FTCA § 2680(h) Does Not Bar Negligence Claims for Breach of an Independent Duty to Protect Children in Government Custody, Even When Injury Results from Employee Assaults

1. Introduction

In John Doe, 1 v. United States (11th Cir. Feb. 3, 2026), parents sued the United States under the Federal Tort Claims Act (“FTCA”), alleging that a government-owned childcare center at Robins Air Force Base failed to protect their children from severe physical and emotional abuse perpetrated by two daycare employees. The district court dismissed for lack of subject-matter jurisdiction, holding that sovereign immunity was preserved by the FTCA’s intentional-tort exception, 28 U.S.C. § 2680(h), because the injuries arose out of assault and battery. It also denied leave to amend as futile.

The Eleventh Circuit vacated and remanded, holding that the intentional-tort exception does not apply where the government is alleged to have breached an independent duty—here, a duty arising from custodial childcare obligations under Georgia law and standards the Air Force voluntarily adopted—leading to an assault and battery. The court further held that the amendment was not futile on sovereign-immunity grounds and left Rule 12(b)(6) issues for the district court on remand.

Key issues

  • Whether the parents’ negligence claims are barred by the FTCA’s intentional-tort exception because the immediate harm resulted from assault and battery.
  • Whether the government’s alleged duty to protect the children is “independent” of the assailants’ status as federal employees.
  • Whether leave to amend was properly denied as futile.

2. Summary of the Opinion

The panel held that the complaint alleged a duty to protect children in the Center’s custody that exists independent of the perpetrators’ federal employment status. Because the government’s alleged negligence consisted of failing to supervise and protect the children, uphold adopted childcare criteria, and stop/report ongoing abuse, the claims fall outside § 2680(h) even though the injuries were caused by assault and battery.

The court distinguished Alvarez v. United States, where the negligence theories were “rooted in supervisor-supervisee relationships at work” and thus closely tied to the tortfeasor’s employment status. It found persuasive the Seventh Circuit’s analysis in Doe v. United States, which treated a daycare’s failure to supervise children as negligence arising from a protective duty independent of the assailant’s identity.

The court also vacated the denial of leave to amend because futility had been predicated on the same sovereign-immunity ruling. It remanded for the district court to consider the government’s alternative Rule 12(b)(6) arguments in the first instance.

3. Analysis

3.1. Precedents Cited

Hunt v. Aimco Props., L.P.

Cited for the motion-to-dismiss principle that courts accept well-pleaded allegations as true and view them in the plaintiff’s favor. This framing mattered because the jurisdictional dismissal turned on the legal characterization of pleaded duties and negligence, not on disputed facts about how the abuse occurred.

Zelaya v. United States

Provided foundational FTCA principles: the United States is immune absent consent; the FTCA waives immunity only on specified terms; and courts must strictly adhere to those terms. Zelaya also supplied the panel’s broad reading of “arising out of” in § 2680(h): claims are barred when the governmental conduct essential to liability is encompassed by an excepted tort. The opinion’s core move was to identify the “essential conduct” as breach of a protective/custodial duty rather than commission of assault/battery.

Millbrook v. United States

Cited for the general proposition that § 2680(h) preserves immunity for claims arising out of the listed intentional torts, reinforcing that the case turns on the scope of the exception—not on whether assault and battery occurred (they did).

Sheridan v. United States

The pivotal Supreme Court precedent. Sheridan recognized that “in at least some situations” injuries directly caused by assault/battery do not preclude government liability for negligently allowing the assault to occur. The Court emphasized that a claim can proceed where the government’s negligence arises from a duty assumed independent of the assailant’s employment status—there, by adopting regulations and undertaking care of an armed, intoxicated person.

The Eleventh Circuit treated Sheridan as authorizing FTCA negligence liability when the government’s antecedent negligence rests on an independent duty, even though an assault/battery is the immediate cause of injury.

Alvarez v. United States

Served as the Eleventh Circuit’s main in-circuit comparator. In Alvarez, plaintiffs’ losses flowed from misrepresentations central to the government’s retirement-assistance function, and the negligence theories were tethered to oversight of the wrongdoer’s role. The John Doe court distinguished Alvarez: here, the essence is not negligent supervision of the employee, but negligent supervision/protection of the children and failure to meet protective criteria and custodial duties that would exist regardless of who committed the abuse.

Doe v. United States (Seventh Circuit)

Though not binding, the panel found its reasoning persuasive and closely aligned with a hypothetical the court posed: if strangers entered the facility and abused children, the daycare’s failure to supervise/protect would still be actionable negligence independent of any employment relationship. Doe v. United States articulated the operative principle: where the government affirmatively assumes a duty to protect prior to and independent of any assault, a breach leading to assault is a negligence claim not barred by § 2680(h).

Reed v. United States Postal Service (unpublished)

The government urged reliance on Reed, where a negligent hiring claim after an employee-on-employee assault was barred because liability depended on what the employer learned through the assailant’s employment relationship. The panel rejected Reed as nonbinding and distinguishable: no negligent hiring was pleaded, and the asserted duty ran from the Center to the children (custody/invitee-type protection), not from employer to employee-tortfeasor.

Georgia-duty cases and related authorities: Laite v. Baxter, Wallace v. Boys Club of Albany, Ga., Inc., Persinger v. Step By Step Infant Dev. Ctr.

These cases supplied state-law duty anchors, essential because FTCA liability requires an actionable state-law analogue. Laite v. Baxter articulated a general duty of reasonable care for one who undertakes control and supervision of a child, commensurate with foreseeable risks. Wallace v. Boys Club of Albany, Ga., Inc. reinforced that duty can arise not only from general childcare obligations but also from an entity’s policies, promises to parents, and parents’ reliance. Persinger v. Step By Step Infant Dev. Ctr. appeared in the proposed amendment to frame the duty as care “gauged by the standard of the average reasonable parent.”

Amendment standards: Fla. Evergreen Foliage v. E.I. DuPont De Nemours & Co., L.S. ex rel. Hernandez v. Peterson

These cases guided review of denial of leave to amend. Fla. Evergreen Foliage set the de novo standard where futility is the basis for denial. L.S. ex rel. Hernandez v. Peterson recognized futility as a permissible ground to deny leave, but only when the amended complaint would necessarily fail as a matter of law. Because the futility ruling rested on an incorrect sovereign-immunity conclusion, it could not stand.

3.2. Legal Reasoning

  1. FTCA framework: The court reaffirmed that the FTCA waives immunity only under specified conditions and that § 2680(h) preserves immunity for claims “arising out of” assault and battery.
  2. The “arising out of” inquiry focuses on the essential governmental conduct: Using Zelaya’s formulation, the panel evaluated whether the governmental conduct essential to liability is encompassed by assault/battery. It concluded the essential conduct alleged was the government’s breach of a protective, custodial duty (failure to supervise/protect children; failure to stop/report ongoing abuse; failure to adhere to adopted criteria), not the assault/battery itself.
  3. Independence from employee status is decisive here: Drawing from Sheridan, the panel asked whether the government’s duty would exist even if the assailants were not federal employees. Its hypothetical (strangers entering and abusing children) served to demonstrate that the Center’s duty to protect children in its custody does not depend on an employment relationship.
  4. Distinguishing “supervision of employees” from “supervision of children”: The court treated Alvarez as involving negligence theories that were functionally about supervising the wrongdoer in his role. Here, the claims are functionally about supervising/protecting the children and maintaining a safe childcare environment—duties that run to the children/parents.
  5. Amendment: Because sovereign immunity did not bar the theory, amendment could not be deemed futile on that ground. The panel did not decide whether the pleadings state a claim under Rule 12(b)(6), leaving that for remand.

3.3. The Concurrence (NEWSOM, J.) and Doctrinal Synthesis

Judge Newsom concurred in the judgment but suggested a different synthesis of Sheridan and Alvarez. He emphasized Sheridan’s majority rationale that the intentional-tort exception is inapplicable where the underlying intentional tort falls outside § 1346(b)’s waiver (e.g., committed by a non-employee or by an employee acting outside the scope of employment). He criticized Alvarez for importing a Justice Kennedy concurrence-style “employment status connection” test.

Nevertheless, he acknowledged the Eleventh Circuit’s prior-panel-precedent constraints and concluded that, going forward, plaintiffs may have “two paths”: (1) per Alvarez, show the negligence duty is unconnected to the intentional tortfeasor’s employment status; and (2) per Sheridan, show the intentional tortfeasor was not a government employee or was acting outside the scope of employment. The proposed amended complaint’s allegation that the abusers acted “outside the scope of their employment” fits neatly within this second path—though the majority did not rely on it to decide the jurisdictional question.

3.4. Impact

  • Childcare and custodial settings on federal property: The decision strengthens the viability of FTCA negligence claims where the government undertakes custody/control (daycares, schools, youth programs, custodial medical settings) and is alleged to have breached a protective duty that exists regardless of who commits the assault.
  • Pleading strategy under § 2680(h): Plaintiffs in the Eleventh Circuit can better survive jurisdictional dismissal by clearly identifying a state-law duty running to the victim (custody, premises safety, assumed duty via policies/promises) and by framing negligence as failure to protect/supervise the victim population rather than failure to supervise the perpetrator as an employee.
  • Limits preserved: The opinion does not eliminate § 2680(h). Claims that are, in substance, negligent hiring/supervision/retention of the tortfeasor (as in Reed’s logic) or otherwise dependent on the employer-employee relationship remain vulnerable, as do claims that cannot be matched to a private-person analogue under state law.
  • Procedural consequences: District courts must separate jurisdictional immunity analysis from merits analysis. Even when § 2680(h) does not bar jurisdiction, plaintiffs still must satisfy Rule 12(b)(6) requirements (duty, breach, foreseeability, causation) on remand.

4. Complex Concepts Simplified

Sovereign immunity
The federal government cannot be sued unless it agrees. The FTCA is a partial agreement (waiver) with conditions.
FTCA intentional-tort exception (28 U.S.C. § 2680(h))
Even where the FTCA generally allows suits, § 2680(h) keeps immunity for claims “arising out of” certain intentional torts, including assault and battery.
“Arising out of”
Interpreted broadly. If the claim’s essential governmental wrongdoing is effectively the assault/battery itself, it is barred. If the essential wrongdoing is a separate negligence—like failing to protect someone the government has a duty to protect—the claim may proceed.
Independent duty
A duty that exists regardless of the wrongdoer’s status as a federal employee—e.g., a daycare’s duty to protect children in its custody.
Scope of employment
Whether an employee was acting as part of their job. If an employee acts outside that scope, some FTCA analyses (as highlighted by the concurrence’s reading of Sheridan) may treat the intentional act as not within the FTCA’s waiver framework.
Leave to amend / futility (Rule 15)
Courts should freely allow amendments unless the change would still fail as a matter of law. Because sovereign immunity did not bar these claims, the amendment was not futile on that basis.

5. Conclusion

John Doe, 1 v. United States establishes that, in the Eleventh Circuit, the FTCA’s intentional-tort exception does not bar negligence claims when the government’s liability is predicated on breach of a duty independent of the assailant’s federal employment status—particularly a custodial duty to protect children in government-run childcare. The decision refocuses the § 2680(h) inquiry on the source and substance of the government’s alleged negligence (protective/custodial obligations) rather than the mere presence of assault and battery as the immediate mechanism of injury. It also reinforces that denial of leave to amend cannot rest on an erroneous sovereign-immunity determination, while leaving merits questions (foreseeability, breach, causation) for ordinary Rule 12(b)(6) adjudication on remand.