The opinion of the court was delivered by: George L. Russell, III United States District Judge
THIS MATTER is before the Court on Defendant United States of America's (the "Government") Motion to Dismiss or, in the Alternative, for Summary Judgment. (ECF No. 29). This is an action brought against the Government under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) (2012), in which Plaintiff Nicole M. Jantz alleges that Marjorie A. Hanna, then a member of the Maryland Air National Guard, negligently struck her vehicle while operating a government vehicle at a gas station on Fort George G. Meade, Maryland ("Fort Meade").
The issue before the Court is whether Ms. Hanna was acting within the scope of her employment with the Government at the time of the accident when she falsely procured the government vehicle to go to a medical appointment on Fort Meade. The motion has been fully briefed and no hearing is necessary. See Local Rule 105.6 (D.Md. 2011). For the reasons that follow, the Government's Motion is granted.
In December 2008, Ms. Hanna, a Master Sergeant in the Maryland Air National Guard, was stationed at the Maryland Air National Guard Headquarters at Martin State Airport in Baltimore County, Maryland, and served as a Human Resources Assistant.*fn2
She reported directly to Chief Master Sergeant ("CMSgt.") Phyllis Aubrey. Her official duties were administrative and rarely required her to leave Martin State Airport, except to travel to the Fifth Regiment Armory in Baltimore, Maryland.
On December 2, 2008, Ms. Hanna struck Ms. Jantz's 2001 Ford Explorer while driving a government-owned 2008 Dodge Avenger sedan. The two were waiting for an available gas pump at the MacArthur Shoppette gas station on Fort Meade. Ms. Hanna used the government vehicle that day to travel to the Kimbrough Army Medical Clinic to participate in laboratory tests related to treatment for a blood clot that developed while she was deployed overseas. (Sedlock Dep. at 16:9--21, 22:18--23:6, Dec. 3, 2012, ECF No. 32-2). Unbeknownst to CMSgt. Aubrey, Ms. Hanna had obtained the government vehicle from the Recruiting Department to drive to the Clinic on Fort Meade. (Id. at 45:15--46:2).
Recruiting Department vehicles were only available for official business relating to recruitment or to anywhere in which the military directed a service member to go. Ms. Hanna procured the government vehicle by representing to Master Sergeant ("MSgt.") Robert Sweeney, the Recruiting Department's supervisor, that she needed it for "official duty." (Sweeney Dep. at 15:2--6, Oct. 23, 2012, ECF No. 32-4). At the time he agreed to let Ms. Hanna take a government vehicle, MSgt. Sweeney was unaware that Ms. Hanna did not receive orders to travel to Fort Meade for a medical appointment that day. Following the accident, CMSgt. Aubrey heavily questioned Ms. Hanna's use of the government vehicle and prohibited her from using any government vehicles.
Ms. Jantz instituted this action against the Government under the FTCA on November 6, 2011, alleging that Ms. Hanna acted within the scope of her employment, and had negligently operated the government vehicle, at the time their vehicles collided. On January 30, 2012, the Government filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. (ECF No. 11). The Court, however, denied the Government's Motion without prejudice, granting Ms. Hanna limited discovery on the issue of whether Ms. Hanna's trip was personal or in furtherance of government business. (ECF No. 18). Following discovery, the Government again moves to dismiss or, alternatively, for summary judgment.
The Government's Motion is styled as a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or, alternatively, as a motion for summary judgment. A Rule 12(b)(1) motion to dismiss challenges a court's authority to hear the matter. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D.Md. 2005). When the scope-of-employment issue is determinative of jurisdiction and the underlying merits of an FTCA claim, however, dismissal under Rule 12(b)(1) is inappropriate. Kerns v. United States, 585 F.3d 187, 196 (4th Cir. 2009). This Court will thus assume it has jurisdiction and treat the Government's Rule 12(b)(1) Motion as a direct attack on the merits under Federal Rule of Civil Procedure 56(a). See id. at 193.
Rule 56(a) provides that "the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" if it "might affect the outcome of the suit under ...