United States Court of Appeals

For the Eighth Circuit

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No. 17-3561

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Michael Daniel Croyle, by and through Sandra G. Croyle, as his parent and legal

guardian; Sandra Croyle

lllllllllllllllllllllPlaintiffs - Appellants

v.

United States of America

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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Submitted: September 27, 2018

Filed: November 9, 2018

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Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.

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BENTON, Circuit Judge. 

Michael Daniel Croyle, by his parent and legal guardian Sandra G. Croyle,

sued under the Federal Tort Claims Act, 28 U.S.C. §§ 2671–80, for negligent

supervision and failure to warn of Mark N. Matson’s sexual propensities. The district
court dismissed the complaint based on sovereign immunity. Having jurisdiction 1

under 28 U.S.C. § 1291, this court affirms. 

I. 

Tripler Army Medical Center is a large, tertiary Army hospital. Tripler’s

Department of Ministry and Pastoral Care (DMPC) provides religious services for

patients, hospital staff, military personnel, and their families. In 1992, the

Government contracted with the Theatine Fathers, a Catholic religious order, for the

services of a priest. The Theatine Fathers assigned Matson to serve at Tripler. 

The Government did not do a background check on Matson. It relied on an

ecclesiastical endorsement bythe Archdiocese of MilitaryServices. The endorsement

certified that an individual “[i]s a fully qualified member of the clergy of a religious

faith group represented by the certifying Agency” and met “the requirements

established by the Military Departments for appointment as an officer and a

chaplain.” To obtain the endorsement, Matson submitted information on his criminal

history. Matson then had no prior convictions and no pending charges against him. 

Matson, however, had a history of sexual abuse allegations. In 1987, Matson was

arrested for fondling two teenage boys, and in 1989, he was charged with the sexual

assault of a child. 

Under his contract, Matson’s primary duty was to conduct Mass several times

a week. At the request of families—without seeking prior approval from the

DMPC—he conducted Confraternity of Christian Doctrine classes to help prepare

children for their first Holy Communion. These were not required by the contract. 

As a child, Michael Croyle attended Mass at Tripler. He alleges that Matson sexually

assaulted him six different times while escorting him to CCD classes after Mass. 

The Honorable Henry Edward Autrey, United States District Judge for the

1

Eastern District of Missouri.

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Croyle, by his parent and legal guardian, sued the United States for negligence

and negligent supervision. He alleges the Government knew or should have known

about Matson’s history of sexual abuse and was negligent in failing to warn families

of his sexual propensities. Further, Croyle claims the Government breached its duty

of care by failing to prevent Matson from having contact with children. The district

court found the United States was entitled to sovereign immunity and dismissed the

case for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Croyle

appeals. 

In deciding a motion under Rule 12(b)(1), the district court must distinguish

between a facial attack—where it looks only to the face of the pleadings—and a

factual attack—where it may consider matters outside the pleadings. Osborn v.

United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). In a factual attack, the “nonmoving party does not have the benefit of 12(b)(6) safeguards.” Id. If the

jurisdictional issue is “bound up” with the merits of the case, the district court may

“decide whether to evaluate the evidence under the summary judgment standard.” 

Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018). This court is bound by

the district court’s characterization of the Rule 12(b)(1) motion. Carlsen v.

GameStop, Inc., 833 F.3d 903, 908 (8thCir. 2016) (“The method in which the district

court resolves a Rule 12(b)(1) motion—that is, whether the district court treats the

motion as a facial attack or a factual attack—obliges us to follow the same

approach.”). The district court here stated this was a factual attack. “We review a

district court’s decision to dismiss a complaint for lack of subject matter jurisdiction

de novo, placing the burden of proving the existence ofsubject matter jurisdiction on

the plaintiff.” Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir.

2005). 

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II. 

Sovereign immunity shields the federal government from suit absent its

consent. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA waives the

Government’s sovereign immunity for some tort claims, authorizing private suits for

negligence of Government agents. 28 U.S.C. § 1346(b)(1). The waiver is subject to

exceptions. Under 28 U.S.C. § 2680(a), the Government may not be sued for the

“exercise or performance orthe failure to exercise or performa discretionary function

or duty on the part of a federal agency or an employee of the Government, whether

or not the discretion involved be abused.” If the Government’s conduct is within the

discretionary function exception, “the federal court lacks subject matter jurisdiction.” 

Hinsley v. Standing Rock Child Protective Servs., 516 F.3d 668, 672 (8thCir. 2008).

A two-part test governs the discretionary function exception. See Riley v.

United States, 486 F.3d 1030, 1032 (8th Cir. 2007), citing Berkovitz v. United States,

486 U.S. 531, 536 (1988). “First, the conduct at issue must be discretionary,

involving ‘an element of judgment or choice.’” Riley, 486 F.3d at 1032, quoting

Berkovitz, 486 U.S. at 536. If a federal statute, regulation, or policy mandates a

particular action, the discretionary function exception will not apply. Berkovitz, 486

U.S. at 536. Second, the judgment or choice must be “the kind that the discretionary

function exception was designed to shield.” Id. Congress enacted the exception to

“prevent judicial ‘second-guessing’ of legislative and administrative decisions

grounded in social, economic, and political policy through the medium of an action

in tort.” United States v. Varig Airlines, 467 U.S. 797, 814 (1984). If the judgment

is “susceptible to policy analysis,” the discretionary function exception applies. 

United States v. Gaubert, 499 U.S. 315, 325 (1991); Demery v. U.S. Dep’t of

Interior, 357 F.3d 830, 833 (8th Cir. 2004). If government policy allows the exercise

of discretion, the court will “presume[] that the agent’s acts are grounded in policy

when exercising that discretion.” Demery, 357 F.3d at 833. The plaintiff bears the

burden of rebutting this presumption. Id.

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As for the first requirement, Croyle does not challenge that it is a discretionary

decision to retain Matson without warning of his sexual propensities. He does argue

that the conduct is not within the discretionary function exception because no

conceivable policy choice would allow Matson accessto children without a warning. 

The decision whether to warn of Matson’s sexual propensities or to take other

action to restrict his contact with children is susceptible to policy analysis. “[T]he

decision to warn is, at its core, a policy decision.” Hinsley, 516 F.3d at 673. See also

Metter v. United States, 785 F.3d 1227, 1232–33 (8th Cir. 2015); Demery, 357 F.3d

at 834. Likewise, supervising employees typically involves policy considerations. 

Tonelli v. United States, 60 F.3d 492, 496 (8th Cir. 1995) (“Issues of employee

supervision and retention generally involve the permissible exercise of policy

judgment and fall within the discretionary function exception.”). This court

recognizes, however, that the “[f]ailure to act after notice” of an employee’s ongoing

illegal conduct is not “a choice based on plausible policy considerations.” Id. 

In Tonelli, the facts included that the Government received notice of an

employee’s ongoing illegal conduct, specifying the timing, parties, and content ofthe

notice. Id. at 494. Here, however, Croyle does not allege that the Government

received notice of ongoing illegal conduct during Matson’s employment at Tripler. 

Instead, Croyle alleges—upon information and belief—that the Government knew or

should have known of Matson’s pre-employment misconduct. While the

Government’s inaction after notice of ongoing illegal conduct is not subject to policy

considerations, the supervision and retention of an employee with only allegations of

pre-employment misconduct is subject to policy considerations. Id. at 496. 

In Hinsley, Child Protective Services (CPS) placed a minor with a known

history of sexually abusing children in a home with three young children, without

warning their mother of his past abuse. Hinsley, 516 F.3d at 670–71. Hinsley sued

CPS for negligence, arguing that the discretionary function exception did not apply

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because “the strong policy interest in preventing child abuse demands that a warning

be given.” Id. at 673. This court disagreed, reasoning that CPS’s decision “involves

an effort to balance the interest in maintaining the confidentiality of[the minor’s] past

actions against the safety concerns that arise from placing a known sexual abuser in

a home filled with children.” Id. Therefore, the discretionary function exception

applied. Id.

Like Hinsley, the Government here, in determining whether to warn families

or take other protective action, could have balanced public and child safety with the

need to protect Matson’s reputation and confidentiality. Id. The Government could

have also taken into account that Matson’s contractual duties did not require direct

contact with children. Other potential considerations include staffing shortages and

the reputation of the DMPC and other religious personnel at Tripler, who could be

harmed by association with Matson. See generally Doe v. Holy See, 557 F.3d 1066,

1085 (9th Cir. 2009) (the decision to retain a priest with sexual-abuse allegations was

discretionary under the Federal Sovereign Immunities Act because the Holy See

could have balanced the church’s reputation, pastoral stability, and staffing

shortages), citing Joseph v. Office of Consulate Gen. of Nigeria, 830 F.2d 1018,

1026 (9th Cir. 1987) (“The existence of a discretionary function under the FSIA is

generally analyzed under the principles developed pursuant to the Federal Tort

Claims Act’s (“FTCA”) discretionary function exception.”). 

Balancing safety, reputational interests, and confidentiality is the kind of

determination “the discretionary function exception was designed to shield.” 

Berkovitz, 486 U.S. at 536. The Government’s conduct here is within the

discretionary function exception. Though there may be disagreements how these

interests should be balanced, “the FTCA does not empower judges to second guess

such decisions via tort action.” Hinsley, 516 F.3d at 673, citing Gaubert, 499 U.S.

at 323.

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* * * * * * * *

The judgment is affirmed. 

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