Smith v. US, Civ. No. 87-883-FR.

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Writing for the CourtFRYE
Citation702 F. Supp. 1480
Docket NumberCiv. No. 87-883-FR.
Decision Date06 January 1989
PartiesSandra Jean SMITH, Plaintiff, v. UNITED STATES of America, Defendant.

702 F. Supp. 1480

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

Civ. No. 87-883-FR.

United States District Court, D. Oregon.

January 6, 1989.


702 F. Supp. 1481

Allen T. Murphy, Jr., Portland, Or., for plaintiff.

John R. Bolton, Asst. Atty. Gen., Charles H. Turner, U.S. Atty., Jack C. Wong, Asst. U.S. Atty., Paul F. Figley, Asst. Director, Jo Brooks, Trial Atty., U.S. Dept. of Justice, Washington, D.C., for defendant.

OPINION

FRYE, District Judge.

In the matter before the court, defendant, United States of America, moves the court for an order dismissing plaintiff, Sandra Jean Smith's, complaint pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure on the basis that the court lacks jurisdiction over the subject matter of the action.

BACKGROUND

The agreed facts are set forth in Exhibit A of the Pretrial Order attached hereto.

Plaintiff brings this wrongful death action invoking the court's subject matter jurisdiction pursuant to the Federal Torts Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. (FTCA). Plaintiff asserts that the United States negligently caused her husband's death by failing to adequately warn him that there were dangerous crevasses in areas off the flagged paths.

In order to establish jurisdiction under the FTCA, plaintiff has the burden to demonstrate that her case falls within the parameters described by 28 U.S.C. § 1346(b) and that it does not fall within any of the FTCA's exceptions to the limited waiver of sovereignty by the United States.

The United States asserts that this court does not have subject matter jurisdiction over plaintiff's claim which arose in Antarctica because 1) the FTCA was meant to apply only within the territorial jurisdiction of the United States; 2) Antarctica is a "foreign country" as that term was used by Congress when it explicitly retained the government's sovereign immunity for "any claim arising in a foreign country," 28 U.S.C. § 2680(k); and 3) plaintiff cannot demonstrate "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b), because Antarctica has no civil law.

Plaintiff asserts that the FTCA was intended to apply to a foreign country without a government and without laws, and that the FTCA does not limit the liability of the United States to acts occurring within the territorial boundaries of the United States.

ANALYSIS AND RULING

The FTCA acts as waiver of sovereign immunity in specified types of cases. Section 2680 of the FTCA lists several exceptions to that waiver. Section 2680 provides that "the provisions of this chapter and section 1346(b) of this title shall not apply to ... (k) any claim arising in a foreign country." Plaintiff's claim arose in Antarctica and is barred if Antarctica is a "foreign country" within the meaning of the FTCA.

The provision against the extraterritorial application of the FTCA in section 2680(k) is consistent with an important canon of statutory construction that "legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 577, 93 L.Ed. 680 (1949). The presumption against the extraterritorial application of a statute is not absolute in that it can be overcome by "a clear expression of congressional intent." United States v. Mitchell, 553 F.2d 996, 1002 (5th Cir.1977); see also Foley, 336 U.S. at 285, 69 S.Ct. at 577.

In Meredith v. United States, 330 F.2d 9 (9th Cir.1964), the court held that an action arising from acts and omissions which occurred within the physical confines of the American Embassy at Bangkok, Thailand was barred by the foreign country exception in section 2680(k). The Ninth Circuit

702 F. Supp. 1482
stated that "the phrase `in a foreign country' is used in section 2680(k) with the meaning dictated by `common sense' and `common speech.'" Meredith, 330 F.2d at 11 (citations omitted). The court stated that the appellant's position that the FTCA was intended to extend to persons injured on premises occupied by foreign embassies and consulates of the United States is "incompatible with the rule that, in the absence of an indication to the contrary, legislation is intended to apply `only within the territorial jurisdiction of the United States.'" Meredith, 330 F.2d at 11 (citations omitted)

This court finds nothing in the FTCA that would indicate that Congress intended for the FTCA to apply to acts or omissions which arose in Antarctica. The common sense and common speech meaning of the phrase "in a foreign country" used in section 2680(k) includes Antarctica in that it is not within the territorial jurisdiction of the United States. There is no indication that Congress intended to exclude from the common sense meaning of the phrase "in a foreign country" regions that while not within the territorial jurisdiction of the United States, are not under the domination of another foreign nation or country, assuming for the sake of argument that Antarctica can be considered to be governless.

Furthermore, to apply the FTCA to torts occurring in stateless foreign regions would lead to unnecessary inconsistencies within the provisions of the FTCA itself. The choice of law provision of the FTCA reads, in relevant part, as follows:

The district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States ... under circumstances where the United States,
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4 practice notes
  • Smith v. United States, No. 91-1538
    • United States
    • United States Supreme Court
    • March 8, 1993
    ...Upon the motion of the United States, the District Court dismissed petitioner's complaint for lack of subject-matter jurisdiction, 702 F.Supp. 1480 (1989), holding that her claim was barred by 28 U.S.C. § 2680(k), the foreign-country exception. Section 2680(k) precludes the exercise of juri......
  • Smith v. U.S., No. 89-35088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 24, 1991
    ...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. "The United States, as a sovereign entity, is immune from suit unless it has consented to be sued." Cominotto v. Unite......
  • Smith v. U.S., No. 89-35088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 1, 1991
    ...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. "The United States, as a sovereign entity, is immune from suit unless it has consented to be sued." Cominotto v. Unite......
  • S.H. v. United States, No. CIV. S-11-1963 LKK DAD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • November 18, 2013
    ...of sovereign immunity applies, the court must dismiss the case for lack of subject matter jurisdiction). 7. Contra, Smith v. U.S., 702 F. Supp. 1480, 1481 (D. Or. 1989) ("In order to establish jurisdiction under the FTCA, plaintiff has the burden to demonstrate that her case falls within th......
4 cases
  • Smith v. United States, No. 91-1538
    • United States
    • United States Supreme Court
    • March 8, 1993
    ...Upon the motion of the United States, the District Court dismissed petitioner's complaint for lack of subject-matter jurisdiction, 702 F.Supp. 1480 (1989), holding that her claim was barred by 28 U.S.C. § 2680(k), the foreign-country exception. Section 2680(k) precludes the exercise of juri......
  • Smith v. U.S., No. 89-35088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 24, 1991
    ...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. "The United States, as a sovereign entity, is immune from suit unless it has consented to be sued." Cominotto v. Unite......
  • Smith v. U.S., No. 89-35088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 1, 1991
    ...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. "The United States, as a sovereign entity, is immune from suit unless it has consented to be sued." Cominotto v. Unite......
  • S.H. v. United States, No. CIV. S-11-1963 LKK DAD
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • November 18, 2013
    ...of sovereign immunity applies, the court must dismiss the case for lack of subject matter jurisdiction). 7. Contra, Smith v. U.S., 702 F. Supp. 1480, 1481 (D. Or. 1989) ("In order to establish jurisdiction under the FTCA, plaintiff has the burden to demonstrate that her case falls within th......

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