Nathan Gillespie | That’s Not My Job: Is the Determination of ‘Scope of Employment’ in the FTCA a Merits Issue or a Jurisdiction Issue?

BACKGROUND

The Federal Torts Claim Act (FTCA) grants federal courts jurisdiction to hear claims against the government for torts committed by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1). The scope of employment issue is dispositive of both the federal court’s subject matter jurisdiction and the merits of the underlying tort claim. Thus, when a defendant wants to raise the defense that the employee was not acting within the scope of their employment, is it proper that they file a motion to dismiss for lack of subject matter jurisdiction (Rule 12(b)(1)), or a motion to dismiss on the merits (Rule 12(b)(6) or Rule 56)? The implications are huge in determining the plaintiff’s likelihood of success.

To survive a defendant’s 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the burden of proving subject matter jurisdiction (here specifically, the burden of proving that the defendant was acting within the scope of their employment) lies with the plaintiff. This can be a particularly difficult burden given that the discovery process has not begun yet at this stage. Moreover, trial courts have the discretion to independently evaluate factual issues for purposes of determining subject matter jurisdiction. On the other hand, for a plaintiff to survive a 12(b)(6) motion for failure to state a claim (a merit-based motion), the plaintiff’s pleaded facts are assumed to be true, and dismissal is only proper if the alleged facts fail to lay out a valid claim. The plaintiff then gets the benefit of the discovery process, allowing them to acquire otherwise private evidence of those facts, before having to prove them to the court.

THE SPLIT

The Fourth, Fifth, Ninth, and Eleventh Circuits all have held that when such a factual determination is inextricably tied to both the question of federal subject matter jurisdiction and the merits of the underlying case, the federal trial court is to assume jurisdiction, in order to evaluate the factual issue at the merits stage. The Fifth Circuit provided cogent reasoning for this stance:

No purpose is served by indirectly arguing the merits in the context of federal jurisdiction. Judicial economy is best promoted when the existence of a federal right is directly reached and, where no claim is found to exist, the case is dismissed on the merits. This refusal to treat indirect attacks on the merits as Rule 12(b)(1) motions provides, moreover, a greater level of protection to the plaintiff who in truth is facing a challenge to the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) . . . or Rule 56 . . . both of which place greater restrictions on the district court’s discretion. Montez v. Dep’t of the Navy (5th Cir. 2004) (citing Williamson v. Tucker (5th Cir. 1981)).

The Second and Third Circuits have held that the proper way to raise the dispute as to scope of employment is at the outset—in a rule 12(b)(1) motion—citing structural implications in the FTCA as well as procedural ways to ameliorate the concerns cited above by the Fifth Circuit. The Third Circuit reasoned:

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.

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[W] here 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 deciding a Rule 12(b)(1) motion . . 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 “demand less in the way of jurisdictional proof than would be appropriate at a trial stage.” CNA v. United States (3d Cir. 2008) (citing Gould Elecs., Inc. v. United States (3d Cir. 2000)).

LOOKING FORWARD

Do the normative concerns cited by the Fifth Circuit overshadow the textualist reasoning accepted by the Third Circuit? Does the Third Circuit’s claim that district courts will “demand less in the way of jurisdictional proof than would be appropriate at a trial stage” alleviate any of the concerns raised by the Fifth Circuit? For a detailed argument in favor of the Second and Third Circuit jurisdictional approach, check out Erin Murray Watkins’ article for George Mason Law Review, The Scope of Employment Requirement of the Federal Tort Claims Act: The Impropriety and Implications of the Montez Decision, and the Superior Jurisdictional Prima Facie Approach.