1 The Honorable Barbara J. Rothstein

7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8

9 Kevin D. Anthony, Case No. 3:19-cv-5337-BJR

10 Plaintiff, FINDINGS OF FACT AND CONCLUSIONS OF LAW v. United State of America, Defendant.

This matter came for trial on December 1, 2021 and December 3, 2021, before the Honorable Barbara J. Rothstein, United States District Judge, sitting without a jury. The Court, having considered the evidence before it, including the testimony of witnesses and the documents and exhibits that were admitted by the Court, having heard argument of counsel, and having reviewed the facts and records of this action, makes the following findings of fact and conclusions of law. BACKGROUND This matter arises out of an assault that occurred on November 5, 2015 in Tillicum, Washington, near Joint Base Lewis-McChord (“JBLM”). United States Army Ranger Specialist

Jesse M. Suhanec overdosed on her1 prescribed Adderall, took a loaded weapon from the base’s armory, drove an Army vehicle off the base, and shot Plaintiff Kevin D. Anthony, a civilian. Plaintiff survived the assault but was severely injured. In April 2019, Plaintiff filed a complaint alleging that Defendant United States was

negligent in recruiting Suhanec, failed to properly evaluate and medically diagnose her, failed to monitor and report her behavior, failed to properly train her, and failed to prevent her from obtaining the weapon she used to injure Plaintiff. Dkt. 1. Prior to trial, Defendant twice moved the Court to dismiss or grant summary judgment on all of Plaintiff’s claims. In November 2020 and September 2021, the Court issued orders that considerably narrowed Plaintiff’s claims, such that only the negligent recruitment claim remained for trial. See Dkts. 64, 91. The factual basis of the negligent hiring claim is Plaintiff’s allegation that Defendant was aware of a disqualifying condition—self-inflicted scars on Suhanec’s arm—that could have foreseeably led to Plaintiff’s injuries, but nevertheless allowed Suhanec to join the Army despite explicit rules disallowing the same. Dkt. 91. Plaintiff alleges Suhanec showed her scars to an

Army recruiter, the recruiter knew the scars were signs of self-mutilation, and the recruiter advised Suhanec to lie on forms and to Army medical staff about the cause of the scars. Although there were additional steps in the enlistment process—such as medical evaluations that also considered Suhanec’s scars—Plaintiff’s negligence claim at trial was based only on Suhanec’s interaction with the Army recruiter. See Dkt. 106 at 3.

1 At trial, Jesse Suhanec (also referred to as Ava Suhanec by friends and family) testified that she now identifies as female and prefers to be addressed as “Ms. Suhanec.” Accordingly, this document uses female pronouns in reference to Jesse Suhanec. 22 23 24 FINDINGS OF FACT I. Jesse Suhanec’s Pre-Enlistment History. 1. Suhanec testified at trial, and based on her testimony the Court finds as follows: 2. Suhanec had a childhood diagnosis of ADHD. See 12/3/21 Trial Tr., 34:1-3.

3. Suhanec took Ritalin, Focalin, and Adderall as a child and a teenager. See 12/3/21 Trial Tr., 34:11-19. 4. Suhanec never experienced paranoia, hallucinations, or psychosis when taking her prescribed medications as a child and teenager. See 12/3/21 Trial Tr., 76:21-77:3. 5. Suhanec never abused her medications. See 12/3/21 Trial Tr., 16:4-5. 6. Suhanec was diagnosed with depression as a teenager after having suicidal ideation and was hospitalized at a facility for young adults to receive mental health treatment for eleven days. See 12/3/21 Trial Tr., 34:21-35:11. 7. Suhanec self-cut, leaving scars on her left forearm three times over a period of a couple of months when she was a teenager. See 12/3/21 Trial Tr., 35:18-23.

8. Suhanec’s self-cutting was not a persistent, serious condition. See 12/3/21 Trial Tr., 29:23-30:5. 9. Aside from one fight that resulted in a suspension from school, Suhanec had no adolescent history of violence and never thought about hurting other people. See 12/3/21 Trial Tr., 20:13-14; 77:4-6. 10. Suhanec intentionally stopped taking medications before she began her military enlistment process because she assumed those medications would disqualify her. Suhanec was generally aware of what could and could not disqualify her from joining the military, because she heard about it through a community of other recruits trying to enlist in the military. See 12/3/21

Trial Tr., 68:18-69:16. II. Army Enlistment Procedures and Regulations Regarding Medical Qualifications

11. Plaintiff argues that the Court must find Defendant acted negligently in recruiting Suhanec because the Army itself has regulations recognizing certain medical conditions—and physical or behavioral signs of those conditions—as disqualifying. Therefore, the Court will briefly discuss the regulations most relevant to this case. 12. The Army’s medical fitness standards are contained in Army Regulation (“AR”) 40-501 (“Standard of Medical Fitness,” dated August 4, 2011). AR 40-501 is the only governing regulation regarding medical fitness. See Exhibit P3, chapter 2, section 2-1, pg. 12. 13. AR 601-210 (“Active and Reserve Components Enlistment Program,” dated February 8, 2011) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Army. Section 2-9 requires applicants to meet the medical standards of AR 40-501, chapter 2. See Exhibit P4. 14. AR 40-501, chapter 2, section 2-27j provides that “History of suicidal behavior, including gesture(s) or attempt(s) (300.9), or history of self-mutilation, does not meet the standard”

for enlistment. See Exhibit P3, Chapter 2, Section 2-27j, pg. 25. 15. Army recruiters screen recruits for a current diagnosis or verified history of a disqualifying condition, but they are not empowered to decide whether a recruit has a condition if there is no record of one. At most, a recruiter can flag concerning statements made by the recruit during a prescreening interview or reported on the “Medical Prescreen of Medical History Report” (the “Medical Prescreen Report”). The Medical Prescreen Report is the only medical document that is reviewed and signed by recruiters, and it does not ask questions about self-cutting or other self-injury. See 12/3/21 Trial Tr., 92:22-93:14; 93:24-94:13; 101:6-12; Exhibit J2; Exhibit J7. 16. Once a recruit submits the Medical Prescreen Report, they complete an in-person

physical and medical examination conducted by the U.S. Military Entrance Processing Command (“USMEPCOM”) at the U.S. Military Entrance Processing Station (“MEPS”) MEPS. Recruiters have no further control over determinations regarding medical disqualifications. Medical assessments and diagnoses are made by medical professionals at USMEPCOM, U.S. Army Recruiting Command (“USAREC”), or by outside professionals at the MEPS stage, during which

recruits are asked about deliberate self-cutting. See 12/1/31 Trial Tr., 79:18-80:4. III. Suhanec’s Enlistment A. Suhanec’s Testimony 17. On February 16, 2011, Suhanec met with Master Sergeant Daniel Hollis at a recruiting station and completed a Medical Prescreen Report. Hollis was Suhanec’s primary recruiter. Suhanec falsely denied any history of psychiatric diagnoses or treatment on the Report, including her hospitalization for depression and prior behavioral medications. See Exhibit J2; 12/3/21 Trial Tr., 38:3-39:12; 61:3-62:4; 62:16-21. 18. Suhanec claimed she remembered being coached by one or more Army recruiters to lie about her medical conditions and/or history but could not remember exactly what the

coaching was. Suhanec did not claim that it was Hollis who coached her. See 12/3/21 Trial Tr., 43:14-44:1. 19. Suhanec claimed she showed Hollis the scars on her left forearm, but she cannot remember when she showed him the scars or what prompted her to do so. Suhanec testified that she told Hollis the scars were from a skateboarding accident, but that Hollis recognized this as a lie and said “those are not skateboarding scars. I know what they are.” According to Suhanec, this statement implied that Suhanec needed to come up with a better story to tell medical examiners at MEPS. See 12/3/21 Trial Tr., 61:3-62:4; 62:16-21; 65:1-9. 20. Following her meeting with Hollis, Suhanec submitted the Medical Prescreen

Report and certified under oath that the information on the form was true and complete. At trial, Suhanec admitted that the information she provided was false. See Exhibit J2; 12/3/21 Trial Tr., 38:3-39:12. 21. On July 12, 2011, Suhanec completed her required in-person physical and medical examination with USMEPCOM at MEPS. See Exhibit J9; 12/3/21 Trial Tr., 41:10-15.

22. During her MEPS exam, Suhanec filled out a Medical History Provider Interview. Suhanec denied her history of depression (Questions 6a and 6c). She denied her history of deliberate cutting or self-injury (Question 6e). She denied her school suspension (Question 6h). She denied her history of suicidal ideation (Question 6f). Suhanec certified under oath that the information on the form was true and complete. At trial, Suhanec admitted these answers were untruthful. See Exhibit J7; 12/3/21 Trial Tr., 41:16-43:9, 44:5-14. 23. Also during her MEPS exam on July 12, 2011, Suhanec filled out a Report of Medical History. Suhanec denied any sort of anxiety or panic attacks (Question 17a). She denied depression or excessive worry (Question 17f). She denied receiving counseling of any type (Question 17e). She denied prior evaluation or treatment for mental conditions (Question 17g).

She denied that she had ever consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years (Question 24). Suhanec certified under oath that the information on the form was true and complete. At trial, Suhanec admitted these answers were untruthful. See Exhibit J8; 12/3/21 Trial Tr., 45:22-48:24. 24. The USMEPCOM doctor observed the scars on Suhanec’s left forearm and asked her about them. Suhanec informed the USMEPCOM doctor that the scars were from an accidental injury she suffered while pulling up carpet. She denied intentional cutting. See Exhibit J8; Exhibit J9; 12/3/21 Trial Tr., 48:25-49:8. 25. The USMEPCOM doctor documented Suhanec’s response and took a photograph

of Suhanec’s left forearm for the Office of the USAREC Surgeon. On July 21, 2011, USAREC Command Surgeon Colonel Gail Glushko noted that Suhanec’s explanation was not sufficient and referred Suhanec for a behavioral health consult for further evaluation. See Exhibit J12; Exhibit J16; Exhibit J17. 26. On August 10, 2011, Suhanec received a psychiatric evaluation by non-military

psychiatrist Sheila Judge, M.D. in Philadelphia, Pennsylvania. See Exhibit J18. 27. At trial, Suhanec admitted that during the psychiatric evaluation, she lied to Dr. Judge about the origin of her scars, and that Dr. Judge believed her. Suhanec admitted that she met with Dr. Judge five times and that each time she concealed or mispresented information about her scars and her history of psychiatric treatment. For example, Suhanec told Dr. Judge that she had no history of prescription drug use, when in fact Suhanec had been prescribed ADHD drugs as a child and teenager. See Exhibit J18; 12/3/21 Trial Tr., 49:10-19; 69:17-70:14. 28. Based on the information Suhanec provided, Dr. Judge determined that the superficial wounds on Suhanec’s left forearm appeared to be consistent with her explanation of accidental injury, that Suhanec met no criteria for any psychiatric or substance use disorder, and

that there was no limitation on Suhanec’s ability to serve in the military. See Exhibit J18. 29. The USMEPCOM Chief Medical Officer and the USAREC Command Surgeon subsequently determined Suhanec was medically qualified for enlistment. See 12/1/21 Trial Tr., 60:7-61:3. 30. Suhanec never disclosed to anyone in the Army that she was previously diagnosed with ADHD, psychiatrically hospitalized, or prescribed psychiatric medications, and in fact affirmatively misrepresented to the contrary under oath. See 12/3/21 Trial Tr., 67:15-68:17. 31. Prior to her delayed enlistment on August 26, 2011, Suhanec signed a Statement of Enlistment. She certified under oath that she had provided complete details and accurate

background information regarding her controlled drug and alcohol use, financial, moral, and physical history. Suhanec testified that these representations were untruthful. See Exhibit J19, pg. 2; 12/3/21 Trial Tr., 70:15-71:13. 32. Suhanec also represented to the Army in her Statement of Enlistment that she had provided her recruiter and/or guidance counselor with all information required on her application

for enlistment. She certified in writing that she had read and fully understood the contents of this form and that no one had told her to conceal information. Suhanec testified that these representations and her certification were untruthful. See Exhibit J19, pg. 2; 12/3/21 Trial Tr., 71:14-21. 33. Suhanec also specifically represented in her Statement of Enlistment that she had not concealed any medical information and that no one had told her to conceal information. At trial, Suhanec testified that this was false. See Exhibit J19, pg. 3; 12/3/21 Trial Tr., 71:22-72:9. 34. Suhanec testified that she was aware the disclosure of all pre-enlistment medical conditions was important to the Army and could have impacted her ability to enlist. See 12/3/21 Trial Tr., 73:17-24.

35. On August 26, 2011, Suhanec enlisted in the Army in the delayed enlistment program. See Exhibit J21. 36. On March 13, 2012, Suhanec signed, under oath, a substantially similar Statement of Enlistment making the same misrepresentations about her qualifications and concealing information. See Exhibit J23. 37. On March 13, 2012, Suhanec also filled out and signed an Introductory Preaccession Interview Form. The Form asked Suhanec if there was anything Army doctors did not know about that could prevent Suhanec from completing her basic training, such as psychiatric care and counseling or attempts to commit suicide. Suhanec selected “no.” Suhanec admitted at

trial that her response was untruthful. See Exhibit J24; 12/3/21 Trial Tr., 74:6-75:6. 38. On March 13, 2012, Suhanec was discharged from the delayed enlistment program and entered active-duty service. See Exhibit J22. B. Master Sergeant Hollis’s Testimony 39. Master Sergeant Daniel Hollis has been employed by the Army for 25 years and

currently serves as the senior master trainer for the Seattle USAREC. See 12/1/21 Trial Tr., 33:16- 18; 35:21. 40. Hollis previously served as a United States Army Ranger with five combat tours. See 12/1/21 Trial Tr., 34:10-12. 41. Hollis began recruiting in 2004. See 12/1/21 Trial Tr., 38:9-21; 49:10-12. 42. Hollis joined the Doylestown, Pennsylvania recruiting office in February 2011 as a Station Commander overseeing approximately five to six recruiters. See 12/1/21 Trial Tr., 38:9- 21; 49:10-12. 43. As station commander, Hollis managed the Doylestown recruiting station, including the recruiters. He also performed quality-control checks to validate that the recruiters

he supervised were following proper procedures. See 12/1/21 Trial Tr., 39:2-13; 40:23-41:8. 44. In Hollis’s experience as a recruiter, Station Commander, and First Sergeant, he observed that recruits had various ways to learn what could disqualify them from enlistment and what they should and should not say to recruiters or doctors during their enlistment process. See 12/1/21 Trial Tr., 51:11-18. 45. Hollis recalled Jesse Suhanec as a former Doylestown recruit who wanted to join the Army Ranger battalion. Hollis recalls that Suhanec was originally disqualified due to her defective trigger finger but received a medical waiver from the Army. See 12/1/21 Trial Tr., 53:4- 21; 56:14-18.

46. Hollis remembered meeting with Suhanec for a prescreening interview. Hollis denied that Suhanec showed him the scars on her forearm during that meeting, and he denied that Suhanec disclosed any disqualifying medical or mental health conditions, other than her trigger finger. He denied telling Suhanec to lie about her scars or past medical history at MEPS. See

12/1/21 Trial Tr., 61:4-7; 62:1-8; 12/3/21 Trial Tr., 90:24-91:6; 96:2-16. 47. Hollis also denied ever advising any recruit to lie about his or her disqualifying conditions during the recruitment process, which would violate Army regulations. See 12/1/21 Trial Tr., 62:9-63:10. 48. Hollis testified that no enlistment is worth admitting a recruit that might hurt somebody or themselves, and furthermore that it was unlikely that disqualified individuals would be able to complete basic training. See 12/1/21 Trial Tr., 62:9-63:10. 49. Hollis has never been disciplined by the Army, including for any recruiting improprieties or regulatory violations.2 See 12/1/21 Trial Tr., 63:15-19. IV. Suhanec’s Assault of Kevin Anthony

50. Between March 2012 and May 2015, Suhanec performed well in basic training, airborne ranger school, and ranger school. See 12/3/21 Trial Tr., 77:10-18. 51. Between March 2012 and August 2015, Suhanec had no prior incidents in the military. See 12/3/21 Trial Tr., 77:19-21.

2 Jennifer Yanick, another Doylestown Army recruiter, also testified. Although Yanick appeared to be a credible witness, she did not remember any interactions with Suhanec. See 12/1/21 Trial Tr., 78-80. Therefore, the Court does not find her testimony helpful and does not rely on it in the Court’s findings of fact. 21 22 23 24 52. Upon her return to the base, beginning August 2015 and continuing until November 2015, Suhanec received mental health treatment from the Army. Part of this treatment included a prescription of Adderall.3 53. In the week leading up to November 5, 2015, Suhanec began to experience an

adverse reaction to her Adderall. She experienced severe paranoia and hallucinations. She felt she was being watched and was in imminent danger. See 12/3/21 Trial Tr., 55:11-56:19. 54. On the morning of November 5, 2015, Suhanec decided to take all of her Adderall, ingesting an amount far exceeding the maximum safe dosage. Believing that enemies were “closing in on [her],” she took a loaded gun from the base’s armory and drove an Army vehicle off the base. Suhanec saw Plaintiff’s vehicle and thought it was following her. She approached Plaintiff and demanded that he give her his car. When he refused, Suhanec shot him several times. See 12/3/21 Trial Tr., 13:20-14:3; 57:7-58:2; 75:7-9. 55. Prior to the Adderall overdose on November 5, 2015, Suhanec had never taken more than the prescribed amount or considering doing so. See 12/3/21 Trial Tr., 75:10-12; 76:3-

4. 56. Suhanec said she believed that if she had not overdosed on Adderall on the morning of November 5, 2015, she would not have taken a firearm from the JBLM armory or assaulted Plaintiff. See 12/3/21 Trial Tr., 76:12-17.

3 Plaintiff’s medical negligence claim was previously dismissed from this case with prejudice because Plaintiff failed to present the requisite expert testimony to support his claim of medical negligence. See Dkt. 64, pg. 22; see also Dkt. 89, ¶ 54 (Plaintiff’s expert confirmed “there is no basis for a Medical Negligence Claim”). Accordingly, Defendant 21 did not present exhibits or testimony regarding Suhanec’s medical treatment at trial. For a complete statement of facts on Suhanec’s medical treatment, see United States’ Motion for Summary Judgment and Motion to Dismiss for Lack 22 of Subject Matter Jurisdiction, Dkt. 23, at pgs. 8-10. 23 24 57. Prior to the week of November 5, 2015, Suhanec had never experienced paranoia, hallucinations, or psychosis, including when she was prescribed Adderall in high school. See 12/3/21 Trial Tr., 76:21-77:3. 58. Prior to November 5, 2015, Suhanec had never thought about hurting other people

except in combat and had no plan to harm other people. See 12/3/21 Trial Tr., 77:4-9. V. Suhanec’s Credibility 59. The Court finds that Suhanec’s testimony regarding her enlistment and her interactions with Army recruiters is not credible. Suhanec’s trial testimony was inconsistent with her deposition (see infra § III.A.), and she has admitted to lying numerous times, including under oath. Furthermore, Suhanec’s description of her enlistment is directly contradicted by Hollis’s testimony. If the Court were to credit Suhanec’s account, it would necessarily find Hollis’s false. The Court finds Hollis to be a credible witness based on his demeanor at trial and the consistency of his testimony. The Court bases its findings on the following inconsistencies, misrepresentations, and false statements in Suhanec’s testimony and in the record.

60. First, Suhanec admitted that her trial testimony about her conversation with Hollis was different than her sworn deposition testimony on February 10, 2020, and that her sworn deposition testimony was untruthful. See 12/3/21 Trial Tr., 65:15-66:1. 61. Specifically, Suhanec stated during her deposition that an Army recruiter4 asked her how she got the scars on her forearm. At her deposition, Suhanec said that she initially responded that they were the result of a skateboarding, but that the recruiter did not believe her, and that Suhanec ultimately admitted she had cut herself. According to Suhanec’s deposition

4 Suhanec could not identify the recruiter during her deposition. She testified at trial that between her deposition and trial, her mother had reminded her that the recruiter was Hollis. See 12/3/21 Trial Tr., 61:3-62:4; 62:16-21. 24 testimony, the recruiter then explicitly told her to come up with a better excuse than a skateboarding accident when examined by doctors at MEPS. At trial, however, Suhanec specifically denied that Hollis asked her how she got the scars and specifically denied that she told Hollis that she cut herself. She also testified that Hollis implied, but did not explicitly say, that

she should come up with a better excuse. Suhanec stated that she could not remember exactly what was said during her conversation with Hollis. See 12/3/21 Trial Tr., 43:14-44:1; 44:17-24; 65:2-14. 62. At trial, Suhanec testified that she made a conscious choice to lie to the Army in order to enlist, despite knowing that she had a likely disqualifying condition. Suhanec testified that it was always her plan to lie to get into the military. See 12/3/21 Trial Tr., 66:14-67:2; 67:11- 14. 63. As discussed above, Suhanec admitted to making false representations on numerous forms she filled out as part of the enlistment process and falsely certifying those representations under oath. The false representations included completely concealing her

psychiatric history, her ADHD diagnosis, and her history of depression and self-cutting, and her hospitalization. See supra § III.A. 64. After the assault, Suhanec was evaluated by forensic examiners from the State of Washington in connection with her criminal prosecution. The interview was relied upon by the Washington State clinicians to complete a forensic mental health report that was released to the court as part of her criminal case. Suhanec knew that it was important to be candid and truthful with the clinicians because they were trying to determine whether Suhanec could plead insanity as a defense. See Exhibit D2; 12/3/21 Trial Tr., 78:10-17; 78:18-79:6.

65. Nevertheless, during the evaluation, Suhanec falsely denied being suspended from school and falsely denied a history of self-cutting. See Exhibit D2, pg. 4; 12/3/21 Trial Tr., 79:7- 25; 77:22-78:2. 66. Given Suhanec’s history of knowingly making misrepresentations under oath to the

Army, to physicians, and during her testimony, the Court does not credit her testimony that she showed Hollis her scars and that he recognized them as evidence of a disqualifying condition. Rather, the Court finds credible the account of Hollis, a complaint-free recruiter who has been serving in the Army for 25 years, and whose testimony was consistent and reasonable. Therefore, the Court finds that Hollis never saw Plaintiff’s scars and never counseled her to lie about them on forms or to medical examiners. VI. Dr. Adams’s Testimony and Other Medical Evidence Regarding Causation 67. Dr. William Adams was presented as a medical expert to express an opinion on the cause of Suhanec’s conduct on November 5, 2015. Dr. Adams is a board-certified psychiatrist who has been practicing for approximately 40 years. See 12/3/21 Trial Tr. 4:16-25. He specializes

in psychiatry and addiction. Dr. Adams explained that Suhanec’s assault of Plaintiff was caused by a psychotic reaction to the Adderall and subsequent Adderall overdose. Dr. Adams noted that Suhanec began experiencing psychosis days before November 5, 2020, and that the record indicates Army psychiatrists were not aware of this adverse reaction. See 12/3/21 Trial Tr., 21:14- 22:20. 68. Forensic doctors who examined Suhanec after her arrest noted that she exhibited psychotic behavior at first, but that it quickly dissipated as the effects of the Adderall wore off. Based on this and other medical evidence from treating psychiatrists, Dr. Adams opined that Suhanec was not at risk of acting in a similar way absent an Adderall overdose. See 12/3/21 Trial

Tr., 14:9-15. 69. Other Washington State medical professionals who evaluated Suhanec and reviewed her medical history also determined that the medical cause of Suhanec’s assault was the Adderall overdose. They likewise concluded that she was at a low risk for reoffending and dangerous behavior. See Exhibit D3, Forensic Neuropsychological Evaluation Report, dated

March 31, 2016, at pg. 9; Exhibit D2, Forensic Mental Health Report, dated July 29, 2016, at pg. 29. CONCLUSIONS OF LAW I. Federal Tort Claims Act 1. Under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), the United States shall be liable for tort claims “for injury . . . 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 commission occurred.” The United States shall be liable for tort claims only “in the same manner and to the same extent as a

private individual under like circumstances. 28 U.S.C. § 2674. 2. The parties do not dispute that Suhanec’s actions constitute the intentional tort of assault and battery for which the United States cannot be held vicariously liable. 28 U.S.C. § 2680(h). Rather, Plaintiff relies on Ninth Circuit precedent that if the assault and battery is the result of negligent hiring then the government’s waiver of immunity does not apply. Brock v. United States, 64 F.3d 1421, 1425 (9th Cir. 1995); 28 U.S.C. § 2680(h). The United States cannot be held liable for claims arising out of assault and battery, but it can be held liable if the assault and battery resulted from negligent hiring. Brock, 64 F.3d at 1425; 28 U.S.C. § 2680(h). In this case, however, Plaintiff has not made out a claim for negligent hiring, and thus the government’s

immunity has not been waived. II. Negligent Hiring 3. Plaintiff has failed to establish by a preponderance of the evidence that the Army negligently hired Suhanec. 4. The parties agree that Washington law applies to Plaintiff’s negligent hiring

claim. See Dkt. 64. 5. Under Washington law, to prove negligence in hiring an incompetent or unfit employee, a plaintiff must prove by a preponderance of the evidence that the Army “had knowledge of the employee’s unfitness or failed to exercise reasonable care to discover unfitness before hiring or retaining the employee.” Anderson v. Soap Lake Sch. Dist., 423 P.3d 197, 206 (Wash. 2018). 6. Whether an employer is held responsible for injuries resulting from an employee’s unfitness is determined by “legal foreseeability,” which examines whether the harm inflicted could have, or should have, been foreseen by the defendant. Boy 1 v. Boy Scouts of Am., 832 F. Supp. 2d 1282, 1289 (W.D. Wash. 2011) (quoting Mauch v. Kissling, 783 P.2d 601, 606 (Wash. Ct. App.

1989). Employers have a duty to prevent their employees from harming foreseeable victims, Niece v. Elmview Group Home, 929 P.2d 420, 426 (Wash. 1997), and foreseeable victims are only those harmed within the “general field of danger,” which the employer could have reasonably anticipated, Anderson, 423 P.3d at 212. 7. Here, Plaintiff has failed to demonstrate that the Army had knowledge of Suhanec’s unfitness or that the Army failed to exercise reasonable care to discover Suhanec’s unfitness. Rather, the evidence demonstrates that the Army made diligent efforts to confirm Suhanec’s fitness for enlistment, including physical examinations and numerous forms requesting important information that Suhanec misrepresented or omitted. The Army did not take Suhanec

at her word regarding the scars, but rather took the addition precaution of requesting a psychiatric evaluation for Suhanec. The inability to verify Suhanec’s pre-enlistment medical conditions was due solely to Suhanec’s active concealment of those conditions, not negligence by the Army. 8. As an additional measure, the Army referred Suhanec for a non-military psychiatric evaluation by Dr. Judge, the Army relied on Dr. Judge’s professional psychiatric opinion that

Suhanec met no criteria for any psychiatric or substance use disorder. It was reasonable for the Army to rely on the opinion of Dr. Judge, who was professionally trained to assess Suhanec’s psychiatric fitness. 9. Plaintiff presented no evidence that, based on what the Army knew about Suhanec at the time she enlisted, Plaintiff was a foreseeable victim. The medical evidence in the record, including the testimony of Dr. Adams, established that Suhanec assaulted Plaintiff due to Adderall- induced psychosis and an acute overdose of that medication. It is undisputed that Suhanec had never previously abused medications, experienced psychosis, or engaged in similar acts before she committed the assault on November 5, 2015. Therefore, no employee of the Army knew or should have known in 2011 that Plaintiff could be a victim of Suhanec’s violent assault in 2015. See

Smith v. Sacred Heart Med. Ctr., 184 P.3d 646, 650 (Wash. Ct. App. 2008) (holding that there was no showing that employer knew or should have known that employee was a danger to patients when there was no showing that employee had engaged in similar acts before he committed the intentional torts). 10. Plaintiff previously asserted a medical negligence claim in this case related to the Army’s outpatient treatment of Suhanec in 2015. Under Washington law, Plaintiff was required to support that claim with expert testimony establishing that Suhanec’s violent behavior was predictable based on information known to those mental health professionals who treated Suhanec. See Volk v. DeMeerler, 386 P.3d 254, 272-73 (Wash. 2016). Despite being given two

opportunities, Plaintiff was unable to support his medical negligence claim with expert testimony. See Dkt. 89, ¶ 54 (Plaintiff’s expert confirmed “there is no basis for a Medical Negligence Claim”). If no expert would opine that Plaintiff was a foreseeable victim based on information known by Army mental health and medical professionals during their treatment of Suhanec between August 2015 and November 2015, it is even less likely that the Army could have

foreseen Suhanec’s assault in 2011 when Army medical staff had even less information at their disposal. Plaintiff has failed to establish foreseeability by a preponderance of the evidence. 11. Accordingly, because Plaintiff has failed to establish negligent hiring, Defendant retains sovereign immunity and Plaintiff’s suit fails. III. The Discretionary Function Exception 12. The discretionary function exception bars all claims “based upon the exercise or performance or the failure to exercise or perform a 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.” 28 U.S.C. § 2680(a). When the discretionary function exception applies, the government does not merely have a defense to liability—it retains its “immunity from suit” altogether. O’Toole

v. United States, 295 F.3d 1029, 1033 (9th Cir. 2002). When the government retains sovereign immunity, the Court lacks subject matter jurisdiction over the plaintiff’s claims and, therefore, must dismiss them. See Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996). 13. The Supreme Court has enumerated a two-part test for determining whether a claim is barred by the discretionary function exception. See Berkovitz v. United States, 486 U.S. 531 (1988). First, courts must determine whether the act “involv[es] an element of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting Berkovitz, 486 U.S. at 536). To determine whether an act involves an element of judgment, courts look to whether “a federal statute, regulation or policy specifically prescribes a course of action for an employee to follow,”

and an “employee has no rightful option but to adhere to the directive.” Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536). By contrast, if the “challenged actions involve an ‘element of judgment or choice,’” then the conduct is discretionary. Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (quoting Gaubert, 499 U.S. at 322). Therefore, to survive a motion to dismiss, the plaintiff must identify a statute, regulation or policy that is both specific and

mandatory, as well as conduct that violates said statute, regulation, or policy. See Doe v. Holy See, 557 F.3d 1066, 1084 (9th Cir. 2009) (citation omitted). 14. Second, if the conduct does involve judgment or choice, courts then look to “whether that judgment is of the kind that the discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 322-23 (quoting Berkovitz, 486 U.S. at 536). Congress intended 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.” Berkovitz, 486 U.S. at 536-537 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)). Thus, the exception protects “governmental actions and decisions based on considerations of public policy.” Gaubert, 499 U.S. at 323 (citation omitted).

15. Negligent hiring, by its nature, involves policy judgments. See Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009) (citing Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000)); see also Vickers v. United States, 228 F.3d 944, 950 (9th Cir. 2000) (“decisions relating to the hiring, training, and supervision of employees usually involve policy judgments of the type Congress intended the discretionary function exception to shield”). Furthermore, “[w]hen discretionary decisions are ones of professional military discretion, they are due the courts’ highest deference.” Minns v. United States, 155 F.3d 445, 451 (4th Cir. 1998). The discretionary function exception applies even if the government’s conduct was negligent or an abuse of discretion. See Gaubert, 499 U.S. at 323.

16. This Court previously held that the discretionary function exception did not apply to Plaintiff’s negligent hiring claim because, in her deposition testimony, Suhanec stated that she informed the Army recruiter of her history of self-mutilation. Dkt. 64 at pgs. 8-9. Informing the Army recruiter of this disqualifying condition would have triggered a non-discretionary duty to

bar Suhanec’s enlistment. See id. However, Suhanec’s deposition testimony was disputed by Hollis at trial, and the Court found Hollis’s testimony credible. Additionally, at trial, Suhanec admitted that her deposition testimony was untruthful and testified that she never actually disclosed to Hollis or anyone in the Army that her left forearm scars were from self-cutting. See 12/3/21 Trial Tr., 65:15-66:1. 17. Suhanec proceeded to the medical stage of her enlistment and continued to make dishonest statements on disclosure forms and to medical professional. Army medical staff attempted to verify whether Suhanec had a history of self-mutilation by referring her for a behavioral health consultation. Based on Suhanec’s intentional misrepresentations on her enlistment paperwork and again during her psychiatric evaluations, her disqualifying conditions

were not discovered, and she was cleared for enlistment. 18. Plaintiff has failed to show by a preponderance of the evidence that any United States employee acting in the scope of his or her employment failed to comply with a mandatory, non-discretionary Army regulation during Suhanec’s enlistment process. Therefore, the discretionary function exception applies and, even if Plaintiff had successfully made out a claim for negligent hiring this Court lacks subject matter jurisdiction over that claim. IV. Proximate Cause 19. Given that the Court has found that Suhanec was not a credible witness, and that the Army was not negligent in hiring her, the Army’s actions cannot be a proximate cause of

Plaintiff’s injuries. 20. Furthermore, the Court finds that the testimony of Dr. Adams establishes that there lack of proximate cause between the Army’s hiring Suhanec and Plaintiff's injury. 21. Dr. Adams explained that the proximate medical cause of Suhanec’s conduct was |apsychotic reaction to the Adderall and the subsequent Adderall overdose, both of which occurred |in November 2015. Based on Dr. Adams’s testimony, Suhanec’s pre-military conditions and | behavior, even if known to the Army, would not have suggested that, more than four years after |her enlistment, Suhanec would abruptly experience severe paranoia, overdose on her Adderall, and assault a civilian. Dr. Adams’s opinion is consistent with Suhanec’s own testimony, as well as the medical professionals who evaluated Suhanec after her assault and determined that Suhanec was |not likely to reoffend. 22. “Mixed considerations of logic, common sense, justice, policy, and precedent” do support extending the legal consequences of the Army’s hiring Suhanec to Suhanec’s conduct than four years later. CONCLUSION Plaintiff has failed to prove the required elements of his negligent hiring claim. | Therefore, the Court finds in favor of Defendant in this matter. DATED this 26th day of April, 2022. Kutae aban, Barbara J.Rothstein United States District Judge 20 21 22 23 24

FINDINGS OF FACT AND CONCLUSIONS OF LAW