United States Court of Appeals, District of Columbia Circuit
Submitted February 13, 2017
from the United States District Court for the District of
Columbia (No. 1:14-cv-01761)
M. Musolino was on the briefs for appellants.
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.
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.
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.
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.
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.
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.
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,