Willett v. The Veterans Administration of the United States of America et al
MEMORANDUM OPINION AND ORDER that the United State's 41 Renewed Motion to Dismiss is GRANTED as further set out in the opinion and order. A separate judgment will be entered. Signed by Chief Judge William Keith Watkins on 6/3/2014. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CHARLIE MAE WILLETT,
UNITED STATES OF AMERICA,
) CASE NO. 2:12-CV-296-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff Charlie Mae Willett brings this action under the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671–80, alleging a premises liability theory
of negligence that the United States breached its duty of care to protect her from a
sexual assault while she was hospitalized and sedated at the Central Alabama
Veterans Health Care System (“CAVHCS”) facility in Montgomery, Alabama.
Pending is the United States’s renewed motion to dismiss Ms. Willett’s Second
Amended Complaint on the basis that Ms. Willett’s FTCA claim falls within the
discretionary-function exception to the FTCA’s waiver of the United States’s
sovereign immunity. (Docs. # 41, 42.) The United States’s motion is based upon a
lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1). Ms. Willett filed a response in opposition to the motion, invoking Federal
Rule of Civil Procedure 12(b)(6) as the standard of review. (Doc. # 48.) In its reply,
the United States raises the issue whether the jurisdictional inquiry reaches the merits
and contends that, if so, Federal Rule of Civil Procedure 56 should govern. (Doc. #
51.) After careful consideration of the arguments of counsel and the relevant law, the
court finds that the United States’s motion invokes both Rule 12(b)(1) and (b)(6)
review and that the motion is due to be granted.
I. JURISDICTION AND VENUE
The parties do not contest personal jurisdiction or venue. Subject-matter
jurisdiction is in dispute.
The Operative Complaint
The operative complaint is the Second Amended Complaint, which alleges the
following facts pertinent to the motion to dismiss. On April 21 and 22, 2009, while
Ms. Willett was hospitalized at CAVHCS’s facility in Montgomery, Alabama,
CAVHCS employee Marvin Chappell sexually assaulted her while she was “heavily
medicated” and in an “anaesthetized state.” (2d Am. Compl. ¶¶ 12, 17 (Doc. # 23).)
Mr. Chappell also “sexually molested” other patients prior to Ms. Willett’s assault,
and CAVHCS’s chief executive, Clifford Robinson, “clearly knew, or should have
known, about Mr. Chappell’s tendency to sexually modest [sic] innocent people.” (2d
Am. Compl. ¶¶ 5, 9.) Additionally, the charge nurse, Patricia Henley, “refused to
investigate” Ms. Willett’s report of the sexual assault. (2d Am. Compl. ¶¶ 5–6.)
Ms. Willett’s FTCA action alleges that the United States is liable for
negligence because the combination of her hospitalization and sedation created a
special relationship between her and CAVHCS, from which a duty of care flowed.
In Ms. Willett’s words, this special relationship “[gave] rise to a duty to protect [her]
from the criminal acts of third parties” while she was in CAVHCS’s inpatient care.
(2d Am. Compl. ¶ 17.) She also alleges that CAVHCS “negligently failed to protect
her” from a foreseeable sexual assault by Mr. Chappell. (2d Am. Compl. ¶ 18.) Ms.
Willett seeks to hold the United States liable under the FTCA for the alleged
negligent conduct of CAVHCS’s employees.
The Procedural History
This action has been pending more than two years, and this is the third time it
has been before the court on a motion to dismiss. Initially, the United States filed a
Rule 12(b)(1) motion to dismiss the Amended Complaint, which alleged a claim for
negligent hiring and supervision. A prior Order granted that motion and dismissed
the claim as barred by the assault-and-battery exception to the FTCA’s waiver of the
United States’s sovereign immunity, see 28 U.S.C. § 2680(h), but permitted Ms.
Willett to replead a premises liability theory of negligence predicated upon breach of
a duty of protective care.1 (Doc. # 22.) Ms. Willett pleaded a premises liability claim
in the Second Amended Complaint, which then survived the United States’s second
Rule 12(b)(1) motion to dismiss based upon sovereign immunity. The Order denying
the motion rejected the United States’s contention that the assault-and-battery
exception to the waiver of sovereign immunity barred the premises liability claim.
The Order found that the assault-and-battery exception did not apply because Ms.
Willett had pleaded a special relationship under Alabama law that gave rise to a duty
on the part of the United States to protect her from a foreseeable criminal assault and
that this duty was independent of Mr. Chappell’s government employment. The
Order delayed ruling, however, on the application of the discretionary-function
exception to the FTCA’s waiver of the United States’s sovereign immunity in order
to permit Ms. Willett to conduct limited jurisdictional discovery. The right to
discovery was granted sua sponte. (See Doc. # 36.)
Ms. Willett has not once moved to conduct jurisdictional discovery or even mentioned
its prospect, notwithstanding the United States’s vigorous and persistent contest to subject-matter
jurisdiction from the beginning of this litigation. The United States has suggested repeatedly that
the court has acted as Ms. Willett’s advocate in permitting Ms. Willett to amend her pleadings
and conduct jurisdictional discovery. (See, e.g., Doc. # 42, at 3 (commenting that the court
granted Ms. Willett “leave to amend her complaint and instructed her how to plead to avoid
application of § 2680(h)”).) The United States may disagree with how the court conducts the
business of the Third Branch, but would be reminded that allegations of abuse of sedated
veterans by government employees deserve the highest scrutiny by a factually and institutionally
disinterested judge. This scrutiny preserves the separation of the branches and protects veterans
who are hospitalized, sedated, and at the mercy of the Department of Veterans Affairs.
The existence (or not) of regulations and internal CAVHCS policies that
impose mandatory obligations on employees with respect to protection of patients
from third-party sexual assaults is critical to the subject of this motion. As discussed
infra in Part III. A., mandatory directives, whether in a federal statute, regulation, or
internal policy, are part of the discretionary-function exception analysis. The prior
Order also permitted the United States to renew its motion to dismiss after the close
of jurisdictional discovery (Doc. # 36), which it did (Doc. # 41).
In her response to the renewed motion to dismiss, Ms. Willett contends that,
during the discovery period, she uncovered “mandatory procedures” that “protect and
prevent sexual assaults of patients.”2 (Doc. # 48, at 4.) She relies upon 38 C.F.R.
§ 1.218(b), titled “Security and law enforcement at VA facilities,” as establishing a
non-discretionary duty that requires CAVHCS officials to arrest and remove from the
premises any individual who engages in prohibited sexual misconduct. Alternatively,
Ms. Willett asserts that, even if § 1.218(b) gives CAVHCS discretion in whether to
arrest an offender and remove him or her from the premises, there are two CAVHCS
memoranda that require employees to report and investigate known sexual assaults:
(1) Memorandum No. 132-07-04, Reporting Crimes, Traffic Accidents, Assaultive
Ms. Willett apparently did not pursue any discovery directly from the United States.
(See Doc. # 41, at 4 n.1.)
Behavior or Suspicious Activities (Jan. 26, 2007) (“Reporting Policy”); and
(2) Memorandum No. 11-06-30, Patient Abuse (June 15, 2006) (“Patient Abuse
Policy”). The thrust of Ms. Willett’s argument is that CAVHCS employees failed to
report prior incidents of alleged sexual assaults on patients by Mr. Chappell, failed
to investigate prior incidents of alleged sexual assaults on patients by Mr. Chappell,
and failed to arrest or remove Mr. Chappell from the premises after he allegedly
sexually assaulted patients on prior occasions.
The parties’ briefing on the pending renewed motion to dismiss focuses on
whether the discretionary-function exception to the FTCA applies. Additionally, as
indicated at the beginning of this opinion, the standard of review has garnered some
attention by the parties.
To sort out this two-year-old action for the final time requires careful analysis
of the Second Amended Complaint in light of the FTCA’s jurisdictional requirements
with respect to the discretionary-function exception, the appropriate standard of
review, and the general rules governing pleading a cause of action.
The FTCA and Its Discretionary-Function Exception
Under the FTCA, the United States has waived its sovereign immunity for
injuries caused by the “negligent or wrongful act or omission” of a federal
government employee while that employee is “acting within the scope of his office
or employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the act
or omission occurred.” 28 U.S.C. § 1346(b). Several exceptions in 28 U.S.C. § 2680
limit the FTCA’s waiver, and, where an exception applies, sovereign immunity
remains a jurisdictional bar to suit. The discretionary-function exception is one such
exception. See § 2680(a).
The Supreme Court has fashioned a two-step test for determining whether the
discretionary-function exception applies to re-erect sovereign immunity as a bar to
an FTCA negligence suit. See United States v. Gaubert, 499 U.S. 315, 322 (1991);
Autery v. United States, 992 F.2d 1523, 1526 (11th Cir. 1993). The first step
examines whether the nature of the government actor’s conduct “involves an element
of judgment or choice.” Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997)
(citation and internal quotations omitted). “Government conduct does not involve
an element of judgment or choice, and thus is not discretionary, if ‘a federal statute,
regulation, or policy specifically prescribes a course of action for an employee to
follow, because the employee has no rightful option but to adhere to the directive.’”3
Id. (quoting Gaubert, 499 U.S. at 322). On the other hand, “if a government official
in performing his statutory duties must act without reliance upon a fixed or readily
ascertainable standard, the decision he makes is discretionary and within the
discretionary function exception.” Powers v. United States, 996 F.2d 1121, 1124
(11th Cir. 1993). If nothing expressly prescribes the conduct, the analysis moves to
the second step.
The second step asks whether the judgment at issue “is of the kind that the
discretionary function exception was designed to shield.” Gaubert, 499 U.S.
at 322–23 (citation and internal quotation marks omitted). Even if the conduct
involves an element of judgment, the discretionary-function exception only applies
to “decisions that are based on considerations of social, economic, and political
The Eleventh Circuit has explained how an agency’s regulations or guidelines on
matters of discretion fit within the discretionary-function test:
Where Congress has granted an agency discretion in implementing a regulatory
statute, the agency’s promulgation of regulations or guidelines describing how it will
use that discretion is protected by the discretionary function exception. Furthermore,
if the regulation or guideline mandates particular conduct, and the [agency’s]
employee obeys the direction, the Government will be protected [by the discretionary
function exception] because the action will be deemed in furtherance of the policies
which led to the promulgation of the regulation [or guideline.] On the other hand,
if the employee violates the mandatory regulation [or guideline], there will be no
shelter from liability because there is no room for choice and the action will be
contrary to policy.
Cohen v. United States, 151 F.3d 1338, 1344–45 (11th Cir. 1998) (internal quotation marks and
policy.” Berkovitz v. United States, 486 U.S. 531, 536–37 (1988). The exception
exists “to prevent judicial second-guessing of legislative and administrative decisions
grounded in social, economic, and political policy.”4 Gaubert, 499 U.S. at 323
(citation and internal quotation marks omitted).
Standard of Review
It is important to resolve at the outset what standard of review governs the
United States’s motion to dismiss. There are four potential standards in play: Rule
12(b)(1) facial attack; Rule 12(b)(1) factual attack; Rule 56; and Rule 12(b)(6).
A motion to dismiss under Rule 12(b)(1) challenges the court’s subject-matter
jurisdiction, and Rule 12(b)(1) permits a facial or factual attack. McElmurray v.
Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007).
On a Rule 12(b)(1) facial attack, the court evaluates whether the plaintiff “has
sufficiently alleged a basis of subject matter jurisdiction” in the complaint and
employs standards similar to those governing Rule 12(b)(6) review. Houston v.
Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013). A Rule 12(b)(1)
It also is useful to set out what is not at issue in the discretionary-function analysis. As
the Eleventh Circuit has emphasized, “[The court’s] concern under the discretionary function
exception is not whether the allegations of negligence are true.” Hughes v. United States, 110
F.3d 765, 767 n.1 (11th Cir. 1997). “[I]nstead, [the court’s] concern is whether the nature of the
conduct involves judgment or choice and whether that judgment is of the kind that the exception
was designed to protect.” Id.; see also Autery, 992 F.2d at 1528 (criticizing the district court’s
analysis because it “appear[ed] to [have] collapse[d] the question of whether the Park Service
was negligent into the discretionary function inquiry”).
factual attack, however, “challenge[s] the existence of subject matter jurisdiction in
fact, irrespective of the pleadings, and matters outside the pleadings, such as
testimony and affidavits, are considered.” Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir. 1990) (citation and internal quotation marks omitted). When the attack is
factual, “the trial court is free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case.” Id. Therefore, “no presumptive truthfulness
attaches to [the] plaintiff’s allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself the merits of jurisdictional
There is an exception to the application of the standards governing dismissal
for lack of subject-matter jurisdiction “when the basis of jurisdiction is also an
element in the plaintiff’s federal cause of action.” Williamson v. Tucker, 645 F.2d
404, 415–16 (5th Cir. 1981)5; see also Lawrence, 919 F.2d at1529. The Eleventh
Circuit “ha[s] cautioned . . . that the district court should only rely on Rule 12(b)(1)
if the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff’s
cause of action.” Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003)
(citation, alterations, and internal quotation marks omitted). When the jurisdictional
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.
and merits inquiries are intertwined, “the proper course of action for the district court
. . . is to find that jurisdiction exists and deal with the objection as a direct attack on
the merits of the plaintiff’s case.” Williamson, 645 F.2d at 415. “This refusal to treat
indirect attacks on the merits as Rule 12(b)(1) motions provides, moreover, a greater
level of protection to the plaintiff who in truth is facing a challenge to the validity of
his claim: the defendant is forced to proceed under Rule 12(b)(6) (for failure to state
a claim upon which relief can be granted) or Rule 56 (summary judgment) – both of
which place great restrictions on the district court’s discretion.” Id.
For the reasons that follow, the United States’s motion will be treated in part
as a Rule 12(b)(6) challenge where the jurisdictional facts are intertwined with the
merits and in part as a Rule 12(b)(1) facial challenge to jurisdiction. The issue of
foreseeability – whether the United States knew or should have known of prior sexual
assaults on patients allegedly committed by Mr. Chappell – is intertwined with the
merits, but the issue of whether any CAVHCS employee violated a mandatory
regulation or policy is solely a jurisdictional issue. The latter issue will be reviewed
as a Rule 12(b)(1) facial attack, and the former as a Rule 12(b)(6) challenge. These
two issues are dispositive and resolve in favor of the United States.6
Review will be limited to the allegations in the Second Amended Complaint and will
not include the evidence submitted by the United States. The United States submits the report of
the Department of Veterans Affairs’ Administrative Investigation Board (“Board”), dated July
24, 2009. Pursuant to the CAVHCS director’s June 1, 2009 directive, the Board conducted an
internal investigation of Ms. Willett’s allegations that, during her inpatient hospitalization from
Standard for Reviewing Foreseeability (Merits)
The United States contends that Ms. Willett cannot overcome the applicability
of the discretionary-function exception because it “has absolutely no knowledge of
any prior assault by [Mr.] Chappell and . . . [Ms. Willett] lacks any evidentiary
support for this baseless factual contention.” (Doc. # 51, at 6 (citing Fed. R. Civ. P.
11(b)(3).) The United States argues that its challenge presents a Rule 12(b)(1) factual
attack. Alternatively, it contends that, if the issue of CAVHCS’s knowledge of prior
sexual assaults is intertwined with the merits, then Rule 56’s standard should be
applied. The United States’s briefing raises the issue (without answering it) of
whether CAVHCS’s knowledge of Mr. Chappell’s alleged prior sexual assaults on
patients is a fact that is intertwined with the merits. (Doc. # 51, at 6.)
The answer is that there is overlap in the jurisdictional and merits inquiries.
First, on the merits, whether CAVHCS knew or should have known of Mr. Chappell’s
prior sexual assaults on patients bears on the foreseeability of Mr. Chappell’s
subsequent sexual assaults on Ms. Willett, which is a key merits issue under the
April 11, 2009, to May 1, 2009, Mr. Chappell sexually assaulted her at CAVHCS’s Montgomery
facility. As part of its investigation, the Board interviewed Ms. Willett on June 8, 2009. The
Board concluded, however, that “[t]he evidence d[id] not support that Mr. Chappell sexually
harassed [Ms.] Willett when she was an inpatient on 3A” and detailed the reasons for its
conclusion. (Board’s Report of Investigation (Doc. # 51-1).) The United States also provides the
manufacturer’s information for the drug, Lortab, and medical records (i.e., “Progress Notes”)
from Ms. Willett’s hospital stay. The United States has not demonstrated how these documents
bear on whether the United States knew or should have known of prior incidents of sexual
assaults on patients allegedly committed by Mr. Chappell or on whether CAVHCS’s employees
violated mandatory directives pertaining to reporting and investigative requirements.
applicable negligence law. Ms. Willett’s claim alleging a negligent failure of the
United States to protect her from the sexual assault by Mr. Chappell is governed by
Alabama law because the alleged acts of negligence occurred in Alabama.7 As the
court previously explained (Doc. # 22, at 8–9), Alabama law provides that there are
circumstances when a defendant has a duty to protect a plaintiff by virtue of a special
relationship between the plaintiff and the defendant. See Young v. Huntsville Hosp.,
595 So. 2d 1386, 1388 (Ala. 1992) (finding the existence of a special relationship
between the patient and the hospital based upon evidence that the plaintiff “was
anesthetized or sedated and therefore unable, or less able, to protect herself from” the
sexual assault). The defendant has a duty to protect a plaintiff on the basis of the
special relationship “when the defendant knew or had reason to know of a probability
of conduct by third persons that would endanger the plaintiff.”8 Broadus v. Chevron
USA, Inc., 677 So. 2d 199, 202 (Ala. 1989); see also Young, 595 So. 2d at 1388
(discussing foreseeability as an element of the plaintiff’s negligence claim and
finding that evidence that the perpetrator “was a trespasser after warning” created a
jury issue); (see also Doc. # 36, at 7 (explaining that “foreseeability of the criminal
acts is a necessary element for proving liability under Young”).)
The “law of the place where the act . . . occurred,” § 1346(b), is the “source of
substantive liability under the FTCA.” F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994).
For convenience, in the balance of the opinion, the court’s use of “knew” or
“knowledge” is shorthand for “knew or had reason to know/should have known.”
Second, the issue of whether CAVHCS knew or should have known of Mr.
Chappell’s alleged prior sexual assaults on patients also is relevant to whether the
discretionary-function exception applies. Ms. Willett contends that the United States
failed to follow mandatory directives in response to past accusations that Mr.
Chappell had sexually assaulted other patients. The answer to this inquiry bears on
whether the nature of the conduct “involves an element of judgment or choice,”
Ochran, 117 F.3d at 499, the first step for resolving whether the discretionaryfunction exception applies. Accordingly, resolution of CAVHCS’s knowledge of the
alleged prior sexual assaults will assist in resolving the issue of subject-matter
jurisdiction and an element of the FTCA claim. See Perez v. United States, No.
06cv80, 2010 WL 3927628, at *3 (D. Virgin Islands 2010) (“[T]he issue of the
Government’s knowledge of the risk of barracuda attacks is relevant both to the
application of the discretionary function exception and the merits of Plaintiff’s
Based upon the foregoing principles, the United States’s Rule 12(b)(1) motion
for dismissal on the basis of the discretionary-function exception is intertwined with
the merits of Ms. Willett’s FTCA cause of action. The United States urges
application of the Rule 56 standard under which some evidence of CAVHCS’s
knowledge of Mr. Chappell’s alleged prior sexual assaults on patients would be
required of Ms. Willett. Under that standard of review, Ms. Willett would lose
because she has failed to submit any evidence that Mr. Chappell previously sexually
assaulted a patient or that CAVHCS failed to investigate a known prior assault. (See
Doc. # 51, at 6); see also Fed. R. Civ. P. 56(c). Ms. Willett, on the other hand, offers
no insight on what standard of review applies, but recites the Rule 12(b)(6) standard
without stating her basis for doing so. Notwithstanding the age of this case, it is
premature to examine the motion under Rule 56’s standard because there is limited
factual development of the record on the merits of the FTCA claim. The Order
permitting jurisdictional discovery specifically prohibited Ms. Willett from
“conduct[ing] discovery on the merits of her claim.” (Doc. # 36, at 10.) In short,
there has been no discovery on the issue of foreseeability or knowledge.
For these reasons, Ms. Willett will be given the benefit of Rule 12(b)(6) review
on the merits issue of foreseeability. The analysis on the issue of CAVHCS’s
knowledge of prior sexual assaults allegedly committed by Mr. Chappell proceeds,
therefore, under the standard of review governing Rule 12(b)(6) motions.
Scrutinizing the allegations of the Second Amended Complaint, rather than the
evidence, is sensible because the foundation of any lawsuit is the complaint, and
where the complaint fails to plead a plausible claim, the lawsuit should not be
permitted to go forward.
Standard for Reviewing Violations of Mandatory Policies
The analysis of the discretionary-function exception requires consideration of
whether there is a violation of a federal regulation or policy that “specifically
prescribes a course of action for an employee to follow.” Ochran, 117 F.3d at 499
(quoting Gaubert, 499 U.S. at 322). No party has argued that this inquiry is
intertwined with the merits. Rule 12(b)(1) will govern the analysis, and the focus will
remain on the Second Amended Complaint’s allegations such that the challenge will
be considered a facial one (and not a factual one).
The analysis begins with the Rule 12(b)(1) question of whether there are
allegations establishing that CAVHCS’s employees or officials violated mandatory
regulations or policies. The analysis then turns to the Rule 12(b)(6) question of
whether there are allegations establishing that CAVHCS knew or should have known
about prior sexual assaults on patients allegedly committed by Mr. Chappell. In the
end, Rule 12(b)(1) and Rule 12(b)(6) provide alternative bases for dismissal.
Discretionary-Function Exception (Violations of Mandatory Policies)
Under Rule 12(b)(1), the issue is whether there are facts that overcome the
discretionary-function exception to the FTCA’s waiver of the United States’s
sovereign immunity. As outlined below, the Second Amended Complaint suffers
several deficiencies for purposes of overcoming the discretionary-function exception
to the FTCA.
The Existence of a Mandatory Federal Regulation or Policy
The first step of the Gaubert test requires consideration of whether the conduct
at issue involves “an element of judgment or choice.” Ochran, 117 F.3d at 499. Ms.
Willett contends generally that there are “mandatory procedures in place to protect
and prevent sexual assaults of patients.” (Doc. # 48, at 4.) She relies specifically
upon 38 C.F.R. § 1.218(b) as establishing a non-discretionary duty that requires
CAVHCS officials to arrest and remove from the premises any individual who
engages in prohibited sexual misconduct.9 Alternatively, Ms. Willett contends that
Section 1.218 provides that “[t]he head of the facility is charged with the responsibility
for the enforcement of these rules and regulations and shall cause these rules and regulations to
be posted in a conspicuous place on the property.” § 1.218(a). It encompasses fifteen categories
of rules governing a variety of matters, including visiting hours, preservation of property,
conformity with emergency conditions, disturbances, weapons, gambling, solicitation, and,
pertinent to this case, sexual misconduct. “[S]exual misconduct” is defined as “[a]ny act of
sexual gratification on VA property involving two or more persons who do not reside in quarters
on the property.” § 1.218(a)(16). The regulation further provides that “[c]onduct in violation of
the rules and regulations set forth in paragraph (a) of this section subjects an offender to arrest
and removal from the premises.” § 1.218(b) (emphasis added). Additionally, offenders who are
guilty of violating the rules are subject to enumerated fines and potential imprisonment of not
more than six months. Id. Finally, VA police officers are charged with enforcing the rules in
accordance with the VA’s policies and operating procedures. § 1.218(c)(1).
even if § 1.218(b) gives a CAVHCS officer discretion in whether to arrest an offender
and remove him or her from the premises, its discretion is restrained through two
CAVHCS Memoranda: (1) The Reporting Policy; and (2) the Patient Abuse
The parties devote substantial arguments to whether the regulation and policies
are mandatory. All of the arguments have been considered, and some arguments are
more persuasive than others. For purposes of judicial expediency, however, the court
will assume, without deciding, that § 1.218(b) mandates an arrest and removal of an
offender who engages in sexual misconduct, that the Reporting Policy and the Patient
Abuse Policy contain mandatory directives for reporting and investigating
accusations of possible sexual assaults occurring on CAVHCS premises, and that
The Reporting Policy and the Patient Abuse Policy require an employee who observes
or obtains information about assaultive behavior or patient abuse to notify his or her supervisor
or the Veterans Affairs police as soon as possible. (Reporting Policy, at 1; Patient Abuse Policy,
at 2.) The Patient Abuse Policy also provides that, after an employee reports an incident, the
Risk Manager “is responsible for reviewing all allegations of patient abuse and conducting a
preliminary investigation to determine whether the allegation is credible.” (Patient Abuse Policy,
at 2.) The Reporting Policy delineates VA police officers’ responsibilities when notified of a
possible crime on CAVHCS property, and those responsibilities include the suspect’s detention
for preliminary investigation, or if necessary, the suspect’s arrest. (Reporting Policy, at 2–3
(requiring VA police to respond immediately to the scene, provide first aid to the victim, detain
any suspects for a preliminary investigation, secure evidence, etc.).) Ms. Willett argues that these
policies required employees to report to their supervisors information about the prior accusations
of patient sexual assaults by Mr. Chappell, mandated a response by the VA police, and required
an investigation by a Risk Manager. She contends that the responsible CAVHCS employees –
whomever they may be – had no discretion not to report the sexual assaults to a superior and not
to conduct any investigation at all. (Doc. # 48, at 8.)
violations of these mandatory requirements provide “no shelter from liability because
there is no room for choice.”11 Cohen, 151 F.3d at 1344–45.
The Violation of a Mandatory Federal Regulation or Policy
Even with these assumptions, it is paramount that the Second Amended
Complaint contain allegations demonstrating that a CAVHCS employee violated
either § 1.218(b), the Reporting Policy, or the Patient Abuse Policy. In other words,
the existence of a mandatory regulation or policy is meaningless without facts that the
policies actually were violated. See generally Cohen, 151 F.3d at 1344–45 (“[I]f the
regulation or guideline mandates particular conduct, and the [agency’s] employee
obeys the direction, the Government will be protected [by the discretionary function
exception].”). Ms. Willett says that her Second Amended Complaint “properly and
sufficiently alleges that CAVHCS was negligent in [its] failure to . . . report Mr.
Chappell’s previous sexual abuses” on patients and “investigate Mr. Chappell’s
Although this opinion makes no finding, there is some doubt whether § 1.218(b)
contains mandatory directives for the arrest and removal of offenders. The phrase that Ms.
Willett hones in on – “subjects an offender to arrest and removal” – does not contain mandatory
directives such as “must” or “shall.” Cf. Leslie Salt Co. v. United States, 55 F.3d 1388, 1397 (9th
Cir. 1995) (“[A] longstanding canon holds that the word ‘shall’ standing by itself is a word of
command rather than guidance when the statutory purpose is the protection of public or private
rights.” (citing Escoe v. Zerbst, 295 U.S. 490, 494 (1934) (Cardozo, J.)). Ms. Willett appears at
one point to recognize the element of choice afforded to an officer when she says that a violation
could have “possib[ly] subject[ed] Mr. Chappell] to arrest.” (Doc. # 48, at 11.) It is important to
note also that, contrary to Ms. Willett’s argument, nothing in these regulations requires
permanent removal from the premises, as Ms. Willett alleges. There is a better case for arguing
that the Reporting Policy and Patient Abuse Policy contain mandatory directives.
previous abuse of veterans at CAVHCS.” (Doc. # 48, at 9.) But if those allegations
exist, they are invisible.
There are no allegations in the Second Amended Complaint that a CAVHCS
employee failed to report to a supervisor any alleged prior sexual assaults on patients
committed by Mr. Chappell or that the CAVHCS Risk Manager failed to perform an
investigation of a reported patient sexual assault by Mr. Chappell. There also are no
allegations indicating that any Veterans Affairs police officer knew or should have
known about Mr. Chappell’s alleged prior sexual assaults on patients, but failed to
arrest Mr. Chappell and remove him from the premises. There simply are no facts
alleged from which to discern whether CAVHCS employees or officers complied or
not with § 1.218(b) and the policies governing reporting and investigative procedures
with respect to the prior patient sexual assaults allegedly committed by Mr.
The court pauses to note two arguments – one by Ms. Willett and one by the United
States – that have been considered but rejected. First, the fact that the Second Amended
Complaint pleads that CAVHCS employees refused to investigate Ms. Willett’s allegations that
Mr. Chappell had sexually assaulted her is not the proper focus at this stage because Ms. Willett
argues that the harm she suffered by Mr. Chappell is the result of CAVHCS’s failure to follow
mandatory directives as to Mr. Chappell’s prior incidents of sexual abuse of patients.
Second, the United States argues that “there is an insufficient causal link between the
alleged [regulatory] violations . . . and the subsequent assault on [Ms. Willett] to defeat the
discretionary function exception.” (Doc. # 52, at 14–15.) It contends that the causal link is
missing because CAVHCS “was not required to fire [Mr.] Chappell or bar him from the hospital
even if it had conducted an investigation.” (Doc. # 51, at 16.) The court has considerable doubt
whether Ms. Willett has alleged or can prove causation; however, the sole case upon which the
United States relies does not hold, as the United States says it does, that “to defeat the
discretionary function exception, the violation of a mandatory and specific federal statute,
Ms. Willett’s Pleading Burden
In consideration of the deficient allegations in the Second Amended Complaint,
the issue turns to Ms. Willett’s pleading burden with respect to the discretionaryfunction exception. Neither party cites a decision that has addressed a plaintiff’s
pleading burden with respect to the discretionary-function exception when faced with
a facial attack under Rule 12(b)(1).13 Other circuits, however, including the Fourth,
Fifth, Sixth, and Tenth Circuits, even where undecided as to which party bears the
ultimate burden of proof, place the burden squarely on the plaintiff at the motion-todismiss stage to “plead[ ] facts that facially allege matters outside of the discretionary
function exception.” Spotts v. United States, 613 F.3d 559, 568 (5th Cir. 2010); see
regulation or policy must be the cause of the harm to the plaintiff.” (Doc. # 51, at 15 (citing
Andrews v. United States, 121 F.3d 1430 (11th Cir. 1997).) Andrews held that the discretionaryfunction exception did not “apply to the Navy’s violation of its mandatory duty not to place
flammable liquid waste in the on-base dumpsters.” 121 F.3d at 1441. The Eleventh Circuit
discussed the absence of evidence on causation in addressing the merits of the negligence claim.
See id. Thus, Andrews is distinguishable. It does not provide authority that supports
incorporating into the analysis of the discretionary-function exception a requirement of
proximate cause. See also In re Glacier Bay, 71 F.3d 1447, 1451 (9th Cir. 1995) (Issues of
proximate cause “are irrelevant to the discretionary function inquiry.”). Absent any other
authority from the United States, its position will not be adopted for purposes of the present
The Eleventh Circuit has held that, “[i]n the face of a [Rule 12(b)(1)] factual challenge
to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists.” OSI,
Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002). OSI is not directly on point because
the court is treating the United States’s motion as a Rule 12(b)(1) facial challenge. The Eleventh
Circuit also has been confronted with, but has declined to decide, which party bears the ultimate
burden of proving the applicability of the discretionary-function exception, but has commented
that the Supreme Court in Gaubert “appeared to impose the burden on the tort plaintiff to show
that the government’s conduct is not protected under the discretionary function exception.”
Autery, 992 F.2d at 1526 n.6 (citing Gaubert, 499 U.S. at 324–25).
also St. Tammy Parish, ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d
307, 315 n.3 (5th Cir. 2009) (“On this motion to dismiss, . . . the [plaintiff] must
advance a claim that is facially outside the discretionary function exception in order
to survive the motion to dismiss, regardless of which party bears the ultimate burden
of proof.”); Franklin Sav. Corp. v. United States, 180 F.3d 1124, 1130 (10th Cir.
1999) (“To avoid dismissal of an FTCA claim under the discretionary-function
exception, a plaintiff must allege facts that place its claim facially outside the
exception.”); Blakey v. U.S.S. Iowa, 991 F.2d 148, 154 (4th Cir. 1993) (“The
[plaintiffs’] only means for surviving a motion to dismiss are to ‘allege facts which
would support a finding that the challenged actions are not the kind of conduct that
can be said to be grounded in the policy of the regulatory regime.’” (quoting Gaubert,
499 U.S. at 324–25)); Carlyle v. Dep’t of the Army, 674 F.2d 554, 556 (6th Cir. 1982)
(Jurisdiction under the FTCA is invoked “only if the complaint is facially outside the
exceptions [set forth in the FTCA].”).
These out-of-circuit decisions that place the pleading burden on the plaintiff
are persuasive, and that burden will be placed on Ms. Willett for purposes of
resolving the Rule 12(b)(1) facial challenge. As discussed above, Ms. Willett has not
met her burden of pleading the inapplicability of the discretionary-function exception,
and she has neither sought leave to amend the Second Amended Complaint to cure
the pleading deficiencies nor contended that she is able to cure the pleading
The End of the Line
The posture of this case then is that the Second Amended Complaint, as it
stands, is subject to dismissal under Rule 12(b)(1). No circumstances exist that
would warrant granting Ms. Willett a further opportunity to amend. The bottom line
is that there are no allegations in the operative complaint that satisfy Ms. Willett’s
burden to “plead[ ] facts that facially allege matters outside of the discretionary
function exception,” Spotts, 613 F.3d at 568, and there is no request to amend the
Second Amended Complaint to cure the jurisdictional pleading deficiencies. The
court is compelled to conclude that Ms. Willett has pleaded all she knows, and it is
not enough. This is the end of the line for the Second Amended Complaint, and Rule
12(b)(1) dismissal also is appropriate.
Whether CAVHCS Knew or Should Have Known of Prior Sexual
Assaults on Patients Allegedly Committed by Mr. Chappell
The analysis turns to the Rule 12(b)(6) inquiry, which provides an alternative
basis for dismissal. When evaluating a motion to dismiss pursuant to Rule 12(b)(6),
the court must take the facts alleged in the complaint as true and construe them in the
light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22
(11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
“[F]acial plausibility” exists “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint need not
set out “detailed factual allegations,” but something “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action” is
required. Twombly, 550 U.S. at 555; see also Randall v. Scott, 610 F.3d 701, 709–10
(11th Cir. 2010) (“A district court considering a motion to dismiss shall begin by
identifying conclusory allegations that are not entitled to an assumption of truth –
legal conclusions must be supported by factual allegations.”). “Factual allegations
must be enough to raise a right to relief above the speculative level.” Id.
Applying the pleading standards established in Twombly and Iqbal, the court
finds the allegations pertaining to CAVHCS’s knowledge of prior sexual assaults on
patients allegedly committed by Mr. Chappell lack the requisite factual support for
surviving a Rule 12(b)(6) motion. Relevant to CAVHCS’s knowledge, the Second
Amended Complaint begins and ends with allegations that Mr. Chappell had
“previously sexually molested patients” and that the chief executive of CAVHCS
“clearly knew, or should have known, about Mr. Chappell’s tendency to sexually
modest [sic] innocent people.” (2d Am. Compl. ¶ 9.) The Second Amended
Complaint provides no facts about the prior sexual assaults, when they occurred, or
who the victims were. It likewise provides no facts about how any CAVHCS
employee, including Dr. Robinson, was in a position to know about the assaults or the
basis upon which any CAVHCS employee should have known about the prior sexual
assaults. Moreover, allegations that Dr. Robinson “knew, or should have known,”
absent some factual elaboration, are conclusory and insufficient to satisfy Twombly’s
pleading threshold. See Iqbal, 556 U.S. at 678 (One of the “working principles”
underlying Twombly is “that the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” (citing
Twombly, 550 U.S. at 555)); cf. Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir.
2013) (The complaint’s allegations in support of a 42 U.S.C. § 1983 claim that the
defendants “knew or should have known” of a risk “merely recited an element of a
claim without providing the facts from which one could draw such a conclusion” and
should have been disregarded for purposes of Twombly’s analysis.). Based on these
reasons, the Second Amended Complaint fails to allege a claim upon which relief can
be granted.14 Rule 12(b)(6) dismissal, thus, is appropriate.
This ruling amounts to reconsideration of the court’s prior finding. (See Doc. # 36,
at 12); Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000) (explaining the
district court’s broad discretion to reconsider an interlocutory order).
Dismissal is required under Rule 12(b)(1) on the basis of the discretionaryfunction exception to the FTCA’s waiver of the United States’s sovereign immunity
and, alternatively, under Rule 12(b)(6) for failure to state a claim upon which relief
can be granted. Accordingly, it is ORDERED that the United States’s renewed
motion to dismiss (Doc. # 41) is GRANTED.
A separate judgment will be entered.
DONE this 3rd day of June, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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