The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the government's motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim upon which relief can be granted under Rule 12(b)(6). In the alternative, the government requests that the Court enter summary judgment in its favor under Rule 56.*fn1
The plaintiff, Elizabeth Deloris Best, brings suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et seq., on behalf of the estate of her deceased son, Willie Best, as a result of his murder at the Barry Farms housing project in Southeast, Washington, D.C. on January 8, 2005.*fn2 The plaintiff's complaint for negligence alleges personal injuries and death caused by state-created danger. She requests judgment against the United States in the amount of ten million dollars. Upon consideration of the government's motion, the plaintiff's opposition, and the reply, the Court must grant the government's motion and will dismiss the case for lack of jurisdiction.
The government moves to dismiss pursuant to 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and, in the alternative, for summary judgment. See Mot. at 1. The government argues that the plaintiff's claim must be dismissed for lack of subject matter jurisdiction because the discretionary function exception to the FTCA bars such complaints. See id.In addition, the government asserts, the "private analogue" requirement of the FTCA forms a second bar to the plaintiff's claim and requires the Court to dismiss the case for plaintiff's failure to state a claim. See id. Because the Court concludes that the discretionary function exception to the FTCA bars plaintiff's claim, it will dismiss the case for lack of subject matter jurisdiction under Rule 12(b)(1) and need not reach defendant's other arguments.
Federal courts are courts of limited jurisdiction. They therefore 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 LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C.Cir.2005); Hunter v. District of Columbia, 384 F.Supp.2d 257, 259 (D.D.C.2005);Srour v. Barnes, 670 F.Supp. 18, 20 (D.D.C.1987) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511, (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, 510 U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988)). The question here is whether the FTCA provides a waiver of sovereign immunity by the United States, such that the Court has jurisdiction over the United States in this case.
Under Rule 12(b)(1), the plaintiff bears the burden of establishing subject matter jurisdiction. See Brady Campaign to Prevent Gun Violence v. Ashcroft, 339 F.Supp.2d 68, 72 (D.D.C. 2004) (citing Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001); Pitney Bowes, Inc. v. United States Postal Serv., 27 F.Supp.2d 15, 18 (D.D.C. 1998)). In determining whether to grant a motion to dismiss for lack of subject matter jurisdiction, the Court may either consider the complaint alone, or "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. Nat'l Acad. of Science, 974 F.2d 192, 197 (D.C. Cir. 1992). 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 Pharms., Inc. v. FDA, 402, F.3d 1249, 1253-54 (D.C.Cir. 2005). While the complaint is to be construed liberally, the Court need not accept factual inferences drawn by plaintiff if those inferences are not supported by facts alleged in the complaint. Nor must the Court accept plaintiff's legal conclusions. See Primax Recoveries, Inc. v. Lee, 260 F.Supp.2d 43, 47 (D.D.C. 2003).
On or about September 14, 2004, Willie Best and his mother, Elizabeth Deloris Best, were victims of and witnesses to an armed robbery committed by two men in the Lincoln Heights area of Northeast, Washington, D.C. See Complaint ("Compl.") ¶¶ 39-40.*fn3 Both Willie and Deloris Best participated in the prosecution of the two men accused of the robbery as victims and witnesses. See id. ¶ 42. Because of their participation in the prosecution and because they felt the need for additional protection, the United States Attorneys' Office ("USAO") offered both Willie and Deloris Best the opportunity to participate in programs which assist witnesses at risk because they have been victims of a violent crime and because of their cooperation with the government. See id. ¶¶ 42-44.*fn4 The USAO Victim Witness Assistance Unit ("VWAU") conducted a risk assessment of the Best family's situation to determine the level of risk they faced because of their cooperation. See id. ¶¶ 45-46. Based on that risk assessment and an interview between the Best family and the VWAU Witness Security Specialist ("WSS"), LaVerne Forrest, the VWAU agreed to accept Willie and Deloris Best into the Emergency Witness Assistance Program. See id. ¶¶ 24, 48. See also Attachment 6 to Mot., Emergency Witness Assistance Program Acknowledgment Form ("Acknowledgment Form") at 1.
In September and October of 2004, the USAO/VWAU moved the Best family first to a hotel in Northern Virginia and later to a hotel in Silver Spring, Maryland, all the time providing money for the Bests to pay for the cost of the hotels, food and transportation. See Compl. ¶¶ 48-50. On November 2, 2004, Ms. Forrest informed the Best family that they would be able to move to the Barry Farms housing project in Southeast, Washington, D.C.. See D.Best Aff. ¶ 22. Ms. Best initially declined the offer, but then, on November 3, accepted the Barry Farms apartment. See id. ¶¶ 23- 40. In December 2004, the USAO/VWU moved the Bests to the Barry Farms Housing Project in Southeast, Washington, D.C., again paying for the move, food and lodging. See Compl. ¶ 51. One month later, on January 8, 2005, Willie Best was murdered by gunshot while he and his family were living in the Barry Farms housing project. See id. ¶ 53.
III. THE FTCA AND ITS DISCRETIONARY FUNCTION EXCEPTION
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). See F.D.I.C. v. Meyer, 510 U.S. at 475 (FTCA waived sovereign immunity of the United States for "certain torts" committed by federal employees). 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 bears the burden of proving that the government has unequivocally waived its immunity for the type of claim involved. See Tri-State Hosp. Supply Corp. v. United States, 341 F.3d at 575. The burden is on a party asserting jurisdiction under the FTCA to demonstrate that the claim asserted is the kind permitted by statute and 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), 2680.
This limited waiver of immunity under the FTCA is subject to several exceptions, however, including the "discretionary function exception." 28 U.S.C. § 2680(a). The statute provides that the jurisdiction given to district courts under 28 U.S.C. § 1346(b)(1) does not apply in cases where a claim is: 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). When an act by a government employee falls within the discretionary function exception, the United States ...