Croyle v. United States of America

Filing 29

OPINION MEMORANDUM AND ORDER. (See Full Order.) Here the discretionary function exception applies, sovereign immunity is not waived and the court is without jurisdiction to adjudicate the Complaint. The government's Rule 12(b)(1) motion to di smiss is granted. Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss, [Doc No. 9 ], is GRANTED. IT IS FURTHER ORDERED that the Plaintiff's Complaint is DISMISSED. Signed by District Judge Henry Edward Autrey on 9/22/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL DANIEL CROYLE, by and
Through SANDRA G. CROYLE, as his
Parent and legal guardian,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.

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CASE NO. 4:16CV1853 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss, [Doc. No.
9]. Defendant moves to dismiss Plaintiff’s Complaint for lack of subject matter
jurisdiction and failure to state a claim on which relief can be granted under Fed.
R. Civ. P. 12(b)(1) and 12(b)(6), respectively. Plaintiff opposes the Motion. For
the reasons set forth below, the Motion will be granted.
Facts and Background
Plaintiff’s Complaint alleges:
Reverend Mark Matson (“Reverend Matson”) was a Catholic priest who was
a member of the Theatines religious order. Reverend Matson graduated from
Seminary in 1972 and was ordained as a Catholic priest in 1976.

In 1997 through 1998, Reverend Matson served as a priest and Confraternity
of Christian Doctrine (“C.C.D.”) religious teacher at Tripler Army Medical Center
in Hawaii (“Tripler”). His services were procured by way of a contract that Tripler
signed with the Theatine Fathers in Honolulu, Hawaii.
Tripler is the headquarters of the Pacific Regional Medical Command of the
United States armed forces and was commissioned and is administered by the
United States Army (“Army”).
Upon information and belief, the Army and/or Tripler had the right to
control the details of the day-to-day performance of the duties of Reverend Matson
and/or supervised the day-to-day operations of Reverend Matson and/or exercised
day-to-day control over the activities of Reverend Matson. Upon information and
belief, this control and/or supervision included, but was not limited to, the
following:
(a) The Army and/or Tripler would determine for all patients at admission
their religion and would daily provide the names of those patients to Reverend
Matson, to whom Reverend Matson would provide religious service;
(b) Based on the above providing of names, Reverend Matson would make
daily or regular visits to those patients offering religious service;
(c) The Army and/or Tripler provided Reverend Matson an office area;

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(d) The Army and/or Tripler provided Reverend Matson support staff at the
Tripler facility;
(e) The Army and/or Tripler provided Reverend Matson with a military
assistant who coordinated his activities and his providing of religious service;
(f) Reverend Matson was designated by the Army and/or Tripler to be the
administrator in charge of the C.C.D. classes at Tripler which included supervision
over the C.C.D. teachers, most of whom were volunteers from the base;
(g) The Army and/or Tripler would procure and schedule, as needed, the
attendance and religious services of Reverend Matson for military ceremonies and
festivities, including the providing of prayers and benedictions at such;
(h) Reverend Matson performed daily mass at Tripler upon the request of
and/or scheduled by the Army and/or Tripler;
(i) Reverend Matson provided religious service and support at other military
chapels on the base and to other military personnel around the base as requested
and as needed by the Army and/or Tripler;
(j) Reverend Matson regularly reported to the Army and/or Tripler his
activities;
(k) The Army and/or Tripler evaluated the performance of Reverend
Matson; and

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(l) The Army and/or Tripler had and exercised the ability to terminate the
services of Reverend Matson.
In about 1996 through about 1999, MICHAEL’s father was a physician in
the United States Army and was stationed at Tripler. Michael, along with his
parents and sister lived off base the first year and then on base afterwards.
While stationed there, Michael and his family attended church services in
the chapel at Tripler. Reverend Matson led the services there with great pomp and
circumstance, always surrounded by children.
At the end of Sunday services, Michael and the other children would leave
their parents in the chapel to attend C.C.D. classes in the nearby rooms. After
C.C.D. classes, the children would return to their parents in the chapel.
Between about August 1997 through Spring 1998, when Michael was
approximately 8 years old, Reverend Matson would escort Michael out of the
chapel for C.C.D. classes, but instead of taking him for classes, Reverend Matson
diverted him to a room and sexually assaulted Michael. Michael remembers being
sexually assaulted by Reverend Matson at least 6 times.
As to the first sexual assault at Tripler, while still in the chapel, Reverend
Matson asked Michael if he wanted to see a magic trick. He then took Michael to a
room and had him sit down. Reverend Matson put Michael’s head on his thigh and
Michael saw Reverend Matson’s penis causing his robe to rise. Reverend Matson
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performed oral sex on Michael. While doing so, Reverend Matson masturbated
himself. He also spanked Michael’s buttocks.
The second time Reverend Matson sexually assaulted Michael at Tripler, he
again performed oral sex on Michael while masturbating himself and spanked
Michael’s buttocks.
The third time Reverend Matson sexually assaulted Michael at Tripler, he
took Michael to a room and had Michael pull down his pants. Reverend Matson
put his hands on Michael’s waist and performed anal sex on Michael. This caused
Michael great pain. Reverend Matson ejaculated on Michael’s back. During the
third sexual assault, Reverend Matson told Michael that he would go to hell if
Michael told anyone what had occurred. This warning reverberated in Michael’s
head as he heard Reverend Matson’s voice during Sunday services. Reverend
Matson also confused Michael by telling him what they were doing was normal.
Michael had a continuing obsession with the idea that he was evil and was going to
hell because of what he was doing with Reverend Matson.
Other sexual assaults of Michael at Tripler also included Reverend Matson
forcing Michael to touch Reverend Matson’s penis and perform oral sex on
Reverend Matson.

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Reverend Matson’s sexual abuse of Michael caused Michael to be
sexualized and obsessed with sex since the abuse, which included Michael surfing
internet porn and seeking out sexual encounters with strangers.
Reverend Matson also told Michael that his parents knew about the sexual
acts he was committing upon Michael and that they approved of them and had
arranged for them to take place. This caused Michael to greatly resent his parents
over the years as well as causing him to act violently towards them.
Michael has suffered from mental injuries/conditions since the sexual abuse
and it is believed that these conditions were caused and/or exacerbated by the
sexual abuse.
On October 19, 2007, Michael was adjudged an incapacitated and disabled
person, and his mother, Sandra, was appointed as his guardian and conservator of
his estate.
After the sexual abuse by Reverend Matson, Michael failed to have any
present memory of the abuse until 2012. In 2012, Michael first disclosed to Sandra
that he had been sexually abused by Reverend Matson. Neither Michael nor
Sandra discovered the connection between the sexual abuse and his injuries until
2012. Neither Michael nor Sandra discovered or had reason to know of the
negligence of the Defendant, described below, until 2012.

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Prior to his service at Tripler, Reverend Matson sexually abused several
minors he met through his duties as a priest in the same or similar manner that he
abused Michael. For example, from 1976 through 1977 Reverend Matson sexually
abused a 15-year-old male seminary student while he was the rector at a seminary
in Glendale, Colorado, wherein Reverend Matson would perform oral sex on the
boy while masturbating himself. In 1983, at a church in Englewood, Colorado, a
13-year-old boy asked to use the phone at his sister’s wedding and met Reverend
Matson, who locked the door to the office, fondled the boy, and, in subsequent
incidents, continued doing so for several months. Reverend Matson was arrested
for fondling two teenage boys in 1987 in Colorado wherein he gave the boys a ride
and shared a bottle of whisky with them, and talked to them about a relaxation
technique he called “floating.” While showing them the technique, he would touch
their genitalia. In 1989, Reverend Matson was also accused of sexually assaulting a
youth in Santa Rosa, California resulting in a public trial.
Very soon after the period of time Reverend Matson sexually abused
Michael, he was terminated from his position at Tripler on June 2, 1998, reportedly
due to an act of petit theft.
Only a few months afterwards, in August of 1998, Reverend Matson
sexually assaulted a 13-year-old boy in Hawaii in a park, at which time he fondled
the boy and attempted to perform oral sex on him. Reverend Matson was trying to
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show the boy some magic tricks, including how to levitate, when the sexual contact
occurred. In 2000, a jury in Hawaii convicted Reverend Matson of the charges of
third-degree sexual assault and first-degree attempted assault and he was
incarcerated for 20 years.
Upon information and belief, during the time period Michael was sexually
abused, the UNITED STATES knew or should have known that Reverend Matson
had sexually abused minors and also had a sexual proclivity for boys. Plaintiff was
unaware that the Defendant’s hiring and/or procuring of the services of Reverend
Matson, permitting of Reverend Matson to come into contact with Michael in the
trusted position of a priest, and failure to take any action against Reverend Matson,
proximately caused Michael’s childhood sexual abuse by Reverend Matson.
Upon information and belief, after learning that minors were sexually abused
by Reverend Matson, Defendant failed to disclose, and acted and conspired to
conceal, withhold and affirmatively misrepresent, information about the abuse and
Reverend Matson’s dangerous sexual propensities with minors, to the Plaintiff,
Plaintiff’s parents, and others, in order to protect Reverend Matson, conceal
Defendant’s own wrongdoing in hiring and/or procuring of services and
supervising Reverend Matson, and prevent Michael and other victims of Reverend
Matson from filing civil lawsuits. When Reverend Matson was terminated from his
position as priest at Tripler, the Army made misrepresentations as to the true
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reason for this action against Reverend Matson. The Army also failed to advise the
Plaintiff or Plaintiff’s parents of Reverend Matson’s subsequent sexual assaults of
minors in Hawaii.
Based on this failure to disclose, concealment, withholding and affirmative
misrepresentations, concerning the abuse and Reverend Matson’s dangerous sexual
acts and propensities with minors, and Michael’s lack of present memory regarding
his own abuse, Michael failed to receive timely psychiatric and psychological
treatment. The treatment that Michael underwent was ineffective or less effective
than it could have been had his treatment providers been made aware of his past
abuse by Reverend Matson or had reason to inquire of Michael about such.
Count I of Plaintiff’s Complaint alleges negligence against the United States
pursuant to the Federal Tort Claims Act 20 U.S.C. §2671 et seq. (“FTCA”).
Plaintiff alleges:
Reverend Matson, as a priest providing spiritual leadership, guidance and
education, was in a special position of trust and confidence with Plaintiff, his
family and other military families at Tripler, and owed them a fiduciary or special
duty.
By placing Reverend Matson in a trusted position of priest for them, the
Defendant was in a special position of trust and confidence with Reverend Matson
and with Plaintiff, his family and other military families at Tripler, and owed them
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a fiduciary or special duty of care. As a priest, Plaintiff, his family, and other
military families at Tripler looked to Reverend Matson for counseling and
guidance. As a priest, families entrusted their children to his care when they
allowed them, at the end of services, to leave with Reverend Matson ostensibly to
attend C.C.D. classes.
The Defendant, by virtue of its relationship with Reverend Matson, occupied
a special or fiduciary relationship to Plaintiff. Plaintiff and his parents placed his
trust and confidence in the Defendant’s institutions and representatives. Plaintiff
and his parents looked to the Defendant and its representatives for counseling and
guidance. In addition, the Defendant knew that Plaintiff had a special and
privileged relationship with Reverend Matson.
By placing Reverend Matson in a trusted position of religious teacher for
Michael and the children of other military families, the Defendant was in a
relationship with Michael of school-student, such that it owed a duty to protect him
from foreseeable harms on school premises and during school related activities. In
this regard the Defendant was in loco parentis with the C.C.D. students at
Defendant’s Tripler facility, including Michael. In promoting Tripler’s religious
school services to parents, the Defendant undertook to provide a healthy, nurturing
and safe environment for children.

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At all material times, the Defendant owed a duty to use reasonable care to
protect the safety, care, well-being and health of the minor Michael while he was
under the care, custody or in the presence of Reverend Matson. These duties
encompassed the protection and supervision of Michael, and otherwise providing a
safe environment for Michael while on Defendant’s premises. These duties also
included a duty to warn Michael’s parents of relevant information in their
possession or control that their son was in danger or had been exposed to danger.
The Defendant was in a special relationship with Reverend Matson of
employer and employee/agent such that it had a duty to take steps to make sure that
he was safe before giving him access to students, children, and all military families
seeking religious services, including Michael and his family.
Defendant owed Michael a fiduciary or special duty:
(a) In hiring and/or procuring the services of Reverend Matson, to
sufficiently investigate his background in order to discover the existence of past
misconduct, particularly sexual misconduct to minors, including while within his
role of priest;
(b) In hiring and/or procuring the services of Reverend Matson, retaining
and supervising Reverend Matson, to prevent foreseeable harm to religious service
participants and religious students and prevent clergy and/or educator sexual
misconduct;
(c) To investigate and warn Michael and/or his parents of the potential for
harm from Reverend Matson;
(d) To notify Michael and/or his parents of allegations that Reverend Matson
had sexually abused other minors, including abuse it learned of that occurred soon
after the time period when Reverend Matson was employed by and/or providing
religious services at Tripler;
(e) To disclose its awareness of facts regarding Reverend Matson that
created a likely potential for harm;
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(f) To disclose its negligence with regard to hiring and/or procuring the
services of, supervision and retention of Reverend Matson;
(g) To provide a safe environment for Michael where he would be free from
abuse; and
(h) To protect Michael from exposure to harmful individuals like Reverend
Matson.
Defendant breached its fiduciary or special duty to Michael by failing:
(a) In hiring and/or procuring the services of Reverend Matson, to
sufficiently investigate his background in order to discover the existence of past
misconduct, particularly sexual misconduct to minors, including while within his
role of priest;
(b) In hiring and/or procuring the services of Reverend Matson, retaining
and supervising Reverend Matson, to prevent foreseeable harm to religious service
participants and religious students and prevent clergy and/or educator sexual
misconduct;
(c) To investigate and warn Michael and/or his parents of the potential for
harm from Reverend Matson;
(d) To notify Michael and/or his parents of allegations that Reverend Matson
had sexually abused other minors, including abuse it learned of that occurred soon
after the time period when Reverend Matson was employed by and/or providing
religious services at Tripler;
(e) To disclose its awareness of facts regarding Reverend Matson that
created a likely potential for harm;
(f) To disclose its negligence with regard to hiring and/or procuring the
services of, supervision and retention of Reverend Matson;
(g) To provide a safe environment for Michael where he would be free from
abuse; and
(h) To protect Michael from exposure to harmful individuals like Reverend
Matson.
Count II is brought under the theory of negligent supervision/premises
liability against Defendant pursuant to the FTCA, 20 U.S.C. §2671 et seq.
Plaintiff claims that the Defendant owed a duty to Michael to use reasonable
care to ensure the safety, care, well-being and health of Michael while in the care
and custody of the Defendant and the Defendant’s agents, representatives, and
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employees. The Defendant’s duties encompassed using reasonable care in the
retention and/or supervision of Reverend Matson and to provide a safe
environment at hospitals, chapels and other places for religious worship, rooms
provided for religious education, and other locations and premises within its
control at Tripler.
Further, as Michael was an invitee to the premises at Tripler within the
control of the Defendant, the Defendant had a non-delegable duty to maintain the
premises in a reasonably safe condition, including providing Michael a safe
environment where he would be free from sexual assault by persons with access to
Tripler and/or the military base, or whom the Defendant had the right to control.
This duty of care also arises from the fact that Reverend Matson was employed by
the Defendant and/or providing religious services for the Defendant, by providing
religious services to military personnel and their families, and at a location and
premises under its control.
At all relevant times, as Tripler was a secured military facility, Defendant
had the ability and authority to control access to the base and hospital and exclude
from access to its premises anyone who presented a danger to others on the
premises, in particular, military personnel and their families, including Michael
and his family.

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At all relevant times, Defendant had authority to terminate Reverend Matson
from his duties, prevent his contact with children on the premises within its control
at Tripler, or exclude him from said premises.
Neither Michael nor his parents knew or could have known that Michael
might be sexually assaulted by persons authorized to be at Tripler or on the
military base and/or working or providing services thereon.
The Defendant owed Michael a duty to warn him of all known dangers, as
well as those dangers that the Defendant should have become aware of through the
exercise of due care. These dangers included Reverend Matson’s propensity to
sexually abuse minors.
The Defendant breached these duties by failing to exercise reasonable care
to protect the minor Michael from sexual assault committed by Reverend Matson,
who was working or providing services at Tripler and/or on the base under the
authority of Defendant and on premises within its control.
At all relevant times, the Defendant knew or in the exercise of reasonable
care should have known that Reverend Matson was unfit, dangerous, and a threat
to the health, safety and welfare of minors entrusted to his counsel, care and
protection. Despite such actual or constructive knowledge, Defendant allowed
Reverend Matson to be on locations and premises within its control and provided

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Reverend Matson with unfettered access to Michael and gave him unlimited and
uncontrolled privacy with the minor.
In discharging its duty of care to Michael arising from the above-described
special relationships, Defendant could have implemented policies, procedures and
training to protect Michael, including among other things, having a chaperone or
third person with the Plaintiff at all times that he was in the presence of Reverend
Matson. In breach of its duties to Michael, Defendant failed to implement any such
policies, procedures or training that were necessary to protect Michael from
foreseeable harm while he was attending religious services or seeking religious
education on Defendant’s premises.
As a direct and proximate result of the negligent or wrongful acts or
omissions of Defendant, Plaintiff has suffered severe psychological, emotional and
physical injuries, and emotional distress arising out of the physical injuries, pain
and suffering, mental anguish, inconvenience, loss of capacity for the enjoyment of
life, inability to lead a normal life, shame, humiliation and regression, and lost
wages and costs associated with medical/psychological care and treatment.
Alternatively, as direct and proximate result of the negligent or wrongful
acts or omissions of Defendant, Plaintiff sustained an aggravation of an existing
disease or mental or physical defect or activation of a latent condition and the same
losses associated with such.
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Alternatively, as direct and proximate result of the negligent or wrongful
acts or omissions of Defendant to timely disclose it knowledge of the
dangerousness of Reverend Matson discovered soon after the Plaintiff’s abuse, and
the resulting failure of Plaintiff to timely receive appropriate treatment therefore,
Plaintiff sustained the aforementioned injuries.
Motion to Dismiss Standard
A motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1) may be either a “facial” challenge based on the face of the pleadings, or a
“factual” challenge, in which the court considers matters outside the pleadings. See
Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993); Osborn v. United States, 918
F.2d 724, 729, n. 6 (8th Cir. 1990); C.S. ex rel. Scott v. Mo. State Bd. of Educ., 656
F. Supp. 2d 1007, 1011 (E.D. Mo. 2009). Here, Defendant's challenge is a factual
attack, and as such, the Court considers matters outside the pleadings. Osborn, 918
F.2d at 729-30 n. 6. The plaintiff bears the burden of demonstrating that subject
matter jurisdiction exists in a factual attack. Id.
Discussion
Defendant argues that the Court is without subject matter jurisdiction
because Plaintiff’s claims fall outside the United States’ waiver of immunity. “It is
well settled that the United States may not be sued without its consent.” Hinsley v.
Standing Rock Child Protective Servs., 516 F.3d 668, 671 (8th Cir. 2008). The
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FTCA is a statutory waiver of the federal government's right to sovereign
immunity from suits for damages. See 28 U.S.C. § 1346(b)(1); Johnson v. United
States, 534 F.3d 958, 962 (8th Cir .2008). Specifically, the FTCA allows plaintiffs
to hold the United States vicariously liable for negligent, or otherwise wrongful,
acts committed by federal employees in the scope of their employment. See 28
U.S.C. § 1346(b), 2671–2680.
Originally, the Government argued that the Court lacked subject matter
jurisdiction because Matson was an independent contractor, and not an employee
of the United States. This argument has been rendered moot by Plaintiff’s
admission that he is not suing the Government vicariously based on Matson’s
intentional acts, but rather Plaintiff sues on the theory that the Government is
independently liable for the actions and/or inactions which allowed Matson’s
crimes to be committed.
Defendant also argues that Plaintiff’s claims are barred by the discretionary
function exception to the FTCA. The United States does not waive sovereign
immunity when the “discretionary function” exception applies. Riley v. United
States, 486 F.3d 1030, 1032 (8th Cir. 2007). The discretionary function exception
provides no liability shall lie for “the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a federal agency

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or an employee of the Government, whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a).
“The purpose of the discretionary function exception is to ‘prevent judicial
second-guessing of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.’ ” Hinsley,
516 F.3d at 672 (quoting United States v. Gaubert, 499 U.S. 315, 323 (1990)).
“This discretionary function exception to the FTCA ‘marks the boundary between
Congress' willingness to impose tort liability upon the United States and its desire
to protect certain governmental activities from exposure to suit by private
individuals.’ ” Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791, 795 (8th Cir.
1998) (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 808 (1984)). “To the extent an alleged act falls
within the discretionary function exception, a court lacks subject matter
jurisdiction.” Id. (citations omitted).
A two-part test determines when the discretionary function exception
applies. See Berkovitz v. United States, 486 U.S. 531, 536–37 (1988). “First, the
conduct at issue must be discretionary, involving an element of judgment or choice
... and not controlled by mandatory statutes or regulations[.]” Hinsley, 516 F.3d at
672 (internal quotation marks and citations omitted). “If the employee violated a
mandatory statute, regulation, or policy, the conduct does not involve an element
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of judgment or choice, and therefore, the conduct is not sheltered from liability
under the discretionary function exception.” Id. If no mandate exists, “the action is
considered a product of judgment or choice and the first step is satisfied.” Id. at
673 (citations omitted).
Under the second part of the test, the court must “determine whether the
judgment or choice was based on considerations of public policy.” Id. (citations
omitted). “If the challenged action was based on a judgment grounded in social,
economic, or political policy, the discretionary function exception applies.” Id.
(citations omitted). “It is the nature of the conduct and whether the conduct is
susceptible to policy analysis rather than the status of the actor that governs
whether the exception applies.” Metter v. United States, 785 F.3d 1227, 1231 (8th
Cir. 2015) (internal quotation marks and citations omitted). “The exception
protects only governmental actions and decisions based on considerations of public
policy, and there is a rebuttable presumption that the government agent's acts are
grounded in policy when established governmental policy ... allows the agent to
exercise discretion.” Id. (internal quotation marks, brackets and citations omitted).
Specifically, § 2680(a) of the FTCA provides that sovereign immunity is not
waived for “the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused. 28 U.S.C. §
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2680(a) (emphasis added). If an act falls into the discretionary function exception,
sovereign immunity is not waived, and the court lacks subject matter jurisdiction
over the tort claim. Id.; Dykstra v. U .S. Bureau of Prisons, 140 F.3d 791, 795 (8th
Cir.1998)(holding that a prisoner must rebut the presumption that a prison officials'
discretionary decision regarding a security matter was grounded in policy
considerations).
Plaintiff counters the Government’s exception argument by claiming that
there is indeed a mandatory regulation requiring action on the part of government
personnel at Tripler Army Medical Center. Plaintiff argues that AR 165-1 (27
February 1998) required the government to conduct a background check on
Matson. As the government correctly argues, however, this regulation only
requires a background check for individuals providing “religious education.”
The government contracted with the Theatine Fathers to provide a Catholic
priest to serve the needs of the Catholic members of the Tripler community. The
salient language in the contract between the Theatine Fathers and the government
Provides that the priest to be sent to Tripler will provide “religious instruction.”
While at first glance it appears that “religious education” and “religious
instruction” could equate, the evidence in the record before the Court establishes a
contrary conclusion. Had the parties intended Matson to provide education to
children, the contract would have specified the number of classes to be conducted,
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and the type of material to be used at those classes. Moreover, the contract itself
delineates the duties of the priest to be provided: the priest was to provide
weekday noon Mass in the hospital chapel; he was to provide a Mass on Saturday
at or about 5:00 p.m., Sunday at about 7:30 a.m. and 11:00 a.m., with an additional
Two Holy Day Masses.
Both Matson and Col. Fasanella, the Senior Chaplain for Tripler recognize
that “religious instruction” is not the same as “religious education.” Indeed,
Matson provided religious education at the request of the parents of the children;
he was not obligated under Theatine Father’s contract with the government to
provide any type of classes for the families in the Tripler community. Plaintiff has
provided no evidence to establish that Matson was providing religious education at
the behest of the government, and as such, a background check under the
regulation was not required.1 The government has satisfied the first prong of the
discretionary function test.
As to the second prong, the Court must determine if the exercise of
discretion is grounded in public policy considerations. “In deciding whether the
nature of the [challenged] actions [are] ‘susceptible to policy analysis,’ ‘[t]he focus
1

Although the government was not required under the regulation to perform a background check on Matson, as
the government points out, it took reasonable steps to ensure Matson’s background contained no felony
convictions. Matson submitted to a background check in connection with his application for an ecclesiastical
endorsement. He truthfully answered at that time that he had not been convicted of a felony. The Archdiocese
for Military Services issued the ecclesiastical endorsement in accordance with the Department of Defense Directive
1304.19 (November 22, 1998). This endorsement certified that Matson was “a priest in good standing with the
Catholic Church and can validly administer the sacraments and celebrate Mass.”

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of the inquiry is not on the agent's subjective intent.’ ... Rather, we look to whether
the decision being challenged is “grounded in social, economic, or political
policy.'” Metter, 785 F.3d at 1231-32 (8th Cir. 2015) (quoting Gaubert, 499 U.S.
at 323, 325). The court is aware that “there is a rebuttable presumption that the
government ‘agent's acts are grounded in policy’ ‘[w]hen established governmental
policy ... allows [the] agent to exercise discretion.” Id. at 1231 (quoting Gaubert,
499 U.S. at 323-24).
Under the second prong,
[t]he individual government employee need not have consciously considered
any policy factors. The judgment or decision need only be susceptible to
policy analysis, regardless of whether social, economic, political policy was
ever actually taken into account, for the exception to be triggered. The focus
of the inquiry is not on the agent’s subjective intent in exercising the
discretion . . ., but on the nature of the actions taken and on whether they are
susceptible to policy analysis.
Hinsley, 516 F.3d at 673 n.7.
Assuming the government knew of Matson’s proclivities, (which the
government vehemently disputes), the decision not to warn is susceptible to policy
considerations. Tripler was in need of a Catholic priest to celebrate Mass and
minister to the sick at the Hospital. Nowhere in the contract is the requirement that
Matson provide Catholic education classes to the children in the community. He
was approached not by government personnel to conduct CCD classes, but by the
parents of the children who sought religious education for their children in
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preparation of the administration of the sacraments. Even if the government knew
of Matson’s issues, it could have weighed that fact against the need for a Catholic
priest. Since Matson was contracted to celebrate Mass and minister to the sick, it
could be said that he was not a risk under the specific duties outlined in the
contract. The government has satisfied the second prong of the discretionary
function exception to the FTCA.
Conclusion
Here the discretionary function exception applies, sovereign immunity is not
waived and the court is without jurisdiction to adjudicate the Complaint. The
government's Rule 12(b)(1) motion to dismiss is granted.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, [Doc No.
9], is GRANTED.
IT IS FURTHER ORDERED that the Plaintiff's Complaint is
DISMISSED.
Dated this 22nd day of September, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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