CNA v. United States

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

7-22-2008

CNA v. USA

Precedential or Non-Precedential: Precedential

Docket No. 06-5104

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 06-5104

CNA; CONTINENTAL CASUALTY COMPANY,

the Workers’ Compensation Carrier

for RTR Business Products,

as Subrogee of Michael Lahoff;

MICHAEL LAHOFF, (brought in his name

and on his behalf by CNA and

Continental Casualty Company as subrogee)

v.

UNITED STATES OF AMERICA; KOREY LEWIS

CNA;

Continental Casualty Company;

Michael Lahoff,

Appellants

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 06-cv-00126)

District Judge: Honorable Donetta W. Ambrose

Submitted Under Third Circuit LAR 34.1(a)

February 4, 2008

Before: MCKEE and AMBRO, Circuit Judges,

and IRENAS,* District Judge

(Filed: July 22, 2008)

Daniel L. Hessel, Esquire

Golkow Hessel

1800 John F. Kennedy Boulevard

Suite 1010

Philadelphia, PA 19103

Counsel for Appellants

Mary Beth Buchanan

United States Attorney

Robert Greenspan, Esquire

Edward Himmelfarb, Esquire

United States Department of Justice

Civil Division

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0000

Laura S. Irwin, Esquire

Office of the United States Attorney

*

Honorable Joseph E. Irenas, Senior District Judge for the

District of New Jersey, sitting by designation.

2

700 Grant Street, Suite 4000

Pittsburgh, PA 15219-0000

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

CNA and Continental Casualty Company,1 stepping into

the place of Michael Lahoff as his subrogees, sued the

Government under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. §§ 1346(b), 2671–80. They base their claims on

negligence that they allege led to Lahoff being severely injured.

CNA and Continental (hereinafter “Subrogees”) appeal the

District Court’s order granting the Government’s motion to

dismiss for lack of subject matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(1). They raise two

arguments on appeal: that the District Court applied the wrong

procedural framework when it ruled that it lacked subject matter

jurisdiction; and that the Court erred by dismissing the case

1

The cover pages of the parties’ briefs refer to

Continental Casualty Company as “Continental Insurance

Company,” which does not match the appellants’ corporate

disclosure statement and thus appears to be a typographical

error.

3

despite Subrogees’ alternative theories of liability against the

Government. For the reasons that follow (though they differ

from those of the District Court), we affirm.

I. Facts

In January 2003 Marty Allen Armstrong, Jr. and an

accomplice walked onto the seventh floor of a downtown

Pittsburgh parking garage and robbed Lahoff at gunpoint. After

Lahoff gave Armstrong his wallet, and the $15 in it, Armstrong

shot Lahoff in the neck, resulting in his paralysis from the neck

down. At the time of the shooting, Lahoff was employed by

RTR Business Products and was working within the course and

scope of his employment. Subrogees were the workers’

compensation carriers for RTR. They have paid nearly $1

million in workers’ compensation benefits and expect that their

future payments will total another $4 million.

Armstrong was a recruit in the United States Army’s

Delayed Entry Program, and a few weeks short of graduating

from high school in Pittsburgh, when he shot Lahoff. The

Program, authorized under 10 U.S.C. § 513, allows a recruit to

enlist in the Army and receive a cash bonus before his high

school graduation. If, however, the recruit fails to graduate, he

is separated from the Program. In order to be admitted into it,

a prospective recruit must pass a criminal background check and

a drug test. Armstrong passed the background check and the

drug test on July 26, 2002, and enlisted in the Program that day.

4

While the background check revealed nothing that

precluded Armstrong from enlisting, he in fact had a troubled

past. As a 13-year-old, he was charged with aggravated

criminal sexual assault, a charge that was dismissed in 2001.

The same year, Armstrong was twice charged with disorderly

conduct, and was involuntarily committed to Allegheny Valley

Hospital for psychiatric evaluation.

Armstrong was recruited by Staff Sergeant Korey Lewis,

an Army recruiter attached to the Pittsburgh Recruiting

Battalion. Part of Lewis’s job was to stay in regular

communication with recruits in the Program. In late December

2002, he learned that Armstrong’s mother had kicked him out of

her house and that he had no place to stay. Lewis discussed this

situation with his supervisor, Sergeant First Class Joseph

Albrecht. Albrecht told Lewis to “make sure” that Armstrong

did not stay at his (Lewis’s) apartment. Lewis attempted to find

Armstrong housing at local shelters.

When Lewis’s attempts proved unsuccessful, he allowed

Armstrong to live in his apartment. This not only violated the

direct order of his superior noncommissioned officer, it

breached United States Army Recruiting Command Regulation

600-25, which states that the Program’s recruits are prohibited

from “[s]haring of lodging” with personnel attached to the Army

Recruiting Command.

While staying at Lewis’s apartment, Armstrong

5

discovered that Lewis had a 9 mm Taurus handgun in an

unlocked metal tin in his bedroom. Armstrong took this gun

from Lewis’s apartment and used it to rob and shoot Lahoff.

II. Procedural History

Subrogees brought this suit based on their claim that the

Government had waived sovereign immunity under 28 U.S.C.

§ 1346(b)(1) of the FTCA. That provision allows plaintiffs to

bring claims based on the action of Government employees

when private persons engaging in analogous behavior would be

liable under state law. This waiver of sovereign immunity is

subject to several requirements and limitations contained in

§ 1346(b)(1) itself, as well as 28 U.S.C. §§ 2671–2680, which

we address in detail below.

In Subrogees’ amended complaint, they assert that the

Government was vicariously liable for Lewis’s negligence.2

Subrogees also claim that the Army itself, largely through the

actions and omissions of Lewis’s supervisors, was

independently negligent. Specifically, they allege that the Army

failed to enforce its regulations; hired, trained, and supervised

Lewis negligently; failed to conduct a proper background check

2

In addition to the Government, Subrogees initially sued

Lewis (in his official capacity only), but later stipulated to his

dismissal from the case. The Government is the only proper

defendant in a case brought under the FTCA.

6

on Armstrong; and pressured prospective recruits to enlist in

order to meet recruitment goals, making recruitment goals more

important than the welfare of society.

The Government moved for dismissal under Rule

12(b)(1) for lack of subject matter jurisdiction or, in the

alternative, Rule 12(b)(6) for failure to state a claim on which

relief can be granted. As a third option, it moved for summary

judgment under Rule 56. The Government did not file an

answer. In a memorandum of law accompanying its motion, it

contended that Lewis was acting outside the scope of his

employment, and thus his actions did not fall within

§ 1346(b)(1). The Government’s memorandum also addressed

the alleged independent negligence of the Army, arguing that

the actions of the Army and of Lewis’s supervisors were too

remote from the shooting for liability to attach to the

Government.

Subrogees filed a brief opposing the Government’s

motion. They attached exhibits to their brief that included

newspaper accounts describing Lahoff’s shooting, Armstrong’s

criminal and psychological history, and challenges the Army

had recently faced in its recruiting efforts.

The District Court chose to analyze the Government’s

motion under Rule 12(b)(1), treating the scope-of-employment

question as one of subject matter jurisdiction. As a result, its

first task was to classify the Government’s motion as either a

7

factual attack or a facial attack. The latter concerns “an alleged

pleading deficiency” whereas a factual attack concerns “the

actual failure of [a plaintiff’s] claims to comport [factually] with

the jurisdictional prerequisites.” U.S. ex rel. Atkinson v. Pa.

Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). It appears

the District Court characterized the Government’s motion as a

factual attack because the motion challenged whether the

District Court actually had subject matter jurisdiction based on

the facts alleged. See Dist. Ct. Op. at 2–3 (describing the

Government’s motion as “based on the existence of

jurisdiction”).

That the Government’s Rule 12(b)(1) motion made a

factual attack had three important procedural consequences for

the District Court. First, on a Rule 12(b)(1) motion, “no

presumption of truthfulness attaches to the allegations of the

plaintiff.” Dist. Ct. Op. 3. Second, the Court placed the burden

of proving subject matter jurisdiction on the plaintiff. Third, it

noted its authority to “make factual findings which are decisive

to the issue.” Id.

After a factual inquiry that extended beyond the

pleadings, see Dist. Ct. Op. 6 (noting “careful consideration of

Defendant’s Amended Motion to Dismiss . . . and related

submissions” (emphasis added)), the District Court granted the

motion to dismiss for lack of subject matter jurisdiction. It

stated that the location of Lewis’s conduct is “undisputed” and

thus found “no issue that SSG Lewis’s conduct occurred outside

8

authorized time and space limits of employment,” which is one

of the required factors under Pennsylvania’s definition of

conduct in the scope of employment. Dist. Ct. Op. 5. The

Court’s opinion did not discuss the Army’s alleged independent

negligence. Subrogees now appeal to our Court.

III. Appellate Jurisdiction and Standard of Review

We have jurisdiction over an appeal of a dismissal for

lack of jurisdiction pursuant to 28 U.S.C. § 1291. We exercise

plenary review over legal conclusions. Morgan v. Gay, 471

F.3d 469, 472 (3d Cir. 2006). We review the District Court’s

findings of fact for clear error. Carpet Group Int’l v. Oriental

Rug Importers Ass’n, 227 F.3d 62, 69–70 (3d Cir. 2000). The

clearly erroneous standard of review also applies to findings of

fact related to jurisdiction. See, e.g., Chayoon v. Chao, 355 F.3d

141, 143 (2d Cir. 2004); see also 5B Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 1350, at 255,

264 & n.79 (3d ed. 2004).

IV. Proper Subsection of Rule 12

The Government contends that the District Court lacked

subject matter jurisdiction. In its view, the six conditions on the

waiver of sovereign immunity in the FTCA, quoted below, are

jurisdictional requirements. They argue that Subrogees did not

meet one of the statutory conditions because Lewis was acting

outside the scope of his employment; hence there is a failure of

9

federal subject matter jurisdiction. The District Court agreed

with the Government and, as noted above, dismissed the case

under Rule 12(b)(1).

On appeal, Subrogees argue that the determination of

whether an employee acted within the scope of his employment

is a question of the merits, or at least a simultaneously merits-

based and jurisdictional question. Thus, they argue that the

District Court erred by considering whether Lewis acted within

the scope of his employment on a Rule 12(b)(1) motion. In their

view, the Government’s motion to dismiss should have been

treated as either a Rule 12(b)(6) motion to dismiss for failure to

state a claim or a Rule 56 motion for summary judgment,3 which

they believe their claims would have survived.

Whether a Government employee was acting within the

scope of his employment plausibly could be addressed as one of

jurisdiction or one of the merits of a claim. That choice

corresponds to whether Rule 12(b)(1) or, on the other hand,

Rule 12(b)(6) or Rule 56 provided the proper procedure. A

great deal turns on this question because Rule 12(b)(6) or Rule

56 would provide more procedural safeguards to the plaintiff

Subrogees than does Rule 12(b)(1). For example, a district

3

The argument for applying Rule 56 rather than Rule

12(b)(6) is that the District Court looked outside the pleadings,

which is not allowed on a motion to dismiss for failure to state

a claim under Rule 12(b)(6).

10

court acting under Rule 12(b)(1) may independently evaluate the

evidence regarding disputes over jurisdictional facts, rather than

assuming that the plaintiff’s allegations are true. See infra

Section IV.C.4

We think treating the scope-of-employment issue as

jurisdictional in the FTCA context is the better course. We so

hold because the FTCA defines federal courts’ jurisdiction to

hear cases seeking damages from the Government, and the

conditions on the FTCA’s waiver of sovereign immunity appear

in the same statutory provision that grants jurisdiction.

Moreover, the jurisdictional issue in this case is not overly

intertwined with the merits of Subrogees’ claims. The District

Court thus was correct to apply Rule 12(b)(1) in this case.

A. Source of Jurisdiction

Subrogees contend that allegations made under the FTCA

are enough to trigger federal-court jurisdiction and that their

claims should survive a Rule 12(b)(1) motion based on their

4

Even if a question is one of the merits, a plaintiff’s

claim may be dismissed for lack of subject matter jurisdiction

under Rule 12(b)(1) if it “clearly appears to be immaterial and

made solely for the purpose of obtaining jurisdiction or where

such a claim is wholly insubstantial and frivolous.” Bell v.

Hood, 327 U.S. 678, 682–83 (1946). This exception to the

jurisdiction/merits—i.e., Rule 12(b)(1)/Rule

12(b)(6)—dichotomy does not apply here.

11

mere invocation of the FTCA. We start by observing that the

District Court’s jurisdiction—if it exists—would not come from

the general grant of federal-question jurisdiction of 28 U.S.C. §

1331. Instead, the FTCA itself is the source of federal courts’

jurisdiction to hear tort claims made against the Government

that meet various criteria: “[T]he district courts . . . shall have

exclusive jurisdiction of civil actions on claims against the

United States.” 28 U.S.C. § 1346(b)(1). As the Supreme Court

has stated, “[t]he United States, as sovereign, is immune from

suit save as it consents to be sued, and the terms of its consent

to be sued in any court define that court’s jurisdiction to

entertain the suit.” United States v. Sherwood, 312 U.S. 584,

586 (1941) (citations omitted). Thus, FTCA plaintiffs must

meet the criteria of § 1346(b)(1) before a district court may

exercise jurisdiction.

In particular, § 1346(b)(1) lists six threshold

requirements that a plaintiff’s claim must satisfy to confer

jurisdiction. A claim must be made

“[1] against the United States, [2]

for money damages, . . . [3] for

injury or loss of property, or

personal 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

12

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.”

FDIC v. Meyer, 510 U.S. 471, 477 (1994) (quoting 28 U.S.C. §

1346(b)(1)) (alterations in original). The cause of action in an

FTCA claim, on the other hand, must come from state tort law.

Id. at 478 (describing state tort law as “the source of substantive

liability under the FTCA”).

Unfortunately, the split between jurisdiction and the

merits is not always clear. The same facts may apply to whether

an employee acted within the scope of his employment and, say,

whether that employee breached a duty under state law. In the

context of the FTCA, as well as other areas, separating

jurisdictional facts from factual issues relating to the merits has

generated difficult problems, as we discuss below.

B. Jurisdiction or Merits?

Subrogees make a number of arguments to the effect that

the District Court handled this case from the wrong procedural

posture by dismissing under Rule 12(b)(1) for lack of subject

matter jurisdiction. As noted, they also contend that their

amended complaint should survive a motion to dismiss on the

13

merits under Rule 12(b)(6) or a motion for summary judgment

under Rule 56. We discuss these arguments in turn. As noted,

we agree with the District Court that the Government’s

motion—styled in the alternative as made on any of Rule

12(b)(1), Rule 12(b)(6), or Rule 56 grounds—was properly

analyzed as a Rule 12(b)(1) motion.

1. Congress’s Authority Versus Federal Courts’

Jurisdiction

Subrogees rely on Kulick v. Pocono Downs Racing Ass’n,

816 F.2d 895 (3d Cir. 1987), for their contention that an attack

on the merits of the claim must be handled under Rule 12(b)(6)

or Rule 56. In that case, the petitioner alleged a violation of his

civil rights protected by 42 U.S.C. § 1983. Id. at 896.

Following a preliminary injunction hearing, the District Court

dismissed the case for lack of subject matter jurisdiction because

there was no state action. Id. On appeal, we noted that the

existence of state action in a § 1983 suit was a question of

Congress’s power under § 5 of the Fourteenth Amendment

(“sometimes refer[red] to . . . as jurisdictional”), as opposed to

a question of the federal courts’ jurisdiction under Article III.

Id. at 898. We reversed the District Court’s dismissal because

issues of congressional authority, like state action, come too

close to the merits of a suit. Id. (“Otherwise, the district court

could turn an attack on the merits . . . into an attack on

jurisdiction . . . .”).

14

The FTCA’s waiver of sovereign immunity represents

Congress’s setting the federal courts’ jurisdiction over tort

lawsuits against the Government. It is not an example of

Congress acting at the outer bounds of its own constitutional

power, as in Kulick (in the § 1983 context), or as in Mortensen

v. First Federal Savings and Loan Ass’n, 549 F.2d 884, 890–92

(3d Cir. 1977) (applying Rule 12(b)(6) rather than Rule 12(b)(1)

in the context of the interstate commerce requirement of

antitrust law). Thus, Kulick does not govern this case.

2. Clear Congressional Statement

In Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006),

the Supreme Court held that the fifteen-employee threshold, 42

U.S.C. §§ 2000e(b), for employment discrimination claims

under Title VII of the Civil Rights Act of 1964 was not properly

treated as jurisdictional. Instead, that threshold is a merits-based

question. The Court noted that since the Federal Question

Jurisdictional Amendments Act of 1980, Pub. L. 96-486, § 2, 94

Stat. 2369, federal courts’ jurisdiction over Title VII claims has

come from 28 U.S.C. § 1331 rather than the jurisdictional

provision within Title VII itself, 42 U.S.C. § 2000e-5(f)(3). See

546 U.S. at 506. Because “neither § 1331, nor Title VII’s

jurisdictional provision, specifies any threshold ingredient akin

to 28 U.S.C. § 1332’s monetary floor,” the Court held that it was

most prudent to treat statutory threshold requirements as

jurisdictional only when Congress explicitly makes them so.

546 U.S. at 515–16; see also Nesbit v. Gears Unlimited, Inc.,

15

347 F.3d 72, 81 (3d Cir. 2003) (“We doubt that Congress

intended this definitional section [42 U.S.C. § 2000e(b)] to have

subject matter jurisdictional import.”).

Arbaugh does not apply directly to our case, as it dealt

with Title VII rather than the FTCA. But the reasoning of

Arbaugh suggests that the conditions laid out in the FTCA are

jurisdictional in nature, as jurisdiction for courts to hear suits

against the Government have their threshold set out in §

1346(b)(1). We recently applied Arbaugh’s reasoning to

consider whether a statutory requirement in the Comprehensive

Environmental Response, Compensation, and Liability Act of

1980 (CERCLA) is jurisdictional or an element of a claim.

Beazer East, Inc. v. Mead Corp., 525 F.3d 255, 261 (3d Cir.

2008). To evaluate whether Congress “clearly stated” that a

requirement should “ ‘count as jurisdictional,’ ” id., we ask

whether the requirement appears in or receives mention in the

jurisdictional provision of a given statute, see Arbaugh, 546 U.S.

at 515–16 & n.11.

The scope-of-employment requirement of the FTCA

appears in the same sentence as Congress’s grant of jurisdiction.

See 28 U.S.C. § 1346(b)(1). “[J]urisdiction” in § 1346(b)(1)

suggests that each clause of that provision represents a limitation

on Congress’s waiver of sovereign immunity and thus a

limitation on federal courts’ jurisdiction. By contrast, the

fifteen-employee requirement of Title VII appeared in a separate

16

provision from the jurisdictional provision.5 See Beazer East,

525 F.3d at 261 n.8 (“The absence of a reference to § 113(f) in

§ 113(b), 42 U.S.C. § 9613(b), CERCLA’s jurisdictional

provision, is notable because that provision expressly subjects

its grant of jurisdiction to subsections (a) and (h) of § 113.”).

This distinction—whether a statute contains within itself the

bounds of its jurisdiction—counsels the result in our case.

Section 1346, by subsection (b)(1), tethers jurisdiction to

meeting that subsection’s requirements.6

5

Arbaugh cites 28 U.S.C. § 1346(a)(2)—which

neighbors § 1346(b)(1) in the U.S. Code, although it was not

part of the FTCA—as a counter-example to 42 U.S.C.

§ 2000e(b). Subsection 1346(a)(2) sets a damages ceiling of

$10,000 in its particular waiver of sovereign immunity. Unlike

42 U.S.C. § 2000e(b), § 1346(a)(2) provides conditions on

subject matter jurisdiction within the same statutory provision

that grants jurisdiction. This is an example of Congress

“exercis[ing] its prerogative to restrict the subject matter

jurisdiction of federal district courts.” Arbaugh, 546 U.S. at 515

n.11. We find this dictum in Arbaugh to suggest how we should

interpret § 1346(b)(1).

6

Subrogees argue in a Rule 28(j) letter that Beazer East

supports their position. But Beazer East does not govern our

case, as it concerns an interpretation of CERCLA rather than the

FTCA. Moreover, in a dictum in that case, we stated that the

“unique nature of suits against the United States” has led other

courts to treat limitations on the Government’s waiver of

sovereign immunity as jurisdictional. Beazer East, 525 F.3d at

17

3. “Intertwined with the Merits”

Subrogees invoke the principle that “ ‘where the

defendant’s challenge to the court’s jurisdiction is also a

challenge to the existence of a [f]ederal cause of action, the

proper course of action for the district court . . . is to find that

jurisdiction exists and to deal with the objection as a direct

attack on the merits of the plaintiff’s case.’ ” Cohen v.

Kurtzman, 45 F. Supp. 2d 423, 428–29 (D.N.J. 1999)

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

1981)). This idea runs through numerous cases that classify

issues as either jurisdictional or relating to the merits. See, e.g.,

Mortensen, 549 F.2d at 890 (contrasting antitrust claims from

“other claims whose jurisdictional bases are not as intertwined

with their merits”).

Courts differ on what it means for jurisdiction to be

intertwined with the merits. Some focus on overlapping issues

of proof. See, e.g., Augustine v. United States, 704 F.2d 1074,

1077 (9th Cir. 1983) (treating the two-year statute of limitations

on FTCA claims in 28 U.S.C. § 2401(b) as jurisdictional and

stating that “[i]n this case the determinative jurisdictional facts

also go directly to the merits” (emphasis added)). Other courts

discuss whether elements of establishing jurisdiction and of a

particular cause of action are overlapping in part rather than

distinct. See, e.g., Crawford v. United States, 796 F.2d 924, 929

261 n.9.

18

(7th Cir. 1986) (analyzing whether the issues of mental capacity

and negligence overlapped or were “unrelated”). Still others

define intertwined as when the elements of jurisdiction and a

cause of action are completely coextensive. See, e.g., Lawrence

v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (“The

existence of plaintiff’s cause of action depends on whether [the

defendant] was acting within the course and scope of his

employment. The pertinent inquiry will resolve both the

question of subject matter jurisdiction and a necessary element

of the tort claim.”).7 Our own approach to the meaning of

“intertwined with the merits” most closely resembles the first

path; the phrase is best understood as referring to overlapping

issues of proof.

7

A more clear-cut categorical definition of “intertwined

with the merits” is also possible. As the Tenth Circuit Court of

Appeals put it: “The jurisdictional question is intertwined with

the merits of the case if subject matter jurisdiction is dependent

on the same statute which provides the substantive claim in the

case.” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.

1995). That definition might seem to apply to the FTCA, since

§ 1346(b)(1) grants federal courts jurisdiction and also allows

plaintiffs to bring state-law causes of action, sounding in

negligence and subject to various conditions, against the United

States. But we think a better reading of § 1346(b)(1) separates

the jurisdictional threshold requirements listed in that section

from the true source of the cause of action, which is state tort

law. See supra Section IV.A.

19

A split among our sister courts of appeals has emerged on

the proper procedure for handling situations in which

jurisdiction is intertwined with the merits. In some circuits,

whether a Government employee was acting in the scope of his

employment for purposes of an FTCA claim must be handled as

a question of the merits in order to give plaintiffs the appropriate

procedural safeguards (e.g., having a plaintiff’s allegations

assumed as true). See Montez v. Dep’t of the Navy, 392 F.3d

147, 150 (5th Cir. 2004) (“[W]e follow our general rule in

holding that a jurisdictional attack intertwined with the merits of

an FTCA claim should be treated like any other intertwined

attack, thereby making resolution of the jurisdictional issue on

a 12(b)(1) motion improper.”); Lawrence, 919 F.2d at 1529

(vacating and remanding for consideration under Rule 12(b)(1));

see also Augustine, 704 F.2d at 1079 (treating the administrative

claim requirement of § 1346(b)(1) as relating too closely to the

merits to be handled under Rule 12(b)(1)). Yet the Second

Circuit Court of Appeals recently reached the opposite

conclusion on how a scope-of-employment dispute should be

handled procedurally in the FTCA context. In Hamm v. United

States, 483 F.3d 135, 137 (2d Cir. 2007), it held that “where a

waiver of sovereign immunity does not apply, a suit should be

dismissed under Fed. R. Civ. P. 12(b)(1) and not Fed. R. Civ. P.

12(b)(6) for failure to state a claim.”

Our Court’s approach has been to make disputes over the

scope-of-employment requirement of 28 U.S.C. § 1346(b)(1)

jurisdictional. See Matsko v. United States, 372 F.3d 556, 560

20

(3d Cir. 2004) (affirming dismissal of an FTCA claim “for lack

of subject matter jurisdiction”);8 cf. Gould Elecs. Inc. v. United

States, 220 F.3d 169, 178 (3d Cir. 2000) (holding that the phrase

“law of the place” in the sixth prong of § 1346(b)(1) is

jurisdictional); see also Gotha v. United States, 115 F.3d 176,

178–79 (3d Cir. 1997) (treating the discretionary function

exception to the FTCA of 28 U.S.C. § 2680(a) as jurisdictional).

This much accords with the approach of our Second Circuit

colleagues. See, e.g., Gould, 220 F.3d at 178 (noting our

Court’s agreement with the approach of Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000) (applying Rule 12(b)(1)

to a § 1346(b)(1) claim)).

Yet we have also recognized, where jurisdiction is

intertwined with the merits of an FTCA claim, that a district

court must take care not to reach the merits of a case when

8

One might question why we have analyzed our case’s

procedural issues in such detail given Matsko. Although

decided under Rule 12(b)(1), Matsko contains dicta more

appropriate to Rule 12(b)(6). See 372 F.3d at 560–61 (stating

“even reading the facts in the light most favorable to [the

plaintiff], as we are required to do” and “[t]aking [the plaintiff’s]

allegations as true”). Furthermore, Subrogees raised several

arguments here that we did not address in Matsko, including the

circuit split described above. Finally, the Supreme Court has

admonished itself and other federal courts for being “less than

meticulous” in classifying issues as jurisdictional or merits-

based. Arbaugh, 546 U.S. at 511.

21

deciding a Rule 12(b)(1) motion. Gould, 220 F.3d at 178–79.

Rule 12(b)(1) does not provide plaintiffs the procedural

safeguards of Rule 12(b)(6), such as assuming the truth of the

plaintiff’s allegations. Thus, when faced with a jurisdictional

issue that is intertwined with the merits of a claim, district courts

must demand “ ‘less in the way of jurisdictional proof than

would be appropriate at a trial stage.’ ” Id. at 178 (quoting

Mortensen, 549 F.2d at 892). In this way, we have

acknowledged the concerns expressed above by the Courts of

Appeals for the Fifth, Ninth, and Eleventh Circuits. But we

have not gone so far as to treat the scope-of-employment issue,

and the other conditions of § 1346(b)(1), as a question of the

merits suitable for disposition under Rule 12(b)(6). Instead,

along with the Second Circuit Court of Appeals, we have

followed the basic approach of treating the conditions of

§ 1346(b)(1) as jurisdictional.

In sum, we adhere to our Court’s practice of applying

Rule 12(b)(1) when evaluating whether a plaintiff’s claim has

met the six conditions on the FTCA’s waiver of sovereign

immunity contained in § 1346(b)(1).9 But we ensure that

9

Judge Irenas would hold that the District Court should

have handled the case under Rule 12(b)(6). In his view, the

mere allegation that Staff Sergeant Lewis acted in the scope of

his employment was enough for the District Court to exercise

jurisdiction. He would reach the same result (dismissal) because

the Government moved in the alternative under, inter alia, Rule

12(b)(1) or 12(b)(6).

22

defendants are not allowed to use Rule 12(b)(1) to resolve the

merits too early in litigation. By requiring less of a factual

showing than would be required to succeed at trial, district

courts ensure that they do not prematurely grant Rule 12(b)(1)

motions to dismiss claims in which jurisdiction is intertwined

with the merits and could be established, along with the merits,

given the benefit of discovery.

C. The District Court’s Application of Rule 12(b)(1)

In our case, the District Court was correct to treat the

scope-of-employment issue as jurisdictional and decide it under

Rule 12(b)(1). But it did not address the “intertwined with the

merits” problem explicitly. Whether Lewis acted within the

scope of employment might involve issues of fact that also

pertain to the merits of Subrogees’ tort claims. District courts

in this context should ensure that less proof is required of a

plaintiff on a Rule 12(b)(1) motion than would be required at

trial. See Gould, 220 F.3d at 178; Mortensen, 549 F.2d at 892.

Nonetheless, we hold that the District Court applied the

correct procedural rule, despite not making the above principle

from Mortensen and Gould explicit in its analysis. The District

Court’s omission of the “less in the way of jurisdictional proof”

standard from its opinion had no bearing on the result. There

are here no factual disputes that are here relevant to determining

subject matter jurisdiction. For example, “there is no issue that

SSG Lewis’s conduct occurred outside authorized time and

23

space limits of employment.” Dist. Ct. Op. 5. Even if we took

Subrogees’ allegations in the amended complaint as true (which

we need not do under Rule 12(b)(1)), there is no factual dispute

that Lewis’s actions occurred in his home—not at work. See

infra Section V.A.

The District Court applied Rule 12(b)(1), with its

attendant procedural consequences, properly. The Government

made a factual attack on the existence of subject matter

jurisdiction (in contrast to a facial attack that deals with the

sufficiency of the pleadings). See 5B Wright & Miller, supra,

§ 1350, at 147–55. This placed the burden of persuasion on

Subrogees. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d

1406, 1409 (3d Cir. 1991). The District Court was permitted to

make factual findings, beyond the pleadings, that were decisive

to determining jurisdiction. Atkinson, 473 F.3d at 514 (“If this

is a factual attack . . . it is permissible for a court to review

evidence outside the pleadings.”).

Subrogees contend that the District Court erred as a

matter of law by prematurely ruling, prior to discovery, that

Lewis was not acting within the scope of his employment.

However, the Court may dismiss for lack of subject matter

jurisdiction at any time, regardless whether the moving party has

filed an answer or the opposing party had an opportunity to

conduct discovery. See Berardi v. Swanson Mem’l Lodge No.

48 of the Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir.

1990); Fed. R. Civ. P. 12(h)(3). Moreover, the Court gave

24

Subrogees ample opportunity to be heard on the jurisdictional

issue. See Berardi, 920 F.2d at 200–01; 5B Wright& Miller,

supra, § 1350, at 206. After the Government’s motion,

Subrogees filed an opposing brief, the Government filed a reply

brief, and Subrogees filed a surreply brief. Thus, the Court did

not grant the Government’s Rule 12(b)(1) motion too early in

the litigation.

V. Analysis

We discuss first Subrogees’ claims regarding whether

Army recruiter Staff Sergeant Lewis was acting within the scope

of his employment. Secondly, we address Subrogees’ claims

based on the actions of Lewis’s supervisor, Sergeant Albrecht,

and the Army as a whole.

A. Lewis’s Actions Were Outside the Scope of Employment

The “ ‘terms of [the United States’] consent to be sued in

any court define that court’s jurisdiction to entertain the suit.’ ”

Meyer, 510 U.S. at 475 (quoting United States v. Sherwood, 312

U.S. 584, 586 (1941)) (alteration in original). Here, as described

above, the “terms of the United States’ consent” are specified in

the FTCA. For convenience, we repeat that the FTCA provides

that “the district courts . . . shall have exclusive jurisdiction of

civil actions on claims against the United States . . . [for]

personal injury or death caused by the negligent or wrongful act

or omission of any employee of the Government while acting

25

within the scope of his office or employment.” 28 U.S.C. §

1346(b)(1) (emphasis added).

In ascertaining whether sovereign immunity was waived

and if it had jurisdiction, the District Court correctly looked to

Pennsylvania law to determine whether Lewis’s actions were

within the scope of his employment. See id. (waiving sovereign

immunity “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” (emphasis added)). To

answer such scope-of-employment questions, we have applied

the closely related doctrine of respondeat superior (which

determines when employers will be held liable for the actions of

their employees) under Pennsylvania law, rather than using a

federal definition. See McSwain v. United States, 422 F.2d

1086, 1088 (3d Cir. 1970) (“Although the traditional doctrine of

respondeat superior may not be appropriate to the relationship

between military personnel and the armed forces, we are

constrained by legislative mandate to apply this concept.”).

Pennsylvania has adopted the Restatement (Second) of

Agency’s definition of conduct within the scope of employment.

Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (citing

Butler v. Flo-Ron Vending Co., 557 A.2d 730, 736 (Pa. Super.

Ct. 1989)); see also Shuman Estate v. Weber, 419 A.2d 169, 173

(Pa. Super. Ct. 1980). Under Pennsylvania law, “ ‘conduct is

within the scope of employment if, but only if: (a) it is the kind

[the employee] is employed to perform; (b) it occurs

26

substantially within the authorized time and space limits[; and]

(c) it is actuated, at least in part, by a purpose to serve the

master.’ ” Brumfield, 232 F.3d at 380 (quoting Restatement

(Second) of Agency § 228) (first alteration in original). The

District Court concluded that Lewis’s conduct was outside the

scope of his employment because it occurred in an unauthorized

time and space. In reaching this conclusion, the Court looked to

Army regulations prohibiting Armstrong from staying at

Lewis’s apartment and Albrecht’s direct order to Lewis not to

allow Armstrong to do so.

On appeal, Subrogees focus their efforts on the third

factor defining the scope of employment. They allege that

Lewis was motivated, at least in part, by his desire to serve the

Army’s recruiting goals when he allowed Armstrong to stay at

his home. We have stated before that “the mere existence of a

personal motivation is insufficient to relieve the employer from

liability where the conduct also benefitted him and was within

the scope of employment generally.” Id. (citing Eisenberg v.

Gagnon, 766 F.2d 770, 783 (3d Cir. 1985)). In a sworn

statement Lewis gave as part of an administrative disciplinary

proceeding, he stated that he had concern as “a humane

individual” about Armstrong’s welfare if left on the streets. But

Lewis also had a concern that Armstrong would not be able “to

continue with pursuit[] of a career in the Army” if unable to stay

near Pittsburgh to finish high school.

Despite the third factor supporting Subrogees’ argument,

27

Lewis’s actions fail to meet the first two factors of the scope-of-

employment test. Because lodging recruits in one’s home

violates Army recruiting regulations, that action is not of the

kind that Army employees are to perform; thus Lewis’s actions

do not meet the first factor. Moreover, as the District Court

emphasized, Lewis’s actions did not occur within authorized

time and space limits. Albrecht specifically forbade Lewis to

allow Armstrong to stay at his home, so any actions that Lewis

took with respect to Armstrong at his home occurred at an

unauthorized place.

For our Court to consider Lewis’s actions to be within the

scope of employment, all three factors must be satisfied.

Because the first and second factors are not close to being met

here, we agree with the District Court’s holding. As a result,

Lewis’s decision to bring Armstrong into his home temporarily

does not fit within the scope of employment needed to invoke

the Government’s waiver of sovereign immunity. The District

Court properly concluded that it lacked jurisdiction over

Subrogees’ claims with respect to Lewis’s actions.

B. Albrecht’s and the Army’s Actions Do Not Fit Within the

FTCA’s Waiver of Sovereign Immunity

Subrogees also argue that regardless whether Lewis’s

conduct was within the scope of his employment, the

Government may be held independently liable for its alleged

acts of negligence. They contend that the Army did not train

28

Lewis adequately; pressured recruiters like Lewis to meet

recruiting goals, endangering society at large in the process; did

not conduct a sufficient background check of Armstrong; and,

acting through Albrecht, failed to follow up in enforcing its

regulations prohibiting recruiters from giving lodging to

recruits. We begin with the last claim first.

1. Albrecht

Subrogees’ claim about failing to enforce regulations

centers on the interaction between Albrecht and Lewis.

Subrogees contend that Albrecht’s admonition to Lewis was not

enough. As Lewis’s supervisor, they argue, Albrecht had a duty

to follow up with Lewis and ensure that he did not allow

Armstrong to stay at his home. Albrecht’s omission, in their

view, constituted negligent supervision of his subordinate,

Lewis.

In support of their argument, Subrogees cite Sheridan v.

United States, 487 U.S. 392 (1988). In that case, an off-duty

and very drunk serviceman left the Bethesda Naval Hospital

with a rifle and ammunition. Prior to leaving the hospital he

fought with three other Naval corpsmen who unsuccessfully

tried to subdue him. After the serviceman fled, the corpsmen

never alerted authorities that a drunken serviceman was

wandering about with a rifle. The serviceman then fired shots

at a car, injuring a passenger inside it. Id. at 395. The

Government argued the serviceman had committed an

29

intentional tort. Claims stemming from intentional torts

generally are excluded from the Government’s waiver of

sovereign immunity under 28 U.S.C. § 2680(h). It states that §

1346(b)(1)’s waiver of sovereign immunity does not apply to

“[a]ny claim arising out of assault, battery, false imprisonment,

false arrest, malicious prosecution, abuse of process, libel,

slander, misrepresentation, deceit, or interference with contract

rights,” with certain exceptions for investigative or law

enforcement officers. The Government cannot take advantage

of this so-called “assault and battery exception” to its waiver of

sovereign immunity in our case because “the exception only

applies in cases arising out of assaults by federal employees.”

Sheridan, 487 U.S. at 400 (citing Panella v. United States, 216

F.2d 622 (2d Cir. 1954) (Harlan, J.)). Armstrong, the assailant

in our case, was an Army recruit but does not qualify as a

government employee.

Because the plaintiffs in Sheridan sought to sue for the

Government’s negligence in “fail[ing] to prevent [the

serviceman’s] use of a rifle,” id. at 395, and not alerting other

security authorities, the Court held that the intentional tort bar

to waivers of sovereign immunity did not apply, id. at 403. The

Government there was deemed to have waived its sovereign

immunity to harm caused by its drunk serviceman-employee.

Though that immunity normally remains where an employee

acts intentionally, “the negligence of [the corpsmen] who

allowed a foreseeable assault and battery to occur may furnish

a basis for Government liability that is entirely independent of

30

[the drunk serviceman’s] employment status.” Id. at 401

(emphases added). Naval-base regulations about firearm safety

and the corpsmen’s decision to take the drunk serviceman into

their care were two specific sources of the Government’s

independent negligence. Id. at 401. To allow someone in the

serviceman’s condition, armed with a rifle, out of the

corpsmen’s care courted foreseeable trouble. Thus, the

Government had waived its sovereign immunity and the

plaintiffs’ case could go forward. Id. at 403.

Sheridan effectively represents an exception to an

exception to an exception to a general rule. The general rule is

sovereign immunity: the Government cannot be sued. The

FTCA creates an exception to that rule by waiving sovereign

immunity. That waiver of sovereign immunity comes with

conditions (such as the scope-of-employment requirement of

§ 1346(b)(1)) and exceptions (such as the assault-and-battery

exception of § 2680(h)). But Sheridan established that claims

of independent negligence committed by Government

employees are not barred by the assault-and-battery exception.

Subrogees’ claims in this case, however, do not fall under

the holding of Sheridan. To begin, the harm here was not

foreseeable. To repeat, the corpsmen in Sheridan knew danger

lurked if they allowed a drunk serviceman with a loaded rifle to

leave hospital grounds. But in our case Lewis knew of no

obvious danger in taking in a recruit who had passed

background checks. And Lewis’s supervisor (Albrecht)

31

likewise knew of no obvious danger that Lewis would defy his

order that Lewis not take Armstrong into Lewis’s home.

Moreover, Subrogees’ claims with regard to Albrecht’s

conduct are not “entirely independent” of Lewis’s status as a

government employee. Id. at 401. Independent negligence in

this context means negligence irrespective of an employment

relationship. See id. at 397–98. Negligent supervision claims

like Subrogees’ claims concerning Albrecht, on the other hand,

are rooted in supervisor-supervisee relationships at work; they

relate closely to the supervisee’s (in our case, Lewis’s)

employment status.10 Unlike the corpsmen in Sheridan, whose

alleged negligence had nothing to do with the drunk

serviceman’s employment relationship with the Navy, see id. at

401, Albrecht’s allegedly negligent supervision of Lewis had

everything to do with Lewis’s employment relationship with the

Army. Albrecht’s only alleged connection to the shooting

results from Lewis’s status as his subordinate.

10

The Supreme Court recognized in Sheridan that

negligent supervision claims are not covered by the independent

negligence theory on which the plaintiffs relied in that case. See

487 U.S. at 397 (defining claims of independent negligence as

claims “[w]here no reliance is placed on negligent supervision

or respondeat superior principles”) (quoting the dissenting judge

in the Fourth Circuit Court of Appeals’ opinion under review,

Sheridan, 823 F.2d 820, 824 (4th Cir. 1987) (Winter, C.J.,

dissenting)).

32

For these reasons, Subrogees’ claim with regard to

Albrecht’s actions must fail for lack of subject matter

jurisdiction.

2. The Army

Subrogees claim that the Army failed to train Staff

Sergeant Lewis adequately. We view this as essentially a claim

of negligent supervision of Lewis by the officers who trained

him, rather than an independent claim of negligence analogous

to that in Sheridan. The claim hinges on Lewis’s employment

status as an Army recruiter. But plaintiffs under the FTCA

cannot use a negligent supervision claim to circumvent the

scope-of-employment condition of § 1346(b)(1). They must

allege truly independent negligence, analogous to the naval-base

safety regulations and “voluntar[y] undertaking to provide care

to a person who was visibly drunk” that were at issue in

Sheridan. 487 U.S. at 401. They did not do so here.

Subrogees also allege that the Army’s recruiting policies

involve pressuring recruiters to meet goals, to the detriment of

society at large. Because those policies are embodied in

decisions of Army officials, Subrogees’ claims must fail under

the discretionary function exception of 28 U.S.C. § 2680(a)

(specifying that the provisions of the FTCA “shall not apply to”

“[a]ny claim based upon an act or omission of an employee of

the Government, exercising due care, in the execution of a

statute or regulation . . . or based upon the exercise or

33

performance [of] a discretionary function”). Statutes such as 10

U.S.C. § 513 require the Army to engage in recruiting. Cf.

Matsko, 372 F.3d at 558 n.6 (stating in a dictum that claims “for

(1) failure to properly train and supervise or (2) for negligent

hiring” would fall outside of the FTCA because of § 2680(a),

had those claims not been waived in that case).

Finally, Subrogees claim that the Army failed to conduct

a sufficient background check on Armstrong. Lewis did the

background check, but Subrogees style this claim as one of

independent negligence on the part of the Army. To make sense

of this, we must take Subrogees to allege the Army’s

background-check criteria are insufficient as a matter of policy.

But this claim alsoruns afoul of the discretionary function

exception. The Government has not waived sovereign immunity

for the benefit of plaintiffs seeking to challenge the Army’s

background-check policies and practices.

Section 2680(a) is an explicit exception to the FTCA’s

waiver of sovereign immunity. Thus, though the District Court

did not address the Army’s independent negligence in its

opinion, we also affirm the dismissal of Subrogees’ claims under

this theory for lack of subject matter jurisdiction.

* * * * *

For the reasons stated, the District Court lacked subject

matter jurisdiction over Subrogees’ claims, and we thus affirm

34

the District Court’s dismissal under Rule 12(b)(1).

35