Smith v. United States, 507 U.S. 197, 10 (1993)

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Stevens, J., dissenting

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.


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

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