Johnson v. United States

MEMORANDUM **

Margaret Afton F. Johnson appeals the district court’s dismissal for lack of subject matter jurisdiction of her case brought against the United States Postal Service (“USPS”) under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346 (b), 2671-80. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse and remand.

We review de novo the district court’s determination regarding subject matter jurisdiction under the FTCA. Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806 (9th Cir.2003).

On a motion for lack of subject matter jurisdiction under Rule 12(b)(1) of the *716 Federal Rules of Civil Procedure, a court may rely upon affidavits or other evidence properly before the court. Ass’n of Am. Med. Colls, v. United States, 217 F.3d 770 , 778 (9th Cir.2000). A court may consider this evidence and resolve factual disputes, if necessary. Id. That is, with a rule 12(b)(1) motion, a court may weigh the evidence to determine whether it has jurisdiction. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987).

Although Debbie Hill was a contractor, the evidence clearly indicates that the USPS controlled the “detailed physical performance” of her position…