Montez v. Department of the Navy

                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                November 30, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-10767



DAVID MONTEZ, Etc; ET AL

                                    Plaintiffs

RITA WHITT, individually and next friend of Kimberly Whitt,
deceased; RONNIE WHITT, individually and next friend of Kimberly
Whitt, deceased

                                    Plaintiffs-Appellants

v.

DEPARTMENT OF THE NAVY

                                    Defendant-Appellee

                      --------------------
          Appeal from the United States District Court
           for the Northern District of Texas, Dallas
                      --------------------

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.

BENAVIDES, Circuit Judge:

     Plaintiffs-Appellants, Rita and Ronnie Whitt (the “Whitts”),

appeal the district court’s dismissal of their Federal Tort Claims

Act (“FTCA”) complaint against the Department of the Navy (the

“Navy”) for lack of subject matter jurisdiction.1     In this case,

the parties dispute whether tortfeasor Emilio Partida was acting



     1
       The action against the Department of the Navy originally was
brought by several other plaintiffs in addition to the Whitts.
However, no other plaintiffs elected to appeal the district court’s
dismissal of the case.
within the scope of his naval employment at the time of the

accident that killed Kimberly Whitt. Ordinarily the district court

can resolve factual disputes in determining jurisdiction pursuant

to a Rule 12(b)(1) motion for dismissal.               Here, however, there is

a dispute with respect to a fact that is determinative of both the

federal jurisdiction question and the underlying federal cause of

action.       Because    the   federal       cause    of   action   and    federal

jurisdiction    are     interdependent,       the    district   court     erred   in

dismissing the case under Federal Rule of Civil Procedure 12(b)(1)

when it resolved the disputed factual issue in favor of the Navy.

Accordingly, we reverse and remand.

                                I. Background

     The Whitts sued the Navy for damages arising from the death of

their daughter Kimberly.        At the time of her death, Kimberly was

seventeen years old.      She died on December 31, 2000, as a result of

an auto accident in which she was a passenger.                  The vehicle in

which Kimberly was riding flipped over while negotiating a curve in

the road, and Kimberly was thrown from the vehicle and killed by

the impact.

     The vehicle was driven by Emilio Partida, a twenty-year old

enlisted man in the Navy.       The car that Partida drove was owned by

the Navy.     Although the car was entrusted by the Navy to Petty

Officer Gene Martin, Martin loaned the vehicle to Partida so

Partida could visit his parents in Merton, Texas, over the New



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Years weekend.

     However, instead of driving to Merton by himself, Partida

decided to take several civilians along with him.                     Partida was

invited to attend a wedding in Merton that evening, and Partida and

the civilians wanted to participate in the festivities.                   Partida

picked up five civilian passengers -- including Kimberly Whitt --

in the Navy vehicle, purchased three cases of beer, and proceeded

to the wedding.         On the way to Merton, Partida drove too fast,

flipping    the    vehicle   and   killing    Kimberly     Whitt   and    another

passenger, and injuring three others. Both the Whitts and the Navy

agree that Partida was negligent and that his negligence caused the

accident.

     The Whitts sued the Navy under the Federal Tort Claims Act,

contending that Partida caused Kimberly’s death in the line of duty

as a Navy enlisted man and that, therefore, the Navy was liable for

her death.        The district court dismissed the Whitts’ complaint

against the Navy under Rule 12(b)(1) for lack of subject matter

jurisdiction.2      The court held that the FTCA did not apply to the

complaint against the Navy because of the court’s finding that

Partida    was    not   “acting    within    the   scope   of   his    office   or

employment” as a member of the United States Navy at the time of

the accident. The Whitts argue that the district court erroneously

     2
       We note that our examination of the record reveals that the
Whitts objected to the district court that the determination of the
merits should not have been made on the basis of a 12(b)(1) motion.


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applied a 12(b)(1) standard to resolve the jurisdictional issue on

the    basis       of   facts     dispositive    of   the   merits   as    well      as

jurisdiction, and that instead the court should have applied a

12(b)(6) or summary judgment standard.

                                II. Standard of Review

       This Court reviews de novo the legal issue of whether the

district court has discretion to resolve disputed facts dispositive

of subject matter jurisdiction, applying the same standard used by

the district court.             Robinson v. TCI/US West Communications Inc.,

117 F.3d 900, 904 (5th Cir. 1997).

                                    III. Discussion

       In    general,      where    subject     matter   jurisdiction     is    being

challenged, the trial court is free to weigh the evidence and

resolve factual disputes in order to satisfy itself that it has the

power to hear the case.             See Land v. Dollar, 330 U.S. 731, 735 &

n.4 (1947).          "A court may base its disposition of a motion to

dismiss      for    lack   of     subject   matter    jurisdiction   on    (1)      the

complaint alone; (2) the complaint supplemented by undisputed

facts; or (3) the complaint supplemented by undisputed facts plus

the court's resolution of disputed facts."                  Robinson, 117 F.3d at

904.        In   short,    no    presumptive    truthfulness    attaches       to   the

plaintiff's allegations, and the court can decide disputed issues

of material fact in order to determine whether or not it has

jurisdiction to hear the case.


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     However, where issues of fact are central both to subject

matter jurisdiction and the claim on the merits, we have held that

the trial court must assume jurisdiction and proceed to the merits.

In circumstances where "the defendant's challenge to the court's

jurisdiction is also a challenge to the existence of a federal

cause of action, the proper course of action for the district court

. . . is to find that jurisdiction exists and deal with the

objection as a direct attack on the merits of the plaintiff's case"

under either Rule 12(b)(6) or Rule 56.   Williamson v. Tucker, 645

F.2d 404, 415 (5th Cir. 1981); see also Daigle v. Opelousas Health

Care, Inc., 774 F.2d 1344, 1347 (5th Cir. 1985).

     As we stated in Williamson,

     [N]o 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.

645 F.2d at 415.   Therefore, we 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.

     The government relies on our decision in Moran v. Kingdom of

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Saudi Arabia, 27 F.3d 169 (5th Cir. 1994), in which we allowed

judges to make factual determinations on a 12(b)(1) motion in

regard to claims arising under the Foreign Sovereign Immunities Act

(“FSIA”).    While Moran carved out a limited exception to the

general rule requiring the application of a 12(b)(6) or summary

judgment standard to resolve issues dispositive of both subject

matter jurisdiction and the merits, we took pains to explain why

that exception applies only to cases brought under the FSIA,

inasmuch as FSIA claims involve immunity from suit.                 "[B]ecause

sovereign immunity under the FSIA is immunity from suit, not just

from liability, ‘postponing the determination of subject matter

jurisdiction until some point during or after trial would be

inappropriate.'"     Moran, 27 F.3d at 172 (quoting Gould, Inc. v.

Pechiney Ugine Kuhlmann, 853 F.2d 445, 450 (6th Cir. 1988)).

     An exception to the general rule for FSIA cases is justified

by the fact that we have held that the FSIA requires courts to

fashion procedures that lead to pretrial resolution of a foreign

state's immunity from suit –- even if such procedures depart from

the "usual" rule.    See Stena Rederi AB v. Comision de Contratos del

Comite Ejecutivo     General,   923   F.2d   380,    385     (5th   Cir.   1991)

(holding that the denial of a motion to dismiss for lack of subject

matter jurisdiction is immediately appealable in cases brought

under the FSIA); Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528,

534 (5th    Cir.   1992)   (holding   that   the    "usual    procedure"    for


                                      6
resolving contested jurisdictional issues did not apply in FSIA

cases,    and   that      district   courts         must     utilize    circumscribed

discovery procedures to resolve jurisdictional motions prior to

trial in order to preserve a foreign sovereign's immunity from the

burdens of litigation).          The need for special procedures designed

to preserve a foreign sovereign's immunity from suit is heightened

in FSIA cases, which implicate notions of international comity, a

concern that does not exist in FTCA cases against the United

States.    See First Nat'l City Bank v. Banco Para El Comercio

Exterior de Cuba, 462 U.S. 611, 626 (1983) (emphasizing "[d]ue

respect   for    .    .   .   principles       of   comity    between    nations"    in

asserting jurisdiction under the FSIA); Arriba, 962 F.2d at 537

(recognizing that principles of comity favor the exercise of

restraint in asserting jurisdiction over foreign states under the

FSIA).

      Moreover, information provided to us by our sister Circuits

indicates that Moran is best viewed as a limited exception to the

general rule.        Two Courts of Appeals have held that an FTCA claim

cannot be dismissed for lack of subject matter jurisdiction where

the   disputed       jurisdictional        facts      concerning        immunity    are

inextricably intertwined with the merits of the plaintiff's claim.

Citing our decision in Williamson v. Tucker, 645 F.2d 404 (5th Cir.

1981), as the controlling precedent on the issue, the Eleventh

Circuit specifically has held in the context of the FTCA that a


                                           7
claim against the United States may not be dismissed for lack of

subject matter jurisdiction under Rule 12(b)(1) based upon the

district   court's   resolution   of   the   disputed   factual   question

whether an employee of the U.S. government was acting within the

scope of his employment.     See Green v. Hill, 954 F.2d 694, 698

(11th Cir. 1992); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th

Cir. 1990).   The Ninth Circuit also has held that an FTCA claim

cannot be dismissed for lack of jurisdiction under Rule 12(b)(1)

where resolution of the jurisdictional issue is dependent upon the

resolution of factual issues going to the merits.        See Augustine v.

United States, 704 F.2d 1074, 1079 (9th Cir. 1983) ("Because the

jurisdictional issue [when plaintiff's cause of action accrued for

purposes of the FTCA] is dependent upon the resolution of factual

issues going to the merits, it was incumbent upon the district

court to apply summary judgment standards in deciding whether to

grant or deny the government's motion.").        Therefore, because the

Whitts' claim is based on the FTCA, and not the FSIA, Moran does

not apply and the trial court must apply a 12(b)(6) or summary

judgment standard to resolve issues dispositive of both subject

matter jurisdiction and the merits.3



     3
       It may well be that the district court can determine whether
Partida was acting within the course and scope of his naval
employment on a Rule 56 motion for summary judgment. However, it
is clear that this is not the basis of the district court’s
determination, nor did the court convert the 12(b)(1) motion into
a motion for summary judgment.

                                   8
                          IV. Conclusion

     According to case law in this Circuit, and consistent with the

decisions of our sister Circuits, the district court should not

have resolved disputed facts dispositive of both subject matter

jurisdiction and the merits of an FTCA claim on a 12(b)(1) motion.

Accordingly, for the foregoing reasons, the opinion of the district

court is REVERSED and the case REMANDED for further proceedings

consistent with this Court’s opinion.




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