)).5 Here, the Government
owed plaintiff no such special duty of care.

Despite her best attempts, plaintiff cannot establish that she was a guest in a
“hotel” under Va. Code Ann. § 35.1-1. lt should go without saying that the Army
does not offer its barracks “to the public for compensation transitory lodging or
sleeping accommodations, overnight or otherwise.” Ia’. Plaintiff does not allege
that she offered any form of compensation to stay on the Army Base, or indeed
that she stayed there overnight Fort Lee, like most military bases, did not hold
itself out as a lodging available to the public, with all that public accommodation
would entail. See Army Regulation 190-16 im 2.2 (allowing commanders to deny
access to members of the public for safety reasons). Plaintiff therefore cannot
allege that the Army owed her a duty under this provision of Virginia law.

Nor can plaintiff allege that she was owed a special duty of care as a
“visitor” to a military base beyond that owed to any member of the public.
Plaintiff argues that because military bases are not generally open to the public
and “the public at large cannot travel through the base at will,” the Government

owed her a special duty once she became an authorized visitor on the base. Pl.’s

 

5 To the extent plaintiff bases these negligence claims on a special relationship
between the United States and Sgt. Vazquez, such claims are based on nothing
more than the employer-employee relationship, and thus suffer the same fate as
her negligent supervision claims, being barred by the FTCA.

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Opp. at 15. Yet plaintiff does not allege facts establishing that she was anything
more than a “licensee”-a permitted visitor_at Fort Lee. Harrison, 72 Va. Cir. at
11 (“Virginia law imposes no duty on a social host to protect a social guest
[licensee] from third party criminal assaults”).6 The Government’s apparent
willingness to allow her access to the base, as a guest of a military servicemember,
is not distinguishable from the access permitted to any member of the public.
Moreover, although plaintiff speculates that the Army knew of Sgt. Vazquez’s
alleged pattern of assault and thus owed her some further duty of care, she has
failed to allege facts that would support that claim. Plaintiff has failed to name or
even describe any witnesses to the assault, any Army personnel she saw on-base
after the assault or indeed any particular individual who knew or should have
known about Sgt. Vazquez’s alleged prior behavior. Without these facts, plaintiff
cannot show that the Government owed her a “good Samaritan” duty to protect
against someone who was a known immediate threat to the community. See
Slzericlan, 487 U.S. at 401 (finding such a duty existed where a servicemember
who was “obviously intoxicated” was allowed to leave a hospital with a loaded
rifle and another government employee witnessed his departure). Because
plaintiff does not plausibly allege that the Government owed her an independent

duty of care, I must conclude that she has failed to establish negligence under

 

6 The Government owes no “general affirmative duty, applicable to all members of
the public, to act to protect a person in peril from the intentional harmful conduct
of another.” Thigpen v. United Staies, 800 F.2d 393, 398 (4th Cir. 1986).

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Virginia law. Marshall v. Winston, 239 Va. 315, 318 (1990).7 As such, the sole
legal basis of her claims is the intentional tort committed by Sgt. Vazquez, and her

suit is therefore barred by sovereign immunity pursuant to § 2680(h) of the FTCA.

CONCLUSION
Because this Court lacks subject matter jurisdiction, defendant’s Motion to
Dismiss must be GRANTED with prejudice. An Order consistent with this

decision accompanies this Memorandum Opinion.

1191»1

RICHARD N
United States Listrict Judge

 

7 Notably, plaintiff has made no allegation that the Army Base breached a duty of
care that it ordinarily would have owed to visitors on the base, such as floor safety.
See, e.g., Haya’en v. United States, 21 F. Supp. 3d 37, 40 (D.D.C. 2014). Such
duties are foreseeable and reasonable. Preventing a violent sexual assault by a
soldier is not

ll

