United States Third Circuit

In a negligence suit under the Federal Tort Claims Act (FTCA) stemming from a robbery and shooting by an Army recruit, dismissal of plaintiffs'-insurers' claims is affirmed where: 1) under the FTCA's requirements for waiving sovereign immunity, the question of whether an agent of the government was acting within the scope of his employment is a subject-matter jurisdiction issue properly analyzed under Fed. R. Civ. P 12(b)(1) for purposes of considering a motion to dismiss; 2) the Army recruiter against whom negligence was alleged was not acting within the scope of his employment; and 3) no evidence supported a negligent-supervision claim against either the recruiter's supervisor or the Army as a whole.

Appellate Information

• Decided 07/22/2008
• Published 07/22/2008

Judges

• Before:  McKEE and AMBRO, Circuit Judges, and IRENAS, District Judge.

Court

• United States Third Circuit

Counsel

• For Appellant:
  
• Daniel L. Hessel, Esquire, Golkow Hessel, Philadelphia, PA, for Appellants.


• For Appellees:
  
• Mary Beth Buchanan, United States Attorney, Robert Greenspan, Esquire, Edward Himmelfarb, Esquire, United States Department of Justice, Civil Division, Washington, DC, Laura S. Irwin, Esquire, Office of the United States Attorney, Pittsburgh, PA, for Appellee.