Whisnant

I. BACKGROUND

Where a defendant in its motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) asserts that the allegations in the complaint are insufficient to establish subject matter juris- diction as a matter of law (to be distinguished from a claim that the allegations on which jurisdiction depends are not true as a matter of fact), we take the allegations in the plaintiff’s complaint as true. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

Plaintiff-appellant Lorrin Whisnant worked for Northern Fish Products, Inc., which had a contract to provide seafood products to the commissary at the United States Navy’s Ban- WHISNANT v. UNITED STATES 3215 gor Submarine Base in Silverdale, Washington. As part of his job, Whisnant made weekly product deliveries to the Bangor Commissary and oversaw Northern Fish employees who staffed the fish counter, which is in the commissary’s meat department. These tasks required Whisnant to come to the commissary for a three- to four-hour period at least once every week to two weeks.

The commissary is operated and maintained by the Defense Commissary Agency (“DeCA”), a government agency. DeCA regulations require…