Heller v. U.S., 85-1196

• Citation: 776 F.2d 92
• Decision Date: 05 November 1985
• Docket Number: No. 85-1196,85-1196
• Parties: HELLER, Paul, As Widower and as Parent and Natural Guardian of Jacob Heller, a minor, and Paul Heller, As Administrator of the Estate of Gail Simpson Heller, Deceased v. The UNITED STATES and United States Air Force Regional Medical Center Clark (PACAF) Phillipines, and Bettye H., Ltc. USAF; Hipps, Kimberly D.; Morris, Francis M., Capt. USAF; Yap, Dr. Rose; Diaz, Mai C., M.D.; Villano, Mercedes P., Major, USAF; Jolliff, Reade B., Capt. USAF; Moffett, Glen W., Capt., USAF; Conatser, David, Major, USAF, as Agent, Servants, Workmen and/or Employees of the United States. Appeal of Paul HELLER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 92

776 F.2d 92

HELLER, Paul, As Widower and as Parent and Natural Guardian

of Jacob Heller, a minor, and Paul Heller, As

Administrator of the Estate of Gail

Simpson Heller, Deceased v. The UNITED STATES and United States Air Force Regional

Medical Center Clark (PACAF) Phillipines, and Bettye H.,

Ltc. USAF; Hipps, Kimberly D.; Morris, Francis M., Capt.

USAF; Yap, Dr. Rose; Diaz, Mai C., M.D.; Villano,

Mercedes P., Major, USAF; Jolliff, Reade B., Capt. USAF;

Moffett, Glen W., Capt., USAF; Conatser, David, Major,

USAF, as Agent, Servants, Workmen and/or Employees of the

United States.

Appeal of Paul HELLER, Appellant.

No. 85-1196.

United States Court of Appeals, Third Circuit.

Argued Oct. 17, 1985.

Decided Nov. 5, 1985.

Michael S. Durst (argued), Robert B. Mozenter, Mozenter, Molloy & Durst, Philadelphia, Pa., for appellant.

Major Michael L. Fox (argued), Dept. of the Air Force, Susan Dein Bricklin, Asst. U.S. Atty., Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Philadelphia, Pa., for appellees.

Before ADAMS and HUNTER, Circuit Judges, and FISHER, ^* District Judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

Appellant Paul Heller filed this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2671-80 (1982), seeking compensation and punitive damages for the wrongful death of his wife, Gail Simpson Heller. Heller alleges that the United States is liable for the negligent medical treatment his wife received at Clark Air Force Base, Republic of the Philippines. The District Court for the Eastern District of Pennsylvania dismissed Heller's complaint for lack of subject matter jurisdiction under the FTCA. We affirm.

I.

Paul Heller enlisted in the United States Air Force in July, 1980 and was later stationed, accompanied by his wife, at Clark Air Force Base, Republic of the Philippines. On April 5, 1981, Mrs. Heller received pre-natal care at the Ob-Gyn Clinic of the United States Air Force Regional Medical Center at Clark Air Base. On July 5, 1981, Mrs. Heller gave birth to a son at Clark Medical Center. Laboratory tests were performed at that time. Mrs. Heller was discharged from Clark Medical Center on July 8, 1981. Thereafter, she returned to Clark Medical Center for care on the following dates: August 27, 1981 (six week post-partum check-up), October 5, 1981 (infected right breast), December 18, 1981 (eye infection), January 5, 1982 (pregnancy test), and January 8, 1982 (vaginal bleeding).

The Hellers left the Philippines, and returned to their home in Pennsylvania. On January 29, 1982, Mrs. Heller was admitted to Lower Bucks Hospital, in Bristol, Pennsylvania, where a biopsy was performed. As a result of the biopsy, she was diagnosed as suffering from choriocarcinoma (cancer of the placenta) with metastitis, and was transferred to the Hospital of the University of Pennsylvania for chemotherapy and radiation treatment on February 2, 1982. On March 3, 1982, Mrs. Heller died of cancer.

On November 1, 1982, Heller filed a claim for thirty thousand dollars under the Military Claims Act, 10 U.S.C. Secs. 2731-37 (1982), with the Staff Judge Advocate at McGuire Air Force Base, New Jersey for personal injury and wrongful death stemming from the failure of Air Force personnel to diagnose Mrs. Heller's cancer. ¹ On June 22, 1984, Heller filed a complaint in the United States District Court for the Eastern District of Pennsylvania, seeking five million dollars in compensatory and punitive damages from the United States, Clark Medical Center, and ten United States Air Force employees who were involved in Mrs. Heller's treatment at the Center for the wrongful death of Gail Heller. ² Heller's complaint alleged jurisdiction based on the FTCA and diversity of citizenship.

On March 21, 1985, 605 F.Supp. 144 (D.C.Pa.), the district court granted the United States' motion to dismiss. The court decided that it lacked subject matter jurisdiction over the United States because the case fell within the "foreign country" exception to the FTCA, Sec. 2680(k). The court rejected Heller's contentions that the United States had waived its sovereign immunity by enacting the Medical Malpractice Immunity Act, 10 U.S.C. Sec. 1089 (1982) (the "Act"), and that the Act required the court to substitute the United States in the place of the individual defendants.

II.

Heller raises three issues on appeal. Heller contends that the district court erred as a matter of law by dismissing his complaint for lack of subject matter jurisdiction pursuant to the FTCA's foreign country exception. Heller also claims that the district court erred as a matter of law in finding that Sec. 1089(f) of the Medical Malpractice Immunity Act does not waive the United States' sovereign immunity and require the substitution of the United States. Finally, Heller asserts that the foreign country exception to the FTCA is unconstitutional because it denies United States citizens equal protection under the law, due process, and access to the courts, arguments that Heller failed to raise before the district court. We will address each issue in turn.

We cannot agree with Heller that the FTCA gives federal courts jurisdiction over this action. In United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980), the Supreme Court reaffirmed the principles that " '[t]he United States, as sovereign, is immune from suit save as it consents to be sued' " and that any "waiver of sovereign immunity 'cannot be implied but must be unequivocally expressed.' " Id. at 538, 100 S.Ct. at 1351, citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941), and United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). Clear congressional consent to suit for torts committed within the United States by its employees is found in the FTCA.

In FTCA Sec. 2680(k), however, Congress expressly withheld its consent to suit from "[a]ny claim arising in a foreign country." The Supreme Court first addressed the scope of the foreign country exception in United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949), where the Court held that the administratrix of a citizen allegedly killed by the negligent operation of a Newfoundland air base leased by the United States from Great Britain could not bring suit against the United States under the FTCA. In finding that the foreign country exception applied, the Court observed that Congress "identified the coverage of the Act with the scope of United States sovereignty" because although "Congress was ready to lay aside a great portion of the sovereign's ancient and unquestioned immunity from suit, it was unwilling to subject the United States to liabilities depending upon the laws of a foreign power." Spelar, 338 U.S. at 221, 70 S.Ct. at 12. From the Court's discussion, it appears that two conditions must exist before the foreign country exception obtains: (i) that the tort occurs in a jurisdiction outside United States sovereignty, and (ii) that the United States is subject to liability based upon the foreign law. See Beattie v. United States, 756 F.2d 91, 97-98 (D.C.Cir.1984) (concluding that Sec. 2680(k) is not a bar to jurisdiction over suits "arising at least in part outside the United States and in areas where 'there is no theoretical justification for application of foreign law' " quoting In Re "Agent Orange" Product Liability Litigation, 580 F.Supp. 1242, 1254 (E.D.N.Y.1984)). Appellate courts faced with this issue uniformly have held that this exemption applies to the tortious conduct of foreign based military personnel acting within the scope of their employment. See Pelphrey v. United States, 674 F.2d 243 (4th Cir.1982); Manemann v. United States, 381 F.2d 704 (10th Cir.1967); Meredith v. United States, 330 F.2d 9 (9th Cir.1964); Burna v. United States, 240 F.2d 720 (4th Cir.1957).

Although the United States retained sovereignty over its military bases in the Philippine Islands after World War II, see Treaty of General Relations Between the United States of America and the Philippines, July 4, 1946, United States--Philippines, art. I, T.I.A.S. No. 1568, 61 Stat. 1174 (1947); Agreement Between the United States and the Republic of The Philippines Concerning Military Bases, art. I, T.I.A.S. No. 1175, 61 Stat. 4019, 4020 (1947), in 1979, the United States and the Republic of the Philippines amended the latter agreement to provide for the return of Philippine sovereignty over these military bases. ³ Appellant concedes that this agreement explicitly recognizes Philippine sovereignty over Clark Air Force Base. Appellant suggests, however, that because the agreement also allows the United States to retain command and control over its facilities, personnel, equipment, and material, that Philippine sovereignty over Clark Air Force Base is merely formal, and that claims arising at the facility should not be governed by foreign law.

Because international agreements qualify Philippine jurisdiction over United States military bases in the Philippines, appellant contends that the tort did not occur in a foreign country. We cannot accept Heller's hornbook definition of sovereignty as the "supreme, absolute, and uncontrollable power by which any independent state is governed." Heller would have us believe that sovereignty is an "all or nothing" concept, and that if the United States exercises any jurisdiction over its nationals in foreign countries, foreign sovereignty by definition could not exist. We disagree. Specifically, this argument ignores both the plain language of the amendment and the clear statements of the parties to the contrary in the preparatory documents. ⁴ More generally, this argument ignores the distinction between sovereignty, or the legal personhood of the nation, and jurisdiction, or the rights and powers of the nation over its inhabitants. See I. Brownlie,...