908 F.3d 377
8th Cir.2018Background
- Tripler Army Medical Center contracted with the Theatine Fathers in 1992 to provide a priest (Mark N. Matson) for its Department of Ministry and Pastoral Care; the Army did not perform an independent background check and relied on an ecclesiastical endorsement.
- Matson had no criminal convictions at the time of hiring but had earlier sexual-abuse allegations and arrests in 1987 and 1989 involving minors.
- Matson’s contract duties did not require classroom instruction with children, but he voluntarily conducted Confraternity of Christian Doctrine (CCD) classes for children; Michael Croyle attended Mass and CCD at Tripler as a child.
- Croyle (by his mother and guardian) alleged Matson sexually assaulted him on multiple occasions while escorting him to CCD classes and sued the United States under the Federal Tort Claims Act for negligent supervision and failure to warn.
- The district court dismissed for lack of subject-matter jurisdiction on sovereign-immunity grounds, treating the dismissal as a factual attack under Rule 12(b)(1); Croyle appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA waiver is barred by the discretionary function exception for failure to warn/ supervise Matson | Croyle: Government knew or should have known of Matson’s sexual history and negligently failed to warn families or restrict his contact with children | Government: Decision to retain/supervise/warn is discretionary and protected by the FTCA discretionary-function exception | Held: Discretionary-function exception applies; dismissal affirmed |
| Whether alleged pre-employment allegations remove discretion and permit suit | Croyle: No policy justification allows access to children without a warning given Matson’s history | Government: Pre-employment allegations still implicate policy judgments about confidentiality, staffing, reputation, and safety | Held: Pre-employment allegations do not remove discretion; decision is subject to policy balancing |
| Whether the Government had notice of ongoing illegal conduct during employment such that discretion is limited | Croyle: Implied assertion that inaction after notice should not be shielded | Government: No allegation of notice of ongoing illegal conduct during Matson’s Tripler employment | Held: Plaintiff did not allege actual notice of ongoing abuse during employment; failure-after-notice exception does not apply |
| Proper standard for district court’s Rule 12(b)(1) factual attack | Croyle: (implicit) jurisdictional facts should permit FTCA claim to proceed | Government: Court may consider evidence outside pleadings and decide jurisdiction first | Held: District court correctly treated motion as factual attack and plaintiff bears burden to prove jurisdiction; review de novo |
Key Cases Cited
- Osborn v. United States, 918 F.2d 724 (8th Cir. 1990) (distinguishes facial vs. factual Rule 12(b)(1) attacks)
- Moss v. United States, 895 F.3d 1091 (8th Cir. 2018) (when jurisdictional issues are bound up with the merits, district court may use summary-judgment-type consideration)
- Carlsen v. GameStop, Inc., 833 F.3d 903 (8th Cir. 2016) (appellate court follows district court’s characterization of 12(b)(1) motion)
- Green Acres Enters., Inc. v. United States, 418 F.3d 852 (8th Cir. 2005) (plaintiff bears burden to prove subject-matter jurisdiction)
- FDIC v. Meyer, 510 U.S. 471 (U.S. 1994) (sovereign immunity principle and limited waivers)
- Berkovitz v. United States, 486 U.S. 531 (U.S. 1988) (two-part test for FTCA discretionary-function exception)
- Riley v. United States, 486 F.3d 1030 (8th Cir. 2007) (discretionary-function test application)
- United States v. Varig Airlines, 467 U.S. 797 (U.S. 1984) (purpose of discretionary-function exception: avoid judicial second-guessing of policy decisions)
- Gaubert, 499 U.S. 315 (U.S. 1991) (discretionary acts susceptible to policy analysis are protected)
- Demery v. U.S. Dep’t of Interior, 357 F.3d 830 (8th Cir. 2004) (presumption that discretionary acts are grounded in policy; plaintiff must rebut)
- Hinsley v. Standing Rock Child Protective Servs., 516 F.3d 668 (8th Cir. 2008) (decision to warn involves balancing confidentiality and safety; discretionary-function exception applied)
- Tonelli v. United States, 60 F.3d 492 (8th Cir. 1995) (employee supervision and retention generally fall within discretionary-function exception)
- Metter v. United States, 785 F.3d 1227 (8th Cir. 2015) (decision to warn is a policy decision)
- Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009) (retention decisions involve balancing reputation, staffing, and pastoral stability)
- Joseph v. Office of Consulate Gen. of Nigeria, 830 F.2d 1018 (9th Cir. 1987) (FSIA discretionary-function analysis parallels FTCA principles)