William Humberto Gil-Perenguez v. USA

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 11, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-11573
Non-Argument Calendar
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D.C. Docket No. 1:10-cv-21509-MGC
WILLIAM HUMBERTO GIL-PERENGUEZ,
Plaintiff - Appellant,
versus
UNITED STATES OF AMERICA,
by and through U.S. Attorney General,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 11, 2011)
Before WILSON, PRYOR and BLACK, Circuit Judges.
PER CURIAM:

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William Gil-Perenguez appeals the dismissal of his complaint for lack of
subject matter jurisdiction based on sovereign immunity. Gil argues that the
district court erred when it ruled that his complaint falls within the “foreign
country” exception to the waiver of sovereign immunity under the Federal Tort
Claims Act, 28 U.S.C. § 2680(k). We affirm.
I. BACKGROUND
In June 2006, the Drug Enforcement Agency and Colombian National
Police jointly investigated a conspiracy to import cocaine and heroin from
Colombia on cargo planes landing at the Miami, Florida, International Airport.
Gil worked at the airport in Colombia from which the drugs were being shipped to
the United States. The Colombian police erroneously identified Gil as a member
of the conspiracy and communicated that erroneous information to the Agency. A
federal grand jury later returned an indictment against Gil on several charges of
importation of drugs. Colombian police arrested Gil and detained him in a
Colombian prison for more than a year after which he was transported to the
United States to stand trial. After a status conference, the district court ordered the
United States to examine recordings of drug conspirators in which Gil erroneously
had been identified as a participant. The United States determined that Gil’s voice
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was not on the recordings, moved to dismiss the indictment against him, and
returned him to Colombia.
Gil filed a complaint against the United States under the Federal Tort
Claims Act. Gil’s complaint alleged that he had been wrongfully indicted,
arrested, and detained. His complaint sought $10 million in damages for injuries
that he suffered in Colombia, including the loss of his job, damage to his
reputation, and emotional distress.
The district court granted the motion of the United States to dismiss Gil’s
complaint. The district court ruled that the foreign country exception to the
waiver of sovereign immunity under the Federal Tort Claims Act barred Gil’s
complaint, which concerned an investigation, arrest, and detention by Colombian
police. The district court did not reach the alternative grounds of the motion filed
by the United States.
II. STANDARD OF REVIEW
We review a dismissal based on lack of subject matter jurisdiction de novo.
Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006).
III. DISCUSSION
The district court correctly ruled that it lacked subject matter jurisdiction
over Gil’s complaint. The Federal Tort Claims Act waives immunity to suit
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except for “[a]ny claim arising in a foreign country.” 28 U.S.C. § 2680(k). This
exception covers “all claims based on any injury suffered in a foreign country,
regardless of where the tortious act or omission occurred.” Sosa v. Alvarez-
Machain, 542 U.S. 692, 712, 124 S. Ct. 2739, 2754 (2004). Gil’s complaint arises
out of an arrest in Colombia, which is “where the last act necessary to establish
liability occurred.” Id. at 705, 124 S. Ct. at 2750 (internal quotation marks
omitted). Gil’s complaint plainly falls within the foreign country exception to the
waiver of sovereign immunity under the Act.
IV. CONCLUSION
We affirm the dismissal of Gil’s complaint for lack of subject matter
jurisdiction.
AFFIRMED.
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