Smith v. U.S.

• Decision Date: 24 December 1991
• Docket Number: No. 89-35088,89-35088
• Citation: 953 F.2d 1116
• Parties: Sandra Jean SMITH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1116

953 F.2d 1116

Sandra Jean SMITH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 89-35088.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 9, 1990.

Decided May 1, 1991.

Opinion Withdrawn Dec. 24, 1991.

Opinion Filed Dec. 24, 1991.

David Gernant, Portland, Or., for plaintiff-appellant.

Mark B. Stern, U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Before GOODWIN, FLETCHER and FERNANDEZ, Circuit Judges.

ORDER

The opinion filed May 1, 1991, and appearing at 932 F.2d 791 (9th Cir.1991) is withdrawn.

The panel has voted unanimously to deny the petition for rehearing. Judges Fletcher and Fernandez have voted to reject the suggestion for rehearing en banc, and Judge Goodwin so recommends.

The full court has been advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

GOODWIN, Circuit Judge:

Sandra Jean Smith appeals the Rule 12 dismissal of her Federal Tort Claims Act (FTCA) action for the wrongful death of her husband. Smith's action alleged negligent acts or omissions by the United States in Antarctica. The district court dismissed her claim under the "foreign country" exception to the statute. Smith v. United States, 702 F.Supp. 1480 (D.Or.1989). We affirm. ¹

I

"The United States, as a sovereign entity, is immune from suit unless it has consented to be sued." Cominotto v. United States, 802 F.2d 1127, 1129 (9th Cir.1986) (citing United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983)). Under the FTCA, the United States has consented to be sued for tort damages "caused by the negligent or wrongful act or omission of any employee of the Government...." 28 U.S.C. § 1346(b) (1982). The FTCA, however, is a limited waiver of sovereign immunity under which certain categories of torts are specifically excluded. See Grunnet v. United States, 730 F.2d 573, 574-75 (9th Cir.1984); 28 U.S.C. § 2680 (listing fourteen exceptions to section 1346(b)). Courts are without jurisdiction over any excluded claim. See Cominotto, 802 F.2d at 1129.

Under the FTCA, the United States retains sovereign immunity for "[a]ny claim arising in a foreign country." 28 U.S.C. § 2680(k). The central question in this case is whether Antarctica, a sovereignless region without civil tort law, ² is a foreign country within the meaning of Section 2680(k). ³

The district court recognized that the words "foreign country" are not self-defining and determined that Congress did not intend to waive sovereign immunity for torts alleged to have been committed by government employees outside the territorial jurisdiction of the United States. We agree.

The FTCA does not define the term "foreign country." See 28 U.S.C. §§ 1291 & 2680(k) (1982). See also Fernandez v. Brock, 840 F.2d 622, 632 (9th Cir.1988) (the starting point in determining Congress's intent is the language itself). Moreover, as we have acknowledged, the term "foreign country" is capable of different meanings. Meredith v. United States, 330 F.2d 9, 10 (9th Cir.) ("[t]he words 'foreign country' are not words of art, carrying a fixed and precise meaning in every context"), cert. denied, 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70 (1964); see also United States v. Spelar, 338 U.S. 217, 223, 70 S.Ct. 10, 13, 94 L.Ed. 3 (1949) (Frankfurter, J., concurring) (to assume that the term "foreign country" is "self-defining, not at all involving a choice of judicial judgment, is mechanical jurisprudence."); Burnet v. Chicago Portrait Co., 285 U.S. 1, 5, 52 S.Ct. 275, 277, 76 L.Ed. 587 (1932) ("[t]he word 'country,' in the expression 'foreign country' is ambiguous"); Beattie, 756 F.2d at 109-110 (Scalia, J., dissenting) (discussing the different possible definitions of the term "foreign country"). Because Congress's intent is not clear from the statute's language, we must ascertain a definition for "foreign country" that is compatible with the context and purpose of the FTCA. Meredith, 330 F.2d at 10 (in defining "foreign country" for purposes of the FTCA, "[i]t is necessary to consider the object of the enactment and to construe the expression 'foreign country' so as to achieve, and not defeat, its aim") (quoting Burnet, 285 U.S. at 7, 52 S.Ct. at 277).

We are aided in our analysis by the comprehensive opinions of the D.C. Circuit in Beattie. Faced with this same question, the court explored the relevant legislative history and case law, and concluded that Antarctica is not a "country" and therefore, as a stateless area, could not be a foreign country. 756 F.2d at 98. The dissent shifted the focus of the inquiry from the interesting but abstract question of what is a country, to the purpose of the FTCA. Id. at 107 (Scalia, J., dissenting).

II

We agree with the approach and conclusions of then Judge Scalia and hold that the FTCA does not apply to claims arising in Antarctica. To hold otherwise would render two other provisions of the FTCA nonsensical and require us to create rules governing liability for tortious acts and omissions in Antarctica. See Central Mont. Elec. Power Co-op., Inc. v. Administrator, Bonneville Power Admin., 840 F.2d 1472, 1478 (9th Cir.1988) (we "avoid any statutory interpretation that renders any section superfluous and does not give effect to all of the words used by Congress"); Hughes Air Corp. v. Public Util. Com'n, 644 F.2d 1334, 1338 (9th Cir.1981) (it is a "basic rule of statutory construction that one provision should not be interpreted in a way which is internally contradictory or that renders other provisions of the same statute inconsistent or meaningless").

The venue provision of the FTCA provides that a tort claim against the United States "may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." 28 U.S.C. § 1402(b) (1982). As Judge Scalia wrote in his dissent:

If, as the appellees assert, 'foreign country' means only 'foreign state,' and sovereign immunity has therefore been waived with respect to torts occurring in stateless regions such as Antarctica then the venue provision for those regions makes no sense ...

Beattie, 756 F.2d at 110 (Scalia, J., dissenting). While Smith, as the personal representative of a deceased victim, is able to lay venue in her state of residence because it has a district court, venue would not exist if the plaintiff happened to reside outside the United States. If we were to find that Antarctica is not a foreign country, a resident of New Zealand, or of any other country, ⁴ injured by the acts or omissions of a U.S. employee in Antarctica, would find sovereignty waived but no venue in which to proceed against the United States. ⁵ It is unlikely that Congress intended to create a tort remedy in cases for which no venue exists.

A further indication that the FTCA was not intended to apply in Antarctica is the choice-of-law problem presented in extending the Act's provisions to that region. The statute imposes liability "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b) (1982). See also Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962) ("We believe that it would be difficult to conceive of any more precise language Congress could have used to command application of the law of the place where the negligence occurred than the words it did employ in the Tort Claims Act"). As a stateless area over which a number of treaty powers have specifically declined to assert claims of sovereignty, Antarctica has no tort law. See Antarctica Treaty, supra at art. IV(2); see also Beattie, 756 F.2d at 111 (Scalia, J. dissenting).

We decline to adopt the D.C. Circuit's conclusion that because "s 1346(b) leads the court to a place where there is no civil tort law to apply" the court must use its own choice-of-law rules to determine which law applies. Beattie, 756 F.2d at 104-05. See Ducey v. United States, 713 F.2d 504, 508 n. 2 (9th Cir.1983) (in applying "the law of the place where the act or omission occurred" pursuant to section 1346(b), the whole law "including the choice of law principles" apply) (citing Richards, 369 U.S. at 11, 82 S.Ct. at 592). We agree instead with Judge Scalia's conclusion that this choice-of-law dilemma evidences "that the FTCA no more envisions suits for torts occurring in stateless foreign regions than it does suits for torts occurring in foreign sovereignties." Beattie, 756 F.2d at 111 (Scalia, J., dissenting).

In a case arising out of an act occurring in the United States Embassy in Bangkok, we held that the foreign country exception precluded the action, adding by way of obiter that: "No authority has been cited indicating that it is the duty of the federal courts to create rules governing liability for tortious acts and omissions on the premises of American embassies and consulates abroad ... and obviously our embassy at Bangkok has no tort law of its own." Meredith, 330 F.2d at 10 (citations omitted). Likewise, while the United States conducts activity in Antarctica, both through instrumentalities of space and defense agencies and through private contractors who employ workers and provide for on-the-job injuries, we have been cited to no legislative history which suggests that the federal courts should create substantive or choice-of-law rules governing liability for tortious acts and omissions in Antarctica.

III

Even if we were to adopt the view that Antarctica is not a foreign country, we still could not agree that the coverage of the FTCA extends to Antarctica. The FTCA was, and remains, a limited relinquishment by Congress of the common law immunity the...