FTCA “Risk-Creation” Negligence Survives the Intentional Tort Exception When a Separate Duty to the Victim Exists (Sheridan Applied to USPS Assault Context)

I. Introduction

In Dawn Lusk v. Chris Merchant, the Fourth Circuit addressed a stark collision between (1) sovereign-immunity limits on suits against the United States, (2) the FTCA’s waiver of immunity and its exceptions—especially the “intentional tort exception,” and (3) the Westfall Act’s rule that, when a federal employee acts within the scope of employment, the United States is substituted as the defendant and the employee becomes immune from common-law damages claims.

The plaintiff, Dawn Lusk, alleged that a USPS employee, April Peppers, violently assaulted her inside the Salem Post Office after the Postmaster, Chris Merchant, opened “double-locked” doors to permit the confrontation. Lusk further alleged Merchant refused to summon help or allow her to call for help.

The key issues on appeal were:

  • Whether Lusk’s FTCA negligence claim was barred by the FTCA’s intentional tort exception (28 U.S.C. § 2680(h)) because the gravamen of the harm was assault/battery.
  • Whether Sheridan v. United States permits a narrow negligence theory to proceed where a government employee’s negligence breached a duty to the plaintiff that is independent of the assailant’s federal employment.
  • Whether Lusk’s negligent hiring/supervision/retention claim was barred by the discretionary function exception (28 U.S.C. § 2680(a)).
  • Whether a Bivens remedy exists under modern Supreme Court doctrine.
  • Whether Lusk exhausted administrative remedies for her FOIA claim.

II. Summary of the Opinion

The Fourth Circuit affirmed in part, reversed in part, and remanded.

  • FTCA negligence (based on Peppers’s assault): dismissed; § 2680(h) bars claims whose gravamen is assault/battery even if pleaded as negligence.
  • FTCA negligence (narrow theory against Merchant): reinstated to the limited extent Lusk alleged Merchant negligently created the risk by opening secured doors to allow a foreseeable confrontation and then failed to take reasonable steps to protect or assist—an “independent duty” pathway under Sheridan v. United States.
  • FTCA negligent hiring/supervision/retention: dismissed; barred by the discretionary function exception and also waived on appeal.
  • Bivens claim: dismissed; no extension of Bivens under Egbert v. Boule.
  • FOIA claim: dismissed; failure to exhaust administrative remedies is mandatory when timely raised.

The court also emphasized the harsh practical consequence of the FTCA + Westfall Act + narrowed Bivens doctrine: in many “scope-of-employment” assault scenarios, the plaintiff may be left with little or no civil damages remedy against either the United States or the employee.

III. Analysis

A. Precedents Cited

1. Sovereign immunity and the FTCA waiver framework

  • U.S. Postal Serv. v. Konan, 607 U.S. 391 (2026): Reaffirmed that the Postal Service enjoys sovereign immunity absent waiver; the FTCA’s waiver is “limited,” and recourse via damages suits is constrained. The opinion uses Konan to frame the entire analysis: courts must dismiss unless Congress has “unequivocally waived” immunity.
  • Welch v. United States, 409 F.3d 646 (4th Cir. 2005): Supplies the strict-construction principle (“strictly construed in favor of the sovereign”) and places the burden on the plaintiff to show a waiver and that no exception applies.
  • Martin v. United States, 605 U.S. 395 (2025): Quoted for the basic structure: the FTCA waiver is limited by “exceptions that claw back” immunity. This provides doctrinal support for enforcing § 2680(h) even where the result is severe.
  • Kerns v. United States, 585 F.3d 187 (4th Cir. 2009): Cited for the principle that FTCA liability depends on state tort law “of the place where the act or omission occurred.”

2. The “intentional tort exception” and “gravamen” analysis

  • Evans v. United States, 105 F.4th 606 (4th Cir. 2024): Identifies § 2680(h) as the “intentional tort exception” and is later used to restate Sheridan’s “independent duty” requirement.
  • Billups v. United States, 854 F. App'x 514 (4th Cir. 2021): Critical for the “gravamen” rule: artful pleading of “negligence” does not evade § 2680(h) if the substance sounds in battery.
  • Talbert v. United States, 932 F.2d 1064 (4th Cir. 1991) and Popovic v. United States, 175 F.3d 1015, 1999 WL 228243 (4th Cir. 1999): Reinforce that substance controls over form; courts look to the conduct complained of.
  • Millbrook v. United States, 569 U.S. 50 (2013) and Levin v. United States, 568 U.S. 503 (2013): Cited to clarify the structure and naming of § 2680(h), including that the “intentional tort exception” label is shorthand and that the law-enforcement proviso exists (though not reached here).

3. The Sheridan pathway (independent duty) and its limits

  • Sheridan v. United States, 487 U.S. 392 (1988): The doctrinal centerpiece. The court reads Sheridan to allow a negligence claim to proceed despite § 2680(h) where the government’s liability rests on a duty independent of the assailant’s federal employment.
  • Sheridan v. United States, 969 F.2d 72 (4th Cir. 1992) and Perkins v. United States, 55 F.3d 910 (4th Cir. 1995): Explain the limit: negligent supervision claims remain barred by § 2680(h).
  • Durden v. United States, 736 F.3d 296 (4th Cir. 2013): Supplies the precise Fourth Circuit test: the government’s duty to control the tortfeasor must be independent of the tortfeasor’s employment status; also clarifies that knowledge gained through employment does not automatically nullify a claim.

4. South Carolina duty law used to identify an “independent duty”

  • Madison ex rel. Bryant v. Babcock Ctr., Inc., 638 S.E.2d 650 (S.C. 2006): Provides the elements of negligence and the general rule that there is no duty to control others, with enumerated exceptions (including risk creation and voluntary undertaking).
  • Faile v. S.C. Dep't of Juv. Just., 566 S.E.2d 536 (S.C. 2002): Cited for the “negligently or intentionally creates the risk” duty exception, including reference to Restatement (Second) of Torts §§ 321–22.
  • Edwards v. Lexington Cnty. Sheriff's Dep't, 688 S.E.2d 125 (S.C. 2010): Used to show duty based on “special circumstances” where defendants create a foreseeable situation of harm, while clarifying the duty is reasonable care—not absolute safety.
  • James v. Kelly Trucking Co., 661 S.E.2d 329 (S.C. 2008): Cited to highlight that, outside sovereign-immunity constraints, respondeat superior would typically expose an employer to liability for employee acts within scope.
  • Montgomery v. Nat'l Convoy & Trucking Co., 195 S.E. 247 (S.C. 1938): Referenced (via Faile) as part of the lineage for risk-creation duty principles.

5. Discretionary function exception and negligent supervision/hiring

  • Suter v. United States, 441 F.3d 306 (4th Cir. 2006): The court relies on Suter’s conclusion that negligent hiring/supervision claims are barred by the discretionary function exception because hiring and supervision are discretionary functions.
  • Nurse v. United States, 226 F.3d 996 (9th Cir. 2000) and Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207 (D.C. Cir. 1997): Cited within Suter to support the broad discretionary-function approach.
  • LeRose v. United States, 285 F. App'x 93 (4th Cir. 2008): Additional Fourth Circuit support for treating such employment decisions as discretionary.
  • Lins v. United States, 847 F. App'x 159 (4th Cir. 2021): Noted as a qualification: negligent hiring/supervision is not categorically barred if mandatory policies remove discretion, but the plaintiff did not develop that argument below.
  • Arakas v. Comm'r, Soc. Sec. Admin., 983 F.3d 83 (4th Cir. 2020): Used for appellate waiver principles (failure to properly object/develop arguments).

6. Bivens non-extension in modern doctrine

  • Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971): The original implied-damages remedy for certain constitutional violations by federal officers.
  • Egbert v. Boule, 596 U.S. 482 (2022): Supplies the controlling “single reason to pause” standard; the Fourth Circuit follows Egbert’s directive not to create new Bivens contexts.
  • Orellana v. Godec, 145 F.4th 516 (4th Cir. 2025): Demonstrates the Fourth Circuit’s refusal to extend Bivens even in excessive-force-like scenarios; underscores that Lusk’s situation (a postal employee, not law enforcement) is even further afield.

7. FOIA exhaustion

  • Louise Trauma Ctr. LLC v. U.S. Citizenship & Immigr. Servs., 147 F.4th 495 (4th Cir. 2025): Establishes the ordinary requirement of administrative exhaustion in FOIA and clarifies exhaustion is not jurisdictional.
  • Fort Bend County v. Davis, 587 U.S. 541 (2019): Used for the proposition that non-jurisdictional exhaustion requirements remain mandatory when timely raised.

8. Westfall Act consequences (substitution and exclusivity)

  • United States v. Smith, 499 U.S. 160 (1991): Key authority for the harsh rule that the FTCA can be the exclusive remedy even when the FTCA itself precludes government liability, leaving no remedy against the employee.
  • Tanzin v. Tanvir, 592 U.S. 43 (2020): Cited for the point that the Westfall Act forecloses common-law damages claims against federal officials (subject to constitutional/federal-statute carveouts).
  • Osborn v. Haley, 549 U.S. 225 (2007): Confirms judicial review is available for Westfall Act scope-of-employment certification—important because the plaintiff did not contest certification here.
  • Goldstein v. Moatz, 364 F.3d 205 (4th Cir. 2004): Cited regarding delegation of certification authority.
  • Longworth v. Mansukhani, 134 F.4th 755 (4th Cir. 2025): Notes the FTCA “judgment bar” risk when pursuing FTCA and Bivens in parallel.

B. Legal Reasoning

1. Why the negligence claim against Peppers is barred

The court applies § 2680(h) by examining the claim’s substance. Although Lusk pleaded negligence/gross negligence/recklessness rather than assault/battery, the complaint described deliberate physical violence: profanity, striking, knocking down, and kicking. Under Billups v. United States and Talbert v. United States, the “gravamen” is battery; pleading labels cannot evade the intentional tort exception. The court also rejects the argument that intent was unclear at the motion-to-dismiss stage because the factual allegations themselves describe intentional conduct.

2. The narrow claim against Merchant that survives under Sheridan

The court’s central move is to separate (a) barred theories that depend on the assailant’s employment relationship (e.g., negligent supervision/control of a federal employee), from (b) a negligence theory premised on an independent duty owed by Merchant to Lusk.

Relying on Sheridan v. United States, as interpreted through Evans v. United States and Durden v. United States, the court holds that a claim can survive § 2680(h) if government liability rests on a duty that would exist even if the assailant were not a government employee.

Applying South Carolina duty law (Madison ex rel. Bryant v. Babcock Ctr., Inc.), the court identifies at least one such duty: the “risk creation” duty—where a defendant “negligently or intentionally creates the risk” (Faile v. S.C. Dep't of Juv. Just.). Lusk alleged Merchant:

  • opened “double-locked doors” specifically so Peppers could “confront” her;
  • knew or should have known of Peppers’s aggressive propensities due to prior complaints;
  • failed to take protective steps or intervene; and
  • refused to call for help or allow Lusk to call for help after the attack.

Those allegations, if true, fit within South Carolina’s risk-creation duty (and align with foreseeability-driven duty reasoning reflected in Edwards v. Lexington Cnty. Sheriff's Dep't). Critically, the court treats this duty as not inherently dependent on Peppers being an employee; it is tied to Merchant’s alleged creation of a dangerous situation and failure to act reasonably once he created/controlled access to the customer area.

3. The boundary the court polices: no backdoor negligent supervision

The opinion reiterates that negligent supervision remains barred under Fourth Circuit law (Sheridan v. United States (1992); Perkins v. United States). The remand is expressly limited: only the “single, narrow segment” grounded in independent-duty/risk-creation allegations proceeds.

4. Why negligent hiring/supervision/retention fails

The court affirms dismissal under the discretionary function exception, relying on Suter v. United States and its statement that hiring/supervision decisions are discretionary. Although Lins v. United States suggests an exception where mandatory rules eliminate discretion, Lusk did not develop that argument below; the court treats the issue as waived under Arakas v. Comm'r, Soc. Sec. Admin..

5. Why Bivens fails

Even if Lusk frames the matter as a Fourth Amendment personal-security violation, the court follows Egbert v. Boule: if there is any reason to pause before recognizing a Bivens remedy in a “new context,” courts must not do so. The opinion underscores that courts have refused extensions even in scenarios closer to Bivens than this one (e.g., Orellana v. Godec).

6. Why FOIA fails

The court affirms dismissal because Lusk did not exhaust administrative remedies regarding the Postal Service’s fee determination. Under Louise Trauma Ctr. LLC v. U.S. Citizenship & Immigr. Servs., exhaustion is ordinarily required; and under Fort Bend County v. Davis, even non-jurisdictional exhaustion is mandatory when timely raised.

C. Impact

1. A clarified pleading pathway in assault-adjacent FTCA cases

The most important practical effect is the court’s reaffirmation—and concrete application—of the Sheridan “independent duty” exception in a setting involving a non-law-enforcement federal workplace assault.

Future plaintiffs facing § 2680(h) will likely focus on:

  • Independent-duty facts (risk creation, voluntary undertaking, premises/access control, custody/control, or statutory duties) rather than “supervision” labels; and
  • Conduct by a separate government actor (here, Merchant) that can be characterized as creating or exacerbating foreseeable danger to the plaintiff, apart from the employment relationship with the assailant.

2. Emphasis on state-law duty doctrines as the “gate” for Sheridan claims

Because the FTCA incorporates state substantive law, this decision signals that outcomes will turn heavily on the forum state’s duty exceptions—particularly “risk creation” and “special circumstances” theories. In South Carolina, Madison, Faile, and Edwards become especially important building blocks for Sheridan-style FTCA pleading and proof.

3. Reinforced warnings about remedial gaps created by Westfall + FTCA + Egbert

The opinion’s policy discussion—though not altering doctrine—spotlights a widening remedial gap: scope-of-employment certification triggers Westfall substitution, § 2680(h) can eliminate the FTCA claim, and Egbert eliminates most Bivens expansions. The court’s “Scylla and Charybdis” framing may be cited in future litigation pressing Congress (or, in rare cases, courts) to reconsider the breadth of immunities and exceptions in egregious fact patterns.

IV. Complex Concepts Simplified

  • Sovereign immunity: The United States cannot be sued for money damages unless Congress clearly says it can.
  • FTCA: A statute that sometimes allows suits against the United States for torts, using the relevant state’s tort law as the rule of decision.
  • Intentional tort exception (28 U.S.C. § 2680(h)): Even when the FTCA generally allows suits, it withdraws permission for claims “arising out of” listed intentional torts like assault and battery. Courts look at the claim’s real substance (“gravamen”), not the label in the complaint.
  • Sheridan exception (independent-duty concept): A narrow path allowing a negligence claim to proceed even when an assault occurred, if the government’s negligence breached a duty to the plaintiff that exists independently of the assailant being a federal employee (e.g., the government actor created the danger).
  • Discretionary function exception (28 U.S.C. § 2680(a)): The FTCA does not allow suits challenging policy-laden discretionary decisions (often including hiring and supervision), even if those decisions were negligent.
  • Westfall Act substitution: If the government certifies an employee acted within scope of employment, the United States replaces the employee as defendant for common-law tort claims—often eliminating personal suits against the employee.
  • Bivens (and Egbert): Bivens is a judge-made damages remedy for certain constitutional violations by federal officers, but modern Supreme Court doctrine sharply restricts recognizing new Bivens contexts.
  • FOIA exhaustion: Before suing over withheld records/fees, a requester usually must follow FOIA’s administrative appeal process. Even when not “jurisdictional,” it is still mandatory if the government raises it.

V. Conclusion

This decision’s doctrinal contribution is its careful line-drawing: § 2680(h) bars negligence claims whose substance is assault/battery, and negligent supervision theories remain barred; yet a plaintiff may proceed under the FTCA where a different government actor owed an independent, state-law duty to the victim and created or exacerbated a foreseeable risk—here, allegedly by unlocking secured doors to enable a confrontation and refusing to obtain or permit aid afterward.

At the same time, the opinion forcefully illustrates how Westfall substitution, FTCA exceptions, and post-Egbert Bivens constraints can combine to foreclose remedies even for severe alleged misconduct—leaving any broader fix to Congress rather than the courts.