PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STACIA LYNN KERNS, Individually,
and as Personal Representative of
the Estate of Dennis Gregory
Kerns, Jr., and as mother and next
friend of A.K. and D.K., III,
No. 08-1287
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:07-cv-01006-CCB)
Argued: September 22, 2009
Decided: October 29, 2009
Before MOTZ and KING, Circuit Judges,
and Mark S. DAVIS, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge King
wrote the opinion, in which Judge Motz and Judge Davis
joined.
2 KERNS v. UNITED STATES
COUNSEL
ARGUED: Paul David Bekman, SALSBURY, CLEMENTS,
BEKMAN, MARDER & ADKINS, Baltimore, Maryland, for
Appellant. Ariana Wright Arnold, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Emily C. Malarkey, SALSBURY, CLEMENTS,
BEKMAN, MARDER & ADKINS, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Balti-
more, Maryland for Appellee.
OPINION
KING, Circuit Judge:
In April 2007, Stacia Kerns instituted this lawsuit against
the United States under the Federal Tort Claims Act (the
"FTCA"), 28 U.S.C. §§ 1346(b), 2671–2680, based on the
alleged negligence of Government employee Debra Scott. In
her complaint, Kerns alleged that Scott, acting within the
scope of her employment, had negligently caused an automo-
bile accident in Maryland that resulted in the death of Kerns’s
husband, Dennis Gregory Kerns, Jr. (the "decedent"). On Feb-
ruary 7, 2008, the district court dismissed the complaint under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction. See Kerns v. United States, 534 F. Supp.
2d 633 (D. Md. 2008) (the "Opinion"). By way of this appeal,
Kerns challenges the dismissal of her FTCA claim. As
explained below, we vacate and remand.
I.
A.
At the time of the accident, Scott was a contract employee
of the Army Reserve’s 99th Regional Readiness Command,
KERNS v. UNITED STATES 3
working for the office of the Family Readiness Program
Director in Coraopolis, Pennsylvania.1 On May 20, 2005,
Scott was ordered to provide a briefing during a three-day
volunteer training conference concerning aid and assistance to
military families. The conference was to be held at a Radisson
Hotel in Annapolis, Maryland, beginning at 8:00 a.m. on Sat-
urday, June 25, 2005. That Friday, June 24, Scott drove her
personal car to the Pittsburgh airport and flew to Baltimore-
Washington International Thurgood Marshall Airport
("BWI") at the Government’s expense. At approximately 1:06
p.m., Scott landed at BWI and rented a vehicle at the airport.
Using her personal credit card, she paid a "Government
Weekend" rate for a three-day rental. J.A. 43.2 Shortly after
1:30 p.m., she departed BWI; the Radisson Hotel’s check-in
time was 4:00 p.m.
Scott first drove from BWI to the nearby Army Post at Fort
Meade, Maryland, to shop at the Fort Meade PX.3 At approxi-
mately 9:30 p.m., Scott left Fort Meade and headed eastbound
on Annapolis Road/Maryland Route 175 toward Annapolis.
While making a left-hand turn, Scott struck the decedent, who
was riding a motorcycle westbound on the same road. The
decedent was thrown to the highway and seriously injured; he
was promptly transported to a hospital trauma unit, but later
died. It is undisputed, for our purposes, that Scott was at fault.
Scott returned to Pennsylvania the next day without complet-
ing the conference.
1
The facts spelled out herein are drawn from the Complaint and various
exhibits filed in connection with the Government’s motion to dismiss. For
purposes of its motion, the Government assumed arguendo that Scott was
an "[e]mployee of the government" under 28 U.S.C. § 2671.
2
Citations herein to "J.A. __" refer to the contents of the Joint Appendix
filed by the parties in this appeal.
3
Scott’s husband was on active duty with the Army Reserve, entitling
her to utilize facilities, such as the Fort Meade PX, that are located on mil-
itary installations.
4 KERNS v. UNITED STATES
B.
On April 19, 2007, Kerns, as the personal representative of
her husband’s estate and next friend of her children, filed her
complaint in the District of Maryland. On August 2, 2007, the
Government moved to dismiss under Rule 12(b)(1), contend-
ing that there was no basis for subject matter jurisdiction
under the FTCA because Scott was not acting within the
scope of her employment with the Government at the time of
the accident. Rather, according to the Government, "[t]he evi-
dence [was] clear . . . that [Scott] rented the car on her own
to visit personal friends." J.A. 11.
The Government submitted eight exhibits, including two
affidavits, in support of its Rule 12(b)(1) motion to dismiss.
The exhibits included the following:
• Scott’s May 20, 2005 travel orders, which pro-
vided that she was to travel between Pennsylva-
nia and Maryland by commercial plane and that
"rental car is not authorized." J.A. 32. The orders
were silent on how Scott was to proceed from the
airport to the hotel in Annapolis.
• Post-conference travel voucher records, dated
July 21, 2005, and August 3, 2005, showing that
Scott sought and received reimbursement for
round-trip vehicle mileage between Coraopolis
and the Pittsburgh airport, as well as per diem
and other expenses. The records suggest that
Scott neither requested nor received reimburse-
ment for the rental car involved in the accident.
• An affidavit from Barbara Wilson, Scott’s super-
visor at the time of the accident. Wilson attested
that she too had travelled to Annapolis, although
not with Scott. Wilson stated that she was "not
certain what [Scott] was doing at the time of the
KERNS v. UNITED STATES 5
accident," but that the conference "had not yet
begun, and [Scott] was not performing any duties
related to the conference or Army business at the
time of the accident." J.A. 35. According to the
affidavit, Wilson was informed by Scott, prior to
the conference, "that she planned to rent a car and
visit friends at Fort Meade during the conference
weekend." Id.
• An affidavit from Thomas Cannon, a colleague
who flew to Baltimore with Scott. Cannon
attested that "Scott rented a vehicle when we left
BWI Airport, and she told me she was going to
use the car to visit some friends in the area that
evening." J.A. 37. Like Wilson, however, Cannon
was "not certain what [Scott] was doing at the
time of the accident." Id.
On August 20, 2007, Kerns submitted a memorandum in
opposition to the Government’s motion to dismiss, requesting
the district court to authorize relevant discovery proceedings.
Kerns maintained that the record had not been sufficiently
developed because the exhibits submitted by the Government
failed to "disprove that Ms. Scott was acting within the scope
of her employment at the time of the collison," in that the
exhibits did "not provide any specific information about what
Ms. Scott was doing at [that] time" — including any state-
ment from Scott herself. J.A. 75. Kerns pointed out, for exam-
ple, that although the Wilson and Cannon affidavits
"provide[d] hearsay accounts of conversations these individu-
als had with Ms. Scott about a possible visit with a friend
while in Maryland to attend the conference, both specifically
state that [the affiants did] not know what Ms. Scott was
doing or where she was going at the time of the collision." Id.
at 76. Furthermore, Kerns asserted, "[m]erely because Ms.
Scott was not reimbursed for her expenses related to the rental
car [did] not conclusively establish that Ms. Scott . . . did not
use the rental car for some portion of her work-related respon-
6 KERNS v. UNITED STATES
sibilities or even that Ms. Scott’s duties did not require the
rental car." Id. at 77. Indeed, the Government "provided no
information about how the out-of-town [conference] attendees
. . . got to the location of the conference from the airport." Id.
In these circumstances, Kerns maintained, discovery was nec-
essary to fully develop the record before the district court
could properly issue any ruling on the Government’s motion
to dismiss.
On September 6, 2007, the Government filed its reply
memorandum on the Rule 12(b)(1) request. This submission
included an August 23, 2007 affidavit from Scott, prepared by
the Government in the wake of Kerns’s opposition memoran-
dum. Scott attested that "[e]mail instructions regarding travel
to the [conference] stated that we could fly into BWI, drive
our personal automobiles or take a rental car." J.A. 94. Scott
further attested that, on June 24, 2005, while she "was in the
Annapolis/FT Meade area on government orders," she "went
shopping at the FT Meade PX." Id. at 95. According to Scott,
if she had not been on government orders to provide a brief-
ing at the conference, she "would not have been at FT Meade
at the time of the collision, and this collision would not have
occurred." Id. The affidavit did not specify whether Scott was
shopping at the Fort Meade PX for herself or her employer,
and it did not address whether Scott had also been visiting
friends in the Fort Meade area.
In its reply memorandum, the Government failed to
acknowledge or address the contradiction between the nota-
tion in Scott’s May 20, 2005 travel orders specifying that
"rental car is not authorized," J.A. 32, and Scott’s averment
that "[e]mail instructions" identified a rental car as a permissi-
ble mode of travel, id. at 94. Instead, the Government asserted
that Kerns could "point to no set of facts that would demon-
strate that the United States authorized Ms. Scott to use the
rental car to travel to Ft. Meade the evening before the confer-
ence in Annapolis was to begin." Id. at 89-90. The Govern-
ment did acknowledge Scott’s apparent attempt — by stating
KERNS v. UNITED STATES 7
in her affidavit that she would not have been at Fort Meade
but for the conference — to establish that she was acting
within the scope of her employment at the time of the acci-
dent. The Government insisted, however, that "whether Ms.
Scott was visiting friends at Fort Meade or shopping at the
[PX] prior to the accident, she was performing no duties
related to her employment or with her attendance at the con-
ference." Id. at 91.4
On February 7, 2008, without any discovery having
occurred, the district court granted the Rule 12(b)(1) motion
to dismiss. In its Opinion, the court concluded that, under
Maryland law, Scott was not acting within the scope of her
employment with the Government at the time of the tragic
accident. See Kerns, 534 F. Supp. 2d at 637–38. The court
gave two reasons for its conclusion. First, it posited that Scott
was running personal errands at the time of the accident. The
court observed that "Scott’s affidavit clearly states that the
accident occurred soon after she finished shopping at the Fort
Meade PX," and that "Scott gives no indication that she was
shopping for or on behalf of her employer." Id. at 637. Sec-
ond, the court found that Scott had rented the car on her own
initiative for use in her personal time. The court noted that the
travel orders apparently did not authorize a rental car, as evi-
denced by "[t]he fact that Scott did not request or receive
reimbursement." Id. The court thus ruled that it lacked juris-
diction and dismissed the complaint. Id. at 640. Kerns filed a
timely notice of appeal, and we possess jurisdiction pursuant
to 28 U.S.C. § 1291.
II.
Kerns’s primary contention on appeal is that the key juris-
4
Kerns did not respond to the Scott affidavit, apparently because it was
not filed until the reply submission of the Government. See D. Md. Loc.
R. 105(2)(a) ("Unless otherwise ordered by the Court, surreply memo-
randa are not permitted to be filed.").
8 KERNS v. UNITED STATES
dictional issue — whether Scott was acting within the scope
of her employment with the Government — is also an issue
central to the merits of her FTCA claim. She thus maintains
that the district court should have assumed jurisdiction, pro-
ceeded to the merits of her FTCA claim, and treated the Gov-
ernment’s Rule 12(b)(1) dismissal motion as a Rule 56
request for summary judgment. Kerns further asserts that, had
the court applied the appropriate legal principles, it would
have denied the motion and authorized discovery on the
scope-of-employment issue.5
In resolving this appeal, we first ascertain the proper legal
framework for resolving a Rule 12(b)(1) motion to dismiss,
when the jurisdictional facts are inextricably intertwined with
those central to the merits. We then assess whether, in the
context of this FTCA claim, the scope-of-employment issue
is an essential aspect of both the jurisdictional question and
the merits, rendering dismissal under Rule 12(b)(1) inappro-
priate.
A.
We have heretofore recognized that a defendant may chal-
lenge subject matter jurisdiction in one of two ways. See
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). First, the
defendant may contend "that a complaint simply fails to
allege facts upon which subject matter jurisdiction can be
based." Id. When a defendant makes a facial challenge to sub-
ject matter jurisdiction, "the plaintiff, in effect, is afforded the
same procedural protection as he would receive under a Rule
12(b)(6) consideration." Id. In that situation, the facts alleged
in the complaint are taken as true, and the motion must be
5
Kerns also contends that, even if Rule 12(b)(1) was the appropriate tool
for resolving this case, the district court erred in denying her request for
limited discovery on the scope-of-employment issue. Because dismissal
under Rule 12(b)(1) was inappropriate, we need not reach or address this
contention.
KERNS v. UNITED STATES 9
denied if the complaint alleges sufficient facts to invoke sub-
ject matter jurisdiction.
In the alternative, the defendant can contend — as the Gov-
ernment does here — "that the jurisdictional allegations of the
complaint [are] not true." Adams, 697 F.2d at 1219. The
plaintiff in this latter situation is afforded less procedural pro-
tection: If the defendant challenges the factual predicate of
subject matter jurisdiction, "[a] trial court may then go
beyond the allegations of the complaint and in an evidentiary
hearing determine if there are facts to support the jurisdic-
tional allegations," without converting the motion to a sum-
mary judgment proceeding. Id. (emphasis added). In that
situation, the presumption of truthfulness normally accorded
a complaint’s allegations does not apply, and the district court
is entitled to decide disputed issues of fact with respect to
subject matter jurisdiction.
As we explained in Adams, vesting a district court with the
discretion to determine whether it possesses jurisdiction gen-
erally presents no problems. See 697 F.2d at 1219. But as
Judge Sprouse cautioned in Adams, "where the jurisdictional
facts are intertwined with the facts central to the merits of the
dispute," a presumption of truthfulness should attach to the
plaintiff’s allegations. Id. In that situation, the defendant has
challenged not only the court’s jurisdiction but also the exis-
tence of the plaintiff’s cause of action. A trial court should
then afford the plaintiff the procedural safeguards — such as
discovery — that would apply were the plaintiff facing a
direct attack on the merits. The Fifth Circuit has aptly
described the underlying rationale for this approach:
[N]o purpose is served by indirectly arguing the mer-
its 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
10 KERNS v. UNITED STATES
Rule 12(b)(1) motions provides, moreover, a greater
level of protection to the plaintiff who in truth is fac-
ing 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.
Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981).
Thus, when the jurisdictional facts and the facts central to a
tort claim are inextricably intertwined, the trial court should
ordinarily assume jurisdiction and proceed to the intertwined
merits issues. See United States ex rel. Vuyyuru v. Jadhav,
555 F.3d 337, 348 (4th Cir. 2009). As the Supreme Court has
explained with respect to such situations, a trial court should
dismiss under Rule 12(b)(1) only when the jurisdictional alle-
gations are "clearly . . . immaterial, made solely for the pur-
pose of obtaining jurisdiction or where such a claim is wholly
unsubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682
(1946).6
In short, when a defendant asserts that the complaint fails
to allege sufficient facts to support subject matter jurisdiction,
the trial court must apply a standard patterned on Rule
12(b)(6) and assume the truthfulness of the facts alleged. On
the other hand, when the defendant challenges the veracity of
the facts underpinning subject matter jurisdiction, the trial
court may go beyond the complaint, conduct evidentiary pro-
ceedings, and resolve the disputed jurisdictional facts. And
when the jurisdictional facts are inextricably intertwined with
those central to the merits, the court should resolve the rele-
6
If a district court does not dismiss under Rule 12(b)(1), it is entitled to
treat a Rule 12(b)(1) motion as a direct attack on the merits under Rule
56(c). See, e.g., Rivanna Trawlers Unltd. v. Thompson Trawlers, Inc., 840
F.2d 236, 239 (4th Cir. 1988) (explaining that when contested basis for
jurisdiction is element of claim, motion to dismiss should be converted to
motion for summary judgment). Here, for example, the district court was
entitled to treat the motion to dismiss as a request for summary judgment
under Rule 56(c).
KERNS v. UNITED STATES 11
vant factual disputes only after appropriate discovery, unless
the jurisdictional allegations are clearly immaterial or wholly
unsubstantial and frivolous. See Bell, 327 U.S. at 682.
In this case, the Government makes the second type of
challenge, contending that Kerns’s complaint included juris-
dictional allegations that are not true. Therefore, we must
assess whether the jurisdictional facts are so intertwined with
the merits that dismissal under Rule 12(b)(1) was inappropri-
ate.
B.
Absent a statutory waiver, sovereign immunity shields the
United States from a civil tort suit. See United States v. Sher-
wood, 312 U.S. 584, 586 (1941). When it enacted the FTCA
in 1946, Congress "waived the sovereign immunity of the
United States for certain torts committed by federal employ-
ees." FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA
grants jurisdiction to the district courts only with respect to a
"certain category of claims." Id. at 477. In order for a claim
to fall within that limited category, it must be made
"[1] against the United States, [2] for money dam-
ages, . . . [3] for injury or loss of property, or per-
sonal 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 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."
Id. (quoting 28 U.S.C. § 1346(b)) (alterations in original). In
other words, to establish subject matter jurisdiction, an FTCA
plaintiff bears the burden of establishing, inter alia, that the
Government employee was acting within the scope of his or
her employment at the time of the accident. The scope-of-
12 KERNS v. UNITED STATES
employment issue is thus, on its face, a jurisdictional one —
if Scott was acting outside the scope of her employment with
the Government, the district court lacks jurisdiction over
Kerns’s FTCA claim.
Meanwhile, the underlying cause of action in an FTCA
claim is derived from the applicable state law. An action
under the FTCA may only be maintained if the Government
would be liable as an individual under the law of the state
where the negligent act occurred. See 28 U.S.C. § 1346(b)(1).
In Maryland, an employer is liable for the tortious acts of its
employee under the doctrine of respondeat superior, but only
if the employee’s negligent acts were committed within the
scope of employment. See Oaks v. Connors, 660 A.2d 423,
426 (Md. 1995). Thus, the scope-of-employment issue is also
an element of Kerns’s FTCA claim — if Scott was acting out-
side the scope of her employment with the Government,
Kerns cannot satisfy an element of her negligence claim
against the United States.
Notwithstanding the overlap between the jurisdictional ele-
ments of the FTCA and the requirements of a claim of
respondeat superior liability under Maryland law, the Opinion
concluded that the "FTCA jurisdictional issues arising under
respondeat superior theories . . . are normally quite distinct
from the underlying merits of the case and thus would ‘not
usually present a serious problem’ for a court deciding a
12(b)(1) motion." Kerns, 534 F. Supp. 2d at 640 (quoting
Adams, 697 F.2d at 1219). According to the Opinion, "courts
regularly grant 12(b)(1) dismissal on FTCA claims asserting
vicarious liability." Id.
The district court’s conclusion finds some support in at
least two of our sister courts of appeals. The Third Circuit, for
example, recently recognized that a district court may dismiss
an FTCA claim under Rule 12(b)(1), even when the facts
underlying the claim are intertwined with the jurisdictional
facts. See CNA v. United States, 535 F.3d 132, 140 (3d Cir.
KERNS v. UNITED STATES 13
2008). Although it acknowledged that the issue of "[w]hether
a Government employee was acting within the scope of his
employment plausibly could be addressed as one of jurisdic-
tion or one of the merits of a claim," the Third Circuit never-
theless concluded that "treating the scope-of-employment
issue as jurisdictional in the FTCA context is the better
course." Id. The court observed that an FTCA plaintiff, who
bears the burden of persuasion if subject matter jurisdiction is
challenged, does not need any additional protection provided
by Rules 12(b)(6) and 56(c), because a district court
"requir[es] less of a factual showing" from the plaintiff when
jurisdiction is intertwined with the merits. Id. at 145. Accord-
ing to the Third Circuit, this less-stringent standard suffi-
ciently ensures that trial courts "do not prematurely grant Rule
12(b)(1) motions to dismiss." Id. The Second Circuit has
reached a similar conclusion in an FTCA case, observing that
the scope-of-employment issue is best resolved under Rule
12(b)(1). See Hamm v. United States, 483 F.3d 135, 137 (2d
Cir. 2007).
Other courts of appeals disagree with the approach
advanced by the Second and Third Circuits. The Fifth Circuit,
on facts similar to those here, adhered to what it called the
"general rule" and recognized that "a jurisdictional attack
intertwined with the merits of an FTCA claim should be
treated like any other intertwined attack, thereby making reso-
lution of the jurisdictional issue on a 12(b)(1) motion
improper." Montez v. Dep’t of Navy, 392 F.3d 147, 150 (5th
Cir. 2004). The Eleventh Circuit has reached a similar conclu-
sion. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir.
1990) (vacating dismissal of FTCA claim under Rule 12(b)(1)
because "[t]he pertinent inquiry will resolve both the question
of subject matter jurisdiction and a necessary element of the
tort claim"); see also 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 resolution of factual issues going
to the merits, it was incumbent upon the district court to apply
14 KERNS v. UNITED STATES
summary judgment standards in deciding whether to grant or
deny the government’s motion."). In our view, this more-
stringent rule better ensures that an FTCA plaintiff is pro-
vided with the appropriate procedural safeguards, requiring
the scope-of-employment issue to be addressed as an element
of the FTCA claim.
Having carefully assessed the issue, we are constrained to
agree with the more-stringent approach: Because the scope-
of-employment issue is determinative of both jurisdiction and
the underlying merits of an FTCA claim, dismissal under Rule
12(b)(1) is inappropriate unless the jurisdictional allegations
are clearly immaterial or wholly unsubstantial and frivolous.
See Bell, 327 U.S. at 682. As an initial matter, we agree that
an FTCA plaintiff facing an indirect attack on the merits —
by way of a Rule 12(b)(1) motion — deserves greater proce-
dural protection than that afforded by a typical Rule 12(b)(1)
motion. See, e.g., CNA, 535 F.3d at 144 (acknowledging con-
cern that Rule 12(b)(1) provides few procedural safeguards
when jurisdictional issue is intertwined with merits). Indeed,
we are unable to identify any valid reason for distinguishing
this type of FTCA claim — with intertwined factual questions
on jurisdictional and merits issues — from other tort claims
with intertwined factual issues. Thus, the general rule arising
from our Adams and Vuyyuru line of precedent is applicable:
A district court should assume jurisdiction and assess the mer-
its of the claim when the relevant facts — for jurisdictional
and merits purposes — are inextricably intertwined. See Vuy-
yuru, 555 F.3d at 348; Adams, 697 F.2d at 1220.7
7
We lack confidence in the efficacy of the less-stringent Rule 12(b)(1)
standard espoused by the Third Circuit. See CNA, 535 F.3d at 145 (con-
cluding that plaintiffs are adequately protected because district courts
require "less of a factual showing than would be required to succeed at
trial"). As this proceeding exemplifies, a district court is entitled to dismiss
for lack of subject matter jurisdiction at any time. See Fed. R. Civ. P.
12(h)(3). It is inconsistent, however, for a trial court to require less proof
from the plaintiff, and yet to grant dismissal of the claim prior to at least
KERNS v. UNITED STATES 15
Our conclusion that a Rule 12(b)(1) dismissal was inappro-
priate in this case is not undermined by our decision in Wil-
liams v. United States, 50 F.3d 299 (4th Cir. 1995), where we
approved dismissal of an FTCA claim under Rule 12(b)(1).
The disputed issues in Williams — whether the alleged
employee was an independent contractor and whether the
discretionary-function exception applied — were threshold
issues wholly unrelated to the basis for liability under the
FTCA. For example, whether the Government had managed
or supervised the activities of the alleged tortfeasor in Wil-
liams, thereby rendering the tortfeasor an independent con-
tractor rather than an employee, was not an issue intertwined
with the merits of the FTCA claim then being pursued. With
the scope-of-employment issue in this case, however, the con-
duct of Scott herself, rather than her status, is determinative
of both jurisdiction and the merits of the FTCA claim.
We are thus satisfied to recognize that, when the scope-of-
employment issue is determinative of both jurisdiction and the
underlying merits of an FTCA claim, dismissal under Rule
12(b)(1) is inappropriate, unless the jurisdictional allegations
are clearly immaterial or wholly unsubstantial and frivolous.
See Bell, 327 U.S. at 682. In so ruling, however, we acknowl-
edge that Kerns appears to face a daunting task with respect
to her FTCA claim, in that Maryland has apparently restricted
the circumstances where an employer can be held vicariously
liable for its employee’s negligent use of an automobile. See,
e.g., Henkelmann v. Metro. Life Ins. Co., 26 A.2d 418, 423
(Md. 1942) (discussing requirements for employer to be held
vicariously liable in automobile context). As Kerns’s lawyer
jurisdictional discovery. See CNA, 535 F.3d at 145–46 (upholding dis-
missal of FTCA claim under Rule 12(b)(1) before plaintiff was accorded
opportunity to conduct discovery). At such an early stage in the proceed-
ings, an FTCA plaintiff’s jurisdictional allegations on an intertwined issue
should generally be sufficient to survive an indirect attack on the merits.
Thus, the application of a Rule 12(b)(6) or Rule 56(c) standard is more
appropriate.
16 KERNS v. UNITED STATES
explained at oral argument, however, discovery could show
that, at least for Rule 56 purposes, the Government authorized
Scott’s rental car and Scott drove to Fort Meade on legitimate
Government business, such as purchasing supplies for the
Annapolis conference where she was to present a briefing.
Because such facts could be sufficient under Maryland law,
Kerns should be afforded an opportunity — at minimum —
to conduct discovery on the intertwined scope-of-employment
issue.
III.
Pursuant to the foregoing, the judgment is vacated and
remand is granted for discovery on the jurisdictional issue,
and for such other and further proceedings as may be appro-
priate.
VACATED AND REMANDED