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

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

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 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, 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) (1982) (emphasis added).

The Supreme Court has made clear that a court should apply this language precisely as it appears:

In the Tort Claims Act Congress has expressly stated that the Government's liability is to be determined by the application of a particular law, the law of the place where the act or omission occurred, and we must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used. 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.

Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492, (1962) (footnote omitted).

To adopt the plaintiff's position would require this court to apply the civil law of Antarctica which has no civil law to apply. This court would then have to bypass the "precise language," Richards, 369 U.S. at 9, 82 S.Ct. at 591, of Congress and apply the law of a place where all parties acknowledge the negligence did not occur.

This court acknowledges that the Circuit Court for the District of Columbia reached a contrary conclusion in Beattie v. United States, 756 F.2d 91 (D.C.Cir.1984), holding that the exception in section 2680(k) applies only where "the government of a foreign nation has or asserts sovereignty" and not to Antarctica which "is not a country at all." Beattie, 756 F.2d at 94. However, this court concludes that the precedent set in Meredith supports the dissenting opinion in Beattie. The Meredith case supports the conclusion that section 2680(k) is properly interpreted to limit the application of the FTCA to the territorial jurisdiction of the United States. Meredith, 330 F.2d at 11. This interpretation is dictated by the fact that there is no clear expression of congressional intent in the FTCA to apply the legislation outside of the territorial boundaries of the United States, and it avoids the creation of internal inconsistencies within the precise language of the statute.

The United States's motion to dismiss on the grounds that this court lacks subject matter jurisdiction over this action is granted.

EXHIBIT A

The following facts are agreed to by the parties and require no further proof:

1. Plaintiff resides at 14222 N.E. Milton, Portland, Oregon.

2. Plaintiff Sandra Jean Smith is the widow of and the duly appointed personal representative of the estate of John Emmett Smith, deceased (sometimes referred to as "decedent").

3. Prior to filing suit, plaintiff Sandra Jean Smith timely presented an administrative claim to the appropriate federal agency in her capacity as personal representative of the estate of John Emmett Smith.

4. Plaintiff's administrative claim was finally denied by the agency in writing on or about July 13, 1987.

5. Plaintiff commenced suit within six months after the date of mailing of the letter denying the administrative claim she had filed.

6. Plaintiff's complaint seeks money damages on behalf of her husband's estate for his personal injury and death.

7. Commencing on or about October 21, 1986, decedent was employed by ITT Antarctic Services, Inc. ("ITT/ANS"), as a carpenter.

8. Mr. Thomas Powell and Mr. Matthew Kaz were also employed by ITT/ANS.

9. Decedent was assigned by ITT/ANS to help construct buildings at McMurdo Station, which is on Ross Island, Antarctica.

10. Decedent arrived at McMurdo Station, Antarctica, on October 27, 1986.

11. Mr. Powell and Mr. Kaz also arrived at McMurdo Station, Antarctica, on October 27, 1986.

12. Upon arrival at McMurdo Station on October 27, 1986, Mr. Smith, Mr. Powell, and Mr. Kaz attended an indoctrination briefing. The speakers...

To continue reading

Request your trial
4 cases
  • Smith v. United States
    • 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., 89-35088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 24, 1991
    ...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. "The United States, as a sovereign entity, is immune from suit unless it has consented to be sued." Cominotto v......
  • Smith v. U.S., 89-35088
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 1, 1991
    ...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. "The United States, as a sovereign entity, is immune from suit unless it has consented to be sued." Cominotto v......
  • S.H. v. United States, 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......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT