Case Explained: DAWN LUSK v. CHRIS MERCHANT

Court: United States Court of Appeals for the Fourth Circuit

Filed: 2026-07-14

The Fourth Circuit affirmed in part and reversed in part the district court’s dismissal of Dawn Lusk’s complaint against United States Postal Service employees Chris Merchant and April Peppers, as well as the federal government. The court held that Lusk’s claims for negligence, gross negligence, and recklessness arising from an assault by employee Peppers are generally barred by the Federal Tort Claims Act’s (FTCA) intentional tort exception under 28 U.S.C. § 2680(h), which precludes liability for claims “arising out of” assault or battery. However, the court reversed the dismissal regarding a narrow segment of Lusk’s claim against Postmaster Merchant based on the Supreme Court’s decision in *Sheridan v. United States*. The court applied the standard that government liability for negligence resulting from an assault is permissible only where the duty breached is independent of the tortfeasor’s employment status. Under South Carolina law, the court found that Lusk sufficiently alleged that Merchant negligently created the risk of harm by unlocking double-locked doors to allow a known violent employee to confront Lusk, thereby establishing an independent duty of care separate from Peppers’ employment status. The court affirmed the dismissal of Lusk’s remaining claims: her FTCA claim for negligent hiring, supervision, and retention was barred by the discretionary function exception; her *Bivens* claim for Fourth Amendment violations was dismissed because the Supreme Court has refused to extend *Bivens* remedies to new contexts involving excessive force by federal officers; and her Freedom of Information Act (FOIA) claim was dismissed because she failed to exhaust administrative remedies. The court noted that under the Westfall Act, the certification that the employees were acting within the scope of their employment renders the FTCA the exclusive remedy for common-law torts, effectively barring Lusk from suing the employees individually or in state court for the assault, leaving her with only the narrow negligence claim against Merchant to pursue.

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