Hose v. United States ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
DAVID R. HOSE, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-1805 (PLF)
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UNITED STATES OF AMERICA, )
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
Plaintiff David R. Hose brings suit against the United States under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(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
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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 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.
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, 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.
2549, 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).
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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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
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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., 849 F. Supp. 443, 446
(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., 849 F.
Supp. at 446 (citing Rasnick v. Pittston Co., Inc., 237 Va. 658, 660 (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, 591 S.E.2d
72, 74 (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.”
Id.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, 591 S.E.2d at 76 (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, 856 F.2d 699, 702 (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, 591 S.E. 2d at 75. 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.
Id. (citing Nichols v. VVKR, Inc., 403 S.E.2d 698, 701 (Va. 1991)) (emphasis added). See also
Henderson v. Central Tel. Co., 355 S.E.2d 596, 599-601(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
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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, 591 S.E.2d at 75 (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. . . .” 22 U.S.C. § 2656. 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.
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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, 822 F.2d 1198,
1202 (D.C. Cir. 1987) (contract subway escalator repairman was statutory employee); Pendley v.
United States, 856 F.2d at 700-02 (engineering consultant killed in fire at Air Force facility was
statutory employee); Coulter v. United States, 256 F. Supp. 2d 484, 493 (E.D. Va. 2003) (food
worker hurt cooking for Marine Corps base was statutory employee); Nelson v. United States
Postal Service, 189 F. Supp. 2d 450, 454-59 (W.D. Va. 2002) (truck driver hurt hauling mail for
United States Postal Service was statutory employee); Hyman v. United States, 796 F.Supp. 905,
906 (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.
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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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