Jim LEE, Appellant v. UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT and National Oceanic and Atmospheric Administration, Appellees
No. 16-5276
United States Court of Appeals, District of Columbia Circuit.
Decided June 16, 2017
It is true that, under the treaty, embassies are “inviolable,” such that the host country generally cannot send agents inside without permission. Id. at 3237. But the treaty‘s terms also indicate that foreign embassies sit within the host country‘s territory. Article 21, for instance, calls for the receiving state to facilitate diplomatic accommodations in “its territory.” Id. (emphasis added). Accordingly, the State Department recognizes that, “[d]espite widespread popular belief, ... [U.S. diplomatic or consular facilities] are not part of the territory of the United States.” See U.S. Dep‘t of State, 7 Foreign Affairs Manual 1113 (2009). Rather, “diplomatic envoys are in reality within the territories of the receiving states.” 1 Oppenheim‘s International Law 1091 & n.4 (Robert Jennings & Arthur Watts eds., 9th ed. 2008). “U.S. embassies and consulates abroad,” in short, “remain the territory of the host state.” U.S. Dep‘t of State, What Is a U.S. Embassy?, Discover Diplomacy, https://diplomacy.state.gov/discoverdiplomacy/diplomacy101/places/170537.htm (last accessed June 5, 2017).
Galvin and Pellegrin submit that, even if a United States embassy abroad sits in the receiving state‘s territory, the United States can exercise “some jurisdiction“—viz., a form of “concurrent jurisdiction” with the receiving state—over conduct in its embassies. See Persinger v. Islamic Republic of Iran, 729 F.2d 835, 839 (D.C. Cir. 1984). The same is presumably true, however, of United States military bases and hospitals in foreign territory, see id. at 841;
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For the foregoing reasons, the judgment of the district court is affirmed.
So ordered.
Jim Lee, pro se, was on the response for appellant.
Before: ROGERS, KAVANAUGH, and MILLETT, Circuit Judges.
PER CURIAM:
Jim Lee, proceeding pro se, appeals the grant of the motion for judgment on the pleadings to the United States Agency for International Development (“USAID“) and the National Oceanic and Atmospheric Ad
The only aspect of his appeal that merits extended discussion is whether
I.
According to the complaint, Lee was employed by a federal contracting firm and worked at USAID from 2008 until he was fired in 2013. Lee alleges that USAID terminated his employment after the Department of Defense denied his application for a security clearance in 2012, and that he was denied a clearance because he and his family are from China.
In July 2013, Lee began working for NOAA. As with his previous position, he was employed directly by a federal contracting firm, SSAI. On April 30, 2014, Lee was fired.
Lee contacted several people at the Department of Defense, NOAA, and SSAI to determine why his employment was terminated. Believing he was fired because of his national origin, Lee alleges he called the Equal Employment Opportunity Commission (“EEOC“) around the end of May or beginning of June to make a complaint against NOAA. An EEOC representative purportedly told Lee that he would have to sue SSAI, which in turn, would sue NOAA. Several months later, Lee contacted NOAA‘s Equal Employment Opportunity (“EEO“) office and began communicating with an EEO counselor. Lee alleges that during the counselor‘s investigation of his claims, a NOAA official told her that SSAI, not NOAA, decided to fire Lee. The counselor emailed Lee to inform him of this information, specifying that SSAI contacted NOAA and told the agency to stop processing Lee‘s paperwork because SSAI decided to take him off the NOAA contract. Lee alleges that when he contacted an SSAI manager and told him what the EEO counselor had said, the manager told him that “was absolutely not true.”
Lee filed with the EEOC an employment discrimination complaint against SSAI. When the EEOC dismissed his complaint, he sued USAID and NOAA in the district court, seeking damages and an injunction against further discrimination and retaliation. He alleges that NOAA and USAID violated Title VII by terminating his employment because of his national origin and that NOAA violated
II.
On appeal, Lee offers no legal support to show that Section 1001 provides a private cause of action. Because this is a recurring issue and there are no published decisions by the Court, we address it here and conclude for the following reasons that it does not.
(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title, imprisoned not more than 5 years, or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.
Congress creates federal rights of action to enforce federal laws. Alexander v. Sandoval, 532 U.S. 275, 286 (2001), 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Such causes of action may be created explicitly or implicitly. The touchstone is always Congress‘s intent. Id. An explicit right to sue is created by the text of the statute. “An express federal cause of action states, in so many words, that the law permits a claimant to bring a claim in federal court.” Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep‘t of Educ., 615 F.3d 622, 627-28 (6th Cir. 2010) (quoting Int‘l Union of Operating Eng‘rs, Local 150, AFL-CIO v. Ward, 563 F.3d 276, 283 (7th Cir. 2009)). Section 1001 does not expressly grant an individual cause of action to private persons alleging that they were harmed by violations of the statute. The question therefore becomes whether the statute implies a private cause of action.
Determining whether Congress intended to create an implied cause of action begins with the text and structure of the statute. Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979), 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). The Supreme Court has “rarely implied a private right of action under a criminal statute,” Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979), 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979), and nothing in the text of
Accordingly, we affirm the dismissal of Lee‘s claim under
III.
Lee‘s remaining contentions lack merit and we affirm, with one modification of the order of dismissal. Lee contends that he was unlawfully terminated from USAID and NOAA because of national origin discrimination in violation of Title VII. Taking the allegations of the complaint as true, as we must, Erickson v. Pardus, 551 U.S. 89, 94 (2007), 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007), it is unclear whether he was a federal employee within the meaning of Title VII. See Al-Saffy v. Vilsack, 827 F.3d 85, 96 (D.C. Cir. 2016) (citing Spirides v. Reinhardt, 613 F.2d 826, 831-32 (D.C. Cir. 1979)). But even if Lee were a federal employee, he failed to exhaust his administrative remedies. See Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010); Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). Although Lee filed an EEOC complaint regarding his termination from NOAA, that complaint was dismissed and did not effectively exhaust his administrative remedies because, as Lee acknowledges, Compl. ¶ 30, it asserted claims only against SSAI rather than the defendant in this action, NOAA.