United States District Court, District of Columbia
MEMORANDUM OPINION (JANUARY 29, 2019) [DKT. #
RICHARD J. LEON UNITED STATES DISTRICT JUDGE
Kimberly Cary Hevener brought this suit against defendant the
United States of America for damages arising from its
allegedly negligent supervision of Army Sgt. Jacknael
Vazquez, who sexually assaulted plaintiff in his barracks
room at Fort Lee, Virginia. See Complaint
("Compl.") [Dkt. #1]. Defendant has moved to
dismiss the complaint for lack of subject matter jurisdiction
and because plaintiff has failed to state a claim upon which
relief can be granted. See Defendant's Motion to
Dismiss ("Def.'s Mot.") [Dkt. # 8] (citing
Fed.R.Civ.P. 12(b)(1) and 12(b)(6)). Upon consideration of
the pleadings, record, and relevant law, I find that
sovereign immunity bars this suit. As such, defendant's
Motion to Dismiss is GRANTED, and all claims are dismissed
alleged events that precipitated this complaint are about as
despicable as they come. On October 1, 2014, Army Sgt.
Jacknael Abdiel Vazquez, U.S. Army, 1st Battalion, 75th
Ranger Regiment, invited Kimberly Hevener (nee Cary) to meet
at a local restaurant near Fort Lee, Virginia. Compl. ¶
8. Sgt. Vazquez was on a temporary duty assignment at Fort
Lee Army Base (hereinafter "Fort Lee" or "Army
Base"), but was stationed in Georgia. Compl. ¶ 9.
After dinner, he allegedly invited Ms. Hevener back to his
barracks at the Army Base to watch a movie. Compl.
¶¶ 10-11. Ms. Hevener agreed to accompany him only
after receiving his assurances that they would not engage in
any intimate activity that night. Compl. ¶ 12. Given her
previous experience visiting her sister, who was in the
military, on Air Force bases in California and Maryland, Ms.
Hevener believed the base was a safe environment. Compl.
back in Sgt. Vazquez's barracks room at Fort Lee, Ms.
Hevener was allegedly assaulted and raped. Compl. ¶ 22.
During and after the assault, no Army personnel came to her
aid. Compl. ¶¶ 25-26, 29. Ms. Hevener reported the
assault immediately and submitted to a forensic examination
that evening at an emergency room. Compl. ¶¶ 30-31.
Meanwhile, Sgt. Vazquez drove back to his duty station in
Georgia, where his body was recovered in an apparent suicide
two days later, on October 3, 2014. Compl ¶ 33.
filed a timely administrative claim via a SF-95 on September
21, 2016. Plaintiffs Opposition to Defendant's Motion to
Dismiss ("PL's Opp.") [Dkt. # 9] at 3; Compl.
¶ 37. The Army acknowledged receipt, but, as of August
2017, had failed to adjudicate her claim. Compl.
¶¶ 38-40. Plaintiff then filed a complaint in this
Court under the Federal Torts Claims Act ("FTCA"),
claiming that the Government is liable for the actions of
Sgt. Vazquez because (1) the Army negligently supervised and
trained Sgt. Vazquez, (2) the Army was vicariously liable for
Sgt. Vazquez's actions, (3) the Army violated the
Virginia Innkeeper's Statute (Va. Code Ann. § 35.12)
by failing to protect guests within the Army barracks, and
(4) the Army's actions caused plaintiff intentional and
negligent infliction of emotional distress. See
generally Compl. Currently before this Court is the
United States' motion to dismiss the complaint.
See Def.'s Mot. [Dkt. # 8].
has moved to dismiss plaintiffs complaint for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) and for failure to state a claim under Rule
12(b)(6). See generally Def.'s Mot. In such a
situation, a court should consider the Rule 12(b)(1)
jurisdictional challenges before the Rule 12(b)(6) arguments.
See United States ex rel. Settlemire v. District of
Columbia, 198 F.3d 913, 920-21 (D.C. Cir. 1999).
defendant files a motion to dismiss a complaint for lack of
subject matter jurisdiction under Rule 12(b)(1), the
plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). Because
"subject-matter jurisdiction is an 'Art[icle] III as
well as a statutory requirement[, ] no action of the parties
can confer subject-matter jurisdiction upon a federal
court.'" Akinseye v. District of Columbia,
339 F.3d 970, 971 (D.C. Cir. 2003) (quoting Ins. Corp. of
Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982)). In considering a 12(b)(1) motion to dismiss
for lack of subject-matter jurisdiction, a court need not
limit itself to the complaint, but rather "may consider
such materials outside the pleadings as it deems appropriate
to resolve the question whether it has jurisdiction in the
case." Bank of America, N.A. v. FDIC, 908
F.Supp.2d 60, 76 (D.D.C. 2012) (quotation marks omitted).
presents several arguments as to why this case should be
dismissed. I need look no further, however, than the
threshold jurisdictional issue of sovereign immunity.
United States is generally immune from suit unless there is
explicit statutory waiver of its sovereign immunity."
Scruggs v. Bureau of Engraving & Printing, 200
F.Supp.3d 78, 82 (D.D.C. 2016) (citation omitted). Since
"[s]overeign immunity is jurisdictional in nature,"
a claim barred by sovereign immunity lacks subject matter
jurisdiction and is subject to dismissal under Rule 12(b)(1).
F.D.I.C. v. Meyer, 510 U.S. 471 (1994). It is
plaintiffs burden to establish that sovereign immunity has
been abrogated. See Jackson v. Bush, 448 F.Supp.2d
198, 200 (D.D.C. 2006) (quoting Tri-State Hosp. Supply
Corp. v. United States, 341 F.3d. 571, 575 (D.C. Cir.
2003)) ("[P]laintiff must overcome the defense of
sovereign immunity in order to establish the jurisdiction
necessary to survive a Rule 12(b)(1) motion to
brings her claims under one avenue of statutory waiver-the
Federal Tort Claims Act ("FTCA"). "The FTCA
operates as a limited waiver of sovereign immunity, rendering
the United States amenable to suit for certain tort claims,
subject to various exceptions set forth in 28 U.S.C. §
2680." Scruggs, 200 F.Supp.3d at 82 (citing
Millbrook v. United States, 569 U.S. 50, 52 (2013);
Richards v. United States, 369 U.S. 1, 6 (1962)).
Relevant to this case is the FTCA's so-called
"intentional tort exception," which "preserves
the Government's immunity from suit for '[a]ny claim
arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or interference with
contract rights."' Millbrook, 569 U.S. at
52-53 (quoting 28 U.S.C. § 2680(h)).
initially tries to argue around the intentional tort
exception by raising what she characterizes as a
"negligent training and supervision" claim.
PL's Opp. at 5. Namely, that the United States should
have better trained or supervised Sgt. Vazquez to prevent his