F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           August 4, 2005
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    PRISCILLA OLSEN,

              Plaintiff-Appellant,

     v.                                                   No. 04-7089
                                                    (D.C. No. 03-CV-463-W)
    UNITED STATES OF AMERICA, ex                          (E.D. Okla.)
    rel. Department of the Army,

              Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and BRORBY , Circuit Judges.



          After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                    I. Introduction

      Plaintiff-appellant Priscilla Olsen filed suit against the United States of

America under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1),

2671-80. Ms. Olsen “sought money damages as a result of an incident which

occurred on March 27, 2001, at which time she was sexually assaulted by a

United States Army recruiter named Kelvin Key.” Aplt. Br. at 2. The district

court granted the United States’ “Motion to Dismiss or in the Alternative, Motion

for Summary Judgment,” Aplt. App. at 15, concluding that: (1) Ms. Olsen failed

to meet her burden of proof on the issue of whether Key was acting within the

scope of his employment with the Army at the time of the sexual assault,    

and (2) Ms. Olsen’s respondeat superior and negligence claims are barred

by the FTCA’s exception for intentional torts,    

      Having reviewed these issues de novo, we conclude that the FTCA’s

exception for intentional torts deprived the district court of subject matter

jurisdiction over Ms. Olsen’s respondeat superior and negligence claims. The

United States was therefore entitled to summary judgment, and we affirm. We


1
       The district court also concluded that the negligence claims that Ms. Olsen
asserted against Key’s Army supervisors are barred by the FTCA’s discretionary
function exception. See Aplt. App. at 170. As set forth below, we do not need to
rely on the district court’s alternative ruling with regard to the discretionary
function exception to affirm the entry of judgment in favor of the United States
on Ms. Olsen’s negligence claims. As a result, we will not address the district
court’s ruling with regard to the discretionary function exception.

                                           -2-
note, however, that, when the district court entered judgment in favor of the

United States, the court should have specified that it was dismissing this action

for lack of subject matter jurisdiction.   

To remedy this oversight, the

district court’s judgment is modified to reflect that this action was dismissed for

lack of subject matter jurisdiction.

                                     II. Background

       As pointed out by the district court, the facts in this case “are largely

undisputed.” Aplt. App. at 166. In her appellate brief, Ms. Olsen has described

the factual background of this case as follows:

              Appellant, Priscilla Olsen, visited the Army Recruiting Office
       in McAlester, OK, on March 25, 2001, at which time she met
       [Sergeant] Kelvin Key, a recruiter at that office. [Sgt.] Key was still
       in his nine (9) month probationary period for Army recruiters in
       March 2001. [Sgt.] Key administered a practice [Army entrance]
       exam to Ms. Olsen which she did not pass. [Sgt.] Key gave Ms.
       Olsen a ride home from the recruiting office. During the car ride
       home, [Sgt.] Key mentioned to Ms. Olsen that he could help her out
       on the [Army entrance exam] by giving her some practice tests, etc.
       [Sgt.] Key phoned Ms. Olsen that evening and told her once again
       that he could help her to pass her [entrance] exam. Also, during the
       phone conversation [Sgt.] Key asked Ms. Olsen if she liked to fish
       and she responded in the affirmative.

              On March 27, 2001, [Sgt.] Key called Ms. Olsen and asked her
       if she would like to go fishing with him later that day. She agreed to
       go and once again asked [Sgt.] Key if he would help her to pass the
       [Army entrance] exam. [Sgt.] Key picked Ms. Olsen up at her home
       around 1:30 p.m. in a black jeep which bore “ARMY” stickers on it.
       [Sgt.] Key took Ms. Olsen fishing and proceeded to sexually assault
       her. Sgt. Key asked explicit questions about Ms. Olsen’s sexual
       activity and offered to orally stimulate her. Sgt. Key then

                                            -3-
      masturbated in front of Ms. Olsen for about five minutes. At one
      point, Sgt. Key got out of the Jeep and opened the passenger door, at
      which point he began kissing Ms. Olsen’s breasts, rubbing her crotch
      and tried to remove her clothes. Sgt. Key then led Ms. Olsen by the
      hand to a stall in the men’s room, positioned himself behind her and
      attempted to remove her pants. Ms. Olsen pulled away from Sgt. Key
      and walked away while pulling up her pants. Sgt. Key returned to
      the jeep and drove Ms. Olsen home. On the way home, Sgt. Key
      stated that he and Ms. Olsen were going to have sex and made
      another advance to which Ms. Olsen pulled away. He asked Ms.
      Olsen not to tell anyone or he would risk losing his job with the
      Army.

             Ms. Olsen reported [Sgt.] Key’s sexual assault to the
      Recruitment Office Supervisor, on March 27, 2001. Ms. Olsen also
      reported the sexual assault to local law enforcement officials.
      Deputy Sheriff Trent Myers of the Pittsburg County Sheriff’s
      Department investigated the complaint by Ms. Olsen. The Deputy
      stated in his affidavit that, during his investigation of Ms. Olsen’s
      complaint, an employee of the Army contacted him and told him
      specifically that the Army had previously received a complaint of
      sexual assault against Mr. Key. Also, the Army admitted that they
      did not investigate this previous complaint because they did not
      believe the complainant.

Aplt. Br. at 3-5 (citations omitted).

      In its response brief, the United States does not dispute that Key sexually

assaulted Ms. Olsen during the fishing outing. The United States has also

admitted that

      Key’s conduct toward Olsen violated Army restrictions on
      inappropriate contacts with recruits, including an Army regulation
      prohibiting any personal relationship or social contact between a
      recruiter and a potential recruit. As a recruiter, Key received regular
      training on these restrictions, which were taught not only during
      recruiters’ initial nine-month probationary period but also during
      subsequent training sessions held on a weekly, monthly, quarterly,

                                         -4-
       and annual basis. Key’s conduct was ultimately the basis for court-
       martial; he was convicted and ordered discharged from the Army.

Aplee. Br. at 6-7 (citations omitted).

                     III. Jurisdictional Issues Under The FTCA

       “The United States is immune from suit unless it has consented to be sued

and the terms of its consent to be sued in any court define that court’s jurisdiction

to entertain the suit.”   Hart v. Dep’t of Labor ex rel. United States   , 

, 1339 (10th Cir. 1997) (quotations omitted). “The FTCA represents a

waiver of the United States’ immunity and must, therefore, be strictly construed.”

FTCA, the United States has waived its sovereign immunity for

torts committed by federal employees while acting within the scope of their

employment, but the waiver does not include certain specified intentional torts.

The Supreme Court has explained this dichotomy as follows:

              The FTCA gives federal district courts jurisdiction over claims
       against the United States for money damages “for injury or loss of
       property, or personal injury or death caused by the negligent or
       wrongful act or omission of any employee of the Government while
       acting within the scope of his office or employment, under
       circumstances where the United States, if a private person, would be
       liable to the claimant in accordance with the law of the place where
       the act or omission occurred.” 28 U.S.C. § 1346(b). However,
       among other limitations, the Act also provides that this broad grant
       of jurisdiction “shall not apply to . . . [a]ny claim arising out of
       assault, battery” or other specified intentional torts. 28 U.S.C.
       § 2680(h).


                                             -5-
Sheridan v. United States , 

, 398 (1988).    2



       As noted above, applying these statutory provisions, the district court

granted the United States’ “Motion to Dismiss or in the Alternative, Motion for

Summary Judgment,” Aplt. App. at 15, concluding that Ms. Olsen failed to meet

her burden of proof on the scope of employment issue, and that Ms. Olsen’s

claims were barred the FTCA’s exception for intentional torts. The district court

did not recognize, however, that, if correct, both of these conclusions lead to the

result that the district court did not have subject matter jurisdiction over Ms.

Olsen’s FTCA claims.      See Dorking Genetics v. United States    , 

, 1264

(2d Cir. 1996) (“[A] claim which fails to state all six elements of § 1346(b) or

which is otherwise excepted from § 1346(b),        see 28 U.S.C. § 2680, must be

dismissed for lack of subject matter jurisdiction.”);    Dry v. United States , 

, 1257 (10th Cir. 2000) (“The applicability of the [FTCA’s] intentional tort

exception is a question of subject matter jurisdiction, which we review      de novo .”)

(citing Franklin v. United States , 

, 1495 (10th Cir. 1993)).

Consequently, when the district court entered judgment in favor of the United




2
       The FTCA’s exception for intentional torts contains its own exception, as it
does not apply to “acts or omissions of investigative or law enforcement officers
of the United States Government.” 28 U.S.C. § 2680(h). This exception has no
application to this case, however, because there is no evidence that Key was
acting as an investigative or law enforcement officer.

                                             -6-
States, the court should have specified that it was dismissing this action for lack

of subject matter jurisdiction.     See Aplt. App. at 171.

                                  IV. Standard of Review

       The district court did not indicate which procedural rule it was relying on

when it entered judgment in favor of the United States. Ordinarily, a party may

challenge a district court’s subject matter jurisdiction by bringing a motion to

dismiss under Fed. R. Civ. P. 12(b)(1), and “[a] court has wide discretion to allow

affidavits, other documents, and a limited evidentiary hearing to resolve disputed

jurisdictional facts under Rule 12(b)(1).”      Holt v. United States , 

,

1003 (10th Cir. 1995). “In such instances, a court’s reference to evidence outside

the pleadings does not convert the motion to a Rule 56 motion [for summary

judgment].”    

also recognized, however, that

       a court is required to convert a Rule 12(b)(1) motion to dismiss into a
       Rule 12(b)(6) motion or a Rule 56 summary judgment motion when
       resolution of the jurisdictional question is intertwined with the merits
       of the case. The jurisdictional question is intertwined with the merits
       of the case if subject matter jurisdiction is dependent on the same
       statute which provides the substantive claim in the case.

       In this case, the jurisdictional question is dependent on the same statutes

which provide Ms. Olsen’s substantive claims.        See 28 U.S.C. §§ 1346(b)(1) and

2680(h) . We also note that the district court referred to matters that are outside of

the parties’ pleadings in its order granting the United States’ dispositive motion.

                                             -7-
See Aplt. App. at 168-69.    Accordingly, we conclude that the district court should

have treated the United States’ motion as a motion for summary judgment under

Rule 56, and we will review the district court’s order granting the United States’

motion as an order granting summary judgment.

       “We review the grant of summary judgment de novo applying the same

standard as the district court embodied in Rule 56(c).”   Adler v. Wal-Mart Stores,

Inc. , 

, 670 (10th Cir. 1998). Under Rule 56(c), summary judgment is

proper if “there is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In

applying this standard, we view the factual record and draw all reasonable

inferences therefrom most favorably to the nonmovant.”        Adler , 144 F.3d at 670.

                   V. The FTCA’s Intentional Tort Exception

       A. Respondeat Superior Liability for the Conduct of Key

       In her appellate brief, Ms. Olsen first argues that the district court erred in

concluding that she had failed to show that Key was acting within the scope of his

employment with the Army at the time of the sexual assault.        See Aplt. Br.

at 7-11. Although it is unclear from Ms. Olsen’s brief whether she is pursuing a

claim against the United States based on the doctrine of respondeat superior, we

will assume that she is raising the scope of employment issue as it pertains to Key

in an attempt to impose vicarious liability on the United States for Key’s conduct.


                                            -8-
This is in contrast to the negligence claims discussed below, where Ms. Olsen is

seeking to impose liability on the United States for the conduct of Key’s Army

supervisors.

       In Sheridan , the Supreme Court recognized that “[t]he tortious conduct of

an off-duty serviceman, not acting within the scope of his office or employment,

does not in itself give rise to Government liability [under the FTCA] whether that

conduct is intentional or merely negligent.”         Sheridan , 487 U.S. at 401. We do

not need to resolve the scope of employment issue in this case, however, because

it is equally well established that “a Government employee acting        within the

scope of his employment    but committing [an assault or] a battery commits a tort

excepted under § 2680(h).”     Leleux v. United States , 

, 757 n.6 (5th

Cir. 1999); cf. Franklin , 992 F.2d at 1496 (noting that, if a plaintiff’s theory of

liability under the FTCA amounts to a “battery theory,” “the action is specifically

excluded from the government’s waiver of sovereign immunity under the FTCA”).

Here, there is no question that Key committed an assault and/or a battery when he

sexually assaulted Ms. Holt. As a result, even if Key was acting within the scope

of his employment with the Army at the time of the sexual assault, the FTCA’s

intentional tort exception bars Ms. Olsen from imposing liability on the United

States based on a respondeat superior theory of liability. The United States was

therefore entitled to summary judgment on Ms. Holt’s respondeat superior claim.


                                               -9-
       B. Liability for the Alleged Negligence of the Army Supervisors

       As noted above, Ms. Olsen is also seeking to impose liability on the United

States for the conduct of Key’s Army supervisors.     See Aplt. Br. at 11 (stating

that “the Government is responsible because of negligence in screening, training,

and supervising Sergeant Key”), at 13 (stating that “the Government should be

held liable in this case for their (sic) negligence in retaining Sergeant Key as a

recruiter, allowing him access to vulnerable young females, failing to train him on

inappropriate behavior, and allowing this assault to occur”).

       In United States v. Shearer , 

, 53 (1985), a four-justice plurality

of the Supreme Court addressed the issue of “whether the survivor of [an Army]

serviceman, who was murdered by another [Army] serviceman, may recover from

the Government under the [FTCA] for negligently failing to prevent the murder.”

After noting that it was “clear that [plaintiff’s] claim [arose] out of the battery

committed by [the other serviceman],”    

the plurality concluded that

the FTCA’s intentional tort exception barred the plaintiff’s negligence claim.

       [Plaintiff] cannot avoid the reach of § 2680(h) by framing her
       complaint in terms of negligent failure to prevent the assault and
       battery. Section 2680(h) does not merely bar claims   for assault or
       battery; in sweeping language it excludes any claim  arising out of
       assault or battery. We read this provision to cover claims like
       [plaintiff’s] that sound in negligence but stem from a battery
       committed by a Government employee.

                                          -10-
      In Sheridan , a case decided three years after   Shearer , a majority of the

Supreme Court clarified that the FTCA’s intentional tort exception does not bar

all negligence claims that are related to an assault or a battery committed by a

government employee.      See Sheridan , 487 U.S. at 398 (“[I]t is both settled and

undisputed that in at least some situations the fact that an injury was directly

caused by an assault or battery will not preclude liability against the Government

for negligently allowing the assault to occur.”). Instead, as the district court

recognized, the majority in   Sheridan “held that liability may result from the

breach of an independent affirmative duty which takes place ‘in a case in which

the employment status of the assailant has nothing to do with the basis for

imposing liability on the Government.’” Aplt. App. at 168 (quoting       Sheridan ,

487 U.S. at 402). As this court has explained, however,     Sheridan did not

undercut the Shearer plurality’s general analysis of § 2680(h):

      Since Shearer , . . . the Supreme Court has recognized one category of
      battery-related cases that falls outside the preclusive compass of §
      2680(h). Specifically, when a negligence claim against the
      government arises out of an incident of battery but is in no way
      contingent on the perpetrator’s federal employment status, i.e., when
      the government’s liability is based on its breach of a duty owed the
      victim that is independent of its relationship, if any, to the
      perpetrator, § 2680(h) does not bar recovery under the FTCA.
      Sheridan [,] 487 U.S. [at] 400-03 . . . . With this important
      qualification, the Shearer plurality’s general analysis of § 2680(h)
      appears to remain the prevailing view.




                                          -11-
Franklin , 992 F.2d at 1498-99; see also Borawski v. Henderson , 

, 485 (D.N.J. 2003) (“The majority of the circuits addressing the meaning of

the ‘arising out of’ clause have adopted the [     Shearer ] plurality view that a

negligent hiring, supervision, or retention claim necessarily arises out of an

underlying intentional tort, precluding government liability under the FTCA.”).

       We conclude that Sheridan is distinguishable, and that Ms. Olsen’s

negligence claims fall within the    Shearer plurality’s general analysis of

§ 2680(h). In Sheridan , “an obviously intoxicated off-duty [naval medical aide]

named Carr fired several rifle shots into an automobile being driven by [the

plaintiffs] on a public street near the Bethesda Naval Hospital.”       Sheridan , 487

U.S. at 393-94. As summarized by the Supreme Court, the shooting was preceded

by the following events:

       After finishing his shift as a naval medical aide at the hospital, Carr
       consumed a large quantity of . . . alcoholic beverages. He then
       packed some of his belongings, including a rifle and ammunition,
       into a uniform bag and left his quarters. Some time later, three naval
       corpsmen found him lying face down in a drunken stupor on the
       concrete floor of a hospital building. They attempted to take him to
       the emergency room, but he broke away, grabbing the bag and
       revealing the barrel of the rifle. At the sight of the rifle barrel, the
       corpsmen fled. They neither took further action to subdue Carr, nor
       alerted the appropriate authorities that he was heavily intoxicated and
       brandishing a weapon. Later that evening, Carr fired the shots that
       caused physical injury to one of the [plaintiffs] and property damage
       to their car.

                                            -12-
       The plaintiffs subsequently “brought suit against the United States alleging

that their injuries were caused by the Government’s negligence in allowing Carr

to leave the hospital with a loaded rifle in his possession.”     

“The

District Court dismissed the action–and the Court of Appeals affirmed–on the

ground that the claim [was] barred by the intentional tort exception to the

[FTCA].” 

review before the Supreme Court, the question was

thus “whether [plaintiffs’] claim [was] one ‘arising out of’ an assault or battery

within the meaning of . . . § 2680(h).”     

of the Court answered this

question in the negative and reversed the decision of the Court of Appeals,

concluding that the case presented a “basis for Government liability that is

entirely independent of Carr’s employment status.”         

As the Court

explained,

       By voluntarily adopting regulations that prohibit the possession of
       firearms on the naval base and that require all personnel to report the
       presence of any such firearm, and by further voluntarily undertaking
       to provide care to a person who was visibly drunk and visibly armed,
       the Government assumed responsibility to “perform [its] ‘good
       Samaritan’ task in a careful manner.”    Indian Towing Co. v. United
       States , 

, 65 . . . (1955). The District Court and the Court
       of Appeals both assumed that [plaintiffs’] version of the facts would
       support recovery under Maryland law on a negligence theory if the
       naval hospital had been owned and operated by a private person. . . .
       On this assumption, it seems perfectly clear that the mere fact that
       Carr happened to be an off-duty federal employee should not provide
       a basis for protecting the Government from liability that would attach
       if Carr had been an unemployed civilian patient or visitor in the
       hospital. Indeed, in a case in which the employment status of the
       assailant has nothing to do with the basis for imposing liability on

                                             -13-
       the Government, it would seem perverse to exonerate the
       Government because of the happenstance that Carr was on a federal
       payroll.

(footnotes omitted).

       As noted above, Ms. Olsen is seeking to impose liability on the United

States for the alleged negligence of Key’s Army supervisors in “screening,

training, and supervising . . . Key,” Aplt. Br. at 11, and she argues in her

appellate brief that “ Sheridan applies directly to this case,”   

Ms. Olsen’s

reasoning is as follows:

       Prior to Ms. Olsen’s incident, the Army had received a complaint of
       sexual assault against Mr. Key. In Sheridan , an off-duty Navy
       employee was intoxicated and armed. Some Corpsmen discovered
       the “off duty” Navy employee; however, they did nothing even
       though they saw that he was inebriated and was carrying a weapon.

                ....

              Thus, the Sheridan case applies to this case where there was an
       Army employee who committed an assault while he was off duty.
       The United States failed to investigate and/or report any prior
       complaints made against Mr. Key. It was foreseeable that Mr. Key
       had the propensity to do the same thing again. Thus, the Government
       should be held liable in this case for their (sic) negligence . . . in the
       hiring, retention, and . . . supervision of Mr. Kelvin Key.

       Ms. Olsen’s analysis is unconvincing. As the government has pointed out

in its response brief, even if the United States had “an obligation to investigate

claims of sexual misconduct, . . . its obligation [arose] out of the employment


                                            -14-
relationship with [Key].” Aplee. Br. at 22-23. Moreover, in contrast to the

situation in Sheridan where the naval corpsmen voluntarily assumed responsibility

to perform a Good Samaritan task,      see Sheridan , 487 U.S. at 401, there is no

independent basis for imposing a duty of care on the facts of this case. As a

result, “[b]ecause the existence of any duty on the part of the United States to

prevent Olsen’s sexual assault is dependent on the government’s employment

relationship with [Key], Olsen’s claims do not fall within . . .    Sheridan .” 

see also Garcia v. United States    , 

, 117-18 (5th Cir. 1985)

(holding that the FTCA’s intentional tort exception barred claim against the

United States for alleged negligence in supervising military recruiter who

allegedly sexually assaulted a potential recruit).

       The judgment of the district court is AFFIRMED. The district court’s

judgment is modified to reflect that this action was dismissed for lack of subject

matter jurisdiction.   See Aplt. App. at 171.


                                                          Entered for the Court


                                                          Wade Brorby
                                                          Circuit Judge




                                             -15-