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Smith v. United States

filed: December 24, 1991.


Appeal from the United States District Court for the District of Oregon. D.C. No. CV-87-883-HF. Helen J. Frye, District Judge, Presiding. Original Opinion Reported at,

Before: Alfred T. Goodwin, Betty B. Fletcher and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Goodwin; Dissent by Judge Fletcher.

Author: Goodwin

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.*fn1


"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, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (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 "any 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,*fn2 is a foreign country within the meaning of Section 2680(k).*fn3

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. §§ 1271 & 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.) ("the words 'foreign country' are not words of art, carrying a fixed and precise meaning in every context"), cert. denied, 379 U.S. 867, 13 L. Ed. 2d 70, 85 S. Ct. 137 (1964); see also United States v. Spelar, 338 U.S. 217, 223, 94 L. Ed. 3, 70 S. Ct. 10 (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, 76 L. Ed. 587, 52 S. Ct. 275 (1932) ("the 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, "it 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, 258 U.S. at 7).

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).


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 ...

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