United States District Court, E.D. Pennsylvania
RUTH B. MENKIN
UNITED STATES OF AMERICA, et al
For RUTH B. MENKIN, Plaintiff: ROBERT HARRINGTON LEFEVRE, LEAD ATTORNEY, MORROW TOMPKINS TRUEBLOOD & LEFEVRE, LLC, NORRISTOWN, PA.
For THE UNITED STATES OF AMERICA, Defendant, Cross Claimant: RICHARD M. BERNSTEIN, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, PHILADELPHIA, PA.
For CITY OF PHILADELPHIA, Cross Defendant: CHARITY C. HYDE, LEAD ATTORNEY, BENNETT BRICKLIN & SALTZBURG LLC, PHILADELPHIA, PA; MICHELE E. TURNER, BENNETT, BRICKLIN & SALTZBURG, PHILADELPHIA, PA.
Harvey Bartle III, United States District Judge.
Plaintiff Ruth B. Menkin has sued the United States under the Federal Tort Claims Act (" FTCA" ), 28 U.S.C. § § 1346(b)(1), 2671 et seq., for negligence as a result of personal injuries she suffered from a slip and fall while attempting to pass through security at the Philadelphia International Airport. The Government moves to dismiss the action for lack of subject-matter jurisdiction or, if jurisdiction exists, seeks summary judgment in its favor pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The Government first contends that the court lacks subject-matter jurisdiction because sovereign immunity protects it from suit.
The FTCA waives the sovereign immunity of the United States to the extent provided in the Act. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). All waivers must be strictly construed in favor of the Government. Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Under 28 U.S.C. § 1346(b)(1), actions against the Government are allowed for personal injuries, loss of property or death resulting from the negligence of " any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." The remedy under § 1346(b)(1) is exclusive and precludes an action against the employee. 28 U.S.C. § 2679(b)(1).
The Government's waiver of sovereign immunity for employee negligence is not total. Under 28 U.S.C. § 2680(a), liability shall not attach to:
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a).
The Government argues that this discretionary function exception applies here. If it does, this court has no subject-matter jurisdiction over the claim. See S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 330, 56 V.I. 901 (3d Cir. 2012). While plaintiff has the burden to establish that her claim is within the scope of the Government's waiver of sovereign immunity, the Government has the burden of proving that the exception to the waiver pertains and thus that no subject-matter jurisdiction exists. Id. at 333.
In considering a factual attack on subject-matter jurisdiction such as this one, the court is permitted to consider the record to make factual findings that are decisive to determining jurisdiction. CNA v. United States,535 F.3d 132, 145 (3d Cir. 2008). The court is " to weigh the evidence and satisfy itself as to the existence of its power to hear the case.... [N]o presumptive truthfulness attaches to [the] ... allegations [of the party with the burden of proof], and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen v. First Fed. Sav. & Loan Ass'n,549 F.2d 884, 891 (3d Cir. ...