Sandra Jean Smith v. United States

concurring in part and concurring in the judgment:

I concur in all but Part II of the majority’s opinion. I subscribe to the holding of the D.C. Circuit in Beattie v. United States, 756 F.2d 91 (D.C.Cir.1984), that Antarctica is not a foreign country within the meaning of the FTCA. Nevertheless, I agree with the majority that it would be inconsistent with EEOC v. Arabian American Oil Co., 111 S.Ct. 1227 (1991), to hold that the FTCA applies to torts occurring in Antarctica. Accordingly, I concur in the result of the majority opinion.

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.

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…

932 F.2d 791 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. David Gernant, Portland, Or., for plaintiff-appellant. Mark B. Stern, Appellate Staff Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendant-appellee. Appeal from the United States District Court for the District of Oregon. Before GOODWIN, FLETCHER and FERNANDEZ, Circuit Judges. GOODWIN, Circuit Judge: 1 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 2 * "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…