Christopher v. United States of America

Filing 23

MEMORANDUM OPINION and ORDER denying 19 MOTION to Dismiss for Lack of Jurisdiction MOTION for Partial Summary Judgment filed by United States of America; As stated within an essential element of Christopher's claim agai nst the Government turns on whether Smith was, in fact, a federal employee, both for purposes of establishing jurisdiction and for proving the underlying state law tort Christopher seeks to assert through the statute; While the court recognizes the s trength of the Government's argument, Christopher has not yet had an opportunity to develop through discovery the core facts supporting either her claim or this court's jurisdiction; Accordingly, the court DENIES the Government's motion, 19 , without prejudice to refile after the discovery period. Signed by Judge Abdul K Kallon on 1/11/2018. (KBB)

FILED
2018 Jan-11 AM 11:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LORI CHRISTOPHER, as
Administratrix of the Estate of
WILLIAM R. CHRISTOPHER, II,
Plaintiff,

vs.
UNITED STATES OF AMERICA,

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Civil Action Number
5:17-cv-00178-AKK

Defendant.

MEMORANDUM OPINION AND ORDER
Lori Christopher brings this tort suit against the Federal Aviation
Administration (FAA) under the Federal Torts Claims Act (the FTCA), 28 U.S.C.
§ 1346(b), 2671–2680, on behalf of the estate of her late husband, William R.
Christopher, II, who passed away following a tragic plane crash during a pilot
proficiency examination at the Huntsville International Airport.

Christopher

asserts two independent theories of liability under the FTCA. First, in a contention
that the Government does not challenge in its current motion, Christopher argues
that the FAA acted negligently in failing to revoke the credentials of the individual
conducting the examination, Robin Smith. Second, she avers that by designating
Smith as a Pilot Proficiency Examiner the FAA converted him into a government
employee under § 1346(b) of the FTCA thereby subjecting the United States to

liability for Smith’s purportedly negligent actions.

Before the completion of

discovery, the United States moves to dismiss Christopher’s FTCA claim on
sovereign immunity grounds pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure. Doc. 19. That motion is now fully briefed. Docs. 19; 21; 22.
However, because the motion goes directly to the heart of Christopher’s case, the
court finds that it is not yet ripe for review and consequently the Government’s
motion is due to be denied without prejudice.
I.

STANDARD OF REVIEW
A 12(b)(1) challenge for lack of subject matter jurisdiction may take the

form of a facial or factual attack on the complaint. See McElmurray v. Consol.
Gov’t of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007).1 A facial
attack “‘require[s] the court merely to look and see if [the] plaintiff has sufficiently
alleged a basis of subject matter jurisdiction” taking “the allegations in [her]
complaint . . . as true.’” Id. (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir. 1990)). On the other hand, a factual attack challenges “‘the existence of
subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside
the pleadings . . . are considered.’” Id. (quoting Lawrence, 919 F.2d at 1529).
When deciding such a challenge, the court may hear conflicting evidence and
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There is no question that the Government’s assertion of sovereign immunity represents an attack
on this court’s jurisdiction over Christopher’s claims and is therefore properly brought under
Rule 12(b)(1). See, e.g., Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015)
(explaining that “[i]f there is no specific waiver of sovereign immunity as to a particular claim
filed against the Government, the court lacks subject matter jurisdiction over the suit”).
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decide the factual issues that bear on jurisdiction. Colonial Pipeline Co. v. Collins,
921 F.2d 1237, 1243 (11th Cir. 1991). In other words, “when a defendant properly
[raises a factual] challenge[] [to] subject matter jurisdiction under Rule 12(b)(1) . .
. ‘no presumptive truthfulness attaches to plaintiff’s allegations, and the existence
of disputed material facts will not preclude the trial court from evaluating for itself
the merits of the jurisdictional issue.’” Morrison v. Amway Corp., 323 F.3d 920,
925 (11th Cir. 2003) (quoting Lawrence, 919 F.2d at 1529). “In the face of a
factual challenge to subject matter jurisdiction, the burden is on the plaintiff to
prove that jurisdiction exists.” OSI, Inc. v. United States, 285 F.3d 947, 951 (11th
Cir. 2002).
However, the court “should only rely on Rule 12(b)(1) ‘[i]f the facts
necessary to sustain jurisdiction do not implicate the merits of plaintiff’s cause of
action.’” Morrison, 323 F.3d at 925 (quoting Garcia v. Copenhaver, Bell &
Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997) (emphasis original)). Instead,
“[w]hen the jurisdictional basis of a claim is intertwined with the merits, the
district court should apply a Rule 56 summary judgment standard when ruling on a
motion to dismiss which asserts a factual attack on subject matter jurisdiction.”
Lawrence, 919 F.2d at 1530. This approach is designed “‘to allow jurisdictional
dismissals only in those cases where the federal claim is clearly immaterial or
insubstantial.’” Garcia, 104 F.3d at 1261 (quoting Williamson v. Tucker, 645 F.2d
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404, 416 (5th Cir. 1981)). Thus, “it is extremely difficult to dismiss a claim for
lack of subject matter jurisdiction,” at least when the jurisdictional challenge is
intertwined with the substantive merits of the action. Id. at 1260. Here, the
Government’s motion relies heavily on evidence outside the pleadings, and the
court accordingly construes its jurisdictional challenge as factual.
II.

FACTS
The accident underpinning Christopher’s claims occurred during a routine

pilot proficiency check required to maintain an individual’s certification to fly as
the “pilot-in-command” of certain types of aircraft under the Federal Aviation
Regulations. See Docs. 1 at 1–2, 4; 19 at 3; see also 14 C.F.R. § 61.58. The pilotin-command of this training flight, Robin Smith, a Pilot Proficiency Examiner, was
licensed by the FAA to conduct proficiency checks under the relevant Federal
Aviation Regulations. Docs. 1 at 2, 4; 19 at 1, 3. Tragically, the plane crashed
shortly after take-off, instantly killing all three individuals onboard, including
William Christopher. Docs. 1 at 1; 19 at 3. Lori Christopher then filed this action
under the FTCA alleging that the FAA was negligent for failing to revoke Smith’s
qualifications to conduct training flights, and, as relevant here, that Smith was,
under the FAA licensing scheme, a federal employee making the Government
vicariously liable under § 1346(b) of the FTCA for his purported negligence in
causing the crash. Id. at 1, 5–6.
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III.

DISCUSSION

“[T]he United States, as a sovereign entity, is immune from suit unless it
consents to be sued.” Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir.
2015). The FTCA provides the requisite consent to suit in the context of “tort suits
based on state law tort claims.” Id. However, just as the United States has the
power to consent to suit, it also has the power to “condition a waiver of its
immunity as broadly or narrowly as it wishes, and according to whatever terms it
chooses to impose.” Id. at 1321–22; see also United States v. Sherwood, 312 U.S.
584, 586 (1941) (explaining that “the terms of [the Government’s] consent to be
sued in any court define that court’s jurisdiction to entertain the suit”).
Consequently, courts strictly construe the FTCA and all other “‘limitations and
conditions upon which the Government consents to be sued.’”

Lehman v.

Nakshian, 453 U.S. 156, 161 (1981) (quoting Soriano v. United States, 352 U.S.
270, 276 (1957)).
As relevant here, the FTCA provides, in part, that “the district courts . . .
shall have exclusive jurisdiction of civil actions on claims against the United States
. . . caused by the negligent or wrongful act or omission of any employee of the
Government.” 28 U.S.C. § 1346(b)(1). In other words, the establishment of
federal jurisdiction under § 1346(b) is contingent on a finding that the alleged
tortfeasor was a Government employee. To make this showing, the plaintiff must
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establish that “the Government control[led] and supervise[d] the day-to-day
activities of the alleged tortfeasor during the relevant time.” Patterson & Wilder
Const. Co. v. United States, 226 F.3d 1269, 1274 (11th Cir. 2000).

The

Government argues that Smith was a private individual and that the existing FAA
regulatory scheme governing the pilot proficiency checks and Smith’s licensure as
a Pilot Proficiency Examiner was insufficient to constitute the daily control and
supervision necessary to convert Smith into a federal employee for FTCA
purposes. Therefore, the Government contends that no valid waiver of sovereign
immunity exists and accordingly that the court lacks subject matter jurisdiction
over Christopher’s claim based on Smith’s purported negligence.
On the record, as it presently stands, the Government’s argument is
compelling. However, the Government overlooks that the extent of its purported
control over Smith is a critical factor not only in establishing jurisdiction, but also
in reaching a decision on the merits of Christopher’s claim. Because a claim under
the FTCA depends upon the substantive law of the state where the alleged tort
occurred, see Sellfors v. United States, 697 F.2d 1362, 1365 (11th Cir. 1983)
(pointing out that Congress enacted the FTCA primarily to “provid[e] redress for
the garden variety common law torts recognized by state law”), the court’s
substantive analysis of Christopher’s claim under § 1346(b) requires the
application of state law. Under Alabama law, an employer is only vicariously
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liable for the torts of an employee if the plaintiff first establishes “the status of
employer and employee—master and servant.”

Hendley v. Springhill Mem’l

Hosp., 575 So. 2d 547, 550 (Ala. 1990). This inquiry, in turn, relies on “the degree
of control the alleged master retains over the alleged servant.” Gossett v. Twin Cty.
Cable T.V., Inc., 594 So. 2d 635, 639 (Ala. 1992). Accordingly, the § 1346(b)
merits question here substantively replicates the necessary jurisdictional analysis
under the statute. See Lawrence, 919 F.2d at 1528 (explaining that in a case where
the scope of the Government’s waiver of immunity is defined by reference to state
tort law “proof of scope of employment serves two purposes: it is a necessary
predicate to the court’s subject matter jurisdiction and it is an element the plaintiff
must establish to win the case, just as if the defendant were a private party”).2
“Where [as here] the jurisdictional issues are intertwined with the
substantive merits, ‘the jurisdictional issues should be referred to the merits, for it
is impossible to decide one without the other.’” Eaton v. Dorchester Dev., Inc.,
692 F.2d 727, 733 (11th Cir. 1982) (quoting Chatham Condo. Assocs. v. Century
Vill., Inc., 597 F.2d 1002, 1011 (5th Cir. 1979)); see also Douglas v. United States,
814 F.3d 1268, 1281 (11th Cir. 2016) (Tjoflat, J., concurring) (noting that the
2

The court notes that these questions are legally distinct as a determination of employee status
under the FTCA is explicitly a question of federal rather than state law. See Means v. United
States, 176 F.3d 1376, 1379 (11th Cir. 1999). However, as discussed, the practical resolution of
both issues depends on the degree of control and supervision the Government exercised over the
alleged tortfeasor, Smith. See, e.g., Patterson & Wilder Constr. Co. v. United States, 226 F.3d
1269, 1274 (11th Cir. 2000); Gossett v. Twin Cty. Cable T.V., Inc., 594 So. 2d 635, 639 (Ala.
1992).
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Eleventh Circuit follows the approach of determining “subject-matter jurisdiction .
. . together with a merits determination under Rule 56 when, as will often be the
case, the two are sufficiently ‘intertwined’”). Indeed, the Supreme Court has
explained that “no 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.” Williamson, 645 F.2d at 415 (relying on Bell v. Hood,
327 U.S. 678, 682 (1945)). Thus, because the “jurisdictional basis of [the] claim is
intertwined with an element of the cause of action” this court must “apply a Rule
56 summary judgment standard [and any accompanying procedural protections]
when ruling on [the Government’s motion] which asserts a factual attack on
subject matter jurisdiction.” Lawrence, 919 F.2d at 1530.
Moreover, as Christopher notes, “discovery has only just begun in this
case.” Doc. 21 at 3. And, the parties do not dispute that, on its face, Christopher’s
complaint lays out a plausible basis for subject matter jurisdiction under the FTCA
with respect to her claim against the Government based on Smith’s purported
negligence. Accordingly, the court accepts that Christopher has adequately alleged
that Smith was an employee of the FAA, and finds that she deserves the
opportunity to further develop the necessary facts underpinning that allegation

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through discovery.3 Of course, the court is mindful of the fact that “the core
principles of a limited federal judiciary and respect for sovereign entities’
immunity from unconsented-to suits clearly cut against proceeding when
jurisdiction remains uncertain.”
concurring).

Douglas, 814 F.3d at 1281 (Tjoflat, J.,

However, in the context of a factual attack on subject matter

jurisdiction, the court must “‘give the plaintiff an [appropriate] opportunity for
discovery and a hearing.’”

Id. at 1274–75 (McElmurray, 501 F.3d at 1251).

Again, “‘[t]he proper course of action . . . is to find that jurisdiction exists and deal
with the [Government’s] objection as a direct attack on the merits of
[Christopher’s] case.’” Morrison, 323 F.3d at 925 (quoting Garcia, 104 F.3d at
1261). This procedure allows the court to properly address the Government’s

3

The Government contends that it notified Christopher of its intent to file a jurisdictional
challenge under Rule 12(b)(1) and the underlying legal basis of that challenge over four months
ago. Therefore, according to the Government, Christopher has already had sufficient time to
conduct jurisdictional discovery in this case. However, the parties apparently never reached a
timeline for the Government’s filing. See Doc. 22-7 at 1–2. The notice of intent to file a motion
at an unspecified time, without more, does not justify depriving the non-movant of an
opportunity to adequately respond. This is particularly the case where, as here, the court’s
resolution of the motion depends on factual issues that the parties have not yet explored
adequately. Indeed, in this circuit, there is “a strong preference that cases be heard on the
merits,” and that every litigant is afforded “his or her day in court, if possible.” Perez v. Wells
Fargo N.A., 774 F.3d 1329, 1342 (11th Cir. 2014) (quotations omitted). Therefore, because the
Government has not argued that Christopher has acted in bad faith or somehow impermissibly
delayed discovery in order to avoid litigating the Government’s jurisdictional challenge, no basis
exists to deny Christopher’s access to discovery to pursue her claims.
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challenge: “after discovery and with the protections of either a trial or review on
summary judgment.” Douglas, 814 F.3d at 1275.4
IV.

CONCLUSION AND ORDER

An essential element of Christopher’s claim against the Government turns
on whether Smith was, in fact, a federal employee, both for purposes of
establishing jurisdiction under § 1346(b) and for proving the underlying state law
tort Christopher seeks to assert through the statute.

In essence then, the

Government’s motion tasks the court with deciding a direct attack on the merits of
Christopher’s case rather than a general challenge to the court’s jurisdiction.
While the court recognizes the strength of the Government’s argument,
Christopher has not yet had an opportunity to develop through discovery the core
facts supporting either her claim or this court’s jurisdiction. Accordingly, the court
DENIES the Government’s motion, doc. 19, without prejudice to refile after the
discovery period.
4

The Government also argues that the court can resolve its motion via Rule 56 of the Federal
Rules of Civil Procedure because none of the facts underlying the motion are in dispute. Again,
this point is well-taken. However, Christopher’s failure to present specific evidence
controverting the Government’s claims simply demonstrates the necessity for discovery in this
case. As the Government indicates, no written discovery or deposition notices have been served.
Doc. 22 at 8. While Christopher may have failed to produce evidence at the beginning of the
discovery period, she has until March 30, 2018 to complete the process. Doc. 18 at 1. The mere
absence of evidence at this juncture does not establish that no such evidence exists, and the
Government has failed to convince this court that the regular discovery period should be cut
short when its motion, in effect, directly challenges the merits of Christopher’s case. See Eaton
v. Dorchester Dev., Inc., 692 F.2d 727, 733 (11th Cir. 1982) (noting that “[t]he argument against
premature dismissal on 12(b)(1) grounds is particularly strong when the basis of jurisdiction is
also an element of plaintiffs’ cause of action on the merits”).
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DONE the 11th day of January, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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