UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) DAVID R. HOSE, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-1805 (PLF) ) UNITED STATES OF AMERICA, ) ) Defendant. ) __________________________________________)

MEMORANDUM OPINION

Plaintiff David R. Hose brings suit against the United States under the Federal

Tort Claims Act (“FTCA”),

(b), 2671 et seq., for his alleged exposure to

anthrax spores while working in a State Department facility. This matter is before the Court on

defendant’s motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of

the Federal Rule of Civil Procedure. After careful consideration of the parties’ papers and the

entire record in the case, the Court will grant defendant’s motion and dismiss plaintiff’s claim.1

I. BACKGROUND

Plaintiff worked for Lam Associates, Inc. (“Lam”), a private independent

contractor based in Vienna, Virginia, from 1995 onward. See Compl. ¶ 6. Lam contracted with

the U.S. State Department to provide plaintiff’s services as a supervisor in the State

1 The Court considered the following papers in connection with this motion: Plaintiff’s Complaint (“Compl.”); the United States’ Motion to Dismiss (“Mot.”); Plaintiff’s Memorandum of Points and Authorities in Support of his Opposition to United States’ Motion to Dismiss (“Opp.”); and the United States’ Reply Memorandum in Support of its Motion to Dismiss (“Reply”). Department’s incoming “diplomatic pouch and mail” unit in Sterling, Virginia. See

Plaintiff

alleges that while at work in October 2001 he was exposed to an envelope contaminated with

anthrax spores. See

. On October 24, 2001, plaintiff was diagnosed with inhalation

anthrax exposure, which required him to spend more than two weeks in intensive care. See

. Plaintiff alleges that his exposure resulted from the federal government’s negligent handling

of its anthrax supply and its failure to protect adequately State Department mail room workers

after learning that anthrax-laced letters were traveling through the nation’s postal network. See

.

Plaintiff’s complaint contains three counts: (1) strict liability for ultra-hazardous

activity, (2) negligent handling of the anthrax in defendant’s possession, and (3) negligent

cleaning of mail-sorting machines. Defendant moves to dismiss plaintiff’s claim for lack of

subject matter jurisdiction on the ground that Virginia’s Workers’ Compensation Act bars tort

liability in this matter. See Mot. at 1.

II. STANDARD OF REVIEW

Federal courts are courts of limited jurisdiction. Therefore, they may only hear

cases entrusted to them by a grant of power contained in either the Constitution or in an act of

Congress. See, e.g, Beethoven.com L.L.C. v. Librarian of Congress,

(D.C.

Cir. 2005); Best v. United States, 522 F.Supp 2d 252, 254 (D.D.C. 2007); Srour v. Barnes,

(D.D.C. 1987) (citing City of Kenosha v. Bruno,

(1973)). The

United States may be sued for money damages only when it has expressly waived its immunity

from suit. See F.D.I.C. v. Meyer,

(1994) (citing Loeffler v. Frank,

2 549, 554 (1988)). “Sovereign immunity is jurisdictional in nature.” F.D.I.C. v. Meyer,

. The question here is whether the FTCA provides a waiver of sovereign immunity by the

United States, such that the Court has jurisdiction over plaintiff’s claims.

Under Rule 12(b)(1), the plaintiff bears the burden of establishing subject matter

jurisdiction. See Brady Campaign to Prevent Gun Violence v. Ashcroft,

(D.D.C. 2004). In determining whether to grant a motion to dismiss for lack of subject matter

jurisdiction, the Court must accept all of the factual allegations in the complaint as true, but may,

in appropriate cases, consider certain materials outside the pleadings. See Jerome Stevens

Pharmacies, Inc. v. FDA,

(D.C. Cir. 2005). While the complaint is to be

construed liberally, the Court need not accept factual inferences drawn by the plaintiff if those

inferences are not supported by facts alleged in the complaint, nor must the Court accept

plaintiff’s legal conclusions. See Best v. United States, 522 F.Supp. 2d at 255; Primax

Recoveries, Inc. v. Lee, 260 F.Supp 2d 43, 47 (D.D.C. 2003).

III. DISCUSSION

A. Federal Tort Claims Act

The FTCA waives the government’s sovereign immunity for suits against the

United States for money damages arising from:

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, 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.

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(b)(1); see also 28 U.S.C. 2674(a) (“The United States shall be liable,

respecting the provisions of this title relating to tort claims, in the same manner and to the same

extent as a private individual under like circumstances. . . .”); Shuler v. United States,

(D.C. Cir. 2008). When considering whether jurisdiction exists under the FTCA,

federal courts must apply the law of the state where the act giving rise to the claim occurred. See

F.D.I.C. v. Meyer,

(“we have consistently held that § 1346(b)’s reference to the

‘law of the place’ means law of the State — the source of substantive liability under the FTCA”)

(citations omitted). In other words, the FTCA provides that the federal government shall be

liable to plaintiffs to the extent that a private actor would be liable under the relevant state’s law.

See id.

Thus, the Court must first determine which state’s law is applicable to plaintiff’s

claims, and then determine whether tort liability would exist in that state. Plaintiff alleges

liability for acts that occurred both in Sterling, Virginia (where he allegedly inhaled anthrax

spores), and in Fort Detrick, Maryland (where the government maintains its anthrax supply). See

Compl. ¶¶ 12, 15. Both “Virginia and Maryland follow the rule of lex loci delicti, which means

that both states . . . apply the law of the state where the wrong occurred.” Spring v. United

States,

(E.D. Va. 1993). To determine where the wrong occurred, both

states consider where the last event necessary to create liability took place. See

(quoting

Quillen v. Int’l Playtex, Inc.,

(4th Cir. 1986)); Erie Ins. Exchange v.

Heffernan,

(Md. 2007). Plaintiff’s alleged exposure to anthrax in Virginia

and his resulting illness, which also occurred in Virginia, were the last events necessary to

establish liability for his illness. Virginia law therefore provides the standard for substantive

4 liability in tort in this case. Thus, if a private actor could be liable under Virginia tort law based

on the allegations in plaintiff’s complaint, the FTCA waives the federal government’s sovereign

immunity for such claims and the Court has subject matter jurisdiction over plaintiff’s claims.

B. Virginia Workers’ Compensation Act

The next question for the Court is whether plaintiff has stated a cause of action in

tort under Virginia law. The Virginia Workers’ Compensation Act (“VWCA”), Va. Code

§§ 65.2-100 et seq., established statutory remedies for employees injured in the performance of

their duties for their employers. See McCotter v. Smithfield Packing Co.,

(E.D. Va. 1994). It provides the sole and exclusive remedy for claims arising from those injuries,

and correspondingly bars common law tort claims for injuries suffered in the course of

employment. See Va. Code § 65.2-307(A); see also McCotter v. Smithfield Packing Co.,

(citing Rasnick v. Pittston Co., Inc.,

(1989)). The VWCA also

bars employees’ common law claims against “statutory employers,” which are defined as “any

person (referred to in this section as ‘owner’) [who] undertakes to perform or execute any work

which is a part of his trade, business or occupation and contracts with any other person . . . for

the execution or performance by or under such subcontractor of the whole or any part of the work

undertaken.” Va. Code § 65.2-302(A); see also Jones v. Commonwealth of Virginia,

(Va. 2004). “This ‘statutory employer’ provision is designed to ensure that owners do not

escape liability for workers’ compensation benefits by having their work performed by others.”

5 As noted above, plaintiff did not work directly for the State Department. Rather,

the State Department’s contracted with Lam for plaintiff’s services. If this relationship renders

plaintiff a statutory employee of the State Department for the purposes of the VWCA, then the

VWCA would bar his claim, see Jones v. Commonwealth of Virginia,

(the

VWCA bars statutory employees from pursuing tort claims against their statutory employers),

and this Court would lack subject matter jurisdiction over his claim. See also Pendley v. United

States,

(4th Cir. 1988) (the federal government may be a statutory employer

under the VWCA).

The Virginia Supreme Court recently explained that to determine whether a

contract employee in the private sector is a statutory employee under the VWCA, “we have

applied the ‘normal work test’ to determine whether the injured party was engaged in the trade,

business, or occupation of the owner at the time of his or her injury.” Jones v. Commonwealth of

Virginia,

. The test is different, however, when the owner of the project is a

government entity:

A governmental entity or a public utility does not share the ability to choose its activities. Therefore, if the project’s owner is a governmental agency or a public utility, any activity which the owner is authorized or required to do by law or otherwise, is considered the trade, business, or occupation of the owner.

(citing Nichols v. VVKR, Inc.,

(Va. 1991)) (emphasis added). See also

Henderson v. Central Tel. Co.,

(Va. 1987) (distinguishing between the

“trade, business or occupation” of public and private employers under the VWCA). The Virginia

Supreme Court further explained that to determine whether a government entity is a statutory

employer, “requires examination of statutory authorization and mandated duties to determine the

6 entity’s trade, business, or occupation . . . whatever the frequency with which the task is

performed or the number of employees directly employed to perform the task.” Jones v.

Commonwealth of Virginia,

(emphasis added). In sum, if plaintiff’s position

and duties fell within the State Department’s legislatively authorized and mandated

responsibilities, he is considered a statutory employee of the State Department under Virginia

law.

The State Department is charged with performing “such duties as shall from time

to time be enjoined on or intrusted to [the Secretary of State] by the President relative to

correspondences, commissions, or instructions to or with public ministers or consuls from the

United States. . . .”

. The “diplomatic pouch and mail unit” where plaintiff

worked supports this function by “transport[ing] items for official use of the Mission across

international frontiers without procedural delay and without inspection by foreign government

officials.” See Mot. at 13-14, Ex. 5 (United States Department of State Foreign Affairs

Handbook (“FAH”) at 14 FAH-4, H-511(a)). This system provides the sole mail service for

State Department posts which lack access to other United States mail service, see FAH at 14

FAH-4 H-518.2(a); as such, it must be considered part of the State Department’s trade, business

or occupation for the purposes of the VWCA. Thus, under the VWCA, any contract employees

who work in that unit are barred from bringing tort claims against the State Department for

injuries allegedly suffered while employed there, because they are “statutory employees” of the

State Department. And because such employees — like plaintiff — are barred from bringing

such claims under the VWCA, the FTCA does not waive the federal government’s sovereign

immunity for those claims.

7 Plaintiff argues, however, that his job – supervising mail room employees who

handle mail – cannot be considered statutory employment. He argues that although the State

Department is charged with duties relating to correspondence, and correspondingly that those

who sort the mail may be statutory employees, the supervision of duties related to

correspondence is not within the State Department mandate. The Court finds no basis to draw

such a distinction, nor is it aware of any case law that would support doing so. Indeed, courts

applying Virginia law have barred tort claims by a wide range of contract employees injured

while performing contract work in the public sector. See, e.g., Best v. WMATA,

(D.C. Cir. 1987) (contract subway escalator repairman was statutory employee); Pendley v.

United States,

(engineering consultant killed in fire at Air Force facility was

statutory employee); Coulter v. United States,

(E.D. Va. 2003) (food

worker hurt cooking for Marine Corps base was statutory employee); Nelson v. United States

Postal Service,

(W.D. Va. 2002) (truck driver hurt hauling mail for

United States Postal Service was statutory employee); Hyman v. United States,

(E.D. Va. 1992) (handyman hurt installing insulation on Navy ship was statutory employee).

In his supervisory role, plaintiff helped the State Department fulfill its mandate to

collect and distribute diplomatic correspondence. The allegations in plaintiff’s complaint lead

inevitably to the conclusion that he was a “statutory employee” of the State Department at the

time that his alleged injuries occurred. Thus, plaintiff’s claim is barred by the VWCA.

Accordingly, there is no waiver of sovereign immunity under the Federal Tort Claims Act.

8 IV. CONCLUSION

For these reasons, the court will grant Defendant’s motion to dismiss for lack of

subject matter jurisdiction. An Order consistent with this Memorandum Opinion will issue this

same day.

/s/_______________________________ PAUL L. FRIEDMAN DATE: March 31, 2009 United States District Judge

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