Kerns v. United States

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STACIA LYNN KERNS, Individually, 

and as Personal Representative of

the Estate of Dennis Gregory

Kerns, Jr., and as mother and next



friend of A.K. and D.K., III,

No. 08-1287

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Catherine C. Blake, District Judge.

(1:07-cv-01006-CCB)

Argued: September 22, 2009

Decided: October 29, 2009

Before MOTZ and KING, Circuit Judges,

and Mark S. DAVIS, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge King

wrote the opinion, in which Judge Motz and Judge Davis

joined.

2 KERNS v. UNITED STATES

COUNSEL

ARGUED: Paul David Bekman, SALSBURY, CLEMENTS,

BEKMAN, MARDER & ADKINS, Baltimore, Maryland, for

Appellant. Ariana Wright Arnold, OFFICE OF THE UNITED

STATES ATTORNEY, Baltimore, Maryland, for Appellee.

ON BRIEF: Emily C. Malarkey, SALSBURY, CLEMENTS,

BEKMAN, MARDER & ADKINS, Baltimore, Maryland, for

Appellant. Rod J. Rosenstein, United States Attorney, Balti-

more, Maryland for Appellee.

OPINION

KING, Circuit Judge:

In April 2007, Stacia Kerns instituted this lawsuit against

the United States under the Federal Tort Claims Act (the

"FTCA"), 28 U.S.C. §§ 1346(b), 2671–2680, based on the

alleged negligence of Government employee Debra Scott. In

her complaint, Kerns alleged that Scott, acting within the

scope of her employment, had negligently caused an automo-

bile accident in Maryland that resulted in the death of Kerns’s

husband, Dennis Gregory Kerns, Jr. (the "decedent"). On Feb-

ruary 7, 2008, the district court dismissed the complaint under

Federal Rule of Civil Procedure 12(b)(1) for lack of subject

matter jurisdiction. See Kerns v. United States, 534 F. Supp.

2d 633 (D. Md. 2008) (the "Opinion"). By way of this appeal,

Kerns challenges the dismissal of her FTCA claim. As

explained below, we vacate and remand.

I.

A.

At the time of the accident, Scott was a contract employee

of the Army Reserve’s 99th Regional Readiness Command,

KERNS v. UNITED STATES 3

working for the office of the Family Readiness Program

Director in Coraopolis, Pennsylvania.1 On May 20, 2005,

Scott was ordered to provide a briefing during a three-day

volunteer training conference concerning aid and assistance to

military families. The conference was to be held at a Radisson

Hotel in Annapolis, Maryland, beginning at 8:00 a.m. on Sat-

urday, June 25, 2005. That Friday, June 24, Scott drove her

personal car to the Pittsburgh airport and flew to Baltimore-

Washington International Thurgood Marshall Airport

("BWI") at the Government’s expense. At approximately 1:06

p.m., Scott landed at BWI and rented a vehicle at the airport.

Using her personal credit card, she paid a "Government

Weekend" rate for a three-day rental. J.A. 43.2 Shortly after

1:30 p.m., she departed BWI; the Radisson Hotel’s check-in

time was 4:00 p.m.

Scott first drove from BWI to the nearby Army Post at Fort

Meade, Maryland, to shop at the Fort Meade PX.3 At approxi-

mately 9:30 p.m., Scott left Fort Meade and headed eastbound

on Annapolis Road/Maryland Route 175 toward Annapolis.

While making a left-hand turn, Scott struck the decedent, who

was riding a motorcycle westbound on the same road. The

decedent was thrown to the highway and seriously injured; he

was promptly transported to a hospital trauma unit, but later

died. It is undisputed, for our purposes, that Scott was at fault.

Scott returned to Pennsylvania the next day without complet-

ing the conference.

1

The facts spelled out herein are drawn from the Complaint and various

exhibits filed in connection with the Government’s motion to dismiss. For

purposes of its motion, the Government assumed arguendo that Scott was

an "[e]mployee of the government" under 28 U.S.C. § 2671.

2

Citations herein to "J.A. __" refer to the contents of the Joint Appendix

filed by the parties in this appeal.

3

Scott’s husband was on active duty with the Army Reserve, entitling

her to utilize facilities, such as the Fort Meade PX, that are located on mil-

itary installations.

4 KERNS v. UNITED STATES

B.

On April 19, 2007, Kerns, as the personal representative of

her husband’s estate and next friend of her children, filed her

complaint in the District of Maryland. On August 2, 2007, the

Government moved to dismiss under Rule 12(b)(1), contend-

ing that there was no basis for subject matter jurisdiction

under the FTCA because Scott was not acting within the

scope of her employment with the Government at the time of

the accident. Rather, according to the Government, "[t]he evi-

dence [was] clear . . . that [Scott] rented the car on her own

to visit personal friends." J.A. 11.

The Government submitted eight exhibits, including two

affidavits, in support of its Rule 12(b)(1) motion to dismiss.

The exhibits included the following:

• Scott’s May 20, 2005 travel orders, which pro-

vided that she was to travel between Pennsylva-

nia and Maryland by commercial plane and that

"rental car is not authorized." J.A. 32. The orders

were silent on how Scott was to proceed from the

airport to the hotel in Annapolis.

• Post-conference travel voucher records, dated

July 21, 2005, and August 3, 2005, showing that

Scott sought and received reimbursement for

round-trip vehicle mileage between Coraopolis

and the Pittsburgh airport, as well as per diem

and other expenses. The records suggest that

Scott neither requested nor received reimburse-

ment for the rental car involved in the accident.

• An affidavit from Barbara Wilson, Scott’s super-

visor at the time of the accident. Wilson attested

that she too had travelled to Annapolis, although

not with Scott. Wilson stated that she was "not

certain what [Scott] was doing at the time of the

KERNS v. UNITED STATES 5

accident," but that the conference "had not yet

begun, and [Scott] was not performing any duties

related to the conference or Army business at the

time of the accident." J.A. 35. According to the

affidavit, Wilson was informed by Scott, prior to

the conference, "that she planned to rent a car and

visit friends at Fort Meade during the conference

weekend." Id.

• An affidavit from Thomas Cannon, a colleague

who flew to Baltimore with Scott. Cannon

attested that "Scott rented a vehicle when we left

BWI Airport, and she told me she was going to

use the car to visit some friends in the area that

evening." J.A. 37. Like Wilson, however, Cannon

was "not certain what [Scott] was doing at the

time of the accident." Id.

On August 20, 2007, Kerns submitted a memorandum in

opposition to the Government’s motion to dismiss, requesting

the district court to authorize relevant discovery proceedings.

Kerns maintained that the record had not been sufficiently

developed because the exhibits submitted by the Government

failed to "disprove that Ms. Scott was acting within the scope

of her employment at the time of the collison," in that the

exhibits did "not provide any specific information about what

Ms. Scott was doing at [that] time" — including any state-

ment from Scott herself. J.A. 75. Kerns pointed out, for exam-

ple, that although the Wilson and Cannon affidavits

"provide[d] hearsay accounts of conversations these individu-

als had with Ms. Scott about a possible visit with a friend

while in Maryland to attend the conference, both specifically

state that [the affiants did] not know what Ms. Scott was

doing or where she was going at the time of the collision." Id.

at 76. Furthermore, Kerns asserted, "[m]erely because Ms.

Scott was not reimbursed for her expenses related to the rental

car [did] not conclusively establish that Ms. Scott . . . did not

use the rental car for some portion of her work-related respon-

6 KERNS v. UNITED STATES

sibilities or even that Ms. Scott’s duties did not require the

rental car." Id. at 77. Indeed, the Government "provided no

information about how the out-of-town [conference] attendees

. . . got to the location of the conference from the airport." Id.

In these circumstances, Kerns maintained, discovery was nec-

essary to fully develop the record before the district court

could properly issue any ruling on the Government’s motion

to dismiss.

On September 6, 2007, the Government filed its reply

memorandum on the Rule 12(b)(1) request. This submission

included an August 23, 2007 affidavit from Scott, prepared by

the Government in the wake of Kerns’s opposition memoran-

dum. Scott attested that "[e]mail instructions regarding travel

to the [conference] stated that we could fly into BWI, drive

our personal automobiles or take a rental car." J.A. 94. Scott

further attested that, on June 24, 2005, while she "was in the

Annapolis/FT Meade area on government orders," she "went

shopping at the FT Meade PX." Id. at 95. According to Scott,

if she had not been on government orders to provide a brief-

ing at the conference, she "would not have been at FT Meade

at the time of the collision, and this collision would not have

occurred." Id. The affidavit did not specify whether Scott was

shopping at the Fort Meade PX for herself or her employer,

and it did not address whether Scott had also been visiting

friends in the Fort Meade area.

In its reply memorandum, the Government failed to

acknowledge or address the contradiction between the nota-

tion in Scott’s May 20, 2005 travel orders specifying that

"rental car is not authorized," J.A. 32, and Scott’s averment

that "[e]mail instructions" identified a rental car as a permissi-

ble mode of travel, id. at 94. Instead, the Government asserted

that Kerns could "point to no set of facts that would demon-

strate that the United States authorized Ms. Scott to use the

rental car to travel to Ft. Meade the evening before the confer-

ence in Annapolis was to begin." Id. at 89-90. The Govern-

ment did acknowledge Scott’s apparent attempt — by stating

KERNS v. UNITED STATES 7

in her affidavit that she would not have been at Fort Meade

but for the conference — to establish that she was acting

within the scope of her employment at the time of the acci-

dent. The Government insisted, however, that "whether Ms.

Scott was visiting friends at Fort Meade or shopping at the

[PX] prior to the accident, she was performing no duties

related to her employment or with her attendance at the con-

ference." Id. at 91.4

On February 7, 2008, without any discovery having

occurred, the district court granted the Rule 12(b)(1) motion

to dismiss. In its Opinion, the court concluded that, under

Maryland law, Scott was not acting within the scope of her

employment with the Government at the time of the tragic

accident. See Kerns, 534 F. Supp. 2d at 637–38. The court

gave two reasons for its conclusion. First, it posited that Scott

was running personal errands at the time of the accident. The

court observed that "Scott’s affidavit clearly states that the

accident occurred soon after she finished shopping at the Fort

Meade PX," and that "Scott gives no indication that she was

shopping for or on behalf of her employer." Id. at 637. Sec-

ond, the court found that Scott had rented the car on her own

initiative for use in her personal time. The court noted that the

travel orders apparently did not authorize a rental car, as evi-

denced by "[t]he fact that Scott did not request or receive

reimbursement." Id. The court thus ruled that it lacked juris-

diction and dismissed the complaint. Id. at 640. Kerns filed a

timely notice of appeal, and we possess jurisdiction pursuant

to 28 U.S.C. § 1291.

II.

Kerns’s primary contention on appeal is that the key juris-

4

Kerns did not respond to the Scott affidavit, apparently because it was

not filed until the reply submission of the Government. See D. Md. Loc.

R. 105(2)(a) ("Unless otherwise ordered by the Court, surreply memo-

randa are not permitted to be filed.").

8 KERNS v. UNITED STATES

dictional issue — whether Scott was acting within the scope

of her employment with the Government — is also an issue

central to the merits of her FTCA claim. She thus maintains

that the district court should have assumed jurisdiction, pro-

ceeded to the merits of her FTCA claim, and treated the Gov-

ernment’s Rule 12(b)(1) dismissal motion as a Rule 56

request for summary judgment. Kerns further asserts that, had

the court applied the appropriate legal principles, it would

have denied the motion and authorized discovery on the

scope-of-employment issue.5

In resolving this appeal, we first ascertain the proper legal

framework for resolving a Rule 12(b)(1) motion to dismiss,

when the jurisdictional facts are inextricably intertwined with

those central to the merits. We then assess whether, in the

context of this FTCA claim, the scope-of-employment issue

is an essential aspect of both the jurisdictional question and

the merits, rendering dismissal under Rule 12(b)(1) inappro-

priate.

A.

We have heretofore recognized that a defendant may chal-

lenge subject matter jurisdiction in one of two ways. See

Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). First, the

defendant may contend "that a complaint simply fails to

allege facts upon which subject matter jurisdiction can be

based." Id. When a defendant makes a facial challenge to sub-

ject matter jurisdiction, "the plaintiff, in effect, is afforded the

same procedural protection as he would receive under a Rule

12(b)(6) consideration." Id. In that situation, the facts alleged

in the complaint are taken as true, and the motion must be

5

Kerns also contends that, even if Rule 12(b)(1) was the appropriate tool

for resolving this case, the district court erred in denying her request for

limited discovery on the scope-of-employment issue. Because dismissal

under Rule 12(b)(1) was inappropriate, we need not reach or address this

contention.

KERNS v. UNITED STATES 9

denied if the complaint alleges sufficient facts to invoke sub-

ject matter jurisdiction.

In the alternative, the defendant can contend — as the Gov-

ernment does here — "that the jurisdictional allegations of the

complaint [are] not true." Adams, 697 F.2d at 1219. The

plaintiff in this latter situation is afforded less procedural pro-

tection: If the defendant challenges the factual predicate of

subject matter jurisdiction, "[a] trial court may then go

beyond the allegations of the complaint and in an evidentiary

hearing determine if there are facts to support the jurisdic-

tional allegations," without converting the motion to a sum-

mary judgment proceeding. Id. (emphasis added). In that

situation, the presumption of truthfulness normally accorded

a complaint’s allegations does not apply, and the district court

is entitled to decide disputed issues of fact with respect to

subject matter jurisdiction.

As we explained in Adams, vesting a district court with the

discretion to determine whether it possesses jurisdiction gen-

erally presents no problems. See 697 F.2d at 1219. But as

Judge Sprouse cautioned in Adams, "where the jurisdictional

facts are intertwined with the facts central to the merits of the

dispute," a presumption of truthfulness should attach to the

plaintiff’s allegations. Id. In that situation, the defendant has

challenged not only the court’s jurisdiction but also the exis-

tence of the plaintiff’s cause of action. A trial court should

then afford the plaintiff the procedural safeguards — such as

discovery — that would apply were the plaintiff facing a

direct attack on the merits. The Fifth Circuit has aptly

described the underlying rationale for this approach:

[N]o purpose is served by indirectly arguing the mer-

its in the context of federal jurisdiction. Judicial

economy is best promoted when the existence of a

federal right is directly reached and, where no claim

is found to exist, the case is dismissed on the merits.

This refusal to treat indirect attacks on the merits as

10 KERNS v. UNITED STATES

Rule 12(b)(1) motions provides, moreover, a greater

level of protection to the plaintiff who in truth is fac-

ing a challenge to the validity of his claim: the

defendant is forced to proceed under Rule 12(b)(6)

. . . or Rule 56 . . . both of which place greater

restrictions on the district court’s discretion.

Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981).

Thus, when the jurisdictional facts and the facts central to a

tort claim are inextricably intertwined, the trial court should

ordinarily assume jurisdiction and proceed to the intertwined

merits issues. See United States ex rel. Vuyyuru v. Jadhav,

555 F.3d 337, 348 (4th Cir. 2009). As the Supreme Court has

explained with respect to such situations, a trial court should

dismiss under Rule 12(b)(1) only when the jurisdictional alle-

gations are "clearly . . . immaterial, made solely for the pur-

pose of obtaining jurisdiction or where such a claim is wholly

unsubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682

(1946).6

In short, when a defendant asserts that the complaint fails

to allege sufficient facts to support subject matter jurisdiction,

the trial court must apply a standard patterned on Rule

12(b)(6) and assume the truthfulness of the facts alleged. On

the other hand, when the defendant challenges the veracity of

the facts underpinning subject matter jurisdiction, the trial

court may go beyond the complaint, conduct evidentiary pro-

ceedings, and resolve the disputed jurisdictional facts. And

when the jurisdictional facts are inextricably intertwined with

those central to the merits, the court should resolve the rele-

6

If a district court does not dismiss under Rule 12(b)(1), it is entitled to

treat a Rule 12(b)(1) motion as a direct attack on the merits under Rule

56(c). See, e.g., Rivanna Trawlers Unltd. v. Thompson Trawlers, Inc., 840

F.2d 236, 239 (4th Cir. 1988) (explaining that when contested basis for

jurisdiction is element of claim, motion to dismiss should be converted to

motion for summary judgment). Here, for example, the district court was

entitled to treat the motion to dismiss as a request for summary judgment

under Rule 56(c).

KERNS v. UNITED STATES 11

vant factual disputes only after appropriate discovery, unless

the jurisdictional allegations are clearly immaterial or wholly

unsubstantial and frivolous. See Bell, 327 U.S. at 682.

In this case, the Government makes the second type of

challenge, contending that Kerns’s complaint included juris-

dictional allegations that are not true. Therefore, we must

assess whether the jurisdictional facts are so intertwined with

the merits that dismissal under Rule 12(b)(1) was inappropri-

ate.

B.

Absent a statutory waiver, sovereign immunity shields the

United States from a civil tort suit. See United States v. Sher-

wood, 312 U.S. 584, 586 (1941). When it enacted the FTCA

in 1946, Congress "waived the sovereign immunity of the

United States for certain torts committed by federal employ-

ees." FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA

grants jurisdiction to the district courts only with respect to a

"certain category of claims." Id. at 477. In order for a claim

to fall within that limited category, it must be made

"[1] against the United States, [2] for money dam-

ages, . . . [3] for injury or loss of property, or per-

sonal injury or death [4] caused by the negligent or

wrongful act or omission of any employee of the

Government [5] while acting within the scope of his

office or employment, [6] 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."

Id. (quoting 28 U.S.C. § 1346(b)) (alterations in original). In

other words, to establish subject matter jurisdiction, an FTCA

plaintiff bears the burden of establishing, inter alia, that the

Government employee was acting within the scope of his or

her employment at the time of the accident. The scope-of-

12 KERNS v. UNITED STATES

employment issue is thus, on its face, a jurisdictional one —

if Scott was acting outside the scope of her employment with

the Government, the district court lacks jurisdiction over

Kerns’s FTCA claim.

Meanwhile, the underlying cause of action in an FTCA

claim is derived from the applicable state law. An action

under the FTCA may only be maintained if the Government

would be liable as an individual under the law of the state

where the negligent act occurred. See 28 U.S.C. § 1346(b)(1).

In Maryland, an employer is liable for the tortious acts of its

employee under the doctrine of respondeat superior, but only

if the employee’s negligent acts were committed within the

scope of employment. See Oaks v. Connors, 660 A.2d 423,

426 (Md. 1995). Thus, the scope-of-employment issue is also

an element of Kerns’s FTCA claim — if Scott was acting out-

side the scope of her employment with the Government,

Kerns cannot satisfy an element of her negligence claim

against the United States.

Notwithstanding the overlap between the jurisdictional ele-

ments of the FTCA and the requirements of a claim of

respondeat superior liability under Maryland law, the Opinion

concluded that the "FTCA jurisdictional issues arising under

respondeat superior theories . . . are normally quite distinct

from the underlying merits of the case and thus would ‘not

usually present a serious problem’ for a court deciding a

12(b)(1) motion." Kerns, 534 F. Supp. 2d at 640 (quoting

Adams, 697 F.2d at 1219). According to the Opinion, "courts

regularly grant 12(b)(1) dismissal on FTCA claims asserting

vicarious liability." Id.

The district court’s conclusion finds some support in at

least two of our sister courts of appeals. The Third Circuit, for

example, recently recognized that a district court may dismiss

an FTCA claim under Rule 12(b)(1), even when the facts

underlying the claim are intertwined with the jurisdictional

facts. See CNA v. United States, 535 F.3d 132, 140 (3d Cir.

KERNS v. UNITED STATES 13

2008). Although it acknowledged that the issue of "[w]hether

a Government employee was acting within the scope of his

employment plausibly could be addressed as one of jurisdic-

tion or one of the merits of a claim," the Third Circuit never-

theless concluded that "treating the scope-of-employment

issue as jurisdictional in the FTCA context is the better

course." Id. The court observed that an FTCA plaintiff, who

bears the burden of persuasion if subject matter jurisdiction is

challenged, does not need any additional protection provided

by Rules 12(b)(6) and 56(c), because a district court

"requir[es] less of a factual showing" from the plaintiff when

jurisdiction is intertwined with the merits. Id. at 145. Accord-

ing to the Third Circuit, this less-stringent standard suffi-

ciently ensures that trial courts "do not prematurely grant Rule

12(b)(1) motions to dismiss." Id. The Second Circuit has

reached a similar conclusion in an FTCA case, observing that

the scope-of-employment issue is best resolved under Rule

12(b)(1). See Hamm v. United States, 483 F.3d 135, 137 (2d

Cir. 2007).

Other courts of appeals disagree with the approach

advanced by the Second and Third Circuits. The Fifth Circuit,

on facts similar to those here, adhered to what it called the

"general rule" and recognized that "a jurisdictional attack

intertwined with the merits of an FTCA claim should be

treated like any other intertwined attack, thereby making reso-

lution of the jurisdictional issue on a 12(b)(1) motion

improper." Montez v. Dep’t of Navy, 392 F.3d 147, 150 (5th

Cir. 2004). The Eleventh Circuit has reached a similar conclu-

sion. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.

1990) (vacating dismissal of FTCA claim under Rule 12(b)(1)

because "[t]he pertinent inquiry will resolve both the question

of subject matter jurisdiction and a necessary element of the

tort claim"); see also Augustine v. United States, 704 F.2d

1074, 1079 (9th Cir. 1983) ("Because the jurisdictional issue

[when plaintiff’s cause of action accrued for purposes of the

FTCA] is dependent upon resolution of factual issues going

to the merits, it was incumbent upon the district court to apply

14 KERNS v. UNITED STATES

summary judgment standards in deciding whether to grant or

deny the government’s motion."). In our view, this more-

stringent rule better ensures that an FTCA plaintiff is pro-

vided with the appropriate procedural safeguards, requiring

the scope-of-employment issue to be addressed as an element

of the FTCA claim.

Having carefully assessed the issue, we are constrained to

agree with the more-stringent approach: Because the scope-

of-employment issue is determinative of both jurisdiction and

the underlying merits of an FTCA claim, dismissal under Rule

12(b)(1) is inappropriate unless the jurisdictional allegations

are clearly immaterial or wholly unsubstantial and frivolous.

See Bell, 327 U.S. at 682. As an initial matter, we agree that

an FTCA plaintiff facing an indirect attack on the merits —

by way of a Rule 12(b)(1) motion — deserves greater proce-

dural protection than that afforded by a typical Rule 12(b)(1)

motion. See, e.g., CNA, 535 F.3d at 144 (acknowledging con-

cern that Rule 12(b)(1) provides few procedural safeguards

when jurisdictional issue is intertwined with merits). Indeed,

we are unable to identify any valid reason for distinguishing

this type of FTCA claim — with intertwined factual questions

on jurisdictional and merits issues — from other tort claims

with intertwined factual issues. Thus, the general rule arising

from our Adams and Vuyyuru line of precedent is applicable:

A district court should assume jurisdiction and assess the mer-

its of the claim when the relevant facts — for jurisdictional

and merits purposes — are inextricably intertwined. See Vuy-

yuru, 555 F.3d at 348; Adams, 697 F.2d at 1220.7

7

We lack confidence in the efficacy of the less-stringent Rule 12(b)(1)

standard espoused by the Third Circuit. See CNA, 535 F.3d at 145 (con-

cluding that plaintiffs are adequately protected because district courts

require "less of a factual showing than would be required to succeed at

trial"). As this proceeding exemplifies, a district court is entitled to dismiss

for lack of subject matter jurisdiction at any time. See Fed. R. Civ. P.

12(h)(3). It is inconsistent, however, for a trial court to require less proof

from the plaintiff, and yet to grant dismissal of the claim prior to at least

KERNS v. UNITED STATES 15

Our conclusion that a Rule 12(b)(1) dismissal was inappro-

priate in this case is not undermined by our decision in Wil-

liams v. United States, 50 F.3d 299 (4th Cir. 1995), where we

approved dismissal of an FTCA claim under Rule 12(b)(1).

The disputed issues in Williams — whether the alleged

employee was an independent contractor and whether the

discretionary-function exception applied — were threshold

issues wholly unrelated to the basis for liability under the

FTCA. For example, whether the Government had managed

or supervised the activities of the alleged tortfeasor in Wil-

liams, thereby rendering the tortfeasor an independent con-

tractor rather than an employee, was not an issue intertwined

with the merits of the FTCA claim then being pursued. With

the scope-of-employment issue in this case, however, the con-

duct of Scott herself, rather than her status, is determinative

of both jurisdiction and the merits of the FTCA claim.

We are thus satisfied to recognize that, when the scope-of-

employment issue is determinative of both jurisdiction and the

underlying merits of an FTCA claim, dismissal under Rule

12(b)(1) is inappropriate, unless the jurisdictional allegations

are clearly immaterial or wholly unsubstantial and frivolous.

See Bell, 327 U.S. at 682. In so ruling, however, we acknowl-

edge that Kerns appears to face a daunting task with respect

to her FTCA claim, in that Maryland has apparently restricted

the circumstances where an employer can be held vicariously

liable for its employee’s negligent use of an automobile. See,

e.g., Henkelmann v. Metro. Life Ins. Co., 26 A.2d 418, 423

(Md. 1942) (discussing requirements for employer to be held

vicariously liable in automobile context). As Kerns’s lawyer

jurisdictional discovery. See CNA, 535 F.3d at 145–46 (upholding dis-

missal of FTCA claim under Rule 12(b)(1) before plaintiff was accorded

opportunity to conduct discovery). At such an early stage in the proceed-

ings, an FTCA plaintiff’s jurisdictional allegations on an intertwined issue

should generally be sufficient to survive an indirect attack on the merits.

Thus, the application of a Rule 12(b)(6) or Rule 56(c) standard is more

appropriate.

16 KERNS v. UNITED STATES

explained at oral argument, however, discovery could show

that, at least for Rule 56 purposes, the Government authorized

Scott’s rental car and Scott drove to Fort Meade on legitimate

Government business, such as purchasing supplies for the

Annapolis conference where she was to present a briefing.

Because such facts could be sufficient under Maryland law,

Kerns should be afforded an opportunity — at minimum —

to conduct discovery on the intertwined scope-of-employment

issue.

III.

Pursuant to the foregoing, the judgment is vacated and

remand is granted for discovery on the jurisdictional issue,

and for such other and further proceedings as may be appro-

priate.

VACATED AND REMANDED