Smith v. United States, 507 U.S. 197, 13 (1993)

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Cite as: 507 U. S. 197 (1993)

Stevens, J., dissenting

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

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