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Galvin v. United States

United States Court of Appeals, District of Columbia Circuit

June 13, 2017

Kathey-Lee Galvin and Blaise Pellegrin, Appellants
v.
United States of America, Sovereign State, Appellee

          Submitted February 13, 2017

         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

          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, 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 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 ...


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