Third Circuit Notes Split Re Treatment of Jurisdictional Attack Intertwined with Merits

Per CNA v. U.S., --- F.3d ----, 2008 WL 2801978 (3rd Cir. Jul 22, 2008):

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 ยง 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."


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