UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1121

ANDREW J. BILLUPS, III,

Plaintiff – Appellant,

v.

UNITED STATES OF AMERICA,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. David J. Novak, District Judge. (3:19-cv-00646-DJN)

Argued: March 9, 2021 Decided: May 6, 2021

Before DIAZ, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Harris wrote the opinion, in which Judge Diaz and Judge Thacker joined.

ARGUED: Christopher L. Spinelli, EMROCH & KILDUFF, LLP, Richmond, Virginia, for Appellant. Jonathan Tyler Lucier, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: William Randolph Robins, Jr., EMROCH & KILDUFF, LLP, Richmond, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

2 PAMELA HARRIS, Circuit Judge:

Andrew Billups III brought this suit against the United States under the Federal Tort

Claims Act (“FTCA”) for injuries he sustained when an employee of the United States

Postal Service blasted a loud truck horn near his head. The district court dismissed

Billups’s suit for lack of jurisdiction, finding that his claim was based on battery and

therefore barred by the intentional-tort exception to the FTCA’s waiver of the United

States’ sovereign immunity. We agree that Billups’s claim, at its core, sounds in battery

and therefore affirm.

I.

A.

Andrew Billups III brought this suit under the Federal Tort Claims Act (“FTCA”),

(b), 2671 et seq., seeking $3 million in damages for injuries he suffered

when a postal employee’s prank went seriously wrong. In his complaint, Billups alleged

that he visited a United States Postal Service (“USPS”) office in Kilmarnock, Virginia, in

September of 2017. He parked near a Ford F-250 pickup truck that had been backed into

a parking space, with its front grill facing into the parking lot. As Billups exited his car,

he heard a loud horn blast from the nearby truck. He approached the vehicle to investigate

and bent down to examine the truck’s grill. When his head was just a few feet away from

the grill, the truck’s horn – which had been modified to create an unusually loud noise –

blasted again. Billups immediately experienced “significant ringing” in both of his ears

and “moderate deafness.” J.A. 5.

3 Billups later learned that the truck was owned by Ronald Cain, a custodian at the

post office. Cain admitted that he had purposefully triggered the horn with a remote device

to play a practical joke on Billups, and that some of his colleagues had watched the prank

through a hole cut in the office’s venetian blinds. Billups has since been diagnosed with

high-frequency hearing loss and tinnitus in both ears as a result of the horn blast.

After USPS denied his administrative claim, Billups brought this suit in federal

court. His complaint specified four separate counts arising from Cain’s activation of the

truck horn. Billups later conceded before the district court that three of those counts –

direct liability claims against the United States for negligent supervision, training, and

retention of Cain – were foreclosed by a recent decision of the Supreme Court of Virginia.

That left Billups’s fourth claim, the only one before us today: a claim for vicarious liability,

asserting that the United States was liable for the injuries caused by its employee’s

“negligent activation of his Truck horn.” J.A. 8.

The district court dismissed this claim without prejudice for lack of subject-matter

jurisdiction. Billups v. United States,

, 918 (E.D. Va. 2020). 1 While

the FTCA waives the United States’ sovereign immunity for some torts committed by

federal employees, the court explained, it specifically excepts from this waiver certain

intentional torts, including “[a]ny claim arising out of assault [or] battery.”

at 921

(quoting

(h)). The court recognized that Billups labeled his claim as one

1 The district court also dismissed Billups’s direct liability claims with prejudice, in light of his concession that those claims could not go forward. Billups, 433 F. Supp. 3d at 923 n.1. Billups does not appeal this ruling.

4 of negligence, not the intentional tort of battery. See id. at 921. But, the court reasoned, it

“is the substance of the claim and not the language used in stating it which controls,” id. at

921–22 (internal quotation marks omitted), and the substance of Billups’s claim was clearly

battery: Billups alleged only intentional actions, taken to “violate the legally protected

interest of [Billups] in his person,” bringing the claim into the heartland of battery. Id. at

923.

Whether Billups could succeed on his battery claim, the court concluded, was not

the question before it. See id. at 922. According to Billups, his claim could not be treated

as one for battery because Virginia law has not expressly recognized battery by soundwave,

rather than physical touching. Id. But the FTCA’s intentional-tort exception, the court

explained, does not require a court to examine a plaintiff’s “likelihood of success” under a

battery theory. Id. The only question is whether the plaintiff’s claim “aris[es] out of”

battery. Id. at 921 (quoting

(h)). Because Billups’s claim did just that,

the district court held, it fell within § 2680(h)’s jurisdictional bar and should be dismissed.

See id. at 922–23.

Billups timely appealed.

II.

We review de novo a dismissal for lack of subject-matter jurisdiction. Durden v.

United States,

(4th Cir. 2013). For the reasons given below, we agree

with the district court that Billups’s claim “arises out of” battery for purposes of § 2680(h)

and thus affirm its dismissal of that claim.

5 The FTCA provides a limited waiver of the United States’ sovereign immunity that

allows plaintiffs to sue the United States “for certain torts committed by federal employees

acting within the scope of their employment.” Brownback v. King,

(2021) (internal quotation marks omitted); see

(b)(1) (waiving sovereign

immunity for tort claims against the United States “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”). But the statute carves out from this waiver

“[a]ny claim arising out of” a list of specified torts, most of which are intentional.

(h). 2 As relevant here, § 2680(h) provides that the United States has not

waived sovereign immunity for “[a]ny claim arising out of . . . battery.” Id. The question

before us, then, is whether Billups’s claim “aris[es] out of . . . battery” and thus falls outside

of the FTCA’s waiver of sovereign immunity. Like the district court, we find that it does.

First, as the district court recognized, in assessing whether Billups’s claim is barred

by § 2680(h), we look to the substance of the conduct alleged and not the label that Billups

has attached to his complaint. See Talbert v. United States,

, 1066–67 (4th

Cir. 1991). If the “gravamen” of Billups’s claim is battery, then “artful[ly] pleading” it as

negligence will not take it outside of § 2680(h)’s ambit. See id. at 1066. The question for

2 This provision is sometimes referred to as the “intentional-tort exception” to the FTCA. See, e.g., Durden,

. As the Supreme Court has explained, that shorthand label is mostly but not entirely accurate: The provision “does not remove from the FTCA’s waiver all intentional torts, e.g., conversion and trespass, and it encompasses certain torts, e.g., misrepresentation, that may arise out of negligent conduct.” Levin v. United States,

, 507 n.1 (2013) (citation omitted).

6 us, in other words, is not whether Billups has pled his claim as battery but whether his

claim in fact and substance sounds in battery, and thus “arises under” battery within the

meaning of § 2680(h). See Popovic v. United States,

,

, at

*3–4 (4th Cir. 1999) (per curiam) (unpublished table decision).

Second, whatever else may be said of Billups’s claim – and notwithstanding its label

– it does not sound in negligence. Negligence “conveys the idea of heedlessness,

inattention, [and] inadvertence,” Green v. Ingram,

(Va. 2005) (internal

quotation marks omitted), and “[i]ntentional conduct is not required,” Mayr v. Osborne,

(Va. 2017); see also Restatement (Second) of Torts § 282 cmt. d

(1965). 3 But what Billups alleges, as the district court explained, is classically intentional

conduct: that Cain purposefully modified his horn to increase its volume and then

purposefully activated the horn remotely when Billups crouched down next to his truck.

See Billups, 433 F. Supp. 3d at 922–23. The “gravamen” of that allegation, see Talbert,

, is the kind of “volitional conduct” that takes it plainly outside the realm

of negligence, see Billups, 443 F. Supp. 3d at 922–23; see also Popovic,

,

3 Both parties assume, as did the district court, that we look to the law of the state in which a tort occurs – here, Virginia – to determine whether a claim “arises out of” one of the torts listed in § 2680(h). In fact, we have held that the scope of the § 2680(h) exception is a “matter of federal, not state, law,” and that the torts specified in that provision should be construed by turning to “traditional and commonly understood definition[s]” and “consulting such appropriate sources” as the Restatement and federal case law. Talbert,

(internal quotation marks omitted). The source of law question makes no difference here, however, because Billups’s claim sounds in battery under either approach.

7 at *4 (finding that allegations of intentional conduct are inconsistent with effort to

characterize claim as negligence for purposes of § 2680(h)).

And finally, Billups claims not just volitional conduct, but volitional conduct that

was intended to “violate [his] legally protected interest . . . in his person” – and that claim

sounds directly in battery. Billups, 433 F. Supp. 3d at 923 (citing Mayr,

(quoting 1 Fowler V. Harper et al., Gray on Torts § 3.2 (3d ed. 2006))). The gist of

Billups’s complaint is that Cain intentionally exposed him to contact with an abnormally

loud horn. It may be, as Billups asserts, that Cain had in mind only a practical joke, and

did not intend to do physical harm. But at a minimum, according to Billups’s own

allegations, Cain “intended to violate [his] dignitary interest in being free from offensive

contact.” Id. That is the essence of a battery claim, see Mayr,

(explaining

dignitary interest protected by battery), which requires only that a tortfeasor “act[]

intending to cause a harmful or offensive contact” with another person and that a “harmful

contact . . . results,” Restatement (Second) of Torts § 13. And it remains a battery claim

even if the offensive contact is caused indirectly or by an intangible substance like a laser

beam. See Adams v. Commonwealth,

(Va. Ct. App. 2000)

(recognizing battery claim for “touching by intangible substances” in form of laser beam);

see also United States v. Castleman,

(2014) (explaining that force used

in battery need not be applied directly and that battery may be committed with “intangible

substance” such as a laser beam).

Still, Billups argues, his claim cannot be characterized as one for battery because,

so framed, it might not succeed in Virginia courts, which have not recognized expressly

8 that battery can be committed by soundwaves. Like the district court, we disagree. For

one thing, Billups may be reading Virginia law too narrowly. See Adams,

(discussing intangible substances “such as light or sound” together and setting out

standard for battery based on “contact by an intangible substance”). But in any event, as

the district court recognized, whether a claim “arises out of” a tort listed in § 2680(h) does

not turn on whether a plaintiff could succeed under that theory. See Billups, 433 F. Supp.

3d at 922. In Popovic, for instance, the plaintiff argued that his FTCA claim could not

sound in defamation – another tort listed in § 2680(h) – because he had not alleged the

necessary element of falsity.

, at *3. But we rejected that argument,

reasoning that the “arising out of” language in § 2680(h) is construed broadly, and that it

was enough that the plaintiff’s claims of reputational damage sounded, in their essence, in

defamation. See id. at *3–4. Here, too, we ask not whether Billups can recover under a

battery theory, but rather whether the “gravamen” of his claim sounds in battery. Talbert,

. Because it does, Billups’s FTCA claim is barred by § 2680(h), and the

district court properly dismissed it for lack of subject-matter jurisdiction.

III.

For the reasons given above, the judgment of the district court is affirmed.

AFFIRMED

9