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MACCASKILL v. UNITED STATES

October 12, 1993

JOHN R. MACCASKILL, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants.



The opinion of the court was delivered by: JOHN H. PRATT

 This is an action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-80, and the Military Claims Act (MCA), 10 U.S.C. §§ 2733-37. Presently before the Court is defendants' motion to dismiss under Federal Rule of Civil Procedure (Fed. R. Civ. P.) 12(b)(1) and 12(b)(6), and alternatively, for summary judgment under Fed. R. Civ. P. 56, contending that the Court lacks subject matter jurisdiction in this case. For the reasons stated herein, we grant defendants' motion for summary judgment. *fn1"

 I. Background

 A Department of State (State Department) employee with the U.S. Embassy, Guido Del Prado, was among the officials accompanying plaintiffs to the mortuary. Acting as translator, he informed the MacCaskills that, pursuant to Salvadoran law, the body could not be released for transportation back to the United States until it had been embalmed. Mr. Del Prado presented the plaintiffs with a card printed in Spanish that he indicated had to be signed before the embalming could begin. Mr. Del Prado did not translate the text of the card. Plaintiffs signed the card and the body was duly embalmed and returned to the United States for burial.

 Several months after returning to New York, plaintiffs began to question the official finding that the wound was self-inflicted and ordered the body exhumed for a private autopsy. During the autopsy plaintiffs discovered that the mortuary's employees had eviscerated the body and disposed of the internal organs in an unknown fashion. Plaintiffs filed an administrative tort claim with the U.S. Navy seeking damages for the evisceration and any resulting anguish and grief. It is evident from the record that the Navy negotiated possible settlement with plaintiffs' attorney for a year, however, the parties did not agree on a settlement figure.

 On December 12, 1991, the Navy denied the claim stating that no Navy personnel had been involved in arranging the embalming and that the FTCA did not apply to claims arising in a foreign country. The Navy subsequently clarified its position in a series of letters with plaintiffs' attorney following administrative appeal of the claims. The Navy determined that plaintiffs failed to show negligence on the part of any Navy employee and that the State Department was responsible for arranging the embalming. Therefore, the Navy forwarded the claim to the State Department, which subsequently denied the claim. Plaintiffs seek relief from these administrative judgments.

 II. Analysis

 Under Fed. R. Civ. P. 56(c), the moving party has the burden of demonstrating that the record shows there is no genuine issue of material fact, and that it is "entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). We believe the defendants have met this burden by proving that the Court lacks subject matter jurisdiction.

 A. Count I: The Federal Tort Claims Act

 The United States is generally immune from suit, except for situations in which it consents to be sued by expressly waiving its sovereign immunity. United States v. Mitchell, 445 U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (1980). Plaintiffs have the burden of establishing jurisdiction under the FTCA, and this burden must be satisfied through a basis independent of the general jurisdictional statutes such as 28 U.S.C. § 1346. Vogelaar v. U.S., 665 F. Supp. 1295, 1297 (E.D. Mich. 1987).

 Although the FTCA represents a broad waiver of sovereign immunity, Congress expressly excluded certain claims from the district court's jurisdiction. The exclusion relevant to this action is the provision in the FTCA stating that "the provisions of this chapter . . . shall not apply to any claim arising in a foreign country." 28 U.S.C. § 2680(k). Claims arising on overseas military bases and embassies of the United States Government occur in foreign countries for purposes of § 2680(k). See e.g. United States v. Spelar, 338 U.S. 217, 94 L. Ed. 3, 70 S. Ct. 10 (1949) (claim arising at air base in Newfoundland under long-term lease to the U.S. arose in foreign country); Broadnax v. United States, 228 U.S. App. D.C. 354, 710 F.2d 865, 867 (D.C. Cir. 1983) (allegation of negligent medical care in Army hospital in Germany not cognizable under the FTCA).

 A claim "arises" for purposes of § 2680(k) where the alleged negligent act or omission occurred for purposes of 28 U.S.C. § 1346(b). *fn3" See Vogelaar, 665 F. Supp. at 1301. It is not in dispute that the underlying claim arose in a foreign country. Cpl. MacCaskill died from injuries sustained while stationed in El Salvador and was embalmed there. Any act or omission committed by an employee of the Navy or State Department occurred there. Therefore, the Court ordinarily lacks subject matter jurisdiction over plaintiffs' claim.

 Plaintiffs contend that § 2680(k) is inapplicable because high level decisions related to this case were allegedly made in the United States. It is correct that courts have occasionally held that high level management and control by domestic government personnel render the United States liable under the FTCA. See e.g. In Re "Agent Orange" Product Liability Litigation, 580 F. Supp. 1242, 1255 (E.D. N.Y. 1984) appeal dismissed 745 F.2d 161 (2d Cir. 1984) (claims related to the exposure of soldiers to Agent Orange in Vietnam were not barred by § 2680(k) because the initial decision to use the herbicide, the decision to continue using it, and decisions relating to the ...


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