                                                                                                                           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Precedential or Non-Precedential: Precedential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
