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 § 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."