United States District Court, D. Arizona
G. Campbell United States District Judge.
driving to work on March 12, 2015, J.R. Rodriguez, a U.S.
Border Patrol Agent, struck and killed a pedestrian in Pinal
County, Arizona. Doc. 23 at 2. The pedestrian's mother,
Plaintiff Margaret Suisala-Tavita, has filed a complaint
against the United States, alleging that it is liable for
Rodriguez's negligence under the Federal Tort Claims Act
(“FTCA”). Doc. 10 at 2-3 ¶¶ 8-10. The
United States has filed a motion to dismiss for lack of
subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). Doc. 23. The motion is fully briefed, and
no party requests oral argument. The Court will grant the
motion to dismiss.
motion to dismiss under Rule 12(b)(1) can be either a facial
or factual attack on jurisdiction. Thornhill Publ'g
Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733
(9th Cir. 1979). A facial attack asserts that the allegations
in the complaint are “insufficient on their face to
invoke federal jurisdiction.” Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A factual
attack “disputes the truth of the allegations that, by
themselves, would otherwise invoke federal
facial attack, the complaint's allegations are taken as
true and construed in favor of the non-moving party.
Jacobsen v. Katzer, 609 F.Supp.2d 925, 930 (N.D.
Cal. 2009) (citing Fed'n of African Am. Contractors
v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996)).
In a factual attack, the plaintiff's allegations are not
entitled to a presumption of truthfulness, the court may look
beyond the pleadings to resolve factual disputes, and the
plaintiff has the burden of proving jurisdiction exists.
Safe Air for Everyone, 373 F.3d at 1039. The
plaintiff must “present affidavits or any other
evidence necessary to satisfy its burden[.]” St.
Clair v. City of Chino, 880 F.2d 199, 201 (9th Cir.
argues that the Court must accept all allegations in the
complaint as true and construe them in her favor pursuant to
Rule 12(b)(6). Doc. 27 at 3-4. But the United States moves to
dismiss under Rule 12(b)(1), not 12(b)(6), and the dismissal
standards under these rules “differ greatly” when
a 12(b)(1) motion makes a factual attack. Thornhill
Publ'g Co., 594 F.2d at 733 (citing Mortensen v.
First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891
(3d Cir. 1977)). The government's Rule 12(b)(1) motion
makes a factual attack - it challenges the truth of the facts
alleged in the complaint. Doc. 23 at 5-8. As a result, the
Court will not presume the allegations to be true, and
Plaintiff bears the burden of proving jurisdiction exists.
assert a claim against the United States, Plaintiff must
prove that it has waived its sovereign immunity.
“‘It is well settled that the United States is a
sovereign, and, as such, is immune from suit unless it has
expressly waived such immunity and consented to be
sued.'” Dunn & Black, P.S. v. United
States, 492 F.3d 1084, 1087-88 (9th Cir. 2007) (citation
omitted). The FTCA provides a limited waiver of sovereign
immunity for torts committed by federal employees acting
within the scope of their employment. 28 U.S.C. §
1346(b)(1); Nurse v. United States, 226 F.3d 996,
1000 (9th Cir. 2000). “FTCA scope of employment
determinations are made ‘according to the principles of
respondeat superior of the state in which the
alleged tort occurred.'” Wilson v. Drake,
87 F.3d 1073, 1076 (9th Cir. 1996) (citation omitted).
Because the accident at issue in this case occurred in
Arizona, Arizona law applies. Doc. 23 at 4; Doc. 27 at 2-4.
To show a waiver of sovereign immunity under the FTCA,
Plaintiff therefore must show that Rodriguez was acting
within the scope of his employment under Arizona law.
Arizona, “[a]n employee's tortious conduct falls
outside the scope of employment when the employee engages in
an independent course of action that does not further the
employer's purposes and is not within the control or
right of control of the employer.” Engler v. Gulf
Interstate Eng'g, Inc., 280 P.3d 599, 602 (Ariz.
2012) (adopting the Restatement (Third) of Agency §
7.07). Whether an employer exercised any control over its
employee is determined at the time of the accident.
an employee going to or returning from his or her place of
employment is not within the scope of employment
“unless the employee is rendering a service growing out
of or incidental to the employment.” State v.
Superior Court (Rousseau), 524 P.2d 951, 954 (Ariz.
1974); see also Engler, 280 P.3d at 602. In
Rousseau, an Arizona National Guardsman was involved
in a car accident at 5:20 a.m. while traveling to a 6:30 a.m.
work training session. 524 P.2d at 953. The Arizona Supreme
Court found that the guardsman's training did not require
that he drive his own car or run errands for the Arizona
National Guard prior to the training session. Id. at
954. Although the National Guard granted travel
reimbursements, it “had no right to dictate the manner
of travel, the route to be taken, [the] speed, or that [the
guardsman] use his car to go and come from [the training
session] as compared to other modes of travel.”
Id. Based on these circumstances, Rousseau
held that the State of Arizona was not vicariously liable
because “the travel itself . . . was not intrinsically
involved with the scope of the employment service, nor
involved with collateral duties[.]” Id.
complaint alleges that Rodriguez was an employee with the
United States Border Patrol (“USBP”) at the time
of the accident and “was under the control or subject
to the control of the USBP and the United States
government.” Doc. 10 at 2-3 ¶¶ 8-9. The
United States disputes this allegation. Doc. 23 at 6.
has executed a declaration stating that his scheduled shift
on March 12, 2015, was from 6:00 a.m. to 2:00 p.m., that the
“accident occurred at approximately 5:49 a.m., ”
and that he was driving his “personally owned
vehicle” at the time. Doc. 23-1 at 3-4 ¶¶ 4,
8-9. He declares that he was off-duty when the accident
occurred because “Border Patrol Agents are
‘on-duty' when their scheduled shift begins, or
when they check-in to the station or duty location, whichever
is later.” Id. at 3 ¶ 3. Rodriguez
attests that he planned to arrive at his duty station
“just before 7:00 a.m., and to begin [his] shift at
7:00 a.m.” Id. at ¶ 5. He further avows
that he was “not on an errand for the USBP, had made no
stops for the USBP, was not going to make any stops for the
USBP, and other than [his] service-issued uniform and gear,
 had no USBP property in [his] vehicle.” Id.
at 4 ¶ 14. He also states that “USBP does not have
rules governing how I get to work, what route I take to work,
or whether I can make any stops on my way to work.”
Id. at ¶ 15.
supervisor, Jack T. Jeffreys, confirms these facts. Jeffreys
declares that on March 12, 2015, “Rodriguez's
scheduled shift was from 6:00 a.m. to 2:00 p.m.”; that
“Border Patrol Agents are ‘on-duty' when
their scheduled shift begins, or when they check-in to the
station or duty location, whichever is later”; and that
“Border Patrol Agents are not ‘on-duty' when
they are commuting to work.” Id. at 8
¶¶ 4-6. He also asserts that Border Patrol agents
are not assigned government vehicles for their work commutes
and that “Rodriguez was not assigned a government
vehicle to commute from home to work and vice versa” on
March 12, 2015. Id. at ¶¶ 9-10. The United
States also cites a federal regulation providing that
“[a] Border Patrol agent's travel time to and from
home and the agent's regular duty station . . . may not
be considered hours of work under any provision of
law.” 5 C.F.R. § 550.1637; see also Doc.
23 at 7.
does not dispute that the accident occurred at 5:49 a.m.
while Rodriguez was driving to work, nor does she suggest
that Rodriguez was performing some service for the USBP at
the time. Plaintiff's sole argument is based on her