OCTOBER TERM, 1992
Syllabus
SMITH
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 91-1538. Argued December 7, 1992-Decided March 8,1993
After her husband was killed in Antarctica-a sovereignless
region without civil tort law of its own-while he was working for a
private firm under contract to a federal agency, petitioner filed
this wrongful-death action against the United States under the
Federal Tort Claims Act (FTCA). The District Court dismissed the
complaint for lack of subject-matter jurisdiction, holding that the
claim was barred by the FTCA's foreign-country exception, which
states that the statute's waiver of sovereign immunity does not
apply to "[a]ny claim arising in a foreign country," 28 U. S. C. §
2680(k). The Court of Appeals affirmed.
Held: The FTCA does not apply to tortious acts or
omissions occurring in Antarctica. The ordinary meaning of "foreign
country" includes Antarctica, even though it has no recognized
government. If this were not so, § 1346(b)-which waives sovereign
immunity for certain torts committed "under circumstances where the
United States, if a private person, would be liable ...
in
accordance with the law of the place where the act or omission
occurred" (emphasis added)-would have the bizarre result of
instructing courts to look to the law of a place that has no law in
order to determine the United States' liability. Similarly, if
Antarctica were included within the FTCA's coverage, §
1402(b)-which provides that claims may be brought "only in the
judicial district where the plaintiff resides or wherein the act or
omission complained of occurred" -would have the anomalous result
of limiting venue to cases in which the claimant happened to reside
in the United States, since no federal judicial district
encompasses Antarctica. This interpretation of the FTCA accords
with the canon of construction that prohibits courts from either
extending or narrowing the statute's sovereign immunity waiver
beyond what Congress intended,
United States v.
Kubrick,
444 U. S. 111, 117-118, and with the presumption against
extraterritorial application of United States statutes, see,
e.
g., EEOC v.
Arabian American Oil Co., 499 U. S. 244, 248. It is
unlikely that Congress, had it expressly considered the question
when it passed the FTCA, would have included a desolate and
extraordinarily dangerous land such as Antarctica within the
statute's scope. Pp. 200-205.
953 F.2d
1116, affirmed.
198
REHNQUIST, C. J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS,
JJ., joined. STEVENS, J., filed a dissenting opinion,
post,
p. 205.
David J.
Bederman argued the cause for petitioner.
With him on the briefs were
Allen T. Murphy, Jr., and
David Gernant.
Christopher J. Wright argued the cause for the United States. On
the brief were Solicitor General Starr, Assistant Attorney General
Gerson, Deputy Solicitor General Mahoney, and Mark B. Stern.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This case presents the question whether the Federal Tort Claims
Act (FTCA), 28 U. S. C. §§ 1346(b), 1402(b), 2401(b), 2671-2680
(1988 ed. and Supp. II), applies to tortious acts or omissions
occurring in Antarctica, a sovereignless region without civil tort
law of its own.1 We hold that it does not.
Petitioner Sandra Jean Smith is the widow of John Emmett Smith
and the duly appointed representative of his es-
1 Without indigenous human population and containing roughly
onetenth of the world's land mass, Antarctica is best described as
"an entire continent of disputed territory." F. Auburn, Antarctic
Law and Politics 1 (1982). Seven nations-Argentina, Australia,
Chile, France, New Zealand, Norway, and the United
Kingdom-presently assert formal claims to pie-shaped portions of
the continent that total about 85 percent of its expanse. Boczek,
The Soviet Union and the Antarctic Regime, 78 Am. J. Int'l L. 834,
840 (1984); Hayton, The Antarctic Settlement of 1959, 54 Am. J.
Int'l L. 349 (1960). The United States does not recognize other
nations' claims and does not itself assert a sovereign interest in
Antarctica, although it maintains a basis for such a claim.
Lissitzyn, The American Position on Outer Space and Antarctica, 53
Am. J. Int'l L. 126, 128 (1959). In any event, these sovereign
claims have all been suspended by the terms of the Antarctic
Treaty, concluded in 1959. Antarctic Treaty, Dec. 1, 1959, [1961]
12 U. S. T. 794, T. I. A. S. No. 4780. Article IV of the treaty
states that no claim may be enforced, expanded, or compromised
while the treaty is in force, id., art. IV, 12 U. S. T., at 796,
thus essentially freezing nations' sovereign claims as of the date
of the treaty's execution.
199
tate. At the time of his death, Smith worked as a carpenter at
McMurdo Station on Ross Island, Antarctica, for a construction
company under contract to the National Science Foundation, an
agency of the United States. Smith and two companions one day took
a recreational hike to Castle Rock, located several miles outside
of McMurdo Station. On their return, they departed from the marked
route to walk across a snow field in the direction of Scott Base, a
New Zealand outpost not far from McMurdo Station. After stopping
for a snack, one of the three men took a step and suddenly dropped
from sight. Smith followed, and he, too, disappeared. Both men had
fallen into a crevasse. Despite search and rescue efforts, Smith
died from exposure and internal injuries suffered as a result of
the fall.
Petitioner filed this wrongful-death action against the United
States under the FTCA in the District Court for the District of
Oregon, the district where she resides. Petitioner alleged that the
United States was negligent in failing to provide adequate warning
of the dangers posed by crevasses in areas beyond the marked paths.
It is undisputed that petitioner's claim is based exclusively on
acts or omissions occurring in Antarctica. 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 jurisdiction over "[a]ny claim arising in a foreign
country."
The Court of Appeals affirmed,
953 F.2d
1116 (CA9 1991).
It noted that the term "foreign country" admits of multiple
interpretations, and thus looked to the language and structure of
the FTCA as a whole to determine whether Antarctica is a "foreign
country" within the meaning of the statute. Adopting the analysis
and conclusion of then-Judge Scalia, see
Beattie v.
United States, 244 U. S. App. D. C. 70, 85-109,
756 F.2d
91, 106-130 (1984) (Scalia, J., dissenting), the Court
200
of Appeals ruled that the FTCA does not apply to claims arising
in Antarctica. To hold otherwise, the Court of Appeals stated,
would render two other provisions of the FTCA, 28 U. S. C. §§
1402(b), 1346(b), nonsensical. The Court of Appeals held, in the
alternative, that petitioner's suit would be barred even if
Antarctica were not a "foreign country" for purposes of the FTCA.
Because the FTCA was a limited relinquishment of the common-law
immunity of the United States, the Court of Appeals concluded that
the absence of any clear congressional intent to subject the United
States to liability for claims arising in Antarctica precluded
petitioner's suit. We granted certiorari to resolve a conflict
between two Courts of Appeals,2 504 U. S. 984 (1992), and now
affirm.
Petitioner argues that the scope of the foreign-country
exception turns on whether the United States has recognized the
legitimacy of another nation's sovereign claim over the foreign
land. Otherwise, she contends, the land is not a "country" for
purposes of the FTCA. Petitioner points out that the United States
does not recognize the validity of other nations' claims to
portions of Antarctica. She asserts, moreover, that this
construction of the term "foreign country" is most consistent with
the purpose underlying the foreign-country exception. According to
petitioner, Congress enacted the foreign-country exception in order
to insulate the United States from tort liability imposed pursuant
to foreign law. Because Antarctica has no law of its own,
petitioner claims that conventional choice-of-Iaw rules control and
require the application of Oregon law, the law of her domicil.
Thus, petitioner concludes, the rationale for the foreign-country
exception would not be compromised by the exercise of jurisdiction
here, since the United States
2 Cf.
Beattie v.
United States, 244 U. S. App. D.
C. 70,
756 F.2d
91 (1984) (holding that Antarctica is not a "foreign country"
within the meaning of the FTCA).
201
would not be subject to liability under the law of a foreign
nation.
Petitioner's argument for governmental liability here faces
significant obstacles in addition to the foreign-country exception,
but we turn first to the language of that proviso. It states that
the FTCA's waiver of sovereign immunity does not apply to "[a]ny
claim arising in a foreign country." 28 U. S. C. § 2680(k). Though
the FTCA offers no definition of "country," the commonsense meaning
of the term undermines petitioner's attempt to equate it with
"sovereign state." The first dictionary definition of "country" is
simply "[a] region or tract of land." Webster's New International
Dictionary 609 (2d ed. 1945). To be sure, this is not the only
possible interpretation of the term, and it is therefore
appropriate to examine other parts of the statute before making a
final determination. But the ordinary meaning of the language
itself, we think, includes Antarctica, even though it has no
recognized government.
Our construction of the term "foreign country" draws support
from the language of § 1346(b), "[t]he principal provision of the
Federal Tort Claims Act."
Richards v.
United States,
369 U. S. 1, 6
(1962). That section waives the sovereign immunity of the United
States for certain torts committed by federal employees "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)
(emphasis added). We have construed § 1346(b) in determining what
law should apply in actions brought under the FTCA. See
Richards, supra. But by its terms the section is more than a
choiceof-law provision: It delineates the scope of the United
States' waiver of sovereign immunity. If Antarctica were not a
"foreign country," and for that reason included within the FTCA's
coverage, § 1346(b) would instruct courts to look to the law of a
place that has no law in order to determine the
202
liability of the United States-surely a bizarre result.3 Of
course, if it were quite clear from the balance of the statute that
governmental liability was intended for torts committed in
Antarctica, then the failure of § 1346(b) to specify any governing
law might be treated as a statutory gap that the courts could fill
by decisional law. But coupled with what seems to us the most
natural interpretation of the foreigncountry exception, this
portion of § 1346(b) reinforces the conclusion that Antarctica is
excluded from the coverage of the FTCA.
Section 1346(b) is not, however, the only FTCA provision that
contradicts petitioner's interpretation of the foreigncountry
exception. The statute's venue provision, § 1402(b), provides that
claims under the FTCA may be brought "only in the judicial district
where the plaintiff resides or wherein the act or omission
complained of occurred." Because no federal judicial district
encompasses Antarctica, petitioner's interpretation of the FTCA
would lead to yet another anomalous result: The FTCA would
establish jurisdiction for all tort claims against the United
States arising in Antarctica, but no venue would exist unless the
claimant happened to reside in the United States.4 As we observed
in
Brunette
3 Nor can the law of the plaintiff's domicil, Oregon here, be
substituted in FTCA actions based on torts committed in Antarctica.
"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 .... "
Richards
v.
United States, 369 U. S. 1,9 (1962).
Petitioner does not contend that her cause of action is based on
acts or omissions occurring in Oregon.
4 The history of the FTCA reveals that Congress declined to
enact earlier versions of the statute that would have
differentiated between foreign and United States residents. Those
versions would have barred claims "arising in a foreign country
in behalf of an alien." S. 2690, 76th Cong., 1st Sess., §
303(12) (1939) (emphasis added); H. R. 7236, 76th Cong., 1st Sess.,
§ 303(12) (1939) (emphasis added). At the suggestion of the
Attorney General, the last five words of the proposed bills were
dropped. See Hearings on H. R. 5373 and H. R. 6463 before the House
Committee on the Judiciary, 77th Cong., 2d Sess., 29, 35, 66
(1942). As we observed in
203
Machine Works, Ltd. v.
Kockum Industries, Inc.,
406 U. S. 706,
710, n. 8 (1972), "Congress does not in general intend to create
venue gaps, which take away with one hand what Congress has given
by way of jurisdictional grant with the other." Thus, in construing
the FTCA, it is "reasonable to prefer the construction that avoids
leaving such a gap,"
ibid., especially when that
construction comports with the usual meaning of a disputed
term.
Our decisions interpreting the FTCA contain varying statements
as to how it should be construed. See,
e. g.,
United
States v.
Yellow Cab Co., 340 U. S. 543, 547
(1951);
Dalehite v.
United States, 346 U. S. 15, 31 (1953);
United States v.
Orleans, 425 U. S. 807, 813
(1976);
Kosak v.
United States, 465 U. S. 848, 853, n. 9
(1984). See also
United States v.
Nordic Village,
Inc., 503 U. S.
30, 34 (1992). A recent statement of this sort, and the one to
which we now adhere, is found in
United States v.
Kubrick, 444
U. S. 111, 117-118 (1979) (citations omitted): "We should also
have in mind that the Act waives the immunity of the United States
and that ... we should not take it upon ourselves to extend the
waiver beyond that which Congress intended. Neither, however,
should we assume the authority to narrow the waiver that Congress
intended." Reading the foreign-country exception to the FTCA to
exclude torts committed in Antarctica accords with this canon of
construction.
Lastly, the presumption against extraterritorial application of
United States statutes requires that any lingering doubt regarding
the reach of the FTCA be resolved against
United States v.
Spelar, 338 U. S. 217, 220
(1949), "[t]he superseded draft had made the waiver of the
Government's traditional immunity turn upon the fortuitous
circumstance of the injured party's citizenship." The amended
version, however, "identified the coverage of the Act with the
scope of United States sovereignty."
Id., at 220-221. At
least insofar as Antarctica is concerned, petitioner's
interpretation of the FTCA would effectively resurrect the scheme
rejected by Congress; it would deny relief to foreign residents in
circumstances where United States residents could recover.
204
its encompassing torts committed in Antarctica. "It is a
longstanding principle of American law 'that legislation of
Congress, unless a contrary intent appears, is meant to apply only
within the territorial jurisdiction of the United States.'"
EEOC v.
Arabian American Oil Co., 499 U. S. 244,248 (1991)
(quoting
Foley Bros., Inc. v.
Filardo, 336 U. S. 281, 285
(1949)). In applying this principle, "[w]e assume that Congress
legislates against the backdrop of the presumption against
extraterritoriality."
Arabian American Oil Co., supra, at
248; accord,
e. g., Argentine Republic v.
Amerada Hess
Shipping Corp., 488 U. S. 428, 440 (1989)
("When it desires to do so, Congress knows how to place the high
seas within the jurisdictional reach of a statute"). The
applicability of the presumption is not defeated here just because
the FTCA specifically addresses the issue of extraterritorial
application in the foreign-country exception. To the contrary, as
we stated in
United States v.
Spelar, 338 U. S. 217, 222
(1949), "[t]hat presumption, far from being overcome here, is
doubly fortified by the language of this statute and the
legislative purpose underlying it." Petitioner does not assert, nor
could she, that there is clear evidence of congressional intent to
apply the FTCA to claims arising in Antarctica.5
For all of these reasons, we hold that the FTCA's waiver of
sovereign immunity does not apply to tort claims arising in
Antarctica. Some of these reasons are based on the language and
structure of the statute itself; others are based on presumptions
as to extraterritorial application of Acts of Congress and as to
waivers of sovereign immunity. We
5 Petitioner instead argues that the presumption against
extraterritoriality applies only if it serves to avoid "'unintended
clashes between our laws and those of other nations which could
result in international discord.''' Brief for Petitioner 16
(quoting
EEOC v.
Arabian American Oil Co., 499 U. S.,
at 248). But the presumption is rooted in a number of
considerations, not the least of which is the commonsense notion
that Congress generally legislates with domestic concerns in
mind.
205
think these norms of statutory construction have quite likely
led us to the same conclusion that the 79th Congress would have
reached had it expressly considered the question we now decide: It
would not have included a desolate and extraordinarily dangerous
land such as Antarctica within the scope of the FTCA. The judgment
of the Court of Appeals is therefore
Affirmed.
JUSTICE STEVENS, dissenting.
In my opinion the Court's decision to grant certiorari in this
case was a wise exercise of its discretion. The question whether
the United States should be held responsible for the tortious
conduct of its agents in the vast "sovereignless region" of
Antarctica,
ante, at 198, is profoundly important, not only
because its answer identifies the character of our concern about
ordinary justice, but also because Antarctica is just one of three
vast sovereignless places where the negligence of federal agents
may cause death or physical injury. The negligence that is alleged
in this case will surely have its parallels in outer space as our
astronauts continue their explorations of ungoverned regions far
beyond the jurisdictional boundaries that were familiar to the
Congress that enacted the Federal Tort Claims Act (FTCA) in 1946.
Moreover, our jurisprudence relating to negligence of federal
agents on the sovereignless high seas points unerringly to the
correct disposition of this case. Unfortunately, the Court has
ignored that jurisprudence in its parsimonious construction of the
FTCA's "sweeping" waiver of sovereign immunity. 1
In theory the territorial limits on the consent to sue the
United States for the torts of its agents might be defined in four
ways: (1) there is no such limit; (2) territory subject to
1 "The Federal Tort Claims Act waives the Government's immunity
from suit in sweeping language."
United States v.
Yellow
Cab Co., 340 U.
S. 543, 547 (1951).
206
the jurisdiction of a foreign country is the only exclusion; (3)
it also excludes sovereignless land areas such as Antarctica, but
it includes the high seas and outer space; or (4) it has an
"exclusive domestic focus" that applies "only within the
territorial jurisdiction of the United States." 2 The "foreign
country" exclusion in 28 U. S. C. § 2680(k) 3 unquestionably
eliminates the first possibility. In my opinion, the second is
compelled by the text of the Act.4 The third possibility is not
expressly rejected by the Court, but the reasoning in its terse
opinion seems more consistent with the Government's unambiguous
adoption of the fourth, and narrowest, interpretation. I shall
therefore first explain why the text of the FTCA unquestionably
requires rejection of the Government's submission.
I
The FTCA includes both a broad grant of jurisdiction to the
federal courts in § 1346(b) 5 and a broad waiver of sover-
2 See Brief for United States 16, 21-22.
3 "The provisions of this chapter and section 1346(b) of this
title shall not apply to-
"(k) Any claim arising in a foreign country." 28 U. S. C. §
2680(k).
4 In short, I agree with most of the analysis in Judge
Fletcher's dissenting opinion in this case and Judge Wilkey's
opinion for the Court of Appeals for the District of Columbia
Circuit in
Beattie v.
United States, 244 U. S. App.
D. C. 70,
756 F.2d
91 (1984). Indeed, I am persuaded that the 79th Congress would
have viewed torts committed by federal agents in "desolate and
extraordinarily dangerous" lands as falling squarely within the
central purpose of the FTCA.
Ante, at 205.
5 Title 28 U. S. C. § 1346(b) provides:
"Subject to the provisions of chapter 171 of this title, the
district courts, together with the United States District Court for
the District of the Canal Zone and the District Court of the Virgin
Islands, shall have exclusive jurisdiction of civil actions on
claims against the United States, for money damages, accruing on
and after January 1, 1945, for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office or employment, under circumstances where
the
207
eign immunity in § 2674.6 Neither of these sections identifies
any territorial limit on the coverage of the Act. That Congress
intended and understood the broad language of those two provisions
to extend beyond the territory of the United States is demonstrated
by its enactment of two express exceptions from that coverage that
would have been unnecessary if the initial grant of jurisdiction
and waiver of immunity had been as narrow as the Government
contends. One of those, of course, is the "foreign country"
exclusion in § 2680(k). See n. 6,
supra. The other is the
exclusion in § 2680(d) for claims asserted under the Suits in
Admiralty Act or the Public Vessels Act.7 Without that exclusion, a
party with a claim against the United States cognizable under
either of those venerable statutes would have had the right to
elect the pre-existing remedy or the newly enacted FTCA remedy.
Quite obviously that exclusion would have been unnecessary if the
FTCA waiver did not extend to the sovereignless expanses of the
high seas.
Indeed, it was the enactment of the FTCA in 1946 that first
subjected the United States to liability for maritime negligence
claims that could not be maintained under either the Suits in
Admiralty Act or the Public Vessels Act,S in particular, claims
arising from death or injury on the high seas.
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." 6 Section 2674 provides, in pertinent part:
"The United States shall be liable, respecting the provisions of
this title relating to tort claims, in the same manner and to the
same extent as a private individual under like circumstances, but
shall not be liable for interest prior to judgment or for punitive
damages."
7 Section 2680(d) excludes from the coverage of the FTCA "[a]ny
claim for which a remedy is provided by sections 741-752, 781-790
of Title 46, relating to claims or suits in admiralty against the
United States."
8 See
United States v.
United Continental Tuna
Corp., 425 U. S.
164, 172 (1976) ("Maritime tort claims deemed beyond the reach
of both Acts could be brought only on the law side of the district
courts under the Federal Tort Claims Act").
208
As enacted in 1920, the Death on the High Seas Act (DOHSA)
provided a remedy against private parties but contained no waiver
of sovereign immunity.9 That changed with the enactment of the
FTCA, which waived the sovereign immunity of the United States for
claims arising on the high seas under the DOHSA and the general
maritime law. See,
e. g., United States v.
Gavagan,
280 F.2d
319, 321 (CA5 1960) (holding United States liable, under the
FTCA and the DOHSA, for death resulting from negligent rescue
efforts on the high seas), cert. denied, 364 U. S. 933 (1961);
Blumenthal v.
United States, 189 F. Supp. 439,
446-447 (ED Pa. 1960) ("In the same manner as a private person is
liable under the Death on the High Seas Act, so, too, is the
Government under the Federal Tort Claims Act"), aff'd,
306 F.2d
16 (CA3 1962);
Kunkel v.
United States, 140 F.
Supp. 591, 594 (SD Cal. 1956) (same);
Moran v.
United
States, 102 F. Supp. 275 (Conn. 1951) (holding that the FTCA
waived the sovereign immunity of the United States for claims
arising from both personal injury and death on the high seas). See
also
McCormick v.
United States, 680 F.2d
345, 349 (CA5 1982) (citing
Moran with approval);
Roberts v.
United States, 498 F.2d
520, 525526 (CA9 1974) (noting that prior to 1960 amendments to
Suits in Admiralty Act, FTCA waived sovereign immunity for claims
under the general maritime law and the DOHSA).
In 1960, Congress amended the Suits in Admiralty Act so as to
bring
all maritime torts asserted against the United States,
including those arising under the DOHSA, within the purview of the
Suits in Admiralty Act and thus outside the waiver of sovereign
immunity in the FTCA. See
United States v.
United
Continental Tuna Corp., 425 U. S. 164, 176, n. 14
(1976). There can be no disputing the fact, however, that at the
time it was enacted, the FTCA waiver extended to the sovereignless
reaches of the high seas. Since the geographic scope of that waiver
has never been amended, the
9pub. L. 69-165, 41 Stat. 537, codified at 46 U. S. C. App. §
761
et seq.
209
Government's submission that it is confined to territory under
the jurisdiction of the United States is simply untenable.
That the 79th Congress intended the waiver of sovereign immunity
in the FTCA to extend to the high seas does not, of course, answer
the question whether that waiver extends to the sovereignless
region of Antarctica. It does, however, undermine one premise of
the Court's analysis: that the presumption against the
extraterritorial application of federal statutes supports its
narrow construction of the geographic reach of the FTCA. As the
Court itself acknowledges, see
ante, at 204, that
presumption operates "unless a contrary intent appears." Here, the
contrary intent is unmistakable. The same Congress that enacted the
"foreign country" exception to the broad waiver of sovereign
immunity in §2674 subjected the United States to claims for
wrongful death and injury arising well beyond the territorial
jurisdiction of the United States. The presumption against
extraterritorial application of federal statutes simply has no
bearing on this case.
II
The Government, therefore, may not prevail unless Antarctica is
a "foreign country" within the meaning of the exception in
subsection (k). Properly, in my view, the Court inquires as to how
we are to construe this exception to the FTCA's waiver of sovereign
immunity.
Ante, at 203. Instead of answering that question,
however, the Court cites a nebulous statement in
United
States v.
Kubrick, 444 U. S. 111, 117-118
(1979), and simply asserts that construing the foreign-country
exception so as to deny recovery to this petitioner somehow accords
with congressional intent.
Ante, at 203.
I had thought that canons of statutory construction were tools
to be used to
divine congressional intent, not empty phrases
used to
ratify whatever result is desired in a particular
case. In any event, I would answer the question that
210
the Court poses, but then ignores. And as I read our cases, the
answer is clear: Exceptions to the" 'sweeping'" waiver of sovereign
immunity in the FTCA should be, and have been, "narrowly
construed."
United States v.
Nordic Village, Inc.,
503 U. S. 30, 34
(1992) (quoting
United States v.
Yellow Cab Co.,
340 U. S. 543,
547 (1951)).10 Accordingly, given a choice between two acceptable
interpretations of the term "country"-it may designate either a
sovereign nation or an expanse of land-it is our duty to adopt the
former.
Even without that rule of construction, we should favor the
interpretation of the term that the Court has previously endorsed.
Referring specifically to the term as used in the FTCA, we stated:
"We know of no more accurate phrase in common English usage than
'foreign country' to denote territory subject to the sovereignty of
another nation."
United States v.
Spelar, 338 U. S. 217, 219
(1949). That interpretation is consistent with a statutory scheme
that imposes tort liability on the Government "in the same manner
and to the same extent as a private individual under like
circumstances," see n. 6,
supra. As we explained in
Spelar: "[T]hough 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." 338 U. S., at 221.
Thus, the narrow interpretation of the term "for-
10 See also
Block v.
Neal, 460 U. S. 289, 298
(1983), and
United States v.
Aetna Casualty &
Surety Co., 338 U. S. 366, 383
(1949). As we stated in the latter:
"In argument before a number of District Courts and Courts of
Appeals, the Government relied upon the doctrine that statutes
waiving sovereign immunity must be strictly construed. We think
that the congressional attitude in passing the Tort Claims Act is
more accurately reflected by Judge Cardozo's statement ... : 'The
exemption of the sovereign from suit involves hardship enough where
consent has been withheld. We are not to add to its rigor by
refinement of construction where consent has been announced.'''
Ibid. (quoting
Anderson v.
Hayes Construction Co.,
243 N. Y. 140, 147, 153 N. E. 28, 29-30 (1926)).
211
eign country" is precisely tailored to make the scope of the
subsection (k) exception coextensive with its justification.
III
The Court seeks to buttress its interpretation of the "foreign
country" exception by returning to the language of the
jurisdictional grant in § 1346(b). As I have noted, federal courts
have jurisdiction of civil claims against the United States "for
injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, 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." 11
Emphasizing the last dozen words, the Court essentially argues that
Antarctica is "a place that has no law" and therefore it would be
"bizarre" to predicate federal liability on its governing law.
Ante, at 202.12
Although the words the Court has italicized indicate that
Congress may not have actually thought about sovereignless regions,
they surely do not support the Court's conclusion.
11 The Court inaccurately refers to the jurisdictional grant as
the section that "waives the sovereign immunity of the United
States,"
ante, at 201. It is actually §2674 that waives
immunity from liability by simply providing: "The United States
shall be liable, respecting the provisions of this title relating
to tort claims, in the same manner and to the same extent as a
private individual under like circumstances .... " See n. 6, supra.
The Court does not quote §2674.
12 Apparently the Court is assuming that private contracts made
in Antarctica are unenforceable and that there is no redress for
torts committed by private parties in sovereignless regions.
Fortunately our legal system is not that primitive. The statutory
reference to "the law of the place where the act or omission
occurred" was unquestionably intended to identify the substantive
law that would apply to a comparable act or omission by a private
party at that place. As long as private conduct is constrained by
rules of law, and it certainly is in Antarctica, see
infra,
at 212-213, there is a governing "law of the place" within the
meaning of the FTCA.
212
Those words, in conjunction with § 2674, require an answer to
the question whether a private defendant, in like circumstances,
would be liable to the complainant. The Court fails even to ask
that question, possibly because it is so obvious that petitioner
could maintain a cause of action against a private party whose
negligence caused her husband's death in Antarctica. It is simply
wrong to suggest, as the Court does, that Antarctica is "a place
that has no law,"
ante, at 201.13
The relevant substantive law in this case is the law of the
State of Oregon, where petitioner resides. As was well settled at
English common law before our Republic was founded, a nation's
personal sovereignty over its own citizens may support the exercise
of civil jurisdiction in transitory actions arising in places not
subject to any sovereign.
Mostyn v.
Fabrigas, 98 Eng.
Rep. 1021, 1032 (K. B. 1774). See also
Dutton v.
Howell, 1 Eng. Rep. 17, 21 (H. L. 1693). This doctrine of
personal sovereignty is well recognized in our cases. As Justice
Holmes explained in
American Banana Co. v.
United Fruit
Co., 213 U. S.
347 (1909):
"No doubt in regions subject to no sovereign, like the high
seas, or to no law that civilized countries would recognize as
adequate, such [civilized nations] may treat some relations between
their citizens as governed by their own law, and keep to some
extent the old notion of personal sovereignty alive." Id.,
at 355-356.
13 Indeed, it borders on the absurd to suggest that Antarctica
is governed by nothing more than the law of the jungle. The United
States exercises both criminal jurisdiction, see 18 U. S. C. §
7(7), and taxing jurisdiction, see 26 U. S. C. § 863(d)(2)(A), over
the approximately 2,500 Americans that live and work in and around
Antarctica each year. See National Science Foundation, Facts About
the U. S. Antarctic Program 1 (July 1990). The National Science
Foundation operates three year-round stations in Antarctica, the
largest of which is composed of 85 buildings and has a harbor,
landing strips on sea ice and shelf ice, and a helicopter pad.
Ibid. Transportation to and from New Zealand is frequent
during the summer months.
Id., at 2.
213
Justice Holmes was referring to the assertion of
extraterritorial jurisdiction by the United States rather than an
individual State, but it is clear that the States also have ample
power to exercise legislative jurisdiction over the conduct of
their own citizens abroad or on the high seas. As we explained in
Skiriotes v.
Florida, 313 U. S. 69 (1941):
"If the United States may control the conduct of its citizens
upon the high seas, we see no reason why the State of Florida may
not likewise govern the conduct of its citizens upon the high seas
with respect to matters in which the State has a legitimate
interest and where there is no conflict with acts of Congress."
Id., at 77.14
Surely the State of Oregon, the forum State, has a substantial
interest in applying its civil tort law to a case involving the
allegedly wrongful death of the spouse of one of its residents.
Certainly no other State has an interest in applying its law to
these facts. Moreover, application of Oregon's substantive law
would in no way conflict with an Act of Congress because Congress
has expressly subjected the United States to the laws of the
various States for torts committed by the United States and its
agents. It is thus perfectly clear that were the defendant in this
case a private party, there would be law to apply to determine that
party's liability to petitioner. Given the plain language of §
2674, I see no basis for the Court's refusal to follow the
statutory command and hold the United States "liable ... in the
same manner and to the same extent as a private individual under
like circumstances."
14 Again, as Justice Holmes explained:
"[T]he bare fact of the parties being outside the territory [of
the United States] in a place belonging to no other sovereign would
not limit the authority of the State, as accepted by civilized
theory. No one doubts the power of England or France to govern
their own ships upon the high seas." The Hamilton,
207 U. S. 398, 403
(1907).
214
IV
Petitioner's action was filed "in the judicial district where
the plaintiff resides," as § 1402(b) authorizes; there is,
therefore, no objection to venue in this case. Because that
provision would not provide a forum for a comparable action brought
by a nonresident alien, the statute contains an omission that is no
stranger to our law. In our opinion in Bru
nette Machine Works,
Ltd. v.
Kockum Industries, Inc., 406 U. S. 706, 710, n.
8 (1972), we identified examples of "cases in which the federal
courts have jurisdiction but there is no district in which venue is
proper" and stated that "in construing
venue statutes it is
reasonable to prefer the construction that avoids leaving such a
gap." (Emphasis added.) N either in that case nor in any other did
we suggest that a venue gap should be avoided by adopting a narrow
construction of either a jurisdictional grant or the scope of a
federal cause of action. Yet that is the Court's perverse solution
to the narrow venue gap in the FTCA.
Because a hypothetical handful of nonresident aliens may have no
forum in which to seek relief for torts committed by federal agents
in outer space or in Antarctica, the Court decides that the scope
of the remedy itself should be narrowly construed. This anomalous
conclusion surely derives no support whatsoever from the basic
decision to include aliens as well as citizens within the
protection of the statute, particularly since the overwhelming
majority of aliens who may have occasion to invoke the FTCA are
surely residents. As Judge Fletcher accurately observed in her
dissenting opinion in the Court of Appeals:
"Those who have no problem with venue should not be foreclosed
from bringing suit simply because others cannot, particularly with
respect to a statute such as the FTCA the primary purpose of which,
as we have seen, was to expand the jurisdiction of the federal
courts." 953 F.2d
1116, 1122 (CA9 1991).
215
At most, the imperfections in the statute indicate that in 1946
the 79th Congress did not specifically consider the likelihood of
negligence actions arising in outer space or in a sovereignless
territory such as Antarctica. In view of the fact that it did
authorize actions against the United States arising out of
negligence on the high seas, see
supra, at 207209, I am
bewildered by the Court's speculation that if it had expressly
considered the equally dangerous area at issue in this case, it
would have distinguished between the two.
Ante, at 204-205.
The claim asserted in this case is entirely consistent with the
central purpose of the entire Act.
Indeed, given that the choice is between imposing individual
liability on federal agents for torts committed in the course of
their employment, on the one hand, or holding their employer
responsible, on the other hand, the amendment to the FTCA adopted
by Congress in 1988 sheds more light on the issue presented in this
case than the Court's unfounded speculation about congressional
intent. The congressional findings explaining the decision to
immunize federal employees from personal liability for negligence
in the performance of their duties indicate that Congress
recognizes both the practical value and the justice of a generous
interpretation of the FTCA.15 Moreover, those findings are
thoroughly
15 In enacting the Federal Employees Liability Reform and Tort
Compensation Act of 1988, the stated purpose of which was "to
protect Federal employees from personal liability for common law
torts committed within the scope of their employment, while
providing persons injured by the common law torts of Federal
employees with an appropriate remedy against the United States," §
2(b), 102 Stat. 4564, 28 U. S. C. § 2671 note, Congress made the
following findings:
"(1) For more than 40 years the Federal Tort Claims Act has been
the legal mechanism for compensating persons injured by negligent
or wrongful acts of Federal employees committed within the scope of
their employment.
"(2) The United States, through the Federal Tort Claims Act, is
responsible to injured persons for the common law torts of its
employees in the same manner in which the common law historically
has recognized the
216
consistent with the interpretative approach of the unusually
distinguished panel of Circuit Judges who, shortly after the FTCA
was passed, wrote:
"When after many years of discussion and debate Congress has at
length established a general policy of governmental generosity
toward tort claimants, it would seem that that policy should not be
set aside or hampered by a niggardly construction based on formal
rules made obsolete by the very purpose of the Act itself.
Particularly should this be true as to the broad terms of coverage
employed in the basic grant of liability itself." Spelar v.
United States, 171 F.2d 208, 209 (CA2 1948).16
The wisdom that prompted the Court's grant of certiorari is not
reflected in its interpretation of the 1946 Act. Rather, it
reflects a vision that would exclude electronic eavesdropping from
the coverage of the Fourth Amendment and satellites from the
coverage of the Commerce Clause. The international community
includes sovereignless places but no
responsibility of an employer for torts committed by its
employees within the scope of their employment.
"(3) Because Federal employees for many years have been
protected from personal common law tort liability by a broad based
immunity, the Federal Tort Claims Act has served as the sole means
for compensating persons injured by the tortious conduct of Federal
employees.
"(4) Recent judicial decisions, and particularly the decision of
the United States Supreme Court in Westfall v. Erwin, have
seriously eroded the common law tort immunity previously available
to Federal employees.
"(5) This erosion of immunity of Federal employees from common
law tort liability has created an immediate crisis involving the
prospect of personal liability and the threat of protracted
personal tort litigation for the entire Federal workforce.
"(6) The prospect of such liability will seriously undermine the
morale and well being of Federal employees, impede the ability of
agencies to carry out their missions, and diminish the vitality of
the Federal Tort Claims Act as the proper remedy for Federal
employees torts." § 2(a), 102 Stat. 4563, 28 U. S. C. § 2671
note.
16 The members of the panel were Learned Hand, Chief Judge, and
Augustus N. Hand and Charles E. Clark, Circuit Judges.
217
places where there is no rule of law. Majestic legislation like
the Federal Tort Claims Act should be read with the vision of the
judge, enlightened by an interest in justice, not through the
opaque green eyeshade of the cloistered bookkeeper. As President
Lincoln observed in his first State of the Union Message:
"It is as much the duty of Government to render prompt justice
against itself, in favor of citizens, as it is to administer the
same between private individuals." 17
I respectfully dissent.
17 Congo Globe, 37th Cong., 2d Sess., App. 2 (1861).
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