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
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Appeal from the United States District Court
for the Northern District of Texas, Dallas
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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
2
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
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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
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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.
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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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