Kottman v. United States of America et al

Filing 23

ORDER. Defendants United States of America and Richard Schmaltz's motion to dismiss, Doc. 8, is granted with prejudice. Signed on 9/21/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
SANDRA J. KOTTMAN,
Plaintiff,
v.
UNITED STATES OF AMERICA and
RICHARD A. SCHMALTZ,
Defendants.

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Case No. 2:17-cv- 04002-NKL

ORDER
Defendants United States of America and Richard Schmaltz move to dismiss for lack of
subject matter jurisdiction, or in the alternative, failure to state a claim. Doc. 8. 1 The motion is
granted.
I.

Background
This case is the second one to have come before this Court concerning injuries that

Sandra Kottman sustained during an on-the-job incident at a federal hospital. See Kottman v.
Schmaltz, U.S. District Court, Western District of Missouri, Case no. 2:14-cv-04085-NKL
(Kottman I). Both Kottman I and the case currently before the Court, Kottman II, concern the
same underlying facts. More specifically, Kottman was employed as a registered nurse by the

1

At the time Defendants filed their motion to dismiss, Doc. 8, Plaintiff Sandra
Kottman’s original Complaint, Doc. 1, was before the Court. Kottman subsequently filed
suggestions in opposition to the motion, along with a First Amended Complaint, Doc. 10.
Because the defects raised in the motion to dismiss remain in the amended pleading, the Court
will not require Defendants to file a new motion, and will treat the motion to dismiss as being
addressed to the First Amended Complaint. See Green v. Ramsey, 2015 WL 5672990, at *12
(D. Minn. Sept. 24, 2015) (“A court may consider a motion to dismiss that was targeted at the
original complaint even after granting a motion to amend the original complaint [in] the interests
of economy.”); 6 CHARLES ALAN WRIGHT, ARTHUR C. MILLER, ET AL., FED. PRACTICE & PROC.
sec. 1476 (3rd ed.) (same).

U.S. Department of Veterans Affairs at the Harry S Truman Veterans Hospital in Columbia,
Missouri. Dr. Richard Schmaltz was employed as the hospital’s Chief of Surgery. On May 27,
2011, Kottman was working in the operating room, helping to prepare a patient for a surgery to
be performed by Dr. Schmaltz. When the doctor entered the operating room, he was dissatisfied
with the manner in which the patient had been prepared, and forcefully placed his hand on
Kottman’s back near the base of her neck. Viewing the facts as alleged by Kottman, she was
injured by Dr. Schmaltz’s actions.
A.

Kottman I

In May 2013, Kottman sued Dr. Schmaltz in Missouri state court for battery. In March
2014, while the state court case was still pending, the United States Attorney General certified
pursuant to 28 U.S.C. § 2679(d) that Dr. Schmaltz was acting in the course and scope of his
employment with the Veterans Administration at the time of the incident. The United States then
removed the state court case to federal court, on behalf of Dr. Schmaltz. See Kottman I, Doc. 1.
The United States filed a motion to substitute the United States as the sole party-defendant
pursuant to 28 U.S.C. § 2679(d) and moved to dismiss due to Kottman’s failure to exhaust
administrative remedies pursuant to the Federal Tort Claims Act. Id., Docs. 3-4. Kottman
responded by challenging the Attorney General’s scope-of-employment certification. Id.,
Docs. 7-9.
On December 4, 2014, after allowing limited discovery, this Court conducted an
evidentiary hearing, including taking the live testimony of Kottman and Dr. Schmaltz,
concerning the Attorney General’s certification. The Court made oral findings of fact and
conclusions of law on the record. Id., Doc. 41. The Court found that Dr. Schmaltz intentionally
touched Kottman for the purpose of drawing her attention and the attention of others in the

2

operating room to the situation with the patient, but that he did not do so for the purpose of
punishing Kottman. Id. The Court held that although the conduct technically met the definition
of common law assault, the conduct was nonetheless within the course and scope of
Dr. Schmaltz’s employment under Missouri law. Id. 2 Therefore, the Court held, the United
States would be substituted as the sole defendant, and that the case would be dismissed without
prejudice for Kottman’s failure to exhaust administrative remedies.

28 U.S.C. §§ 1346(b),

2401(b), and 2675(a). The Judgment provided:
IT IS ORDERED AND ADJUDGED that pursuant to the ruling
entered by the Honorable Nanette Laughrey on December 4, 2014,
the Court found that Defendant Schmaltz’s touching of Plaintiff's
back took place in the scope and course of Dr. Schmaltz’s
employment. The Court granted the United States’ motion to
substitute the United States as party defendant. The Court also
granted the United States’ motion to dismiss, without prejudice, for
failure to exhaust administrative remedies.
Doc. 42. No one appealed the judgment.
B.

Kottman II

Kottman filed the case currently before this Court in January 2017, against both the
United States and Dr. Schmaltz. She alleged that after the Kottman I judgment, she filed her
administrative claim pursuant to the Federal Tort Claims Act, but that the Attorney General
2

Under Missouri law, “an act is within the course and scope of employment if:
(1) even though not specifically authorized, it is done to further the business or interests of the
employer under his ‘general authority and direction’ and (2) it naturally arises from the
performance of the employer’s work.” Dibrill v. Normandy Assoc., 383 S.W.3d 77, 89-90 (Mo.
App. 2012) (citing Daugherty v. Allee’s Sports Bar & Grill, 260 S.W.3d 869, 872-73 (Mo. App.
2008)). “Whether an act was committed within the scope and course of employment is not
measured by the time or motive of the conduct, but whether it was done by virtue of the
employment and in furtherance of the business or interest of the employer.” Daugherty, 260
S.W.3d at 873 (quoting P.S. v. Psychiatric Coverage Ltd., 887 S.W.2d 622, 624 (Mo. App.
1994)). “If the act is fairly and naturally incidental to the employer's business, although
mistakenly or ill advisedly done, and did not arise wholly from some external, independent or
personal motive, it is done while engaged in the employer's business.” Id. (quoting P.S., 887
S.W.2d at 624). The key word is “wholly.” Id.
3

ultimately denied her claim on the basis that the FTCA does not cover intentional conduct.
Kottman alleges that in view of this Court’s finding in Kottman I that the touching took
place in the scope and course of Dr. Schmaltz’s employment, for the sole purpose of
accomplishing his duties as a surgeon for the VA, without any motive to cause Kottman harm,
her “injuries…are compensable under the FTCA.” Doc. 10, p. 4, ¶¶ 19-21. She further alleges
that the Veterans Administration negligently supervised Dr. Schmaltz:
22.

Additionally, Plaintiff has learned that Dr. Schmaltz behaved
inappropriately on prior occasions in the VA operating room. In
one instance, he “barged in, shouting orders,” and “threw a bovie
across the room” striking the Operating Room Nurse Manager. (A
bovie is an electronic medical instrument frequently used to
cauterize smaller blood vessels.)

23.

Dr. Schmaltz has been recognized by the VA as an excellent
surgeon. Yet, for several years prior to his incident with Plaintiff, it
was reported that his behavior and temperament with operating
room staff had deteriorated. Because Dr. Schmaltz was such an
accomplished surgeon, Defendant USA (VA) ignored reports of
his operating room behavior; and specifically the incident of
throwing a medical device that struck a co-worker.

24.

Given the high stress level of the operating room, Defendant USA
(VA) should have foreseen that Dr. Schmaltz’s conduct would
eventually result in injury.

25.

Defendant USA (VA) was negligent in failing to take action to
control the conduct of Dr. Schmaltz following the deterioration of
his behavior in the operating room, especially after the outburst
when the medical device was thrown, striking a co-worker.

26.

As a result of all of these actions and inactions, Plaintiff was
injured and permanently disabled.

Doc. 10, p. 4. Finally, Kottman alleges that denying her any relief would violate her federal and
state constitutional rights.
II.

Discussion
As discussed below, the Court concludes that it lacks subject matter jurisdiction because
4

Dr. Schmaltz is absolutely immune from suit and the United States has sovereign immunity from
the claims. Kottman’s constitutional claims also fail.
A.

The legal framework
1.

Federal government employees and absolute immunity—Kottman’s
claims against Dr. Schmaltz.

Congress enacted the Federal Employees Liability Reform and Tort Compensation Act,
Pub. L. No. 100-694, 102 Stat. 4563 (1988), commonly referred to as the “Westfall Act,” “to
protect Federal employees from personal liability for common law torts committed within the
scope of their federal employment[,]” id., at 100-694, § 2(b), 102 Stat. at 4564. The core
provision of the Westfall Act provides, in relevant part:
The remedy against the United States provided by [the FTCA] for
injury or loss of property, or personal injury or death arising or
resulting from the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
office or employment is exclusive of any other civil action or
proceeding for money damages by reason of the same subject
matter against the employee whose act or omission gave rise to the
claim or against the estate of such employee. Any other civil
action or proceeding for money damages arising out of or relating
to the same subject matter against the employee or the employee=s
estate is precluded without regard to when the act or omission
occurred.
28 U.S.C. § 2679(b)(1) (emphasis added). In short, “[t]he Act provides a federal employee with
absolute immunity from an ordinary tort suit if the suit arises out of acts performed within the
scope of employment.” Knowles v. United States, 91 F.3d 1147, 1154 (8th Cir. 1996). 3
The Act assigns to the Attorney General the responsibility for assessing whether a federal
employee was acting in the scope of employment and, if it is determined that the employee was

3

Whether the federal employee was acting within the course and scope of his
employment is determined by the law of the state in which the act occurred. 28 U.S.C.
§ 1346(b)(1), and Lawson v. U.S., 103 F.3d 59, 60 (8th Cir. 1996).
5

so acting, making a written certification. § 2679(d)(1). Upon certification, any pending civil
action “shall be deemed an action against the United States” and “the United States shall be
substituted as the party defendant,” and if the action is pending in state court, it “shall be
removed without bond at any time before trial by the Attorney General to the district court.”
§ 2679(d)(1), (2).
A plaintiff may challenge a Westfall certification. Anthony v. Runyon, 76 F.3d 210, 21213 (8th Cir. 1996) (citations omitted). In such case, the district court performs an independent
review to determine whether the defendant federal employee was in fact acting within the scope
of employment. Id. (citation omitted). If the district court agrees with the Westfall certification,
then the United States is substituted as the defendant and the case proceeds in accordance with
the FTCA. Id. (citing 28 U.S.C. § 2679(d)(4)). If the court finds the employee was acting
outside the scope of employment, then the court must refuse to substitute the United States. Id.
2.

Sovereign immunity, waiver, and exceptions—Kottman’s claim
against the United States.

Generally, sovereign immunity precludes the exercise of subject matter jurisdiction over
a suit against the federal government or its agencies, absent a waiver of that immunity. FDIC v.
Meyer, 510 U.S. 471, 475 (1994); United States v. Mitchell, 463 U.S. 206, 212 (1983). The
“limitations and conditions upon which the government consents to be sued must be strictly
observed, and exceptions thereto are not to be implied.” Lehman v. Nakshian, 453 U.S. 156, 161
(1981).
The Federal Tort Claims Act provides a limited waiver of the United States’ sovereign
immunity, for claims of injury or loss that are:
[C]aused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
office or employment under circumstances where the United
6

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)(1).
However, there are specific exceptions to the FTCA’s waiver of sovereign immunity
including the so-called “intentional tort exception,” United States v. Shearer, 472 U.S. 52, 54
(1985), which covers, as relevant here, “[a]ny claim arising out of assault [or] battery,” 28 U.S.C.
§ 2680(h).

Sovereign immunity is not waived for cases falling within the intentional tort

exception, Celestine v. United States, 841 F.2d 851, 852 (8th Cir. 1988), and a “district court
[must] dismiss [such a case] for lack of subject matter jurisdiction[,]” Smith v. United States, 507
U.S. 197, 199 (1993). In determining whether the intentional tort exception applies, “a court
must look, not to the theory upon which the plaintiff elects to proceed, but rather to the substance
of the claim which he asserts.” Lambertson v. United States, 528 F.2d 441, 443 (2nd Cir. 1976).
When a federal agency seeks dismissal for lack of subject matter jurisdiction, the burden
of showing both a waiver of sovereign immunity and a grant of jurisdiction falls on the plaintiff.
VS Ltd. P’Ship v. Dep’t of Housing and Urban Dev., 235 F.3d 1109, 1112 (8th Cir. 2000).
B.

Dr. Schmaltz is absolutely immune from suit because he was acting in the
scope of his employment.

Dr. Schmaltz argues that the claim against him must be dismissed because collateral
estoppel or res judicata bars Kottman from relitigating the Court’s holding in Kottman I that he
was acting in the scope of his employment at the time of the touching, and that he is therefore
absolutely immune.

As explained below, collateral estoppel applies and Dr. Schmaltz is

absolutely immune from suit.
The Court held in Kottman I that Dr. Schmaltz’s touching of Kottman occurred in the
scope of his employment with the federal government. Specifically, the Court reviewed the
7

Attorney General’s Westfall certification at Kottman’s request and held an evidentiary hearing.
The Court found that Dr. Schmaltz intentionally and forcefully touched Kottman on the back for
the purpose of drawing her attention and the attention of others in the operating room to the
situation with the patient; he did not do so for the purpose of punishing Kottman. The Court held
that although the conduct technically met the definition of common law battery, the conduct was
nonetheless within the course and scope of Dr. Schmaltz’s employment under Missouri law.
Therefore, the Court granted the United States’ request to be substituted as the sole defendant.
Final judgment was entered, dismissing the case without prejudice because Kottman had not yet
exhausted her administrative remedies under the FTCA.
Collateral estoppel prevents an issue from being relitigated in another lawsuit “when an
issue of ultimate fact has been determined by a valid and final judgment.” United States v.
Brekke, 97 F.3d 1043, 1049 (8th Cir. 1996). See also Pohlmann v. Bil-Jax, Inc., 176 F.3d 1110,
1112 (8th Cir. 1999) (“[A]n issue actually decided in a non-merits dismissal is given preclusive
effect in a subsequent action between the same parties”); Bachman v. Bachman, 997 S.W.2d 23,
25 (Mo. App. 1999) (“Principles of issue preclusion dictate that, even when a court has dismissed
a case without prejudice, an issue specifically and necessarily decided by that court is final and
may not be relitigated in a second action brought in a court of concurrent jurisdiction.”); and
RESTATEMENT (SECOND) OF JUDGMENTS § 27 (1982) (“When an issue of fact or law is actually
litigated and determined by a valid and final judgment, and the determination is essential to the
judgment, the determination is conclusive in a subsequent action between the parties, whether on
the same or a different claim.”). More specifically, five factors determine whether collateral
estoppel applies:
(1)

the party sought to be precluded must have been a party to
the original lawsuit;
8

(2)

the issue sought to be precluded must be the same as the
issue involved in the prior action;

(3)

the issue sought to be precluded must have been actually
litigated in the prior action;

(4)

the issue sought to be precluded must have been determined
by a valid and final judgment; and

(5)

the determination in the prior action must have been
essential to the prior judgment.

Estrada–Rodriguez v. Lynch, 825 F.3d 397, 401-02 (8th Cir. 2016).
Here, the first three factors are met and no discussion of them is necessary. The fourth
factor, the requirement of a valid and final judgment, and the fifth one, that the prior
determination must have been essential to the prior judgment, are also met. In Kottman I,
Kottman specifically challenged the Attorney General’s Westfall certification that Dr. Schmaltz
was acting in the scope and course of his employment, and the United States specifically asked
to be substituted for Dr. Schmaltz on the basis of the Westfall certification. The Kottman I
judgment stated that the touching took place in the scope and course of Dr. Schmaltz’s
employment, and that the United States’ request to be substituted for Dr. Schmaltz was granted.
Therefore, the scope-and-course issue was essential to and finally decided in the judgment
entered in the prior case. Kottman may not relitigate it here. Dr. Schmaltz therefore has absolute
immunity because he was acting within the scope of his employment. 28 U.S.C. § 2679(b)(1).
Kottman states that “Dr. Schmaltz was named as a defendant in this cause because
Defendant USA ignored Kottman I when it determined that the administrative claim that he
committed [was] an intentional tort [and] not compensable under the FTCA.” Doc. 11, p. 3, n.3.
But Kottman I only addressed the question of whether Dr. Schmaltz acted in the scope of his
employment. It did not address whether an intentional act can be the basis of a recovery under

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the FTCA. Whether Kottman’s claims against the United States are foreclosed does not affect
Dr. Schmaltz’s entitlement under the law to absolute immunity.
The claims against Dr. Schmaltz are dismissed.
C.

The United States is entitled to sovereign immunity

The United States is entitled to sovereign immunity from Kottman’s claims that it is
liable for the conduct of its employee and for negligently supervising the employee.
1.

The intentional tort exception applies to the conduct of the United
States’ employee and the United States is therefore immune

Kottman alleges in the First Amended Complaint that Dr. Schmaltz “intentionally struck
her” in the course of preparing to perform a surgical procedure at the VA, and that his conduct
constituted the “intentional tort of battery.” Doc. 10, p. 1, ¶¶ 2-3; p. 2, ¶ 6; and p. 3, ¶ 18(a) and
(d). As noted above, the FTCA explicitly preserves the sovereign immunity of the United States
for suits involving claims of battery. 28 U.S.C. § 2680(h).
Kottman argues that the substance of the pleading, rather than the form, controls and that
Dr. Schmaltz’s “contact was not the type of action Congress envisioned exempting from the
FTCA’s waiver of sovereign immunity.” Doc. 11, p. 5. She states that the evidence at the
Kottman I hearing showed “Dr. Schmaltz’s contact with [her] was not intended to be offensive,
but was rather an instantaneous reaction to a stressful situation in the operating room.” Id. She
further states that “Dr. Schmaltz obviously intended no injury” and his “contact with [her] was
incidental to employment, exactly as determined by this [C]ourt in Kottman I.” Id. She cites
Missouri case law concerning the element of intent in the torts of assault and battery, suggesting
that her claim could be construed as an assault under Missouri law because there was no intent to
injure. Id. She further cites federal cases concerning scope of employment. Id.
arguments and authorities do not change the Court’s conclusions.
10

Kottman’s

It is true that in determining whether § 2680(h)’s intentional torts exception applies, it is
the substance of the claim that matters. Lambertson, 528 F.2d at 443. The key is whether “the
underlying governmental conduct ‘essential’ to the plaintiff’s claim can fairly be read to ‘arise
out of’ conduct that would establish an excepted cause of action.” Leleux v. United States, 178
F.3d 750, 756 (5th Cir. 1999) (quotation omitted). See also Zelaya v. United States, 781 F.3d
1315, 1333 (11th Cir. 2015) (same). However, unlike the scope of employment issue, federal law
controls the construction of § 2680(h). Molzof v. United States, 502 U.S. 301, 305 (1992); see
also Talbert v. United States, 932 F.2d 1064, 1066 (4th Cir. 1991) (“Because the § 2680
exceptions ‘define the limits of [the] statutory waiver, they must be construed as a matter of
federal, not state, law.’”) (quoting Hydrogen Technology Corp. v. United States, 831 F.2d 1155,
1161 (1st Cir. 1987)). Thus, in construing the § 2680(h) exceptions, this Court “must turn to the
traditional and commonly understood definition of the tort in question, consulting such
appropriate sources as the Restatement (Second) of Torts and federal cases construing the
exception.” Talbert, 932 F.2d at 1066 (internal quotations omitted) (citing United States v.
Neustadt, 366 U.S. 696, 706 (1961), and Jimenez–Nieves v. United States, 682 F.2d 1, 3–4
(1st Cir. 1982)).
A battery is traditionally defined as any harmful or offensive contact resulting from an act
intended to cause such contact. See RESTATEMENT (SECOND)
W. PAGE KEETON,

ET AL.,

PROSSER

AND

KEETON

ON

OF

TORTS §§ 13 and 16 (1965);

TORTS § 9, at 39–42 (Hornbook Series,

Lawyer’s Edition, 5th ed. 1984). “[I]t is immaterial that the actor is not inspired by personal
hostility to the other, or a desire to injure him.” RESTATEMENT (SECOND) OF TORTS § 13, cmt. c.
The underlying governmental conduct essential to the Kottman’s claim can fairly be read
to arise out of conduct that would establish a battery, as battery is traditionally and commonly

11

understood. That is, in the course of bringing Kottman’s attention to her preparation of the
patient for surgery, the doctor intentionally and forcefully placed his hand on Kottman’s back.
The FTCA explicitly preserves the sovereign immunity of the United States for suits involving
claims of battery. § 2680(h). Therefore, Kottman’s claim of battery against the United States for
the conduct of its employee must be dismissed because the United States is entitled to sovereign
immunity. See Smith, 507 U.S. at 199, and Celestine, 841 F.2d at 852. See also Zuzul v.
McDonald, 98 F.Supp.3d 852,865 (M.D.N.C. 2015) (a V.A. hospital physician pushed a nurse
away from a patient’s bed during a disagreement about the medication that the physician had
ordered the nurse to administer; the nurse’s claim for battery was therefore barred under
28 U.S.C. § 2680(h)); and Folley v. Henderson, 175 F.Supp.2d 1007, 1015 (S.D. Ohio 2001) (a
U.S. Postal Service employee was the victim of unwanted, sexual touching by co-workers; the
employee’s battery claims were therefore barred under 28 U.S.C. § 2680(h)).
2. The United States is immune from any negligent supervision claim
Kottman further alleges in the First Amended Complaint that the United States is liable
for its negligent supervision of Dr. Schmaltz.

Specifically, she alleges that he “behaved

inappropriately on prior occasions in the VA operating room,” once “barg[ing] in, shouting
orders,” and threw a medical instrument that struck the Operating Room Nurse Manager; “was
such an accomplished surgeon” that the VA “ignored reports of his operating room behavior; and
specifically the incident of throwing a medical device that struck a co-worker”; “should have
foreseen that Dr. Schmaltz’s conduct would eventually result in injury” due to the “high stress
level” in an operating room; and negligently failed “to take action to control the conduct of
Dr. Schmaltz following the deterioration of his behavior in the operating room, especially after

12

the outburst when the medical device was thrown, striking a co-worker.” Doc. 10, p. 4, ¶¶ 2326. The United States also has sovereign immunity from this claim.
The Supreme Court has twice considered the meaning and scope of the FTCA’s bar
against claims arising out of an assault or battery. In United States v. Shearer, 473 U.S. 52, 53–
54 (1985), the mother of a deceased serviceman, who had been kidnapped and murdered by a
fellow serviceman with a known history of violence, brought an FTCA action against the United
States for negligently failing to exercise a reasonable degree of control over the assailant and to
warn others of his dangerousness. After noting that it was clear that the plaintiff’s negligent
supervision claim arose out of a battery, which was “the immediate cause of [the serviceman’s]
death and, consequently, the basis of [her] claim,” a plurality of the Court concluded that the
claim was barred by § 2680(h):
[Plaintiff] cannot avoid the reach of § 2680(h) by framing her
complaint in terms of negligent failure to prevent the assault and
battery. Section 2680(h) does not merely bar claims for assault or
battery; in sweeping language it excludes any claim arising out of
assault or battery. We read this provision to cover claims like
[plaintiff’s] that sound in negligence but stem from a battery
committed by a Government employee.
Id. at 54–55.

The plurality opinion further noted that Congress apparently “believed that

§ 2680(h) would bar claims arising out of a certain type of factual situation—deliberate attacks
by Government employees.” Id. at 55. A majority of circuits, including the Eighth Circuit, have
adopted and applied the Shearer plurality’s view. See Westcott v. City of Omaha, 901 F.2d 1486,
1489 (8th Cir. 1990); Al Ahimari v. CACI Int’l, Inc., 679 F.3d 205, 236 (4th Cir. 2012); Leleux,
178 F.3d at 756; Franklin v. United States, 992 F.2d 1492, 1498 (10th Cir. 1993); Kugel v. United
States, 947 F.2d 1504, 1507 (D.C. Cir.1991); Guccione v. United States, 847 F.2d 1031, 1034
(2nd Cir. 1988); and Metz v. United States, 788 F.2d 1528, 1533–34 (11th Cir. 1986). See also

13

Borawski v. Henderson, 265 F.Supp.2d 475, 485 (D.N.J. 2003) (“The majority of the circuits
addressing the meaning of the ‘arising out of’ clause have adopted the Shearer [ ] plurality
view....”).
Three years after its decision in Shearer, the Supreme Court clarified that § 2680(h) does
not bar negligence claims related to an assault or battery committed by a government employee
if the government has breached an affirmative duty that is “entirely independent of [the
tortfeasor’s] employment status,” such that “the employment status of the assailant has nothing
to do with the basis for imposing liability on the Government.” Sheridan v. United States, 487
U.S. 392, 401–02 (1988). In Sheridan, an intoxicated, off-duty naval medical aide, Carr, fired a
rifle into a car on a public street near the Bethesda Naval Hospital, injuring the plaintiffs. Id. at
393–95. Earlier that evening, three naval corpsmen had found Carr “lying face down in a
drunken stupor on the concrete floor of the hospital building” and attempted to take him to the
emergency room, but when Carr brandished a rifle, they fled and took no “further action to
subdue [him]” or “alert[ ] the appropriate authorities that he was heavily intoxicated and
brandishing a weapon.” Id. at 395. The plaintiffs sued the federal government under the FTCA,
alleging that their injuries were caused by the negligence of the three corpsmen in allowing Carr
to leave the hospital with a loaded rifle in his possession. Id. at 394–95. The Supreme Court
held that the plaintiffs’ negligence claim was not barred by the FTCA’s intentional tort exception
because the basis for the government’s potential liability was “entirely independent of Carr’s
employment status.” Id. at 401. The Court explained that the government could be held liable
even “if Carr had been an unemployed civilian patient or visitor in the hospital” because the
naval corpsmen had assumed a Good Samaritan duty to act “in a careful manner” by “voluntarily
undertaking to provide care to a person who was visibly drunk and visibly armed,” and the

14

government had otherwise adopted regulations that both prohibited the possession of firearms on
the naval base and required all personnel (the corpsmen included) to report the presence of any
firearms. Id. at 401–02.
Taken together, Shearer and Sheridan stand for the proposition that negligence claims
related to a government employee’s assault or battery are barred by § 2680(h) unless the claimed
“negligence arose out of an independent, antecedent duty unrelated to the employment
relationship between the tortfeasor and the United States.” Billingsley v. United States, 251 F.3d
696, 698 (8th Cir. 2001) (quoting Leleux, 178 F.3d at 757).
Here, Kottman’s negligent supervision claim against the United States is barred by
§ 2680(h) because it stems from an alleged battery committed by Dr. Schmaltz. Any duty on the
part of the United States to prevent it is dependent on the United States’ employment relationship
with the doctor.

Kottman’s negligent supervision claim is therefore barred by the FTCA’s

intentional tort exception.

See, e.g., Billingsley, 251 F.3d at 698 (“To find the government

liable for negligent hiring and supervision of an employee who commits a tort would frustrate
the purpose of § 2680(h), which is to bar suits resulting from deliberate attacks by Government
employees.”) (quotation omitted)); Leleux, 178 F.3d at 756–58 (barring claims against the United
States for negligently failing to prevent an enlisted petty officer from transmitting a venereal
disease to the plaintiff because the government had no “duty to protect her independent of its
employment relationship with [the petty officer]”); Franklin, 992 F.2d at 1499 (barring claim
against the United States for negligently failing to prevent medical personnel from performing
unauthorized surgery because “the government would have no potential liability if not for the
fact that those responsible for the intentionally tortious medical care ... were VA employees”);
Guccione, 847 F.2d at 1037 (barring claim against the United States for negligently failing to

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supervise an undercover federal agent because the government had “no special ‘affirmative duty’
to protect [the plaintiff] independent of [its] duty to supervise its agents”); and Borawski, 265
F.Supp.2d at 486 (“[B]ecause the Postmaster General’s potential liability in negligence for
Fisco’s alleged intentional torts depends upon her status as a Government employee, we
conclude that the Postmaster General is immune from Borawski’s negligent-hiring-and-retention
claim.”).
This Court therefore lacks subject matter jurisdiction over Kottman’s negligence claim
against the United States.
D.

Kottman’s constitutional allegations fail.

Kottman finally alleges that denying her relief herein would violate her right under the
United States and Missouri constitutions. Doc. 10, pp. 4-5. The allegations do not change the
foregoing.
The United States Supreme Court has expressly acknowledged that operation of the
Westfall Act and the exceptions to the FTCA’s sovereign immunity waiver can “[leave a]
plaintiff without a remedy.” Levin v. United States, 133 S. Ct. 1224, 1234 (2013). See also
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 427, 115 S.Ct. 2227, 2233 (1995) (“When the
United States retains immunity from suit, certification disarms plaintiffs [and t]hey may not
proceed against the United States, nor may they pursue the employee shielded by certification.”),
and United States v. Smith, 499 U.S. 160, 166 and 175(1991) (“Congress recognized that the
required substitution of the United States as the defendant in tort suits filed against Government
employees would sometimes foreclose a tort plaintiff's recovery altogether.”; “This congressional
intent was clearly implemented by [the Westfall Act] and we are obliged to give it effect.”).
Simply put, “Congress’s power to maintain or to waive sovereign immunity for suits

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against the government is absolute and is inherent in the government’s status as a sovereign.”
Schneider v. United States, 27 F.3d 1327, 1332 (8th Cir. 1994); and Heller v. United States, 776
F.2d 92, 98 (3d Cir. 1985 (same). See also Lynch v. United States, 292 U.S. 571, 581(1934)
(“[C]onsent to sue the United States is a privilege accorded, not the grant of a property right
protected by the Fifth Amendment.”), and Wilson v. Big Sandy Healthcare, Inc., 553 F. Supp. 2d
825, 835 (E.D. Ky. 2008) (“A plaintiff has no vested right in any potential tort claim for damages
under state law. This is true even when the substitution of the United States results in denial of
the claimant’s cause of action.”), aff'd sub nom., Wilson v. Big Sandy Health Care, Inc., 576 F.3d
329 (6th Cir. 2009).
Furthermore, the Supremacy Clause of the United States Constitution invalidates state
law that “interferes with or is contrary to federal law.” Free v. Bland, 369 U.S. 663, 666 (1962);
U.S. Const. art VI, cl. 2. As discussed above, the Westfall Act provides federal employees with
absolute immunity from tort claims arising out of acts performed within the scope of
employment; requires that the United States be substituted as the party defendant if the conduct
complained of was committed within the scope of employment; and requires such actions
pending in state court to be removed to the district court. § 2679(d)(1), (2). The FTCA provides
a limited waiver of the United States’ sovereign immunity with respect to tort claims, and
establishes limited exceptions to the waiver.

Even if Missouri law provided broader

protections than these federal laws, the federal laws are supreme. See also Nistenderk v.
McGee, 225 F.Supp. 881, 882-83 (W.D. Mo. 1963) (acknowledging that once United States
was substituted for federal employee and case would proceed under the FTCA, federal law
controlled due to Supremacy Clause). Therefore, the constitutional allegations fail.

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E.

Remaining arguments.

In view of the foregoing, the Court need not reach the United States’ alternative
arguments for dismissal based on the Federal Employees’ Compensation Act, 5 U.S.C. §§ 1801,
et seq.; and the “discretionary function exception” to the FTCA, 28 U.S.C. § 2680(a). Doc. 14,
p. 6, n.3, and Doc. 20, p. 2.
IV.

Conclusion
Defendants United States of America and Richard Schmaltz’s motion to dismiss, Doc. 8,

is granted with prejudice.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: September 21, 2017
Jefferson City, Missouri

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