Nations v. Hagel ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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MARILYN NATIONS )
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Plaintiff, )
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v. ) Civil Action No. 14-cv-00618 (TSC)
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UNITED STATES, 1 )
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Defendant. )
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MEMORANDUM OPINION
Plaintiff is the ex-wife of former U.S. Army solider Mario Alexander Aguiar Carneiro
(“Carneiro”), who physically and mentally abused her during their marriage. She brings
negligence claims against the United States pursuant to the waiver of sovereign immunity in the
FTCA, alleging that the Army was negligent in its response to his abuse. The Government has
moved to dismiss on a number of grounds, of which the Court addresses only one. For the
reasons set forth below, the Courts GRANTS the Government’s motion to dismiss for lack of
subject matter jurisdiction and dismisses the case with prejudice.
I. BACKGROUND
Plaintiff and Carneiro met and were married in Brazil in 2006. (Compl. ¶ 6). Plaintiff
sponsored Carneiro for American citizenship, which he received in 2008, after having joined the
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Plaintiff’s complaint named, in their official capacities, Defense Secretary Chuck Hagel and Secretary of the Army
John McHugh. (Compl. at 1). The Defendants moved to substitute the United States because under the Federal Tort
Claims Act (“FTCA”) only the United States may be a defendant. 28 U.S.C. § 2679; Hall v. Admin. Office of U.S.
Cts., 496 F. Supp. 2d 203, 206 (D.D.C. 2007). Plaintiff does not address this argument and appears to concede the
point by referring at various times in her opposition to her claim “against the Government.” (Pl. Opp’n at 7, 12); see
also Kone v. District of Columbia, 808 F. Supp. 2d 80, 83 (D.D.C. 2011) (arguments not addressed in an opposition
brief are treated as conceded). Defendants’ motion to substitute the United States as the sole Defendant is therefore
GRANTED.
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Army in 2007. (Id. ¶¶ 7-9). Plaintiff returned to Brazil in September 2008. (Id. ¶ 10). During
Carneiro’s visit to Brazil in July 2009 he “violently assaulted” Plaintiff, an assault which she
reported to Brazilian police. (Id. ¶¶ 12-15). Plaintiff also notified two Army officers by
telephone of the assault. (Id. ¶ 16). Carneiro learned of the report, found out that he would be
dishonorably discharged, and blamed Plaintiff. (Id. ¶¶ 17-18). Over the next approximately two
years Plaintiff notified the Army and provided evidence that Carneiro had threatened and
harassed her, and had violated a No-Contact Order numerous times. (Id. ¶¶ 19-31). The Army
did not charge Carneiro with any wrongdoing (id. ¶ 21) but discharged him in June 2011. (Id. ¶
33). At all relevant times, Plaintiff resided in Brazil.
Plaintiff submitted a claim for negligence to the Army in December 2012, alleging that
the Army had failed to investigate reports of Carneiro’s assaults and threats, failed to enforce No
Contact Orders, had destroyed evidence submitted by Plaintiff, and had placed Plaintiff’s life in
danger by failing to maintain the confidentiality of her reports. (Id. ¶ 34). The Army denied the
claim on September 24, 2013 (although Plaintiff did not receive the decision until November 25,
2013). (Id. ¶¶ 35-37). This suit followed.
II. ANALYSIS
Plaintiff’s suit seeks to bring a negligence claim against the United States pursuant to the
waiver of sovereign immunity under the FTCA. 2 (Compl. at 1, 5-6). The FTCA is a limited
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Select language in Plaintiff’s complaint hints at the possibility that Plaintiff is also raising a claim under the
Administrative Procedure Act. (Compl. at 1 (“this is an action seeking judicial review of the Defendant’s final
agency decision denying Plaintiff’s administrative tort claim under the Federal Tort Claims Act”); id. at 5 (“the
Defendant’s final agency action…is arbitrary, capricious, contrary to law, and unsupported by substantial
evidence”)). Defendants argue (Def. Mot. 9 n.5) the APA is inapplicable here because the Complaint seeks money
damages, which are unavailable under the APA, 5 U.S.C. § 702, and because APA review is only available for final
agency actions where no other adequate remedy at law exists. 5 U.S.C. § 704. Plaintiff not only fails to address this
argument, therefore conceding it, Kone, 808 F. Supp. 2d at 83, but also affirmatively refers to her complaint as
brought “under the Federal Tort Claims Act,” making no reference to the APA. (Pl. Opp’n 7-8). Since there is no
argument that the APA applies, the Court will not address that statute.
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waiver of the United States’ sovereign immunity for certain torts committed by its employees in
the scope of their employment. Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004). One key
exception to this waiver is that no immunity is waived as to “any claim arising in a foreign
country.” 28 U.S.C. § 2680(k). Defendants argue that this exception prohibits Plaintiff’s suit
here.
The foreign country exception “bars all claims based on any injury suffered in a foreign
country, regardless of where the tortious act or omission occurred.” Sosa, 542 U.S. at 712. The
Supreme Court’s pronouncement in Sosa rejected what had been known as the headquarters
doctrine, which permitted a claim under the FTCA for “acts or omissions occurring” in the
United States “which have their operative effect in another country.” Id. at 701. The Supreme
Court made clear that it is the place of injury, not conduct, which controls application of the
exception. Gross v. Dev. Alts., Inc., 946 F. Supp. 2d 120, 124 (D.D.C. 2013) (“Plaintiffs first
suggest that, because USAID's negligent direction and oversight occurred in the United States,
the foreign-country exception should not apply….But that line of reasoning is precisely what
Sosa rejected.”); see also Garcia v. Sebelius, 867 F. Supp. 2d 125, 137 (D.D.C. 2012) vacated in
part on other grounds, 919 F. Supp. 2d 43 (D.D.C. 2013). Here, all of Plaintiff’s injuries were
suffered while she was in Brazil, bringing this claim unambiguously within the scope of the
foreign country exception. 3
Because Plaintiff’s claim is clearly beyond the scope of the waiver of sovereign
immunity found in the FTCA, the Court lacks subject-matter jurisdiction over her claim and it
must be dismissed, with prejudice. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a
waiver, sovereign immunity shields the Federal Government and its agencies from
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Plaintiff’s failure to call any ambiguity to the Court’s attention by failing to address this argument in her opposition
is, on its own, a sufficient basis to grant the Government’s motion. Kone, 808 F. Supp. 2d at 83.
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suit….Sovereign immunity is jurisdictional in nature”); Al Janko v. Gates, 831 F. Supp. 2d 272,
283-84 (D.D.C. 2011) (dismissing with prejudice claims brought under the FTCA for injuries
suffered in Guantanamo Bay).
III. CONCLUSION
Because the Court lacks subject-matter jurisdiction to hear this case, it is dismissed with
prejudice. A corresponding order will issue separately.
Dated: April 15, 2015
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