Kathey-Lee Galvin, et al v. USA

Filing

OPINION [1679351] filed PER CURIAM OPINION (Pages: 6). [16-5053]

USCA Case #16-5053

Document #1679351

Filed: 06/13/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted February 13, 2017

Decided June 13, 2017

No. 16-5053
KATHEY-LEE GALVIN AND BLAISE PELLEGRIN,
APPELLANTS
v.
UNITED STATES OF AMERICA, SOVEREIGN STATE,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01761)

Philip M. Musolino was on the briefs for appellants.
R. Craig Lawrence and Jeremy S. Simon, Assistant U.S.
Attorneys, were on the brief for appellee.
Before: TATEL and SRINIVASAN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
Kathey-Lee Galvin, a State Department officer, suffered
severe injuries in her diplomatic housing when stationed
overseas in Haiti. Galvin and her husband, Blaise Pellegrin,

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brought suit against the United States under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b)(1), 2671-2680. The district
court dismissed their suit, holding that their action fell within
an exception to the Act’s waiver of sovereign immunity for
injuries arising in a foreign country. We agree with the district
court.
I.
Because the district court dismissed the complaint, we
assume the complaint’s allegations to be true for purpose of this
appeal. Simon v. Republic of Hungary, 812 F.3d 127, 135
(D.C. Cir. 2016). According to the complaint, Galvin worked
as a political officer with the State Department and was
assigned to the United States Embassy in Port-au-Prince, Haiti.
The State Department provided Galvin and Pellegrin with
diplomatic housing in the city. In January 2010, a magnitude
7.0 earthquake struck Haiti. The earthquake destroyed Galvin
and Pellegrin’s home while they were inside, severely injuring
both of them.
Galvin and Pellegrin brought suit against the United
States, alleging one count of negligence for the faulty
construction and design of their diplomatic housing. They sued
under the Federal Tort Claims Act (FTCA), which waives the
United States’s sovereign immunity for torts when “the United
States, if a private person, would be liable to the claimant.” 28
U.S.C. § 1346(b)(1). The Act, however, contains a number of
exceptions to the government’s waiver of sovereign immunity.
See id. § 2680.
Of relevance here, the FTCA’s “foreign country”
exception preserves the United States’s sovereign immunity
with regard to “[a]ny claim arising in a foreign country.” Id.
§ 2680(k). The district court held that it lacked jurisdiction

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over Galvin and Pellegrin’s action pursuant to the foreign
country exception. They now appeal the district court’s
dismissal of their action.
II.
As the Supreme Court has explained, “a claim ‘arising in
a foreign country’” within the meaning of the FTCA’s foreign
country exception is “a claim for injury or harm occurring in a
foreign country.” Sosa v. Alvarez-Machain, 542 U.S. 692, 704
(2004) (quoting 28 U.S.C. § 2680(k)). Galvin and Pellegrin
acknowledge that they sustained their injuries while living in
Haiti. They argue, though, that the diplomatic housing within
which they suffered their injuries should not be considered part
of “a foreign country” for purposes of the foreign country
exception. They contend, in particular, that their diplomatic
housing—which the State Department leased on their behalf—
was controlled by the United States Embassy in Haiti.
Even assuming (without deciding) that all overseas
diplomatic housing should receive the same treatment under
the FTCA as a United States embassy, Galvin and Pellegrin’s
argument cannot be squared with our precedent. Our decision
in Macharia v. United States, 334 F.3d 61, 69 (D.C. Cir. 2003),
speaks directly to the issue in this case. There, we concluded
that the FTCA’s foreign country exception applied to injuries
occurring at a United States embassy.
The claims in Macharia arose from the 1998 bombing of
the United States Embassy in Nairobi, Kenya. See id. at 63.
One of the questions in the case concerned whether the United
States could be sued for the negligent day-to-day supervision
of the guards at the Embassy. Id. at 69. The district court
dismissed the suit, holding that “torts occurring on American
embassies . . . are barred by the foreign country exception.”

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Macharia v. United States, 238 F. Supp. 2d 13, 27 (D.D.C.
2002) (internal quotation marks omitted). We affirmed the
district court “in all respects,” explaining that, because the
Embassy guards’ day-to-day supervisor was “located
overseas—in this case, in Nairobi—[] the FTCA’s sovereign
immunity waiver does not [apply].” Macharia, 334 F.3d at 65,
69.
Macharia’s application of the FTCA’s foreign country
exception to a United States embassy abroad was consistent
with our prior decisions construing the exception. In TarpehDoe v. United States, 28 F.3d 120, 121 (D.C. Cir. 1994), we
considered a suit seeking recovery for injuries arising in part
from a doctor’s treatment of a patient in the United States
Embassy in Liberia. We assumed that, because of the foreign
country exception, the plaintiffs could not bring an action based
directly on the doctor’s conduct in the Embassy. See id. at 123
n.1. And in Beattie v. United States, 756 F.2d 91 (D.C. Cir.
1984), abrogated on other grounds by Smith v. United States,
507 U.S. 197 (1993), we observed that “torts occurring on
American embassies or military bases which are located in
foreign countries are barred by the foreign country exception.”
Id. at 97 (emphasis added); see also United States v. Spelar,
338 U.S. 217, 218-20 (1949) (holding that the foreign country
exception covered injuries suffered at a United States military
base in Newfoundland maintained pursuant to a 99-year lease
with Great Britain). That understanding forecloses Galvin’s
and Pellegrin’s claim in this case.
In arguing otherwise, Galvin and Pellegrin rely in large
measure on the Vienna Convention on Diplomatic Relations,
Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95. The treaty,
however, predates our application of the foreign country
exception to a United States embassy in Macharia. In any

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event, the treaty would not call into question our understanding
of the foreign country exception.
It is true that, under the treaty, embassies are “inviolable,”
such that the host country generally cannot send agents inside
without permission. Id. at 3237. But the treaty’s terms also
indicate that foreign embassies sit within the host country’s
territory. Article 21, for instance, calls for the receiving state
to facilitate diplomatic accommodations in “its territory.” Id.
(emphasis added).
Accordingly, the State Department
recognizes that, “[d]espite widespread popular belief, . . . [U.S.
diplomatic or consular facilities] are not part of the territory of
the United States.” See U.S. Dep’t of State, 7 Foreign Affairs
Manual 1113 (2009). Rather, “diplomatic envoys are in reality
within the territories of the receiving states.” 1 Oppenheim’s
International Law 1091 & n.4 (Robert Jennings & Arthur
Watts eds., 9th ed. 2008). “U.S. embassies and consulates
abroad,” in short, “remain the territory of the host state.” U.S.
Dep’t of State, What Is a U.S. Embassy?, Discover Diplomacy,
https://diplomacy.state.gov/discoverdiplomacy/diplomacy101/
places/170537.htm (last accessed June 5, 2017).
Galvin and Pellegrin submit that, even if a United States
embassy abroad sits in the receiving state’s territory, the United
States can exercise “some jurisdiction”—viz., a form of
“concurrent jurisdiction” with the receiving state—over
conduct in its embassies. See Persinger v. Islamic Republic of
Iran, 729 F.2d 835, 839 (D.C. Cir. 1984). The same is
presumably true, however, of United States military bases and
hospitals in foreign territory, see id. at 841; 18 U.S.C.
§ 7(9)(A), yet the FTCA’s foreign country exception
encompasses those United States facilities. See Spelar, 338
U.S. at 218-20; Broadnax v. U.S. Army, 710 F.2d 865, 867
(D.C. Cir. 1983). So too with United States embassies abroad,

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a result we reached in Macharia and reaffirm today. Accord
Meredith v. United States, 330 F.2d 9, 10 (9th Cir. 1964).
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For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

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