SMITH v. UNITED STATES
Legal provision: Federal Tort Claims, or Alien Tort Statute
Argument of David Jeremy Bederman
Chief Justice Rehnquist: We'll hear argument next in number 91-1538, Sandra Jean Smith v. the United States.
Mr. Bederman: Mr. Chief Justice, and may it please the Court:
Petitioner's husband, John Emmett Smith travelled to Antarctica as an employee of a Government contractor, and because of the Government's negligence died in Antarctica.
This case comes under the Federal Tort Claims Act, the sole avenue by which Mrs. Smith can sue the Government, and concerns the proper construction of the act's foreign country exception, which the Government contends bar jurisdiction here.
Petitioner maintains that the sole purpose of the foreign country exception is to ensure that the United States' liability under the act is not governed by the tort law of a foreign power.
It is undisputed here that Antarctica is a sovereignless region and has no civil tort law of its own, and therefore Petitioner maintains that Antarctica cannot be a foreign country for the purposes of the FTCA.
Now, averring to that point, the chief point, that the sole purpose of the Federal Tort Claims Act's foreign country exception was to prevent intrusion of foreign law into domestic litigation, we believe this conclusion is amply supported by this Court's only previous opportunity to review the foreign country exception, which was in Spelar v. the United States.
Moreover, petitioner submits that the emphasis on the presence or absence of a foreign tort law leads to consistent results, particularly when there is ambiguity over the presence or absence of a foreign territorial sovereign.
And thirdly, on this primary point, petitioner maintains that Congress is well aware of alternate formulations dealing with the notion foreign country, as I aver permissive, or in its mandatory forms, and therefore we can fairly interpret the foreign country exception to apply in this case to an area that is sovereignless, the one area on earth, apart from the high seas, we contend that is sovereignless.
If this is the case and if these premises are accepted, again it is undisputed in this case that Antarctica is, in fact, a sovereignless area having no civil tort law of its own.
Now, in view of this, petitioner maintains that it is, in fact, the Government's position which leads to illogical and peculiar results.
The first instance of the Government's position would be to interpret the act so that Antarctica is a foreign country, which would have the effect, the Government maintains, of barring Mrs. Smith's claim.
But it is clear on the record that if Mr. Smith had died because of the Government's negligence just a mile or two offshore of the McMurdo Station on the southern ocean, that that claim would cognizable under the Death on the High Seas Act, DOHSA, for the Suits in Admiralty Act.
Unknown Speaker: Is the... does the Death on the High Seas Act determine the law that will be applied?
Mr. Bederman: --The Death on the High Seas Act, the law applies in such an action is the Federal General Maritime Law--
Unknown Speaker: Okay.
Mr. Bederman: --as distinct, of course, from the Federal Tort Claims Act.
Unknown Speaker: And as distinct from this... under the Tort Claims Act and hence is distinct in this case because there isn't any law in Antarctica.
Mr. Bederman: Well, and--
Unknown Speaker: I mean there's no law... there's no tort law of the place of the tort, is there here?
So even if you win on your argument, why don't you lose on the ground that under the terms of the Tort Claims Act there is no law that can be applied and therefore it must not be intended to apply here?
Mr. Bederman: --Justice Souter, petitioner maintains that the primary object of the Federal Tort Claims Act is to place the Government in exactly the same position as a private individual if that private individual were a tort feasor.
There is no question that if this were a case between Mrs. Smith and the Government contractor, here ITT Antarctic Services, and that claim were brought in Oregon, that the law that would be applied in this case under either notions of personal sovereignty or under the conflicts restatement balancing tests, is the law of Oregon in this instance.
Unknown Speaker: Well that... that... assuming that to be the case, the fact is we've still got the Tort Claims Act, and that's not what the Tort Claims Act provides.
Mr. Bederman: Agreed.
The Federal Tort Claims Act's choice of law provision refers to the place where the act or omission occurred.
There is no dispute in this case that the relevant act or omission occurred in Antarctica.
This is not a headquarters claim.
But we maintain that the logical reading of that provision in the context with the foreign country exception and the rest of the statute, particularly the object to place the Government in the same position as a private individual, would be to allow the suit.
And the choice of law direction is clear and unambiguous.
There seems to be no dispute that under the relevant choice of law principles, the clear direction is to apply Oregon law here.
Unknown Speaker: No, but doesn't the... doesn't the reference to the law of the place of the tort include the choice of law rule of the place of the tort, so you don't even have a choice of law rule to begin with in this case?
Mr. Bederman: Well, Justice Souter, that's clearly the holding in Richards.
And, of course, petitioner does not dispute that holding nor does the Government.
What we believe is that implicit in the choice... even though Antarctica has no choice of law rules embedded in its law, because it has no law, nonetheless the appropriate choice of law rule to advocate is the notion of personal sovereignty, which obviously has limited relevance today because there are virtually no places in the world aside from Antarctica that have no civil tort law.
Otherwise it is--
Unknown Speaker: Well, how about Somalia?
Do you suppose they have one right now?
Mr. Bederman: --Justice O'Connor, I would imagine that despite the conditions in Somalia, no one would doubt that Somalian sovereignty, as one would understand that, is still intact.
And Somalia's civil tort law, although we might not recognize it as such, still continues in force and that it would... petitioner's submission would not be that Somalia, because of its current difficulties, ceases to be a foreign country.
Again, the petitioner's position is that the notion of looking for the presence or absence of a foreign tort law only comes into play when there is ambiguity over whether there is a presence of a... of a foreign territorial sovereign.
The Government's position would be for you to apply... to deviate from Spelar and apply a bright line test.
But there are dangers in that that the courts in this country have experienced, particularly a few years back with the international legal status of Okinawa after the end of World War II, where the courts struggled mightily to determine whether the United States was territorial sovereign on Okinawa, but ultimately concluded that that issue was not important, as per Spelar, because Japanese tort law was still in force.
Again, there isn't any concern in this case about a foreign tort law intruding.
And, again, if... if one recognizes that the purpose of the FTCA is to place the Government in the same position as a private tort feasor, the Government's submission would basically make Antarctica the legal equivalent of a black hole.
That is, people are governed by no law there.
And in a case brought by Sandra Jean Smith against a private contractor, that... that case would have to be nonsuited.
That is not a result which is countenanced in Anglo-American jurisprudence.
Unknown Speaker: Well, that... that doesn't follow, does it?
Because in a case brought against a private contractor they wouldn't be stuck with the provision of the Federal Tort Claims Act saying you necessarily have to apply the law of the place of the tort.
Mr. Bederman: Well--
Unknown Speaker: You could then have no... you then would have no bar to such theories as personal sovereignty and so on.
You'd be able to figure out some way to find some law.
Mr. Bederman: --Well, Justice Souter, I mean not to get into a discourse about whether the lex loci delecti rule is still the rule adopted in the common law of most American States, it seems to me that notions of personal sovereignty and the conflict restatement test are perfectly consistent with the choice of law direction of the Federal Tort Claims Act.
As this Court recognized in Richards, it is incumbent in... sort of in view of the interstitial character of the Federal Tort Claims Act and recognition of sort of even what one might call a Federalism concern in applying, in this case, Oregon wrongful... Oregon's wrongful death statute, that we can countenance a case where it proceeds on some notion of personal sovereignty or under balancing of factors.
The... the other... again, the Government's position, it seems to me, is the one that suffers from... from difficulties.
Because of the difficulty of reconciling the... the result if John Emmett Smith had died on the southern ocean just offshore of the McMurdo Station as opposed to having been unlucky enough to die on land, that seems to be one powerful reason to... to interpret the foreign country exception.
And consistently, we think, with its language, to include Antarctica or to conclude that Antarctica is not a foreign country.
Likewise, I've averred to what I regard as their peculiar position that Antarctica has no law, and necessarily following from that that in a case of a private action, that no... that no law could be applied and the case would be nonsuited.
In view of this, it seems to me clear that the... that the proper, the clear, the consistent interpretation of the foreign country exception would be to hold that Antarctica cannot be a foreign country.
That concludes my argument in chief.
I'll entertain questions.
Unknown Speaker: Thank you, Mr. Bederman.
Mr. Bederman: I reserve, of course, the remainder of my time.
Unknown Speaker: Yes, certainly.
Argument of Christopher J. Wright
Mr. Wright: Mr. Chief Justice and may it please the Court:
The Federal Tort Claims Act contains no affirmative indication that Congress intended it to have extraterritorial application.
To the contrary, Congress specified that the United States is not liable for any claim arising in a foreign country.
As this Court stated in Spelar, the presumption against extraterritoriality is doubly fortified by the foreign country exception.
Either together or separately, the foreign country exception and the presumption against extraterritoriality lead to the conclusion that the United States has not waived sovereign immunity for torts arising in Antarctica.
Let me turn first to the FTCA and the foreign country exception.
There's no question here that Antarctica is foreign.
It is also a country under the primary dictionary definition since it's a... a vast expanse of land.
Country also means sovereign nation, and we acknowledge, as does petitioner, that... that the phrase can be read either way.
But the phrase shouldn't be read in isolation.
It should be read together with the other provisions of the FTCA.
Or as the dissenter in the D.C. Circuit case put it, it would be perverse to give the explicit exclusion of foreign claims the consequence of expanding the act.
And reading the foreign country exception together with the FTCA's choice of law provision and the venue provision of the act, seems to us to lead clearly to the conclusion that petitioner's suit is barred.
Unknown Speaker: Mr. Wright, I'd just like to raise a question to have you comment on it at your convenience.
I take it your position would apply to a tort in outer space where a... the Government, through Government negligence in Houston or someplace, caused a satellite to bump into someone or an individual got injured.
Now, you would take the same position there, would you not?
Mr. Wright: Yes.
Unknown Speaker: And you would say outer space is a foreign country.
Mr. Wright: I... I'm not sure we would say outer space is a foreign country.
In a... in a sense, if I may comment on this right now--
Unknown Speaker: Yes.
Mr. Wright: --I think that... I think that this hypothetical is useful in showing that even putting the foreign country exception to one side, the United States would prevail here.
The presumption against extraterritoriality would certainly apply in... in the case you hypothesize involving outer space.
Since there is no affirmative indication in the FTCA that it is meant to apply extraterritorially, that would be enough, we think, to support the conclusion that it does not apply in outer space.
Unknown Speaker: So you don't... you don't think the... the noncoverage in the Tort Claims Act of a foreign country limits the extraterritorial area... the presumption against extratory... extratory--
Mr. Wright: That's right.
Every time, every indication from Congress is... is contrary to the suggestion that it has extraterritorial application.
Congress accepted foreign countries.
It accepted the high seas.
Unknown Speaker: --Of course, on that view, at least, this exception is superfluous.
Mr. Wright: Um, Your Honor, I think that... I don't think that that's the case.
I think it's an affirmative indication--
Unknown Speaker: But I think you would decide all the cases that we hypothesize the same way under your analysis, whether or not this exception were in the statute.
Mr. Wright: --I... that... that's correct.
Unknown Speaker: Yeah.
Mr. Wright: We think that it's an affirmative indication of Congress' intent that the act does not apply extraterritorially.
It covers 99 percent of the cases that might arise, although perhaps that could change as time goes by.
Unknown Speaker: Mr. Wright, is it correct that the Tort Claims Act contains a specific exception for high seas torts?
Mr. Wright: Not exactly, Justice Souter.
It contains, in subsection (d) of 2680, a... an exception for suits arising under the Suits in Admiralty Act or the Public Vessels Act.
Unknown Speaker: Okay.
Mr. Wright: Those acts apply--
Unknown Speaker: Why--
Mr. Wright: --On the high seas, but they also apply in navigable waters, so they include areas--
Unknown Speaker: --So that does not necessarily implicitly defeat your position.
Mr. Wright: --That's right.
Unknown Speaker: Yeah, I see.
Mr. Wright, even... even though you say it's really just a... the foreign country provision is just a reaffirmation of the nonextraterritoriality, that there is some reason, was there not, to have that reaffirmation of nonextraterritoriality, when you have before you a statute that calls for the application of the law of the place where the tort occurred?
That... were it not for that foreign country exception, one might have been able to say that implicit in that there was a notion of extraterritorial application.
Mr. Wright: That--
Unknown Speaker: You know, I'm trying to explain why Congress would have put that in, since the ordinary meaning of all statutes is that they don't have extraterritorial application.
Mr. Wright: --A case like Spelar arising in Canada, lets say, would be much harder if the foreign country exception weren't there.
The foreign country exception, as I say, makes 99 percent of the cases easy.
Unknown Speaker: Right.
May I ask on the... the language about the law of the place where the act occurred, is that the language in subsection (b) that we're talking about?
Mr. Wright: The... it's the language in 1346--
Unknown Speaker: Which doesn't really say... it doesn't, in so many words, say that that law applies to claims against the United States.
It just says the United States shall be liable if a private person would be liable under the law of the place.
Mr. Wright: --I'm not sure whether you're--
Unknown Speaker: Or is there another law of the place provision in the statute?
Mr. Wright: --I was referring to section 1346(b).
Unknown Speaker: Yes.
The last line... the last clause is: If a private person would be liable to the claim in accordance with the law of the place where the act or omission occurred.
I guess we've construed that as implicitly indicating the court should apply the law of the place when it's a claim against the Federal Government, but it doesn't say so in so many words, does it?
Mr. Wright: Certainly, that... this Court's understanding in cases like Richards and Spelar has... has been that.
The United States would be liable in accordance with the law of the place where the act or omission occurred.
I... I guess I've read in accordance with to mean that that... that is the law that applies, and it--
Unknown Speaker: But it comes in the clause about if a private person would be liable.
Mr. Wright: --And I... I think it's quite clear under this Court's precedent that the law of the place where the act or omission occurred applies.
Now petitioner's sole response to the 1346(b) point is to... is to act as if it's merely a choice of law question, and applying the restatement he hypothesizes that it's reasonable to... to apply Oregon law.
But... but that, of course, overlooks the language of the statute that says the law of the place where the act or omission occurred applies.
Antarctica doesn't have tort law, it doesn't have choice of law rules, so in our view the law of the place where the act or omission occurred is... is not being applied.
If Antarctica has had foreign law... had its own law, rather, it would be even more clear, I think, that this claim would be barred since, of course, any Antarctica law would be foreign and petitioner concedes that one of the primary purposes of the FTCA is to avoid the application of foreign law.
Let me mention the venue provision briefly too, if I might.
It provides for venue in the place where the act or omission occurred.
It also provides for venue where the plaintiff resides.
And so venue would lie in this particular case, although it would not lie in other cases like the D.C. Circuit case in Beattie, where the plaintiffs were not U.S. citizens.
Now this would, in effect, reinstate, rewrite the statute to say that claims arising in a foreign country in behalf of an alien are barred.
But... but that precise language was in front of Congress and it struck out at the Justice Department's request, the phrase in behalf of an alien from the draft bill.
So with respect to Antarctica, petitioner's position, in effect rewrites the bill in a way... it rewrites the law to reinsert language that Congress explicitly rejected.
Unknown Speaker: Mr. Wright, a moment ago you referred to what you say is petitioner's response to your 1346(b) point.
What precisely is your 1346(b) point?
Mr. Wright: I'm... I'm sorry, Your Honor.
That is the provision that says that the United States is liable, quote, in accordance with the law of the place where the act or omission occurred.
Unknown Speaker: And what deduction do you draw from that language?
Mr. Wright: That that... that it points you to Antarctica, there is no law to apply there, therefore the United States is not... has not waived sovereign immunity for torts arising in Antarctica.
Unknown Speaker: Thank... thank you.
Mr. Wright: The point I think Justice Souter well made a few minutes ago.
So even without the presumption against extraterritoriality, we would say that it's clear that Congress didn't intend to waive sovereign immunity for torts arising in Antarctica.
But... but that longstanding presumption resolves any doubt, in our view.
In EEOC v. Aramco this Court recently reiterated that a statute does not apply overseas unless there is evidence of an affirmative congressional intent to extend its provisions beyond our territorial waters.
For the reasons I've just outlined, not only is there no affirmative intent, to the contrary, the opposite conclusion should be drawn.
The principle provision points to Antarctica, in our view.
The venue provision would be rewritten to reinstate a result that Congress rejected, under petitioner's view.
And, of course, rather than suggesting that the act applies overseas, Congress expressly stated that it does not apply in a foreign country.
I think it's useful to compare this case with EEOC v. Aramco and I'd like to take a moment to do that.
In that case, of course, this Court held that title VII doesn't apply overseas.
Now, title VII contained an alien exemption provision stating that title VII didn't apply to the employment of aliens outside any State.
This Court acknowledged that by negative implication the alien exemption provision suggested that U.S. citizens might be covered overseas, but held that that was not clear enough to overcome the presumption.
Moreover, there was nothing in title VII that would have been rendered incoherent by a holding that it applied overseas.
And in our view, section 1346(b), the provision directing courts to the law of the place where the act or omission occurred, would have no meaning.
Unknown Speaker: We'll resume there at 1:00, Mr. Wright.
Chief Justice Rehnquist: Mr. Wright, you may resume your argument.
Mr. Wright: Thank you, Mr. Chief Justice.
I'd like to say a word about the purposes of the foreign country exception in the FTCA and the presumption against extraterritoriality.
Petitioner essentially hangs her whole argument on the fact that one purpose of those rules is to avoid the application of foreign law, but they have other purposes as well.
By limiting FTCA claims to, quote, claims arising in this country, as Assistant Attorney General Shea said when he proposed the language of the exception, Congress solved various other problems.
For instance, in this case suppose that the accident had occurred as the hikers approached the New Zealand base and had been witnessed by persons at the base.
Deposing those witnesses, subpoenaing them for trial in Oregon, wouldn't be simple matters, as... as the Ninth Circuit recognized in the Meredith case and as the Fourth Circuit recognized in the Burna case.
As Assistant Attorney General Shea put it, barring such claims... or not barring such claims, rather, would, quote, lead to a great deal of difficulty, unquote.
In addition, petitioner overlooks the general purpose of the FTCA.
It's a waiver of sovereign immunity, but it's subject to many limitations and exceptions, some of which are broad, like the discretionary function exception.
Essentially, before 1946 Congress itself handled all tort claims and Congress' broader purpose was to get rid of the cumbersome tort claim procedure, or at least to limit it sharply by waiving torts... in our view, waiving liability for torts committed in this country.
But petitioner and others injured overseas, in our view, are simply in the position that all plaintiffs were before 1946.
The presumption against extraterritoriality, this Court said in the Foley Brothers case, is premised on the notion that Congress... Congress' concern is assumed to be domestic.
And, indeed, in that case which involved application of the 8-hour rule in Iraq, this Court held that the law did not apply there.
There... there was no suggestion or discussion in the Court's opinion, on how this might conflict in any way with Iraqi law.
Petitioner also finds it odd that she might have a claim had the accident occurred on the high seas off the Antarctic shore.
Well, in our view that just shows that Congress knows how to waive immunity.
It has done it on the high seas and it hasn't done it in foreign countries.
Line drawing problems are, of course, unavoidable unless Congress waives immunity altogether or not at all.
If a diplomat driving to Ottawa gets in a traffic accident, the United States will be liable under the FTCA if the accident occurs on this side of the border, but not on the other side.
Petitioner has also suggested that it's unfair in some way that the United States has extended the tax and the criminal laws to Antarctica, but hasn't waived sovereign immunity for torts there.
Again, we think this helps us.
The tax statute specifically mentions Antarctica and the criminal law statute is phrased to make clear that it applies in all areas without a sovereign.
Congress knows how to cover Antarctica, it's done it in other statutes, it hasn't done it here.
In sum, petitioner is seeking this Court... asking this Court to infer an extraterritorial waiver of sovereign immunity.
There is no presumption in favor of such waivers.
In fact, they're doubly... the presumptions doubly run the other way.
Unknown Speaker: To whom does the United States criminal law apply in Antarctica?
Does... it has to be an American citizen, or--
Mr. Wright: If either the victim or the criminal is an American citizen under 18 U.S.C. 677--
Unknown Speaker: --Either the victim or the criminal.
Mr. Wright: --it's covered.
We don't think that there's any basis to infer--
Unknown Speaker: Mr. Wright, I don't see how you can say it's inferring... an inference.
It would expressly cover it but for the exception.
Mr. Wright: --Your Honor, the... I suppose--
Unknown Speaker: There's a general waiver and then a bunch of exceptions.
Mr. Wright: --There's a general waiver of tort immunity 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.
A private person would not be liable to the claimant in accordance with the law of the place where the act or omission occurred because there's no law in Antarctica to make that person liable.
Unknown Speaker: Oh, I see your argument, yeah.
Mr. Wright: Thus, in our view, finding--
Unknown Speaker: Do you think they waive sovereign immunity where the foreign law would apply, but not if domestic law applied?
But that's what they did, you say.
Mr. Wright: --No, Your Honor, we don't think that they waived sovereign immunity anywhere foreign law would apply.
The... the foreign country exception bars that.
We think that--
Unknown Speaker: Well, I know.
But you... you don't even need to get to the foreign country exception.
Mr. Wright: --That's right.
We think that Congress has waived immunity for torts occurring in the United States and has not waived it for torts occurring outside the United States.
The presumptions lead in that direction and to hold otherwise would... would require this Court to conclude that in the FTCA Congress waived sovereign immunity, but didn't create venue for many plaintiffs and directed the courts to apply the law of a place that doesn't have any tort law to apply.
Unknown Speaker: Is it part of your submission that if a private person sued another private person in Antarctica, there could be no recovery because there's no law applicable to the place where the act or omission occurred?
Mr. Wright: No, it's not our submission.
Unknown Speaker: Well, what... what law do you think would apply in such a case?
Mr. Wright: --Well I... I hesitate to... to attempt to apply the six-factor test set out in the restatement.
Unknown Speaker: But if you assume there is some law that would apply to a tort at the place where the act or omission occurred, why doesn't that bring it within the statute?
Mr. Wright: Well, I... I think Oregon can decide.
Oregon is not bound by the language of 1346(b) in the case of a suit between two private parties and can--
Unknown Speaker: Because of the... what the statute would be saying there is if a private person... the private person there would be liable in accordance with the law of someplace other than the place where the act or omission occurred.
Mr. Wright: --Yes.
But petitioner seeks to apply Oregon law here and that's not where the act or omission occurred.
And that's why, in our view, we should--
Unknown Speaker: But then Oregon law would govern torts in the place where the act occurred for at least Oregon citizens.
Mr. Wright: --If... if the Oregon court so decided, nothing in 1346(b)--
Unknown Speaker: Well, why couldn't the... the plaintiff in this case in an Oregon court say, well, just as Oregon would apply Oregon law there, that's the law of the place where the act occurred for the purposes of this case?
Mr. Wright: --Well, I... I don't think Oregon law becomes Antarctica law just because it might be applied in a private suit.
Unknown Speaker: You don't.
Mr. Wright: No, I don't.
Unknown Speaker: In other words, you could say that but it wouldn't be true.
Mr. Wright: I would--
Unknown Speaker: Unless five of us said it was true.
Mr. Wright: --Yes, Your Honor.
If there are no further questions, thank you.
Unknown Speaker: Thank you, Mr. Wright.
Mr. Bederman, you have 20 minutes remaining.
Rebuttal of David Jeremy Bederman
Mr. Bederman: I hope just to... Chief Justice, I hope just to briefly aver to some points made.
First and most importantly, the Government places very substantial reliance on what is known as the Foley presumption, presumptioning its extraterritorial application of Acts of Congress.
It's petitioner's submission, as is evident on the briefs, that the Foley presumption is not even implicated here, as this Court has consistently said that the Foley presumption comes into play when there is a risk of clash with foreign laws, and there is no possibility of such a clash in this case.
And moreover, if Foley is read carefully... the Government has already alluded to the case being won regarding the application of the 8-Hour Act to Iraq, the Court in that case, Justice Reed writing, made it a point to say that where the U.S. does have authority, in other words jurisdiction based on nationality, that that presumption would not be read in relation to the act.
In Antarctica the United States does have authority by virtue of jurisdiction based on nationality.
As the Government has conceded already, Congress has exercised that jurisdiction regarding taxation and in criminal matters.
Again, the Foley presumption simply is irrelevant in this case.
Now, likewise the Government places substantial reliance on the venue problems, and the Government makes the point that petitioner's submission would simply read back into the statute language which had been dropped out specifically by Congress, that language having to do with a categorical ban on the claims of aliens.
Petitioner's submission does no such thing.
Petitioner is saying that where a claimant has a domicile in the United States, venue is laid and the choice of law direction is clear.
It seems to me, in fact, to be an impermissible canon of construction that would deny jurisdiction to one claimant because a different claimant would have difficulty in laying a venue.
And, indeed, in terms of canons of construction regarding venue, those canons go, in fact, to construing venue statutes and not jurisdictional statutes.
Unknown Speaker: Mr. Bederman, how do you respond to the Government's argument about 1346(b), that the United States would be liable to the claimant in accordance with the law of the place where the act or omission occurred?
Mr. Bederman: Chief Justice, my construction of 1346(b) is that if a private party would be liable as a tort feasor in Antarctica... to Mrs. Smith, say, as plaintiff... then it follows that the Government would likewise be liable.
And as the Government has conceded, Antarctica... pardon my colloquialism... is not a legal black hole, that law does apply there by virtue of these choice of law principles.
Unknown Speaker: Well, but the Government's argument, as I understand it, is that there is no tort law governing in... in Antarctica, and therefore without regard to the foreign nation exception, you are not brought within 1346.
Mr. Bederman: That would be so, Chief Justice, if, under prevailing choice of law rules a private tort feasor would not... there would be no law applicable in a private action--
Unknown Speaker: But the statute says the law of the place where the act or omission occurred, which... and here the act or omission occurred in Antarctica, it's conceded, didn't it?
Mr. Bederman: --Yes, sir.
Unknown Speaker: And if there... if there is no law there, I... how do you get to choice of law?
Mr. Bederman: Well, I read the... the Government's reading of 1346(b) is, frankly, disjunctive.
They would prefer to eliminate the languages under circumstances where the United States, if a private person.
They would prefer to read out that clause and simply look at the last provision in isolation.
Unknown Speaker: Whereas you would prefer to read out the last clause?
Mr. Bederman: No, Chief Justice.
If it were true that under prevailing choice of law theories a... no private action was permissible because the lex... lex loci delecti was in Antarctica, we would have no case.
But that is not the law and therefore the fair reading of the entirety of 1346(b), in conjunction with the remainder of the statute including the foreign country exception, leads inevitably to a finding that Antarctica is not a foreign country and that this action can proceed.
I have no further substantive points.
Unknown Speaker: Do you have any nonsubstantive points?
Mr. Bederman: I will not rise to that invitation, Chief Justice.
Chief Justice Rehnquist: Thank you, Mr. Bederman.
The case is submitted.