DocketNumber： 84-5413
Citation Numbers： 756 F.2d 91, 244 U.S. App. D.C. 70, 1984 U.S. App. LEXIS 15540
Judges： Scalia, Wald, Wilkey
Filed Date： 12/31/1984
Status： Precedential
Modified Date： 10/19/2024
concurring:
When Congress enacted the Federal Tort Claims Act (FTCA), it obviously did not consider the legal ramifications of torts committed by civilian personnel in Antarctica and, of course, made no specific provision for such an action. Cf. Antarctica Conservation Act of 1978, 16 U.S.C. § 2404(e) (including special venue provision). As a result,
This is one of those cases that a judge is likely to leave by the same door through which he enters. As we have been told by a master of our craft, “Some theory of liability, some philosophy of the end to be served by tightening or enlarging the circle of rights and remedies, is at the root of any decision in novel situations when analogies are equivocal and precedents are silent.”
Dalehite v. United States, 346 U.S. 15, 49, 73 S.Ct. 956, 975, 97 L.Ed. 1427 (1953)
Upon weighing the relevant factors, I find Judge Wilkey’s and Judge Greene’s judgment call as to whether this one-of-a-kind case ought to fall within the “foreign country” exception to the FTCA more persuasive than Judge Scalia’s counter-position. As Justice Frankfurter stated in United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949), the only Supreme Court case directly interpreting the FTCA foreign country exception:
To assume that terms like “foreign country” and “possessions” are self-defining, not at all involving a choice of judicial judgment, is mechanical jurisprudence at its best. These terms do not have fixed and inclusive meanings, as is true of mathematical and other scientific terms. Both “possessions” and “foreign country” have penumbral meanings, which is not true, for instance, of the verbal designations for weights and measures. It is this precision of content which differentiates scientific from most political, legislative and legal language.
Id. at 223, 70 S.Ct. at 13 (Frankfurter, J., concurring). I fully concur in Judge Wil-key’s opinion that Antarctica is not a “foreign country” within the meaning of the FTCA, 28 U.S.C. § 2680(k), and see no cause to elaborate further upon his reasoning. I write separately to address the novel and, I believe, unjustified conclusions about choice of law and viability of FTCA actions that the dissent draws from its conceptualization of the cause of action in the present case as a “unitary claim.”
As Judge Wilkey states, see Maj.Op. at 101, this is essentially a single cause of action based upon a single claim of injury— wrongful death — resulting from the plane crash. Nonetheless, there are two alleged grounds of negligence: (1) the “headquarters claims” based upon the negligent selection, training, and supervision of the air traffic controllers by government personnel in Washington, D.C.; and (2) the “Antarctica claims” based upon the negligent acts or omissions of the a.ir traffic controllers in Antarctica. Thus there are two separate allegations of negligence committed by two separate sets of actors at different points in time which either singly or in concert allegedly caused the plane crash.
Judge Scalia, in my view, has misread his FTCA map and thus has taken an unnecessary and unenlightening detour through the Federal Rules of Civil Procedure and the Restatement (Second) of Judgments in order to prove that there is only one FTCA claim in this case. See Dissent at 118-120. While there is no simple test for determining when claims are separate, I tend to agree with him that in this instance the plaintiffs would have run afoul of the rule against splitting claims had they decided to bring separate or successive actions. See Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 321-22, 47 S.Ct. 600, 602-03, 71 L.Ed. 1069 (1927) (“The injured respondent was bound to set forth in his first action for damages every ground of negligence ... upon which he relied, and cannot be permitted ... to rely upon them by piecemeal in successive actions to recover for the same wrong and injury.”); cf. Tolson v. United States, 732 F.2d 998 (D.C. Cir.1984) (Where FTCA claim was predi
Where I part company with Judge Scalia is with respect to the unwarranted conclusions he draws from the assumption that there is but one wrongful death claim here. For Judge Scalia relies on this assumption to launch a new and restrictive theory of FTCA liability: if there is a unitary claim, even though it is based on multiple acts of negligence, then the court must choose only one act or omission for purposes of determining the place where the entire claim arose. To locate that one special place where the one governing act or omission occurred, the dissent formulates a standard which can be restated simply as follows: The place of the relevant act or omission is the place where the most proximately operative failure to comply with standards occurs — regardless of whether any specific blame can be attributed to any particular federal employee at that point. See Dissent at 122. Application of this standard in the present case, of course, precludes relief altogether because the most proximate act or omission occurred in the Antarctica which Judge Scalia argues is a foreign country, or, even if it is not, provides no law under which to determine FTCA liability. Judge Scalia’s standard, or indeed the requirement that there be only one place where a multicausative “claim” arose, is neither grounded in the language of the FTCA nor consistent with existing precedent.
Indeed to reach his chosen destination, Judge Scalia has to put aside his FTCA map and rely on sign posts which he himself has erected. As this court has recognized “[t]he entire scheme of the FTCA focuses on the place where the negligent or wrongful act or omission of the government employee occurred.” Sami v. United States, 617 F.2d 755, 761 (D.C.Cir.1979) (citing § 1346(b)). With respect to the foreign country exemption, section 2680(k), we have said: “What must be in a foreign country under the exemption is, we think, not a ‘claim arising’ but ‘an act or omission of an employee of the government.’ ” Id. at 726 n. 7. Similarly, the operative effect cases, see Maj.Op. at 96, have soundly rejected the approach of locating the situs of the relevant acts or omissions at the place where the acts or omissions had their opérative effect or came to fruition (i.e., where the claim arose). For jurisdictional and choice of law purposes, the FTCA focuses on the place where the acts or omissions upon which the claim is based occurred. I find nothing in the FTCA to indicate that a single claim cannot be based upon multiple acts or omissions or that one governing act or omission must always be identified. As the Supreme Court pointed out in Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 591, 7 L.Ed.2d 492 (1962), Congress apparently focused on cases where all the relevant events including the injury occurred in one jurisdiction and never explicitly considered cases where the
To answer this question, the court need not pursue a singleminded, literalistic search for the one place where the one governing act or omission occurred. In fact, such an approach is particularly inappropriate where, as in this case, it results in completely denying plaintiffs a forum for pursuing their claim. As the Supreme Court has admonished:
We think that the congressional attitude in passing the Tort Claims Act is ... accurately reflected in Judge Cardozo’s statement in Anderson v. Hayes Construction Co., 243 N.Y. 140, 147, 153 N.E. 28, 29-30: “The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refinement of construction, where consent has been announced.”
United States v. Aetna Surety Co., 338 U.S. 366, 383, 70 S.Ct. 207, 216, 94 L.Ed. 171 (1949). Indeed when confronted with complex multistate or multinational tort actions, courts have for the most part adopted a more flexible approach which takes into account those acts or omissions — be they single or multiple — having operative significance in the ease.
With respect to the present action, it is true that any negligence on the part of government personnel in Washington, D.C. in the selection, training or supervision of the air traffic controllers will be manifest only through the actions of those air traffic controllers. Nonetheless, there are still two separate allegations of negligence committed by separate sets of actors: one based on acts or omissions occurring in Washington, D.C., and one based on acts or omissions occurring in the Antarctica. The primary cause of the plane crash may have been inattentiveness on the part of the air traffic controllers or the primary cause may have been inadequate training in the use of the radar equipment. The mere fact that the alleged inadequate operation of the radar equipment by the air traffic controllers occurred in Antarctica does not negate the fact that the core, contributing act or omission of providing inadequate training which led to the plane crash may have been committed by personnel in Washington, D.C. I see no rationale in the statute or elsewhere in our jurisprudence for disregarding separate negligent acts or omissions — albeit connected in a chain of causation — committed by separate sets of actors in determining liability for the ultimately resulting harm. Indeed, to do so, in my view, conflicts with both existing precedent in analogous cases and traditional principles of tort law, and potentially leads to undesirable results for claimants with no offsetting benefits for judicial administration.
I. Analogous Section 2680(k) Cases
Decisions by other courts in analogous cases involving alleged acts or omissions occurring both in the United States and a foreign country do not support Judge Sca-lia’s position that choice of law and even jurisdiction of the whole claim in section 2680(k) cases must be determined by a “last clear chance” theory of where the “one relevant act or omission” occurred.
In Leaf v. United States, 588 F.2d 733 (9th Cir.1978), the plaintiffs, owners of a plane damaged in Mexico, appealed from a summary judgment granted in favor of the defendant United States. The claim of governmental negligence was rooted in actions of an alleged agent of the Drug Enforcement Agency (DEA), Bean, who leased and used plaintiffs’ airplane in a drug smuggling operation, and the DEA’s failure to supervise and control Bean. These alleged negligent acts occurred in California and Arizona. The plane, however, was damaged in Mexico as a result of other negligent acts occurring in Mexico: overloaded with marijuana, it crashed on take-off and was subsequently sunk in a
The allegations of negligent acts in this country, and of the government’s knowledge about ... Bean, were sufficient to raise reasonable questions about agency and proximate cause.
... Facts were alleged from which a trier might reasonably find proximate cause running from acts in this country to the damages suffered in Mexico. Such a finding would preclude dismissal on jurisdictional grounds____ The claim did not necessarily “arise in a foreign country” under the uniform interpretation of that statutory language by the courts, and summary judgment was improper.
Id. at 736 (emphasis added). Yet, under the dissent's monolithic approach toward locating the place where the last government omission occurred, this case would have to be dismissed on jurisdictional grounds.
Similarly, in Pelphrey v. United States, 674 F.2d 243 (4th Cir.1982), the plaintiff brought an FTCA claim against the United States for damages arising from a radical mastectomy performed at the Navy Regional Medical Center (NRMC) in the Philippines. The plaintiff’s claim alleged wrongful acts of the surgeon which occurred in the Philippines and wrongful “headquarter” acts of the Navy which occurred in the United States. With regard to the latter, the plaintiff specifically alleged that the Navy had been negligent in the selection of the doctor and in the administration of NRMC with respect to providing adequate supervision, staff, and equipment. The court affirmed the district court’s dismissal with respect to the alleged negligent acts of the surgeon in the Philippines since these were barred by the foreign country exemption. Since this was the last proximate act of negligence under Judge Scalia’s approach, the inquiry should have ended here. Instead, the court went on to consider the allegations of negligent selection, supervision, and administration which occurred in the United States. The court ultimately concluded that the district court’s grant of summary judgment was proper but only “[bjecause Ms. Pelphrey failed to present any evidence, in the form of affidavits, depositions, or otherwise, to refute the government’s affidavits demon
Finally in Bryson v. United States, 463 F.Supp. 908 (E.D.Pa.1978), the court rejected the government’s motion to dismiss for lack of jurisdiction in an action alleging that the government’s negligence was a proximate cause of a serviceman’s death where he was killed by a fellow, intoxicated serviceman whom he attempted to help out of the men’s room in a barracks in Germany. Although the most proximate alleged claims of negligence occurred in Germany, i.e., providing intoxicating beverages and failing to guard against excessive intoxication and its consequences, and were thus barred by the foreign country exception, the court held:
However, to the extent that plaintiff alleges that the specific decision to admit Private Weidenhammer [into the Army] and/or the subsequent failure to remove him constituted negligent conduct [in light of his background of emotional problems] by the United States, this court has jurisdiction to consider [the] complaint. This alleged act of negligence occurred within the United States____
Id. at 912. Again the dissent’s approach would have precluded jurisdiction in this case. I suggest that these cases show Judge Scalia’s FTCA jurisprudential notion about the need for identifying a single act or omission to be without ancestry in FTCA law.
II. Traditional Tort Principles Relating to Proximate Cause
Traditional tort law principles as well ■ suggest that, where there are multiple, proximate concurrent or contributing causes, the courts should not arbitrarily choose the most proximate as the sole cause for purposes of determining liability with respect to FTCA claims but should look instead to the various acts or omissions which proximately caused the harm. The Second Circuit, for example, in Ingham v. Eastern Air Lines, Inc., 373 F.2d 227 (2d Cir.), cert. denied, 389 U.S. .931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967), rejected the government’s contention that it was relieved of liability predicated upon air traffic controllers’ failure to provide up-to-date weather information because the crew of the plane subsequently negligently failed to execute a “missed approach maneuver.” Although Ingham, unlike the section 2680(k) cases discussed above, does not involve a “headquarters claim” in the United States followed by subsequent acts of negligence in a foreign country, it clearly illustrates the application of well-accepted prox: imate cause principles. Finding the acts of the air traffic controllers a proximate and concurrent cause of the accident, the court stated:
We are unable to conclude that the accident was not reasonably foreseeable as a result of the government’s negligent failure to provide up-to-date weather information. Indeed, the government was the original wrongdoer whose negligence set in motion the entire chain of events which finally culminated in the tragic crash. The government’s negligence was ever present.
Id. at 237 n. 11.
Similarly, the Sixth Circuit, in a case involving the parachute deaths of sixteen sky divers, made clear that concurrent or subsequent negligence did not exonerate the government. See Freeman v. United States, 509 F.2d 626 (6th Cir.1975). The. court found that the air traffic controller’s negligent act caused the pilot to believe that he was over the parachute jump tar
In general, case law recognizes that the United States can be held liable in tort in airplane crash cases if any negligent act of a government employee was a proximate cause of the injury. See also Delta Air Lines, Inc. v. United States, 561 F.2d 381, 389, 394 (1st Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978); Hartz v. United States, 387 F.2d 870, 873-74 (5th Cir.1968); Thinguldstad v. United States, 343 F.Supp. 551, 553 (S.D. Ohio 1972). Under traditional proximate cause doctrine, any substantial factor in causing the harm is a proximate cause to which liability attaches, not just the last proximate act which could have prevented the harm. The Restatement (Second) of Torts § 442 B (1965) states:
Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.
See also id. at §§ 431, 433, 443, 447 (establishing that defendant is liable if negligent conduct is a substantial factor causing the harm); W. Prosser, Handbook of the Law of Torts § 41, at 240 (4th ed. 1971) (“If the defendant’s conduct was a substantial factor in causing the plaintiff’s injury, it follows that he will not be absolved from liability merely because other causes have contributed to the result____”).
Although Judge Scalia has “no quarrel” with the cited authorities on proximate cause he apparently fails to understand the relevance of the authorities. See Dissent at 125. If Judge Scalia can assert that, “[t]he lawyers who drafted § 2680(k) were unquestionably aware of this general meaning of the newly prominent word ‘claim,’ and unquestionably used it in that sense ... in the FTCA,” see Dissent at 118, then I believe that they also were unquestionably aware of general principles of tort law. And, even if they had no glimmer of the concept of proximate cause, the FTCA specifically incorporates state and common law tort principles. As the Supreme Court noted in Richards:
It is evident that the Act [FTCA] was not patterned to operate with complete independence from the principles of law developed in the common law and refined by statute and judicial decision in the various States. Rather, it was designed to build upon the legal relationships formulated and characterized by the States, and, to that extent, the statutory scheme is exemplary of the general interstitial character of federal law.
369 U.S. at 6-7, 82 S.Ct. at 589-590. Thus, it is fair to assume that the words “act or omission” in the FTCA refer to acts or omissions which have operational significance in the case according to traditional tort law principles, i.e., acts or omissions which proximately caused the harm. While the FTCA does not explicitly address cases involving multiple acts or omissions occurring in different places, I submit that the “reasonable judge,” when faced with the question of how to apply the FTCA in such a case, would look to FTCA cases and traditional principles of tort law to find an answer rather than creating an arbitrary rule of her own completely lacking any foundation in relevant law or precedent. Under well-established principles of proximate cause, when there are multiple acts or omissions, liability attaches to each act or omission which is a substantial factor in causing the harm, not just the most proximate or last act or omission. Thus, Judge Scalia’s standard which determines, and in this case precludes, liability solely on the basis of the most proximate act or omission, regardless of its relative significance, in the chain of events culminating in the
Judge Scalia, however, asserts that analogous support for his standard can be found in eases construing the intentional tort exemption of the FTCA. 28 U.S.C. § 2680(h) (specifically excluding claims arising out of an assault and battery committed by a government employee). In the cited cases, the plaintiffs allege that an injury or death was caused by the intentional, and usually criminal, act of a government employee, and that the government was somehow negligent in failing to prevent the harm {e.g., by discharging the employee, supervising the employee, or warning the victim). Since liability predicated on intentional torts of government employees is barred by section 2680(h), the issue is whether the government may nonetheless be held liable in these cases based upon the alleged headquarter negligence. The answer to this question has tended to turn on the specific facts of the case. The Third Circuit recently addressed the question and concluded:
The FTCA does not necessarily bar a cause of action in negligence, even if the injury is directly caused by the assault and battery of a government employee. The FTCA simply requires that the intentional tort must “have its roots in government negligence,” Gibson v. U.S., 457 F.2d 1391, 1395-97 (3d Cir.1972); Underwood v. U.S., 356 F.2d 92, 99-100 (5th Cir.1966). Recovery under this exception could thus be barred if the negligence was a remote cause of the injury, or if the plaintiff, through artful pleadings with conclusionary allegations, attempts to create a negligence issue. Gibson v. U.S., 457 F.2d at 1395-96. See also Hughes v. Sullivan, 514 F.Supp. 667, 669-70 (E.D.Va.1980), aff'd sub nom., Hughes v. U.S., 662 F.2d 219, 220 (4th Cir.1981); Naisbitt v. U.S., 611 F.2d 1350, 1354-55 (10th Cir.1980); U.S. v. Shively, 345 F.2d 294, 296-97 (5th Cir. 1965).
Shearer v. United States, 723 F.2d 1102, 1106-07 (3d Cir.1983), cert. granted, — U.S. -, 105 S.Ct. 321, 83 L.Ed.2d 259 (1984). The court then went on to hold that:
In this case, appellant’s allegations, if proven, would permit a court to find that the government’s negligence proximately caused Shearer’s injury, thus, this case falls closer to the rubric of Gibson facts, not to that of Naisbitt. We therefore reject the United States’ contention that summary judgment was justified under Section 2860(h), the intentional tort exception.
Id. at 1108. The Supreme Court has granted certiorari on Shearer, which Judge Scalia construes as a signal that the Supreme Court will vindicate his view that claims should not be allowed to go forward on the basis of allegations of headquarter negligence where the final act resulting in harm comes within one of the FTCA exemptions. The Supreme Court’s ultimate disposition of Shearer is purely a matter of speculation especially since the case also involved a claim that government liability was precluded under the Feres doctrine. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (barring claims where injury is “incident to military service”).
In any event, the ultimate disposition of Shearer will not illuminate the appropriate path of analysis for this court to take in the present case. Judge Scalia, by adamantly refusing to acknowledge the relevance of traditional proximate cause principles in construing the FTCA and cases thereunder, has misconstrued the import of the section 2680(h) cases with respect to the present action. In the present case, if the govern-
As a general matter in tort law, the intervening intentional or criminal acts of third parties will break the chain of causation. See Restatement (Second) of Torts § 442B, supra p. 136. (Intervening force does not generally relieve original negligent actor of liability “except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.”); cf. Romero v. National Rifle Ass’n of America, 749 F.2d 77, 79 (D.C.Cir.1984) (Scalia, J.) (“when the intervening act involves criminal, rather than negligent, conduct by a third party, the ability to anticipate (or foresee) the intervention with the normally required degree of specificity is not enough,” a duty to guard against the harm must exist). The dissent in Shearer stated:
Indeed, there would have been no assault here except for the “separate and independent” act of Heard. Such an intervening act (here, the intentional assault and murder) has been held to be of such significance that even if the Army had initially been negligent, the subsequent act renders the negligence insignificant as a causal force.
Shearer, 723 F.2d at 1111 n. 5 (Garth, J., dissenting) (citations omitted). Later the dissent distinguished Loritts v. United States, 489 F.Supp. 1030, 1032 (D.Mass. 1980), where an FTCA action based on the rape of a member of a choral group performing at West Point by a cadet was held not barred by section 2680(h) because the “attack was ... not an intervening cause but rather, was a foreseeable result of the defendant’s breach” of its voluntary undertaking to protect the female choral group. The dissent states:
... In Loritts, the district court expressly found that the Academy had voluntarily undertaken the task of providing escorts to the choral group, and having assumed that responsibility, its failure to carry out that obligation subjected the Government to liability. Indeed, the district court, acknowledging those cases which seek to circumvent section 2680(h) by artful pleading, addressed that very issue and found that such was not the situation in Loritts’ case.
Shearer, 723 F.2d at 1112 n. 6 (Garth, J., dissenting).
Thus even if the dissent’s view in Shearer were to prevail in the Supreme Court it would still not provide support for Judge Scalia’s view that liability should be precluded in this multilayer negligence case. The air traffic controllers’ alleged negligence is not necessarily an independent superseding act constituting the sole proximate cause of the plane crash. If the plaintiffs’ can prove their allegations of negligent selection, training, and supervision then the negligent performance of the air traffic controllers in Antarctica is a natural and foreseeable result of the government’s headquarter negligence making that headquarter negligence a proximate cause of the plane crash.
III. Choice of Law
Pursuant to section 1346(b), the liability of the United States is determined “in accordance with the law of the place where the act or omission occurred.” Once again, however, the statute says nothing about what law governs when there are multiple acts or omissions occurring in more than one state or country. Judge Scalia gives a hypothetical example to illustrate the “parade of horribles” which results if his standard of locating the one place, where the
The only Supreme Court case addressing the choice of law problem under FTCA is Richards. There the Court held only that the FTCA requires application of the whole law of the place where the act or omission occurred, including its choice of law rule. Thus, the question here is not which substantive law will apply but which choice of law rule will apply. In Richards, the Court, after observing that Congress apparently did not consider choice of law problems in enacting the FTCA, stated:
Despite the power of Congress to enact for litigation of this type [multistate] a federal conflict-of-laws rule independent*140 of the States’ development of such rules, we should not, particularly in the type of interstitial legislation involved here, assume that it has done so ... It seems sufficient to note that Congress has been specific in those instances where it intended the federal courts to depart completely from state law and, also, that this list of exceptions contains no direct or indirect modification of the principles controlling application of choice-of-law rules.
369 U.S. at 13-14, 82 S.Ct. at 593. Yet, Judge Scalia would read into section 1346(b) his own choice-of-law rule despite the Supreme Court’s explicit admonition that we should hot assume Congress has intended rules independent of controlling choice-of-law principles. As far as I can tell, despite Judge Scalia’s unsupported assertion to the. contrary, see Dissent at 128, in cases involving multiple acts or omissions occurring in different places, the courts have traditionally resolved the choice of law problems by applying the whole law of the place of each act or omission.
Looking to the whole law of the place of each act or omission will often result in no true conflict either because each place uses the same choice of law rule thus pointing to one body of governing substantive law or because, although the choice of law rules point to different places, the substantive law of each place is the same. In fact, in the majority of cases involving multistate activity and addressing the choice-of-law question the problem has resolved itself in one of these ways. For example, in In re Silver Bridge Disaster Litigation, 381 F.Supp. 931 (S.D.W.Va.1974), the court found that the acts or omissions occurred in possibly two or three locations and, thus, pursuant to Richards, the court should look to the law of West Virginia, Ohio, and the District of Columbia. The court con-eluded, however, that, because the substantive legal principles of each of the jurisdictions were not in conflict, the choice-of-law problem could be largely disregarded. In Insurance Company of North America v. United States, 527 F.Supp. 962 (E.D.Ark. 1981), where an airplane allegedly crashed due to the negligence of air traffic controllers in both Memphis, Tennessee and Blythville, Arkansas, the court looked to the whole law of both Arkansas and Tennessee. Since each state followed the lex loci delicti rule in negligence cases and the plane crashed in Tennessee, Tennessee law applied. See also Suchomajcz v. United States, 465 F.Supp. 474 (E.D.Pa.1979) (Though unclear from the complaint whether the negligent acts or omissions occurred in New York or Pennsylvania because Pennsylvania and New York have identical choice of law rules, under either jurisdiction Pennsylvania law applies.); Kantlehner v. United States, 279 F.Supp. 122 (E.D.N.Y.1967) (where acts or omissions may have occurred in any combination of nine states and seven states’ conflict rules pointed to Maryland law and the remaining two states’ rules pointed to New York, summary judgment could still be granted on all but one issue since the result would be the same under either Maryland or New York substantive law).
In these cases, the need to actually decide the choice-of-law issue was obviated. This may often turn out to be the case, but of course not always. At times, there will be true conflicts. In Bowen v. United States, 570 F.2d 1311 (7th Cir.1978), the pilot of a private aircraft brought an FTCA action against the United States alleging negligence on the part of air traffic control personnel at airports in three states for failure to warn of icing conditions in the vicinity of his final landing destination.
Excluding possibilities that would appear to be wholly arbitrary leaves the alternatives of the place of the last act or omission having a causal effect, or the place of the act or omission having the most significant causal effect. The former would have the advantage of certainty, as does the traditional conflicts rule of lex loci delicti, but the latter seems to us to be more consistent with statutory language and Congress’ intent.
Id. at 1318. The court found that Indiana law would apply under either approach and that the pilot’s contributory negligence barred the action. Thus, while the Seventh Circuit, in cases involving a true conflict of law problem, would apparently choose one governing act or omission for choice of law purposes, it would choose not the last act as Judge Scalia suggests but the act or omission having the most significant causal effect.
On the other hand, in Kohn v. United States, 591 F.Supp. 568 (E.D.N.Y.1984), the family of a serviceman shot by a fellow soldier brought a FTCA action against the United States for infliction of emotional distress caused by negligent acts of the Army occurring in Kentucky and New York with respect to the disposition of the decedent’s body and notification of the family. The court concluded that it would “look to the choice-of-law principles of each state, New York or Kentucky, where an alleged tortious act or omission took place in order to determine the substantive law to apply to each claimed tort.” Id. at 572. Looking to those choice-of-law rules, the court concluded that Kentucky law should apply to acts occurring in Kentucky and New York law to acts occurring in New York and resolved the case accordingly.
The foregoing examples demonstrate that a flexible approach which takes account of all the acts or omissions having operative significance in a case, is the preferred approach and the one which has been followed by courts faced with complex causation cases. In many cases, no true conflict of law problem will be encountered. In those cases, where a true conflict of law problem is encountered after looking to the whole law of each place where an act or omission occurred, courts may either apply the law of each pl^ce to the acts occurring in that place or by some formula choose one place such as the place where the most significant act or omission occurred. I am confident our district court judges are up to the task.
In the present case, as well, it is unnecessary for us to decide how we would choose to resolve a case involving a true conflict. Alleged negligent acts or omissions occurred in the District of Columbia and Antarctica, thus, the court must look to the whole law of each place. In this novel case, Antarctica has no law, consequently there is no conflict of law problem. In my view, the majority’s application of the whole law of the District of Columbia, under these circumstances, is clearly more in accord with FTCA precedent than Judge Scalia’s approach which would coincidentally and to my view arbitrarily result in dismissing the action altogether at the outset.
The District of Columbia has adopted the “interest balancing” approach to choice of law problems which assesses the significant contacts. See Hitchcock v. Hitchcock, 665 F.2d 354, 359-60 (D.C.Cir.1981). In the present case, I think there is sufficient basis for this
... Court to conclude for purposes of this interim and limited ruling that officials acting at the Seat of the Government [may be] the ultimately responsible actors in the chain of circumstances and specific events which ended in the deaths and injuries here____ [T]he law of the*142 forum, which is the law enacted by Congress for the Seat of the Government, should be displaced only if some other jurisdiction has an overwhelming policy interest in applying its own law.
In re Air Crash Disaster Near Saigon, 476 F.Supp. 521, 527 (D.D.C.1979) (citing In re Paris Air Crash, 399 F.Supp. 732, 745 (C.D.Cal.1975)). There is no conflict of law problem here or overwhelming policy interest of another forum in applying its law. Significant acts or omissions allegedly occurred in the District of Columbia making application of its law appropriate. Cf. Hitchcock, 665 F.2d at 359-69 (Although the vaccine resulting in the paralysis of a diplomat’s wife was administered by a nurse in Virginia and that nurse failed to give the patient appropriate warnings and risk information, the locus of the negligent acts or omissions was in Washington, D.C. where the ultimate supervisory decisions were made and thus the D.C. choice of law rule applied.); Gelley v. Astra Pharmaceutical Products, Inc., 610 F.2d 558, 560 (8th Cir.1979) (applying D.C. choice of law rule where the bulk of the FDA activity addressed in the complaint occurred in the District of Columbia).
Finally, Judge Scalia suggests that considerations of judicial administrability of the FTCA’s “act or omission” language commends the adoption of his standard for determining where the one governing act or omission occurred. Specifically, he asserts that courts will find it easier to identify the last proximate act which should have occurred to prevent the harm than to identify the most “blameworthy” or significant act causing the harm. Even if I accepted the underlying assumption that one unitary act or omission must always be identified in FTCA cases, which I do not, Judge Sea-lia’s argument is still not persuasive. It may be just as difficult, if not more difficult to pinpoint the most proximate failure or omission which could have prevented the harm as to pinpoint the most significant or direct proximate cause of the harm. See, e.g., supra note 7. Moreover, such an approach — if applied in an undeviating way as Judge Scalia seems to anticipate — will result in mischievous and, in my view, unattractive outcomes. Take, for example, the following hypothetical situation: An emergency back-up system is improperly installed in a military transport plane here in the United States which will cause the plane to explode if the emergency back-up system is activated. An Air Force pilot flying the transport plane over Mexico carrying a number of civilians, family members of servicemen, negligently decides to conduct an unauthorized in-flight test of the back-up system, or even negligently decides that circumstances warrant activation of the system, and the plane explodes. The pilot’s negligent act occurred in Mexico and thus an FTCA action is precluded by the foreign country exception. Clearly, however, but for the negligent installation of the back-up system in the United States the plane would not have exploded. The negligent installation was the primary cause of the plane exploding. I cannot conscience a standard which would immunize this act from being actionable or make whether it is actionable dependent on whether the pilot’s decision to activate the system was negligent.
IV. Conclusion
Nothing in the FTCA suggests that when several acts or omissions contribute to an injury, only one can be selected as the determinant of whether FTCA liability lies under either section 2680(k) or section 1346(b) and that one must be the most proximately operative failure to comply with standards. This is a judicial gloss, albeit a creative one, calculated by the dissent to insure a result of non-suit in complex cases where non-suit may very well not be the result most attuned to congressional intent. Although clearly a more easily administrable standard, Congress rejected use of the place of injury in FTCA — a standard which the dissent’s most proximate operative failure standard closely approximates. See Richards v. United States, 369 U.S. at 10, 82 S.Ct. at 591. Unlike Judge Scalia, I do not believe that “the intent of Congress [in the FTCA] was to insulate the government from claims for injuries caused by its employees abroad, whether or not those employees’ actions can in turn be attributed to actions or inac-tions by other employees stateside.” See Dissent at 119. I simply do not believe that Congress intended by the foreign country exception to sanction the government’s exportation to foreign countries of poorly trained, unsupervised, or inept personnel with free license to injure unsuspecting residents of those countries, as well as any Americans travelling abroad. Indeed, the extraordinary lengths to which the dissent must go to preclude these plaintiffs from proceeding with their FTCA claim against the government surely suggests the opposite.
. Thus, this concurrence is written to address some of the points raised by Judge Scalia which Judge Wilkey’s opinion stating the court’s rationale did not find it necessary to treat in detail. I am authorized to state that Judge Wilkey fully agrees with this concurring opinion in support of the court's decision.
. Generally courts deciding FTCA cases have not perceived a need to be overly literal in their use of the word "claim.” See, e.g., Pelphrey v. United States, 674 F.2d 243 (4th Cir.1982) (referring to alleged negligent acts of Navy doctor in the Philippines as "claims arising from actions in the Philippines,” and referring to allegations of negligent selection and supervision as "claims arising from actions within the United States.”); Loge v. United States, 662 F.2d 1268, 1274 (8th Cir.1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2009, 72 L.Ed.2d 466 (1982) ("we find that claims have been stated under any one of the three alternative grounds for liability ....”) (emphasis added).
. Judge Scalia creatively, argues that the Leaf court had in mind as its definition of "proximate cause” his standard of the "last operative act of negligence.” See Dissent at 126. Absent clairvoyance, this assertion cannot be definitively proved or disproved. Suffice it to say, I find it more reasonable to assume that the Leaf court had in mind the traditional tort law view of "proximate cause” which is decidedly not "the last operative act of negligence.” See infra p. 136. Cf. Knudsen v. United States, 500 F.Supp. 90, 93 (S.D.N.Y.1980) (Under FTCA standard, if every negligent act proximately causing damage occurs outside the United States, then section 2680(k) bars assertion of a claim, "[h]owever, where an issue of fact exists with respect to whether negligent acts proximately causing damage occurred both in the United States and in a foreign country, summary judgment may not be granted under Section 2680(k). Leaf v. United States, 588 F.2d 733 (9th Cir.1978).”). If, on remand, Bean was determined to be a government agent, thus subjecting the government to an FTCA action, proximate cause questions would arise as to whether "headquarter" acts and domestic and foreign acts of Bean either singly or in combination caused the harm. Surely the most proximately operative failure to comply with standards was committed by Bean during his several days in Mexico before the crash. I see no reason to believe that the court meant acts of negligence in the United States could circumvent the foreign country exemption only if Bean had committed no negligent acts in Mexico.
. Lest Judge Scalia remain confused, see Dissent at 126 & n. 18, I do understand the distinction he attempts to draw between sequential and interdependent acts in a chain of causality and independently operative or efficacious acts. What I do not understand is why that distinction alone demands or even supports adoption of a set of principles for determining FTCA liability that while "fastidious” indeed (¿a, "having high and often capricious standards,” see Webster’s New Collegiate Dictionary (1981)), bears no discernible relationship to the language, 39 year history, or purposes of the FTCA.
. Specifically the questions presented are stated as:
(1) May survivor of serviceman who was murdered by another serviceman while off duty and off base sue government for damages under FTCA? (2) Does Feres doctrine preclude suit by survivor alleging that negligence of serviceman’s superior officers was responsible for murder?
53 U.S.L.W. 3244 (Oct. 2, 1984).
. In my view, this court came very close to rejecting the dissent’s approach to the choice of law question in Sami v. United States, 617 F.2d 755 (D.C.Cir.1979). The court rejected the assertion that evidentiary difficulties and difficulties in ascertaining foreign law would be avoided if the place where the claim arose was determined by where the last event necessary to liability occurred. The court further concluded:
Under prevailing choice of law principles, only if all torts with any foreign connections were exempted under § 2680(k) would the difficulties of finding evidence and ascertaining foreign law be avoided. This is not what Congress did in enacting § 2680(k). Id. at 763 n. 11.
. The only authority cited by Judge Scalia which provides any support for his proposed approach is Ducey v. United States, 713 F.2d 504 (9th Cir.1983). Ducey did hold that a negligent omission under § 1346(b) should be deemed to occur "where the act necessary to avoid negligence should have occurred." Thus, although the decision not to close the facility or post warning signs may have been made in part in California, the actual omission of not posting signs, etc. ... occurred in Nevada. Ducey, at most, only states where to locate the place a particular omission occurred for choice of law purposes; it says nothing about cases involving multiple acts or omissions. Although unclear at this juncture, the present case appears to involve both acts and omissions. Ducey was recently applied by the Ninth Circuit in Grunnet v. United States, 730 F.2d 573 (1984), an action for wrongful death of a religious sect member in the Jonestown, Guyana tragedy. Four negligent acts or omissions were alleged. Two were found exempt under the discretionary function exemption, the remaining two were failure to warn the victim of the danger that the People’s Temple posed to her and the failure to warn her relatives of the danger. Following Ducey, the court found the failure to warn the victim occurred in Guyana and was thus barred by the foreign country exemption. On the other hand, the failure to warn her relatives occurred in California where they lived and thus California law would apply. Thus, the last proximate failure does not locate the entire action, only the particular omission. In fact, in Grunnet, it would appear difficult to determine exactly what the last proximate failure was which should have prevented the harm — warning the victim or warning her relatives.
The dissent mischaracterizes the issue in The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935). The issue was whether there was admiralty jurisdiction which is determined by the "locality of the injury.” Thus, the question was whether admiralty jurisdiction was lost because plaintiff fell from the gangplank, rather than the ship proper and landed on the dock rather than on the ship or in the water. Clearly, the case is inapposite.
Finally, Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), is not helpful since the case addressed only a claim of negligence occurring in Oklahoma. The court did not address a situation involving multiple acts or omissions occurring in different places.
. Judge Scalia attempts to take this case out of his analysis by suggesting that the case involves three independently operative acts. See Dissent at 129. As the court itself noted in Bowen, if the air traffic controllers at the last airport had given the pilot the correct weather and landing information (i.ehad not been negligent) the crash would not have occurred. Bowen, 570 F.2d at 1318. Apparently the line between independently operative acts and sequential and interdependent acts is an exceedingly fine one. Cf. Dissent at 120 n. 13.
. Judge Scalia is plainly wrong to assert that my approach would result in a nonsuit if the defective back-up system was installed in Mexico and negligently activated in the United States. See Dissent at 127. The court, not being arbitrarily compelled to choose the last proximate operative failure to serve as a proxy for the one "unitary act or omission,” would be free to take account of both the acts or-omissions occurring in Mexico and the United States. The former may be barred by the foreign country exception § 2680(k), however, the acts or omissions occurring in the United States would not necessarily be barred.
. I do not find persuasive the dissent’s lament, see Dissent at 119, that “headquarters claims" will become routine. See Maj.Op. at 96-97. In any case, the potential for abuse is not, in my view, sufficient reason to preclude, in effect, all headquarters claims or to make their successful assertion dependent upon whether or not there was a subsequent operative failure which might