Background
Plaintiff Dawn Lusk alleged that a United States Postal Service employee, April Peppers, physically assaulted her at a post office in South Carolina. The Postmaster, Chris Merchant, allegedly facilitated the confrontation and failed to provide assistance. Lusk filed suit alleging negligence under the Federal Tort Claims Act, negligent hiring, constitutional violations under Bivens, and a violation of the Freedom of Information Act. The district court dismissed all claims, and Lusk appealed.
The court’s reasoning
The court analyzed the Federal Tort Claims Act and its intentional tort exception, which bars claims arising from assault and battery. While the court affirmed the dismissal of claims against the government for the assault itself, it reversed and remanded a narrow segment of the negligence claim against the Postmaster. The court found that under South Carolina law, the Postmaster owed an independent duty of care because he negligently created the risk of harm by unlocking doors to allow a known violent employee to confront the plaintiff. The court affirmed the dismissal of the negligent hiring claim under the discretionary function exception, the Bivens claim due to the Supreme Court’s restrictive jurisprudence, and the FOIA claim for failure to exhaust administrative remedies.
The United States may be sued only when Congress has unequivocally waived sovereign immunity. And where Congress has not done so, we must dismiss the action.
Lusk v. Merchant, 23-6059 (4th Cir. 2026)
What it means going forward
The ruling clarifies that while the Westfall Act generally shields federal employees from personal liability for torts, plaintiffs may still pursue a limited negligence claim against supervisors who independently create risks of harm. However, the decision reinforces the difficulty of suing federal employees for intentional torts or constitutional violations, often leaving plaintiffs without a civil remedy.