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Hevener v. United States

United States District Court, District of Columbia

January 30, 2019


          MEMORANDUM OPINION (JANUARY 29, 2019) [DKT. # 81]


         Plaintiff 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 with prejudice.


         The 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. ¶¶ 15-16.

         Once 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.

         Plaintiff 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.[1] 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].


         Defendant 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).

         When a 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).


         Defendant 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.

         "The 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 dismiss.").

         Plaintiff 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)).

         Plaintiff 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 ...

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