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DONAHUE v. U.S. DEPT. OF JUSTICE

November 7, 1990

STEVEN JOHN DONAHUE, JOHANNA VILLANI AND IAN DONAHUE-VILLANI, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, JOHANNA VILLANI, PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES DRUG ENFORCEMENT ADMINISTRATION AND THE UNITED STATES OF AMERICA, DEFENDANTS.



The opinion of the court was delivered by: Cannella, District Judge:

MEMORANDUM AND ORDER

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. 56.

BACKGROUND

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 by 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.

DISCUSSION

I.  Motion to Dismiss

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 relevant part:

  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 Cir. 1975).

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 ...


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