Background
On March 6, 2020, Dawn Lusk visited the Salem Post Office in South Carolina to collect mail. When she discovered missing items and requested employee assistance, staff ignored her and turned up music. Postmaster Chris Merchant opened double-locked doors to allow postal employee April Peppers—who had prior complaints of aggressive behavior—to confront Lusk. Peppers then violently attacked Lusk, striking her in the head, knocking her to the ground, and kicking her while she lay down. Merchant refused to call for emergency assistance or allow Lusk to use a phone, and instead grabbed her by the ankles as if to drag her from the office. Lusk sustained serious physical and psychological injuries, including a loosened dental bridge from the force of the assault.
Lusk filed suit in South Carolina state court in 2021, which was removed to federal district court. She asserted four claims in her amended complaint: (1) negligence, gross negligence, and recklessness under the Federal Tort Claims Act (FTCA); (2) negligent hiring, supervision, and retention under the FTCA; (3) constitutional violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics; and (4) violations of the Freedom of Information Act (FOIA). The district court granted the government’s motion to dismiss all claims, finding them barred by sovereign immunity and related doctrines.
The Court’s Holding
The Fourth Circuit affirmed dismissal of most claims but reversed in part on a narrow ground. Judge Wynn, writing for a unanimous panel, held that the FTCA’s intentional tort exception—which bars claims “arising out of” eleven enumerated torts including assault and battery (28 U.S.C. § 2680(h))—precludes Lusk’s claims against both Peppers and Merchant insofar as they arise from the physical attack itself. Although Lusk artfully pleaded her allegations as negligence rather than assault and battery, the substance of her complaint clearly sounds in those intentional torts, triggering the exception. The government’s certification that Peppers and Merchant were acting within the scope of their employment made the United States the real party in interest under the Westfall Act.
However, the court reversed as to a narrow slice of Lusk’s claim against Merchant based on the Supreme Court’s decision in Sheridan v. United States, 487 U.S. 392 (1988). Under Sheridan, the government can be held liable for a federal employee’s negligence that creates the risk of an assault or battery by another employee, provided the basis for imposing government liability is independent of the intentional tortfeasor’s employment status. Here, Lusk adequately alleged that Merchant negligently created the risk by unlocking the double-locked doors to facilitate Peppers’s confrontation with Lusk, knowing from prior reports that Peppers had propensities for violence. Under South Carolina law, a duty of care exists where “the defendant negligently or intentionally creates the risk.” Merchant’s failure to intervene or seek medical assistance after creating this dangerous situation plausibly stated a claim. The court therefore reversed and remanded for further proceedings on this narrow claim, while affirming dismissal of all other claims.
Key Takeaways
- The FTCA’s intentional tort exception bars claims arising from federal employee assaults and batteries, regardless of whether plaintiffs plead the claims as negligence; courts look to the substance, not the form, of the allegations.
- Under Sheridan, the government may be held liable for a federal employee’s negligence that creates the foreseeable risk of assault by another, but only if the government owed an independent duty to the plaintiff—one that would exist even if the tortfeasor were a private party (not an employee).
- The discretionary function exception to the FTCA bars negligent hiring and supervision claims, as government hiring and supervisory decisions constitute discretionary functions.
- Bivens remedies are no longer readily extended to new factual contexts; the Supreme Court’s restrictive approach in Egbert v. Boule precludes extension even to factually similar cases involving non-law-enforcement federal employees.
- FOIA plaintiffs must exhaust administrative remedies by appealing fee determinations within the administrative process before filing suit in federal court.
Why It Matters
This decision illustrates the restrictive sovereign immunity framework that often shields the federal government and its employees from liability for misconduct. The court itself acknowledged the “concededly harsh results mandated by federal law,” noting that the combination of the FTCA’s exceptions and the Westfall Act’s exclusivity provision means Lusk cannot sue the Postal Service, and the Westfall Act’s substitution of the United States precludes her from suing Peppers and Merchant in their individual capacities—even in state court. The decision underscores the narrow window for recovery under Sheridan: plaintiffs must identify a government-owed duty independent of the tortfeasor’s employment status, such as a duty arising from the government’s own negligent creation of a dangerous risk.
For plaintiffs alleging federal employee misconduct, the Sheridan exception may offer the only viable path to relief in cases where assault or battery is the direct cause of injury. However, the exception applies only to negligence claims premised on risk creation or assumption of duty—not to negligent supervision claims, which remain barred. The Fourth Circuit’s affirmance of the Bivens dismissal reflects the current Supreme Court’s hesitance to create new private rights of action, particularly outside the law enforcement context, further narrowing remedies for constitutional violations by federal employees.