The opinion of the court was delivered by: Cannella, District Judge:
Defendants' motion to dismiss the complaint for lack of
subject matter jurisdiction is denied. Fed.R.Civ.P. 12(b)(1).
Defendants' motion for summary judgment is denied. Fed.R.Civ.P.
On April 4, 1983, Steven John Donahue entered into a plea
agreement with the United States Attorney for the District of
New Jersey, in which he agreed to truthfully disclose all
information he had regarding marijuana and hashish cases in
exchange for pleading guilty to certain drug related charges.
Shortly thereafter, Donahue began working as a confidential
informant for the United States Drug Enforcement Administration
[the "DEA"]. In 1984, DEA Special Agent Jack Short, the
assistant agent in charge of the Newark Division of the DEA,
was assigned to work undercover with Donahue in an attempt to
develop cases against several large scale Lebanese heroin and
hashish dealers. On or about December 8, 1984, Donahue and
Agent Short travelled to Athens, Greece to attend certain
undercover meetings. Donahue's wife and son also went to
Athens. Donahue alleges that they accompanied him as part of
his cover as a drug dealer. During the undercover meetings in
Greece, arrangements were made to purchase heroin from the
Lebanese dealers, somewhere in the Middle East area.
A few days after the meeting, the Donahues went to Beirut,
Lebanon. The Donahues allege that they travelled to Lebanon
under the direction and supervision of Agent Short as part of
the undercover operation to purchase heroin from the Lebanese
drug dealers. The Donahues further allege that upon their
arrival in Beirut they were seized by a military group and held
hostage. Donahue asserts that after several months he was
permitted to leave his captors to raise ransom money for his
family's freedom. He alleges that he returned to Lebanon with
$300,000 and that his wife and child were released on July 28,
1985, while he was held until July 1, 1986. The Donahues allege
that while they were held hostage in Lebanon they were captured
rival militias and subjected to physical and mental tortures.
On June 8, 1988, plaintiffs filed the instant action under
the Federal Tort Claims Act ["FTCA"], 28 U.S.C. § 1346(b),
2671 et seq. (1988), alleging that the United States Department
of Justice, the DEA and the United States of America
[collectively the "Government"] were negligent in sending them
to Lebanon as part of the undercover operation. The Government
now moves under Rule 12(b)(1) of the Federal Rules of Civil
Procedure to dismiss the complaint for lack of subject matter
jurisdiction or, in the alternative, for summary judgment
pursuant to Rule 56.
The United States, as a sovereign entity, may not be sued
unless it has consented to be sued by expressly waiving its
sovereign immunity. See Carelli v. IRS, 668 F.2d 902, 904 (6th
Cir. 1982). The existence of such consent is a prerequisite for
jurisdiction. See United States v. Mitchell, 463 U.S. 206, 212,
103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983).
Under the FTCA, the federal government has consented to be
sued in tort. Specifically, section 1346(b) provides in
The district courts . . . shall have exclusive
jurisdiction of civil actions on claims against
the United States, for money damages . . . for
injury . . . caused by the negligent or wrongful
act or omission of any employee of the Government
. . . under circumstances when 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) (1988). However, the FTCA is a limited
waiver of sovereign immunity because certain categories of
torts, specified in 28 U.S.C. § 2680, are explicitly exempted
from its coverage. The district courts lack subject matter
jurisdiction to hear any claim falling within one of the
exceptions. See Morris v. United States, 521 F.2d 872, 874 (9th
Pursuant to section 2680(k) of the FTCA, "[a]ny claim arising
in a foreign country" is exempted from the section 1346(b)
waiver of sovereign immunity. 28 U.S.C. § 2680(k) (1988). Thus,
the Government may not be held liable in tort with respect to
its negligent acts or omissions arising in a foreign country.
The exception exists, in part, because liability under the FTCA
is determined under the law of the place where the negligent
act or omission occurs. See id. The Supreme Court explained
that while "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." United States v.
Spelar, 338 U.S. 217, 221, 70 S.Ct. 10, 12, 94 L.Ed. 3 (1949).
In construing the foreign country exception to the FTCA,
federal courts have consistently held that despite American
involvement, tort claims arising from government negligence
occurring on the grounds of a foreign American military base,
an American embassy and a foreign land occupied by United
States military forces are claims arising in a foreign country.
See, e.g., Roberts v. United States, 498 F.2d 520, 522 (9th
Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d
665 (1974); Meredith v. United States, 330 F.2d 9, 10 (9th
Cir.), cert. denied, 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70
(1964); Callas v. United States, 253 F.2d 838, 840 (2d Cir.),
cert. denied, 357 U.S. 936, 78 S.Ct. 1384, 2 L.Ed.2d 1550
(1958). Thus, if the "negligent act ...