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 

1 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 

2 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.

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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 

3 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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