The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the United States' motion to dismiss this case for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff's amended complaint asserts a claim of negligence against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80, arising from a motor vehicle accident between a United States Postal Service ("USPS") truck driven by Randolph Peoples and a Washington Metropolitan Area Transit Authority ("WMATA") bus driven by plaintiff Robert Erby on April 16, 2001. The sole issue to be resolved is the factual question of whether Peoples (who also has been joined as a defendant) was acting within the scope of his employment with the USPS when he was involved in the accident. The Court held an evidentiary hearing on this factual issue on January 20, 2006. Because the Court finds that plaintiff has not shown by a preponderance of the evidence that Mr. Peoples was acting within the scope of his employment, it grants defendant's motion to dismiss.
Robert Erby is a bus driver for the Washington Metropolitan Area Transit Authority. According to the allegations in the complaint, at approximately noon on April 16, 2001, a postal truck driven by Randolph Peoples negligently struck Mr. Erby's bus from behind, causing Erby substantial injuries. The accident occurred at the intersection of Massachusetts Avenue and 17th Street, Southeast, in Washington, D.C. See Amended Complaint ("Am. Compl.") ¶¶ 7-9.*fn1 On May 30, 2003, after exhausting his administrative remedies, Erby filed this action against the United States, asserting a single claim of negligence under the FTCA. On October 7, 2003, plaintiff amended his complaint to add a pendent claim of common law negligence against Mr. Peoples, who was joined as a defendant.*fn2
The United States filed a motion to dismiss the complaint for lack of subject matter jurisdiction, arguing that Mr. Peoples was not acting within the scope of his employment at the time of the accident, and that the Court therefore lacks subject matter jurisdiction to hear this action under 28 U.S.C. § 1346(b).*fn3 At plaintiff's request, the Court allowed limited discovery on the factual question of whether Peoples was acting within the scope of his employment. Then, on January 20, 2006, the Court held an evidentiary hearing, at which the Court heard the testimony of several witnesses, including Mr. Peoples's mother, Ethel Peoples, and several of Mr. Peoples's former supervisors at the USPS: Laschell Douglas, Mary Ann Penny Jefferson, Clifford Rhinehart, Cecil Harriston, and Sherrod Stanard.*fn4 The parties were given until March 13, 2006 to file additional briefs regarding the proper burden of proof and standard of review for a challenge to subject matter jurisdiction under Rule 12(b)(1), as well as additional evidence on the issue of scope of employment.
A. Standard of Review for Motion to Dismiss Under Rule 12(b)(1)
When a defendant has filed a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Research Air, Inc. v. Norton, 2006 U.S. Dist. Lexis 10784, *14-*15 (D.D.C. Mar. 1, 2006); Felter v. Norton, 412 F. Supp. 2d 118, 2006 U.S. Dist. Lexis 2642, *5 (D.D.C. 2006); Primax Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 47 & n.3 (D.D.C. 2003). A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure may raise either a "facial" or a "factual" challenge to the non-moving party's claim of subject matter jurisdiction. See I.T. Consultants v. Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003); Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001); Flynn v. Ohio Bldg. Restoration, 260 F. Supp. 2d 156, 162 (D.D.C. 2003); 5B CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERALPRACTICE & PROCEDURE § 1350 & n.43.
If a defendant mounts a "facial" challenge to the legal sufficiency of the plaintiff's jurisdictional allegations, the court must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party. See I.T. Consultants v. Pakistan, 351 F.3d at 1188; Valentin v. Hospital Bella Vista, 254 F.3d at 363 (in resolving facial challenge, "the court must credit the plaintiff's well-pleaded factual allegations . . . draw all reasonable inferences from them in her favor, and dispose of the challenge accordingly"); Flynn v. Ohio Bldg. Restoration, 260 F. Supp. 2d at 162 (quoting Loughlin v. United States, 230 F. Supp. 2d 26, 35 (D.D.C. 2003)). If, on the other hand, the movant challenges the factual basis for jurisdiction, "the court may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant," but "must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss." Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000) (analyzing subject matter jurisdiction under Foreign Sovereign Immunities Act); see also Walker v. Jones, 733 F.2d 923, 934-35 (D.C. Cir. 1984) (MacKinnon, J., dissenting in part and concurring in part); 5B FEDERAL PRACTICE & PROCEDURE § 1350 & n. 51.
On a factual challenge, "the plaintiff's jurisdictional averments are entitled to no presumptive weight; the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties." Valentin v. Hospital Bella Vista, 254 F.3d at 363; see Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm'n, 149 F.3d 679, 685 (7th Cir. 1998) (presumption of correctness accorded to complaint's allegations with respect to jurisdiction "falls away" once defendant proffers evidence that calls the court's jurisdiction into question). In resolving the question of jurisdiction, the court may consider materials beyond the pleadings. "[W]here necessary, the court therefore may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. National Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).*fn5
B. Scope of Employment under the FTCA
The Federal Tort Claims Act is a limited waiver of the United States' sovereign immunity from suit that gives federal district courts jurisdiction over civil damages actions against the United States "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment[.]" 28 U.S.C. § 1346(b). Such a waiver of sovereign immunity must be "strictly construed, in terms of its scope, in favor of the sovereign." Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003) (quoting Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999)). A party bringing suit against the United States therefore bears the burden of proving that the government has unequivocally waived its immunity. See Tri-State Hosp. Supply Corp. v. United States, 341 F.3d at 575. The burden is thus on a party asserting jurisdiction under the FTCA to demonstrate that the conduct giving rise to the action occurred within the scope of the government employee's employment. See 28 U.S.C. § 1346(b).
In actions under the FTCA, whether a government employee was acting within the scope of his employment when a tort was committed is a question governed by state tort law. See Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003) ; Hadden v. United States, 68 F.3d 1420, 1423 (D.C. Cir. 1995) (citing Kimbro v. Velten, 30 F.3d 1501, 1506 (D.C. Cir. 1994)). The District of Columbia has adopted the Restatement (Second) of ...