The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff David R. Hose brings suit against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671et 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.*fn1
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 Department's incoming "diplomatic pouch and mail" unit in Sterling, Virginia. See id. Plaintiff alleges that while at work in October 2001 he was exposed to an envelope contaminated with anthrax spores. See id. ¶ 7. On October 24, 2001, plaintiff was diagnosed with inhalation anthrax exposure, which required him to spend more than two weeks in intensive care. See id. ¶ 8. 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 id. ¶¶ 12, 28.
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.
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, 394 F.3d 939, 945 (D.C. Cir. 2005); Best v. United States, 522 F.Supp 2d 252, 254 (D.D.C. 2007); 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)). "Sovereign immunity is jurisdictional in nature." F.D.I.C. v. Meyer, 510 U.S. at 475. 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, 339 F.Supp. 2d 68, 72 (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, 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 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).
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.
28 U.S.C. § 1346(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, 531 F.3d 930, 933 (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, 510 U.S. at 478 ("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, 833 F. Supp. 575, 577 (E.D. Va. 1993). To determine where the wrong occurred, both states consider where the last event necessary to create liability took place. See id. (quoting Quillen v. Int'l Playtex, Inc., 789 F.2d 1041, 1044 (4th Cir. 1986)); Erie Ins. Exchange v. Heffernan, 925 A.2d 636, 648-49 (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 ...