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Click here for the full text of this decision FACTS:Plaintiffs Kent Bodin and Gordon Meyers appeal judgments on partial findings pursuant to Federal Rule of Civil Procedure 52(c) in favor of the defendant United States on their claims under the Federal Tort Claims Act. Bodin and Meyers were psychiatric patients of Dr. Gregory Vagshenian at an outpatient facility in Austin operated by the Department of Veterans Affairs. The plaintiffs alleged and presented evidence that during regularly scheduled visits, Vagshenian performed inappropriate and unnecessary physical examinations of their genitalia. They claimed that the United States was liable for Vagshenian’s alleged assault and malpractice and for failing to take steps to prevent Vagshenian’s actions. After a bench trial, the district court dismissed the complaints for lack of subject matter jurisdiction. The district court observed that the United States has waived sovereign immunity for the tortious acts or omissions of its employees only when they occur within the scope of employment. 28 U.S.C. �1346(b)(1). Applying Texas law, the district court found that Vagshenian was not acting within the scope of his employment when he allegedly committed the assaults. The district court reasoned that assaults on third persons fell outside the scope of authority granted to Vagshenian by the United States, particularly in light of the VA’s “zero-tolerance policy” against the abuse of patients. The district court also found: “Dr. Vagshenian assaulted Bodin and Meyers for his own personal gratification, and not, in any way, for the purpose of carrying out the Clinic’s treatment of patients. . . . Dr. Vagshenian’s assault of Bodin and Meyers was an expression of Dr. Vagshenian’s personal animosity. Thus, by assaulting Bodin and Meyers, Dr. Vagshenian turned away from treating patients, and instead he pursued his own sexual pleasure.” The plaintiffs moved for a new trial or, in the alternative, to alter or amend the district court’s judgment. They argued that although the district court resolved any claim against the United States based on a theory of respondeat superior, it did not dispose of their claims that other VA employees were negligent when they failed to prevent the foreseeable acts of abuse. It was undisputed that Vagshenian’s co-workers were acting within the scope of their employment when they failed to prevent the alleged assaults. The district court denied the motion. It reasoned that, pursuant to 28 U.S.C. �2680(h), the United States had not waived sovereign immunity for claims arising out of assault or battery. Although the plaintiffs’ claims sounded in negligence, the district court reasoned that they nevertheless arose out of the alleged assault. In this appeal, the plaintiffs argue that the district court erred in dismissing both their claims based on Vagshenian’s alleged wrongful conduct and Vagshenian’s co-workers’ alleged wrongful failure to intervene. HOLDING:Affirmed in part, reversed in part and remanded. The plaintiffs have, therefore, not demonstrated that the district court’s finding that Dr. Vagshenian’s alleged tortious conduct was outside the scope of his employment was clearly erroneous or that the court misapplied Texas law. The plaintiffs contend that the United States has an antecedent duty to protect patients in VA hospitals from reasonably known dangers. Whether the United States owed an independent duty to the plaintiffs is a question of Texas state law. Under Texas law, a hospital has a duty to exercise care to safeguard patients from known and reasonably known dangers. The duty that the United States allegedly breached, therefore, was not one that stemmed from the employment relationship. The district court erred in dismissing for lack of jurisdiction the plaintiffs’ claims based on Vagshenian’s co-workers’ alleged independent acts of negligence in failing to prevent the sexual assaults. OPINION:Emilio M. Garza, J.; Garza, Prado, and Owen, JJ. CONCURRENCE:Priscilla R. Owen, J.; “I fully concur in Parts I and IIA of the court’s opinion, and I concur in the judgment remanding this case for further proceedings. However, the United States Supreme Court expressly left open a difficult issue in Sheridan v. United States, which is”whether negligent hiring, negligent supervision, or negligent training may ever provide the basis for liability under the [Federal Tort Claims Act] for a foreseeable assault or battery by a Government employee.’ In today’s decision, the majority asserts in Part IIB that it is”not express[ing] an opinion as to whether a claim of negligent supervision would be barred,’ but the undeniable effect of its holding is that such claims are not barred in this case. I nevertheless concur in the judgment because this circuit’s pre-existing precedent leads to the conclusion that a broader duty of care owed to an injured party could be breached by negligently supervising an employee, and the government may be liable for such a breach.”

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