Anderson v. The United States of America et al

Filing 194

ORDER RULING ON 157 REPORT AND RECOMMENDATION. The Court finds the Government's 150 Motion to Dismiss and for Summary Judgment should be GRANTED. In addition, pursuant to 28 U.S.C. § 2676, the remaining claims against Kerns are hereby DISMISSED. The 179 MOTION to Amend the Complaint is DENIED. Signed by Honorable Timothy M Cain on 1/27/16. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Kristen Miles Anderson,
Plaintiff,
v.
The United States of America and
Richard Kerns,
Defendants.

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Civil Action No. 8:12-3203-TMC

ORDER

This matter is before the court on a motion to dismiss, or in the alternative, motion for
summary judgment filed by the United States of America (“United States”). (ECF No. 150).
Kristen Miles Anderson (“Anderson”) filed a response in opposition, and the United States filed
a reply. (ECF Nos. 152, 153). In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the
court is the magistrate judge’s Report and Recommendation (“Report”), recommending that the
court grant the motion and dismiss the United States from this action. (ECF No. 157). Anderson
has filed timely objections. (ECF No. 168). The United States has filed a reply to Anderson’s
objections. (ECF No. 175). On December 7, 2015, Anderson also filed a motion to amend the
complaint, seeking to add a new defendant and a new claim. (ECF No. 179). On December 8,
2015, the court held a hearing on the motion filed by the United States.
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270–
71 (1976). In making that determination, the court is charged with conducting a de novo review
of those portions of the Report to which either party specifically objects. See 28 U.S.C. §

1

636(b)(1). Then, the court may accept, reject, or modify the Report or recommit the matter to
the magistrate judge.

Id. In the absence of specific objections, this court is not required to

provide an explanation for adopting the Report. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in the absence of a timely filed objection, a district court need not conduct a de
novo review, but instead must only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
BACKGROUND
I.

Factual Background

Anderson was a teller/manager at a SunTrust Bank (“SunTrust”) in Greenville, South
Carolina. (ECF No. 37 at 4). In November 2009, SunTrust’s management and security team
began an investigation into possible embezzlement at the branch where Anderson was employed.
(ECF No. 37 at 4). SunTrust contacted the United States Secret Service (“USSS”) to assist in the
investigation.

(ECF No. 37 at 4).

On December 3, 2009, SunTrust’s regional security

investigators contacted Anderson and voiced their suspicion that she had embezzled the funds.
(ECF No. 37 at 4). They directed her to come to the bank and to bring any funds in her
possession. (ECF No. 37 at 5).
At this meeting with bank investigators, Anderson returned approximately $35,000.00 in
embezzled bank funds and made incriminating statements. (ECF No. 37 at 5). Immediately after
making such statements, USSS agents Richard Kerns (“Kerns”) and Gregory Johnson
(“Johnson”) entered the room and interviewed Anderson. (ECF No. 37 at 5–6). After the
interviews, Anderson rode with Kerns and Johnson to the Greenville, South Carolina Resident
Office of the Secret Service (“GRO”) to have her photograph and fingerprints taken. (ECF No.

2

37 at 6). She also wrote and signed a confession admitting to the embezzlement of bank funds.
(ECF Nos. 168-8, 168-9).
That night, Kerns began a series of telephone calls to Anderson on his government-issued
phone. (ECF No. 37 at 7). On January 13, 2010, Kerns called Anderson to say he wanted to
meet with her to discuss her case. (ECF Nos. 150-8 at 1–2; 152 at 3; 168-41 at 8). Kerns met
with Anderson in Greenwood, South Carolina (hereinafter, the “Greenwood Incident”). (ECF
Nos. 150-8 at 1–2; 152 at 3; 168-41 at 8). Kerns entered Anderson’s vehicle, and Anderson
decided to drive to a nearby park where there would not be a “whole lot of people.” (ECF Nos.
150-6 at 3; 152 at 3). During the drive, they discussed their respective marriages and her case.
(ECF No. 150-8 at 2). Kerns told her that he would help her out and that he would get her
probation. (ECF No. 150-8 at 2). Once at the park, they got out of the car, and Kerns allegedly
forced Anderson to kiss him. (ECF No. 152-20). He told her that compliance with sexual
demands would favorably impact the case against her. (ECF No. 152 at 3). They left shortly
after the kiss because “someone from [Kern’s] office had called, and he was supposed to be at a
meeting, and he was late for it, and they were looking for him.” (ECF No. 152-20). Anderson
then drove Kerns back to his car and she went home. (ECF No. 152-20).
Although Kerns and Anderson subsequently talked on the phone, they did not see each
other again until March 18, 2010, when Kerns called Anderson to tell her that his wife was out of
town and that he wanted to meet her that night for drinks. (ECF No. 150-8 at 2). Anderson met
Kerns in Greenville, South Carolina, and parked at a Holiday Inn a block away from the GRO
(hereinafter, the “Greenville Incident”). (ECF No. 152-24). They went to a bar a block away
from the GRO where they had a drink and stayed for about thirty minutes. (ECF No. 152-25).
Anderson testified in her deposition that she was mad “because he told me it was about my case,

3

and then when I got there it wasn’t about my case. He would do that to me all the time.” (ECF
No. 152-25). While at the bar, Kerns made sexual advances towards Anderson. (ECF No. 15225). She told him that she had to leave. (ECF No. 152-25). Kerns said he would walk her to her
car, but first he needed to get papers from the GRO. (ECF No. 152-25). They entered the GRO
at 11:38:47 p.m. (ECF No. 150-11).
Kerns showed Anderson his office and his boss’s office. (ECF No. 150-8 at 3). Kerns
kept telling Anderson that “he was on [her] side and all [she] had to do was trust him and he was
going to make sure [she] didn’t go to prison and that [she] got probation.” (ECF No. 150-8 at 3–
4). While in his boss’s office, Kerns started to kiss Anderson, and they had intercourse. (ECF
No. 150-8 at 3–4). At 12:35:59 a.m. on March 19, 2010, they left. (ECF No. 150-8 at 4).
On May 26, 2010, Kerns submitted his first case status report to his GRO supervisor
regarding the criminal investigation of Anderson. (ECF No. 150-10). The report did not include
references to the Greenwood or Greenville Incidents, or that Kerns had been calling Anderson.
(ECF No. 150-10). A grand jury indicted Anderson on August 10, 2010, and she was formally
arrested and arraigned on August 26, 2010. (ECF No. 150-12). Kerns submitted a second status
report to his GRO supervisor on September 8, 2010. (ECF No. 150-12). The second status
report did not mention the Greenwood or Greenville Incidents, or that Kerns had been calling
Anderson. (ECF No. 150-12).
On April 13, 2011, after pleading guilty in her criminal case, Anderson informed U.S.
Probation Officer Robin Brown (“USPO Brown”) of the incident.1

(ECF No. 150-13).

Anderson claimed that she decided to report the incident because Kerns “told her that he couldn’t
help her with her case.” (ECF No. 150-13 at 2). Anderson had discussed the incident with her

1

Although the statement by the USPO Brown references April 14, 2011, the evidence shows that she became aware
of the allegations on April 13, 2011. In any event, this factual discrepancy in USPO Brown’s statement is nonmaterial.

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defense attorney prior to informing USPO Brown. (ECF Nos. 150-13 at 2; 150-14 at 2). The
Assistant United States Attorney (“AUSA”) prosecuting Anderson’s case was immediately made
aware of the situation and informed his supervisor and Kerns. (ECF No. 150-14). Kerns told the
AUSA that the claims were unfounded; however, Kerns later called the AUSA and told him that
he was not entirely truthful with him, and that he was concerned that he had compromised the
criminal case against Anderson.2 (ECF No. 150-14). Thereafter, Anderson was sentenced to
fifteen months’ imprisonment, followed by five years’ supervised release.
II.

Procedural Background

Anderson filed a claim with the Office for General Counsel seeking damages for only the
Greenville Incident, and the claim was denied. (ECF No. 178).3 Anderson filed this case on
November 6, 2012. (ECF No. 1). In her amended complaint, she asserts various claims based on
alleged violations of her constitutional rights and tort claims against the United States, Kerns,
Johnson, Thomas Griffin, Jr., Mark J. Sullivan, Secretary Janet Napolitano, and other defendants
not yet named. (ECF No. 37).
On April 15, 2013, the United States filed its first motion to dismiss and motion for
summary judgment.

(ECF No. 52).

Notably, the United States did not argue that the

discretionary-function exception applies to the supervisor-liability claim. (ECF No. 52). The
court granted in part and denied in part that motion. (ECF No. 84). The court dismissed all of
the defendants except Kerns and the United States. (ECF No. 84). The court found that

2

On April 20, 2011, the Secret Service Office of Inspection and the Department of Homeland Security Office of
Inspector General began an investigation into the incidents to determine whether Kerns should be criminally
prosecuted for the incidents; Kerns was not prosecuted. (ECF Nos. 150 at 7; 150-19; 150-20).
3
The court notes that the claim form did not include any facts, or a sum certain, concerning the Greenwood Incident.
(ECF No. 178); see 28 U.S.C. § 2401(b) (providing that each “tort claim against the United States” must be
presented to the appropriate federal agency); see also Ahmed v. United States, 30 F.3d 514, 516–17 (4th Cir. 1994)
(stating that to sufficiently present a claim, a plaintiff must provide notice that “‘(1) is sufficient to enable the
agency to investigate and (2) places a ‘sum certain’ value on her claim.’” (quoting Adkins v. United States, 896 F.2d
1324, 1326 (11th Cir. 1990))).

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Anderson had alleged sufficient facts to survive a motion to dismiss for claims of vicarious
liability and supervisory liability against the United States in her amended complaint and that
these issues would be better resolved on a more-developed factual record. (ECF No. 84 at 5).
APPLICABLE LAW4
Under the federal rules, each pleading must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A motion to dismiss
under Fed. R. Civ. P. 12(b)(1) examines whether the complaint fails to state facts upon which
jurisdiction can be founded. The burden of proving subject matter jurisdiction in response to a
Rule 12(b)(1) motion to dismiss is on the plaintiff, the party asserting jurisdiction. Richmond,
Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir.1991). The court
should grant the motion “only if the material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d 642,
647 (4th Cir.1999) (internal quotation marks and citations omitted).
Summary judgment is appropriate if, after reviewing the entire record in a case, the court
is satisfied that no genuine issues of material fact exist and that the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue of fact is “genuine” if the evidence
is such that a reasonable jury could return a verdict for the plaintiff. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Issues of fact are “material” only if establishment of such facts
might affect the outcome of the lawsuit under the governing substantive law. Id.

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As to its non-discretionary function arguments, the United States labeled its motion as a motion to dismiss pursuant
to Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 56. Because the parties presented the court with materials outside of
the pleadings and the court considered those materials, the court, like the magistrate judge, will construe the motion
pursuant to Fed. R. Civ. P. 56. See Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (stating that a court shall
construe a motion to dismiss as a motion for summary judgment when “matters outside the pleadings are submitted
with” the motion).

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“The party moving for summary judgment has the [initial] burden of establishing that
there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of
law.” Catawba Indian Tribe of S.C. v. South Carolina, 978 F.2d 1334, 1339 (4th Cir. 1992).
Thereafter, the party opposing summary judgment must come forth with “sufficient evidence
supporting the claimed factual dispute,” and cannot “rest upon the mere allegations or denials of
his pleading.” Anderson, 477 U.S. at 248 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co.,
391 U.S. 253, 288-89 (1968)). “Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment.” Id. at 247.
“Although the court must draw all justifiable inferences in favor of the nonmoving party, the
nonmoving party must rely on more than conclusory allegations, mere speculation, the building
of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v.
Mayweather, 731 F.3d 303, 311 (4th Cir. 2013); see also Catawba Indian Tribe of S.C., 978 F.2d
at 1339 (“The non-moving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986))); Williams v. Cerberonics, Inc., 871 F.2d 452, 459 (4th
Cir. 1989) (stating that the plaintiff “presented no evidence to support her claim other than her
own assertions” and set against the documentation, “no reasonable trier of fact could” find for
her); Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other
grounds, 490 U.S. 228 (1989) (“Genuineness means that the evidence must create fair doubt;
wholly speculative assertions will not suffice.”). In sum, “[w]here the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue
for trial.’” Matsushita Elec. Indus. Co, 475 U.S. at 587 (Cities Serv. Co., 391 U.S. at 289)).

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DISCUSSION
The United States has moved to dismiss the claims for negligent hiring, retention, and
supervision for lack of subject matter jurisdiction. (ECF No. 150 at 1). The United States has
also moved to dismiss the remaining FTCA claims because there is no dispute of material fact
concerning the liability of the United States for Kerns’s acts. (ECF No. 150 at 1).
The magistrate judge recommended that the court grant the summary judgment motion
filed by the United States. (ECF No. 157). The magistrate judge recommended dismissing the
complaint insofar as it seeks to impose liability on the United States for negligent hiring,
retention, and supervision because the claim is barred pursuant to the discretionary-function
exception of the FTCA, and in addition, because no genuine issue of material fact exists as to
whether the United States knew or should have known that employing Kerns created an
unreasonable risk to the public.

(ECF No. 157 at 11–26).

The magistrate judge also

recommended dismissing the negligence claim against the United States because Anderson fails
to establish what stand-alone duty the United States owed to Anderson, and in any event, how a
breach of a duty to Mirandize5 Anderson is the proximate cause of her harm. (ECF No. 157 at
26–32). And finally, the magistrate judge recommended dismissal of the vicarious liability
claims against the United States because Anderson failed to introduce genuine issues of material
fact showing that Kerns was acting within the scope of employment during the incidents. (ECF
No. 157 at 32–39). Anderson has objected to each portion of the Report, and the court will
consider each in turn. Initially, however, the court will consider Anderson’s motion to amend
her complaint.

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Miranda v. Arizona, 384 U.S. 436 (1966).

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I. Motion to Amend
On the afternoon of December 7, 2015, the day before the hearing on the motion filed by
the United States, Anderson filed a motion to amend her amended complaint to add a cause of
action for abuse of process and an additional defendant, Iris Jolliff (“Jolliff”). (ECF No. 179).
The substance of the motion consists of two short paragraphs, and the proposed amended
complaint is not attached to the motion. (ECF No. 179).
Generally, motions to amend a pleading are governed by Federal Rule of Civil Procedure
15(a). Rule 15(a)(2) provides that “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Under Rule 15, a court should deny a motion to amend
“only where it would be prejudicial, there has been bad faith, or the amendment would be futile.”
Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (citing HCMF Corp. v.
Allen, 238 F.3d 273, 276–77 (4th Cir. 2001)).
However, once a scheduling order has been entered and the time period to file
amendments to the pleadings has expired, the party moving to amend must first satisfy Rule
16(b), which requires a movant to show “good cause” for the amendment. Id. at 298; see also
O’Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154–55 (1st Cir. 2004) (noting that “Rule
16(b)’s ‘good cause’ standard, rather than Rule 15(a)’s ‘freely given’ standard, governs motions
to amend filed after scheduling order deadlines”). Unlike Rule 15(a)’s standard, Rule 16(b)’s
standard “focuses on the timeliness of the amendment and the reason for its tardy submission;
the primary consideration is the diligence of the moving party.” Montgomery v. Anne Arundel
County, MD., 182 F. App’x 156, 162 (4th Cir. 2006). “Good cause exists when a party’s
reasonable diligence before the expiration of the amendment deadline would not have resulted in

9

the discovery of the evidence supporting a proposed amendment.”

Firemen’s Ins. Co. of

Washington D.C. v. Glen-Tree Investments, LLC, No. 7:11-cv-59, 2012 WL 4191383, at *3
(E.D.N.C. Sept. 19, 2012) (citations omitted).

Thus, “[t]he movant must demonstrate that

despite his diligence he could not meet the original deadline or offer the amendment sooner.” In
re Understanding Corp., No. 08-81398, 2009 WL 4059047, at *3 (Bankr. M.D.N.C. Nov. 19,
2009) (citations omitted). “If the movant satisfies Rule 16(b)’s ‘good cause’ standard, it must
then pass the requirements for amendment under Rule 15(a).” Dilmar Oil Co. v. Federated Mut.
Ins. Co., 986 F. Supp. 959, 980 (D.S.C. 1997) (emphasis in original).
The court finds the motion to amend should be denied. Initially, Anderson failed to
attach a copy of the proposed amended complaint to the motion. See, e.g., Al-Haqq v. Stirling,
No. 2:14-098-TMC, 2014 WL 6749096, at *10 (D.S.C. Dec. 1, 2014) (stating that failing to
attach a copy of the proposed complaint “is sufficient to deny the motion” to amend); Wells v.
Spartanburg Cty. Det. Ctr. Facility Employees, No. 8:10-1490-CMC, 2010 WL 4853868, at *2
(D.S.C. Oct. 26, 2010) (magistrate judge) (same). Without a copy of the proposed amended
complaint, the court is unable to ascertain what claims remain against defendants, as well as
whether the proposed amendments are futile.
In addition, Anderson’s motion fails to articulate good cause for waiting to file the
motion well past the June 24, 2014 deadline for motions to amend pleadings contained in the
April 10, 2014 amended conference and scheduling order. (ECF No. 89 at 2). Anderson has not
filed a motion to amend the scheduling order to enlarge the time period to file a motion to amend
the pleadings. Anderson now seeks to add a claim for abuse of process, although her argument
throughout the case has been that the USSS did not follow proper procedure while investigating
her criminal case. See (ECF Nos. 3, 37). Therefore, Anderson does not have good cause for

10

failing to include this claim prior to the expiration of the time period to amend the pleadings in
the scheduling order.
Insofar as Anderson seeks to name Jolliff as an additional defendant, the court denies that
request. Anderson seeks to add Jolliff because of facts learned at Jolliff’s deposition. At the
hearing on the motion for summary judgment, the court was informed that the deposition of
Jolliff occurred in January 2015, eleven months prior to the motion to amend being filed.
Anderson’s motion fails to explain why she did not exercise diligence by filing this motion
earlier. Moreover, Anderson has not set forth any facts showing that the information learned at
Jolliff’s deposition could not have been discoverable through reasonable diligence prior to the
expiration of the time period to amend the pleadings in the amended scheduling order. And
finally, in light of the court’s previous order dismissing all of the individual defendants except
Kerns (ECF No. 84), the motion fails to articulate what non-futile claim the amended complaint
could assert against Jolliff. In sum, the motion to amend the complaint is denied.
II. FTCA
“The United States, as sovereign, is immune from suit save as it consents to be sued . . .
.” United States v. Sherwood, 312 U.S. 584, 586 (1941) (citations omitted). The FTCA waives
sovereign immunity and imposes tort liability on the United States “in the same manner and to
the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. In
addition, the United States has waived its sovereign immunity
for injury or loss of property, or personal injury or death caused 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 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.

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28 U.S.C. § 1346(b)(1). Anderson seeks to impose liability on the United States under three
theories: (1) supervisory liability; (2) negligence; and (3) respondeat superior. Under each
standard, the court applies substantive South Carolina law to determine whether the United
States is liable. See id.
a. Supervisory Liability
The waiver of the United States’ sovereign immunity is subject to exceptions. One such
exception is the “discretionary-function exception,” which provides that the FTCA’s waiver of
sovereign immunity shall not apply to:
Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon 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. § 2680.
The United States has argued that Anderson’s claims for negligent hiring, supervision,
and retention fall within the discretionary-function exception to the FTCA. At the hearing,
Anderson’s attorney clarified that her only claim under Count III of the amended complaint
(ECF No. 37) is for negligent supervision, not negligent hiring or retention. Anderson argues
that the discretionary-function exception does not apply to negligent supervision.
When analyzing whether conduct is discretionary, the first step is to determine “whether
the challenged conduct ‘involves an element of judgment or choice.’” Suter v. United States,
441 F.3d 306, 310 (4th Cir. 2006) (quoting Berkovitz v. United States, 486 U.S. 531, 536
(1988)). If the conduct involves an “element of judgment or choice,” the court next determines
“whether the challenged action is ‘based on considerations of public policy.’”
(quoting Berkovitz, 486 U.S. at 536–37).
12

Id. at 311

In Suter, the Fourth Circuit stated, in a footnote, that “[a]ppellants' claim that the FBI
negligently hired and supervised [its employee] is barred by the discretionary function exception.
Courts have repeatedly held that government employers' hiring and supervisory decisions are
discretionary functions.” Id. at 311 n.6; see also LeRose v. United States, 285 F. App'x 93, 97
(4th Cir. 2008) (“The BOP's decisions regarding the hiring, supervision and retention of [its
employee] are precisely the type of decisions that are protected under the discretionary function
exception. We previously decided that government employers' hiring and supervisory decisions
are discretionary functions.”); Kaufman v. United States, 84 F. Supp. 3d 519, 530 (S.D.W. Va.)
aff'd, 601 F. App'x 237 (4th Cir. 2015) (“Courts in the Fourth Circuit have long held that
decisions regarding supervision of employees fall within the discretionary function exception.”).
Notwithstanding the case law on the applicability of the discretionary-function exception
to supervisory decisions, Anderson asserts two reasons why the discretionary-function exception
does not apply in this case. (ECF No. 152 at 15–21). First, Anderson claims that the United
States waived any defense based on the discretionary-exception because the United States did
not plead the defense. (ECF No. 152 at 15–16). Anderson cites to Stewart v. United States, 199
F.2d 517 (7th Cir. 1952), in support of her argument that the discretionary-function exception
defense can be waived by failing to plead it. The magistrate judge properly discussed the
widespread rejection of the Stewart case, and the inapplicability of waiver to this defense. In her
objections, Anderson merely cites to the Stewart case again and reasserts the same argument that
she made to the magistrate judge. (ECF No. 168 at 2). See Nichols v. Colvin, No. 2:14-cv-50,
2015 WL 1185894, at *8 (E.D. Va. Mar. 13, 2015) (stating that “a mere restatement of the
arguments raised in the summary judgment filings does not constitute an ‘objection’ for the
purposes of district court review” (citation omitted)). The court agrees with the magistrate judge

13

that the discretionary-function exception is not subject to waiver because it was not affirmatively
raised earlier.
Second, although Anderson conceded that the decision to hire Kerns was initially
discretionary, she argues the alleged failure to supervise him was not. (ECF No. 152 at 16–19).
Anderson asserts that discretionary-function exception does not apply to operational activities,
such as supervisory decisions. (ECF No. 152 at 18–19). She asks this court to infer that the
USSS has a policy against agents meeting alone with suspects of the opposite sex. (ECF No. 168
at 16). Anderson, however, misstates the law. In 1991, the United States Supreme Court stated
“[d]iscretionary conduct is not confined to the policy or planning level,” and that operational
functions and day-to-day supervisory decisions can fall within the ambit of the discretionaryfunction exception. United States v. Gaubert, 499 U.S. 315, 325–26 (1991).
The claims for negligent supervision involve elements of judgment and choice.
Anderson’s claims are based on the USSS failing to supervise, or watch over, Kerns. Staffing
requirements and the discretion given to agents to carry out an investigation implicate public
policy. Anderson has failed to identify any policy that the supervisors failed to follow. As to the
court making an inference that an agent cannot meet alone with a suspect of the opposite sex,
Anderson has failed to offer any proof that such a policy exists or that Kerns’s supervisors
permitted him to violate it. In other words, even if a policy existed, Anderson has failed to
introduce any evidence showing that the supervisors were not enforcing the policy, let alone that
they knew Kerns met alone with Anderson. In sum, the court finds that the magistrate judge
properly discussed the inapplicability of this “exception” to the discretionary-function exception.
(ECF No. 157 at 14–16).

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However, even if the court were to assume that the discretionary-function exception did
not apply in this case, the magistrate judge properly determined that no genuine issue of material
fact exists as to whether the supervisory-liability claims have merit. (ECF No. 157 at 17–26). In
South Carolina, an employer may be liable for negligent supervision when an employee
intentionally harms another and (1) the employee is on the premises of the employer or using a
chattel of the employer, (2) the employer knows or has reason to know of the ability to control
the employee, and (3) the employer knows or should know of the necessity and opportunity for
exercising control. See Degenhart v. Knights of Columbus, 420 S.E.2d 495, 496 (S.C. 1992).
Stated differently, “[i]n circumstances where an employer knew or should have known that its
employment of a specific person created an undue risk of harm to the public, a plaintiff may
claim that the employer was itself negligent in hiring, supervising, or training the employee . . .
.” James v. Kelly Trucking Co., 661 S.E.2d 329, 330 (S.C. 2008).
Three South Carolina cases are helpful when determining whether an employer is liable
for failing to supervise an employee when that employee commits a sexual assault.

See

Brockington v. Pee Dee Mental Health Ctr., 433 S.E.2d 16 (S.C. Ct. App. 1993); Doe by Doe v.
Greenville Hosp. Sys., 448 S.E.2d 564 (S.C. Ct. App. 1994); Moore by Moore v. Berkeley Cnty.
Sch. Dist., 486 S.E.2d 9 (S.C. Ct. App. 1997). In Brockington, Davis, the employee, was a
therapeutic assistant employed by the South Carolina Department of Mental Health, assigned to a
facility where Brockington was a patient. 433 S.E.2d at 17. Davis worked without supervision,
and he scored well on his evaluations. Id. During Brockington’s first visit with Davis, Davis
sexually assaulted him. Id. A week later, Davis sexually assaulted Brockington again. Id.
Brockington did not tell the police or Davis’s supervisors; he only told his mother and his
brother, and neither family member told anyone. Id. Months later, Davis sexually assaulted

15

another client, and that client’s mother reported the assault. Id. Davis later pled guilty and was
sentenced to prison. Id. Brockington filed suit, and the jury found in his favor on the issue of
negligent supervision. Id. The employer appealed. Id. at 19. On appeal, the court of appeals
reversed because Brockington failed to introduce any evidence that would have “alerted the
defendants that Davis would engage in predatory homosexual activity or other inappropriate
sexual conduct with clients and with Brockington in particular.” Id. The court noted that
“Brockington, his, mother, and his brother . . . kept [their knowledge of Davis’s behavior] to
themselves.”

Id.

Brockington contended that a department manual placed a duty on the

defendants to supervise Davis. The court of appeals stated that no such duty was imposed
because “[c]learly, Davis was acting in his individual capacity and not as an agent for the
defendants when he sexually assaulted Brockington.” Id.
In Greenville Hosp. System, the court of appeals affirmed a finding of negligent hiring
and supervision by Greenville Hospital System because it had prior knowledge that its employee,
a thirty-one-year-old male, had previously sexually assaulted another employee, a sixteen-yearold minor, while they were working. 448 S.E.2d at 565. The male employee sexually assaulted
the minor on two separate occasions. Id. at 568. The first incident occurred in the summer of
1990. Id. Although the minor did not report the incident, the hospital became aware of the
incident and investigated it.

Id.

Instead of terminating the male employee, the hospital

transferred him to a different division. Id. After the transfer, the male employee sexually
assaulted the minor again in May 1991. Id. This time the minor reported the incident. Id. The
court of appeals found that although the hospital lacked knowledge before the 1990 incident, it
“was aware of the allegations of inappropriate behavior” by the male employee towards a minor
when the May 1991 incident occurred. Id.

16

In Moore by Moore, the court of appeals affirmed the granting of summary judgment in
favor of a school district after Steward, a teacher, sexually assaulted a minor student, Moore,
during the summer-school term. 486 S.E.2d at 585. Moore argued that the school district was
grossly negligent in supervising and hiring Steward, and by appointing Paul Hilson as acting
principal. Id. at 586. Moore testified that Steward’s classroom was not run in the normal
fashion: “The students did not do any work in her class. They were rowdy and sat around talking.
The radio was often playing. Steward permitted the students to smoke cigarettes in class and on
one occasion Moore observed her smoking marijuana with other students during a break.” Id. at
11. Moore testified that Hilson visited the classroom and witnessed how Steward ran her
classroom. Id. Other teachers observed “a male student massaging Steward's shoulders, students
sitting around chatting, students walking around, a male student answering the locked door to
Steward's classroom when the lights were off, and Steward holding hands with a male student.”
Id. The other teachers, however, did not report what they saw to the school’s administration. Id.
During the school year, Steward told Moore that he would need to make up a missed day of
class, and that she would tutor him in her home. Id. at 12. While at her house, “they smoked
marijuana and engaged in sexual intercourse.” Id. Moore did not report the incident until after
other students reported Steward for sexual behavior. Id.
The court of appeals found that “[t]here is no evidence in this case that the District had
notice of improper sexual contact between Steward and any other students prior to the incident
involving Moore.” Id. at 13. The court found that no one “ever complained to the District . . .
about Steward’s conduct during summer school or her tutoring in her home.” Id. The court said
that the evidence only showed that Steward ran her classroom “in a lax manner.” Id. As to
whether Hilson “adequately monitored Steward’s classroom,” the court found that “none of the

17

alleged classroom incidents were of such a character that the administration would have, if aware
of them, reasonably anticipated that Steward would engage in sexual intercourse with a student
in her own home after school hours.” Id.
In this case, Anderson has failed to produce any evidence that would show that the
United States had reason to know that Kerns would engage in sexual activities with a suspect.
Similar to in Brockington and in Moore where the victims did not tell any supervisors of the
assaults; here, Anderson testified that she never told any employee of the United States about
Kerns’s behavior prior to April 2011. (ECF No. 157 at 49). Also, unlike in Greenville Hosp.
System where the supervisors learned of allegations of a sexual assault through other sources; in
this case, there is no evidence that the United States found out about the sexual activity through
other sources. All of Kerns’s coworkers testified that they were unaware of Kerns’s alleged
conduct until April 2011. (ECF No. 157 at 19). The United States introduced evidence that it is
not unusual for officers to work out of the office during office hours. (ECF No. 157 at 20–21).
Moreover, even if Kerns failed to Mirandize and follow criminal procedure rules when initially
processing Anderson, such evidence would not lead to an inference that the United States should
have known that Kerns would engage in sexual activity with Anderson. See Moore, 486 S.E.2d
at 13; Brockington, 433 S.E.2d at 18.
At the summary judgment stage, Anderson was required to come forth with specific
evidence showing that the United States knew or should have known Kerns would engage in
sexual activity with a suspect. Anderson cannot rely on her complaint or make speculative
claims about how the United States might have had knowledge of Kerns’s behavior. See Dash,
731 F.3d at 311 (4th Cir. 2013) (stating that “the nonmoving party must rely on more than
conclusory allegations, mere speculation, the building of one inference upon another, or the mere

18

existence of a scintilla of evidence”). Because Anderson has not met that standard, even if the
allegations of failure to supervise did not fall within the discretionary-function exception to the
FTCA, the United States would still be entitled to summary judgment on the claims.
b. Stand-Alone Negligence
In her stand-alone negligence claim, Anderson appears to be asserting that the United
States, through its employees other than Kerns, breached a duty to Anderson by failing to follow
its procedures. The court finds that Anderson has failed to articulate how this claim is different
than a failure to supervise. The claim appears to be based on Kerns failing to follow an alleged
policy that he was not supposed to meet a suspect of a different sex alone. (ECF No. 168 at 17).
That claim would be for a failure to supervise, which the court found without merit. In any
event, the magistrate judge properly discussed this claim in her well-written Report.
c. Respondeat Superior
The court finds that the United States is not vicariously liable for the acts of Kerns. In
South Carolina, an employer is liable for the torts of his employee when the employee commits
the act in question “about his [employer’s] business and acting within the scope of his
employment.” Lane v. Modern Music, Inc., 136 S.E.2d 713, 716 (S.C. 1964). “An act is within
the scope of a servant's employment where reasonably necessary to accomplish the purpose of
his employment and is in furtherance of the master's business.” Id. However, an “act of a
servant done to effect some independent purpose of his own and not with reference to the service
in which he is employed, or while he is acting as his own master for the time being, is not within
the scope of his employment.” Id. Thus, when the employee “steps aside from the [employer’s]
business for some purpose wholly disconnected with his employment, the relation of master and

19

servant is temporarily suspended, . . . no matter how short the time” the employee steps away.
Id. (citations omitted). Moreover,
An employer is not liable to a customer, patron or other person for an assault
arising out of acts of mischief or horseplay indulged in by the employee unless it
is shown that the employer was or should have been so aware of the propensities
of the employee in that direction as to make him negligent for having retained him
in the employ, since such acts are not to be considered incidental to the work
which he is hired to perform but are of a personal nature, indulged in for the
person amusement of the employee and not in furtherance of the master's interest.
Hamilton v. Davis, 389 S.E.2d 297, 299–300 (S.C. Ct. App. 1990) (quoting Lane, 136 S.E.2d at
717).
In Hamilton, the court of appeals affirmed a state court’s finding that an employee was
acting outside the scope of his employment when he hit the plaintiff with his truck while
performing work duties. Id. at 417. In that case, the employee was hired to manage rental
properties, including maintaining the grounds. Id. at 412–13. While cleaning up debris, a tenant
climbed onto the back of the employee’s truck. Id. at 413. The employee started to laugh and
put the truck into reverse, injuring the plaintiff. Id. The court of appeals held:
While [the employee] was certainly in the act of furthering his master's business
in collecting the debris and removing it from the yard, he momentarily stepped
away from that business when he committed the assault on Hamilton. The assault
was clearly of a personal nature, indulged in for his own personal amusement.
Id. at 417.
South Carolina courts have specifically considered whether an employee was acting
within the scope of his employment when he commits a sexual assault. In all four cases,6 South
Carolina courts have found that the sexual advances were outside the scope of employment. See

6

Although these cases address whether acts are covered under an insurance policy covering “course of
employment,” South Carolina courts apply the same standard in cases involving scope of employment. See S.C.
State Budget & Control Bd. v. Prince, 403 S.E.2d 643, 646 (S.C. 1991).

20

Frazier v. Badger, 603 S.E.2d 587, 591 (S.C. 2004) (holding an assistant principal was acting
outside the scope of his employment when he made sexual advances on a teacher); Doe v. S.C.
State Budget & Control Bd., 494 S.E.2d 469, 473 (S.C. Ct. App. 1997) (holding “no cogent
argument could be made” that a police officer was furthering his employer’s business by having
intercourse with suspects); Loadholt v. S.C. State Budget & Control Bd., 528 S.E.2d 670 (S.C.
Ct. App. 2000) (holding a sheriff was acting outside the scope of his employment when he
sexually assaulted subordinates); Padgett v. S.C. Ins. Reserve Fund, 531 S.E.2d 305 (S.C. Ct.
App. 2000) (holding a professor was acting outside the scope of his “official duties” when he
sexually assaulted a student). In sum, under South Carolina law, “sexual harassment by a
government employee is not within the employee’s ‘scope of employment.’” Frasier, 603
S.E.2d at 591.
In Doe, the court of appeals and the supreme court considered whether sexual assaults by
a police officer against two suspects were covered by insurance policies. 523 S.E.2d at 458.
Roberson, a police officer, pulled Doe over on suspicion of driving under the influence. Id. He
gave her the “option of being arrested or having sex with him.” Id. Roberson and Doe engaged
in sexual activity. Id. Roberson later pulled Roe over and gave her the same option that he had
given Doe. Id. Roe agreed to have sex with him in exchange for not being arrested. Id.
Roberson and Roe went to another location and had intercourse in the police cruiser. Id. The
court of appeals held that “no cogent argument can be made that Roberson was furthering the
business of his employer at the time he sexually assaulted Appellants.” 494 S.E.2d 469, 473
(S.C. Ct. App. 1997). The supreme court affirmed the decision. 523 S.E.2d at 458.
In Loadholt, the court of appeals considered whether a sheriff’s sexual assaults and
harassment of subordinates were within the scope of employment. 528 S.E.2d at 671. The

21

sheriff summoned three different employees—a dispatcher, a jailer, and a secretary—“to his
office on the pretext of discussing jail and sheriff’s department business. Once in his office, [the
sheriff] would lock the door and then ask them questions regarding their sexual histories and
sexually molest or assault them.” Id. at 672. The employees filed suit, and on appeal, the court
of appeals considered, amongst other issues, whether the sexual assaults were within the “course
of employment” for purposes of a state statute covering tort liability for acts committed in the
course of employment. Id. at 674. The court of appeals stated that “although [the sheriff] was
on duty as sheriff, working in his county office and allegedly ‘discussing county business’ prior
to and at the time of the alleged assaults, . . . [his] alleged sexual assaults were outside the
‘course of employment’ . . . as [the sheriff] was not furthering the business of his employer at the
time of the alleged assaults.” Id.
In this case, the court finds that Kerns was acting in furtherance of his own personal
interests, and not in the interests of the United States, when he engaged in sexual activity with
Anderson. Similarly to Hamilton where the employee stepped outside the scope of employment
when he engaged in mischief; here, Kerns stepped outside the scope of his employment when he
engaged in sexual behavior. See also Loadholt, 528 S.E.2d at 674. Moreover, similarly to how
the on duty officer in Doe was not acting within the scope of employment when he sexually
assaulted the victims, during the Greenwood Incident, Kerns was acting outside the scope of
employment when he engaged in sexual conduct with Anderson. See Frasier, 603 S.E.2d at 591.
As to the Greenville Incident, the court finds that no reasonable juror could conclude that
the sexual encounter between Kerns and Anderson furthered the interests of the United States.
The incident occurred after 11 p.m. when the office was closed. Anderson testified at her
deposition that they did not discuss her case. See (ECF No. 152-25) (testifying that “he told me

22

it was about my case, [but] then when I got there it wasn’t about my case. He would do that to
me all the time.”). The court finds that instead of furthering the USSS’s interests, Kerns was
furthering his own personal interests during the Greenville Incident. No reasonable juror could
conclude that Kerns’s entering the GRO at 11:35 P.M. to engage in intercourse with a suspect in
Kerns’s boss’s office could in any way further the interests of the United States.
Anderson cites two cases to support her theory that Kerns was acting within the scope of
employment when the sexual activity took place: Millbrook v. United States, 133 S. Ct. 1441
(2013), and Crittendon v. Thompson-Walker, Co., 341 S.E.2d 385 (S.C. Ct. App. 1986). In
Millbrook, the plaintiff, an inmate, was sexually assaulted by prison guards. The issue before the
Court was the scope of the “law enforcement proviso” in the FTCA, and the Court held that the
waiver of immunity extends to “acts or omissions of law enforcement officers that arise within
the scope of their employment.” 133 S. Ct. at 1446. This case is unhelpful to Anderson. First,
the scope of employment issue was not before the Court because the United States had conceded
the issue in the lower courts. Id. at 1445 n.3. In this case, the United States has made no such
concession. Second, even if the Court had considered the scope of employment issue, the case
arose out of Pennsylvania and would have applied Pennsylvania law, not South Carolina law.
Therefore, Anderson’s reliance on Millbrook is misplaced.
In Crittenden, Crittenden hired Thompson-Walker to renovate a business. 341 S.E.2d
386. Several days prior to completing the renovation, Thompson-Walker sent a final bill. Id.
Crittenden informed Thompson, the president of Thompson-Walker, that the bill would not be
paid and to contact his attorney. Id. Thompson decided to follow up at Crittenden’s store with
his foreman who beat up Crittenden in Thompson’s presence until Crittenden agreed to pay his

23

bill. Id. The court of appeals held that the assault furthered the employer’s business because it
was done for the purpose of receiving a payment on a bill. Id. at 116.
Anderson attempts to analogize her case to Crittendon by arguing that Kerns was
furthering the interests of the United States by getting a guilty plea when he had sexual
intercourse with Anderson. This argument is unpersuasive. Kerns’s first concern when he
admitted to the engaging in sexual activities with Anderson was that he had compromised the
prosecution of the case, not that he was somehow helping the United States. (ECF No. 150-14).
In addition, the evidence shows that Anderson cooperated well before any sexual behavior
started, and that in her single-defendant criminal case, and prior to any inappropriate behavior,
she had given incriminating statements and returned a portion of the embezzled money to the
bank. In sum, the court finds, as the South Carolina cases have concluded when determining
whether a sexual assault by an employee falls within the scope of employment, that Kerns was
acting outside the scope of employment when he engaged in sexual activity with Anderson.7
III. Bivens Claims
At the December 8, 2015 hearing, the court asked the parties to file briefs concerning the
impact, if any, that a judgment in favor of the United States would have on Anderson’s
individual claims against Kerns. (ECF No. 182). Kerns and the United States filed briefs
arguing that a judgment in favor of the United States would result in dismissal of the claims
against Kerns. (ECF Nos. 184, 185). Anderson filed a brief arguing that a judgment in favor of
the United States on the FTCA claims would not bar or impact her ability to present claims
against Kerns. (ECF No. 187).

7

Many Fourth Circuit cases applying South Carolina law have concluded that an employee was acting outside the
scope of employment when that employee engaged in sexual behavior while “at work.” See, e.g., Doe v. United
States, 769 F.2d 174 (4th Cir. 1985); Andrews v. United States, 732 F.2d 366 (4th Cir. 1984).

24

The FTCA has a judgment-bar rule: “The judgment in an action under section 1346(b) of
this title shall constitute a complete bar to any action by the claimant, by reason of the same
subject matter, against the employee of the government whose act or omission gave rise to the
claim.”

28 U.S.C. § 2676.

The judgment-bar rule “preclude[s] a Bivens claim against a

government employee when a judgment has been entered on a FTCA claim ‘arising out of the
same actions, transactions, or occurrences’ as the Bivens claim.” Unus v. Kane, 565 F.3d 103,
122 (4th Cir. 2009) (quoting Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840,
858 (10th Cir. 2005)). In Unus, the Fourth Circuit stated that:
Litigants frequently face tough choices—choices that rarely come without
consequence. In these proceedings, the plaintiffs chose to pursue their claims
against the federal agent defendants through Bivens as well as under the FTCA.
As such, they risked having a judgment on the FTCA claims operate to bar their
Bivens theories. As explained above, the district court properly awarded summary
judgment to the United States on the FTCA claims. Those claims arose out of the
“same subject matter” as the First and Fourth Amendment Bivens subclaims—the
execution of the Warrant—by the “employee of the government whose act or
omission gave rise to the claim,” i.e., the federal agent defendants. As such, the
court's summary judgment award on the FTCA claims triggers the judgment bar
provision of § 2676, and the plaintiffs' First and Fourth Amendment Bivens
subclaims against the federal agent defendants are thus barred.
Id. at 122.8
In this case, Anderson decided to pursue dual-track claims against Kerns and the United
States for alleged misconduct of Kerns. (ECF No. 37). The United States is entitled to summary
judgment on the FTCA claims, and those claims arose out of the same conduct that is the

8

In her brief, Anderson fails to address Unus, except to say that she believes the case does not comport with Carlson
v. Green, 446 U.S. 14 (1980), a case that Anderson relies on extensively. (ECF Nos. 187; 190 at 2). Her reliance on
Carlson is misplaced. The issue in Carlson was whether a litigant could file a Bivens suit when the plaintiff could
have also filed a claim pursuant to the FTCA. 446 U.S. at 16–17. The court found “that Congress views FTCA and
Bivens as parallel, complementary causes of action.” Id. at 20. Therefore, under Carlson, Anderson can file
parallel claims under the FTCA and pursuant to Bivens. The issue the court asked the parties to brief was what
impact, if any, a judgment on the FTCA claim has on the Bivens claim, not whether Anderson could have brought a
Bivens claim had she not pursued an FTCA claim. See Sanchez v. McLain, 867 F. Supp. 2d 813, 820–22 (S.D.W.
Va. 2011).

25

underlying basis of Anderson’s allegations against Kerns. (ECF No. 37). Therefore, 28 U.S.C. §
2676 bars the remaining claims against Kerns. See Unus, 565 F.3d at 122.
CONCLUSION
The court finds the Government’s motion to dismiss and for summary judgment should
be GRANTED. In addition, pursuant to 28 U.S.C. § 2676, the remaining claims against Kerns
are hereby DISMISSED. The motion to amend the complaint (ECF No. 179) is DENIED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
January 27, 2016
Anderson, South Carolina

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