Opinion for the Court filed by Senior Circuit Judge WILKEY.
Opinion dissenting filed by Circuit Judge SCALIA.
Opinion concurring filed by Circuit Judge WALD.
WILKEY, Senior Circuit Judge:
This case arises out of the crash of an Air New Zealand aircraft into Mount Erebus, Antarctica, on 28 November 1979. All persons on board were killed. On 12 January 1983 plaintiffs filed a complaint in the United States District Court for the District of Columbia, seeking recovery against the United States for wrongful death under the Federal Tort Claims Act (FTCA). Plaintiffs' amended complaint ultimately alleged negligence of United States Navy Air Traffic Controllers at McMurdo Naval Air Station, Antarctica, as well as negligence in the selection, training, and supervision of the navy personnel at McMurdo Base by officials of the Department of Defense.
The United States filed a motion to dismiss under Rule 12(b)(1), (3), and (6), claiming that the District Court lacked subject matter jurisdiction, that plaintiffs had failed to state a cause of action upon which relief could be granted, and that venue was improper. The primary basis for the motion was the "foreign country" exception to the Federal Tort Claims Act. This exception removes from the scope of the FTCA "[a]ny claim arising in a foreign country."
The issue before the District Court was one of first impression: Is Antarctica, a continent which is not now subject to the sovereignty of any nation, a "foreign country" within the meaning of the FTCA? By interlocutory order on 25 June 1984 the District Court denied the government's motion to dismiss, 592 F.Supp. 780, and certified this case for consideration by this Court in conformity with 28 U.S.C. § 1292(b). The government sought permission to appeal, which we granted.
To resolve the question before us, we must deal with three broad issues. The first issue is whether the District Court has subject matter jurisdiction. This issue hinges on a determination of whether Antarctica is a foreign country within the meaning of the FTCA. The second issue is whether the venue rules of the FTCA have been satisfied. The final issue involves a determination of which forum's law to apply. Our analysis of these issues leads us to affirm the interlocutory order of the District Court.
I. Subject Matter Jurisdiction
A. The Exception of Section 2680(h)
The FTCA acts as a waiver of sovereign immunity in specified types of cases. Section 2680 of the FTCA lists several exceptions to that waiver. One of those retentions of sovereign immunity is involved here: section 2680(k), which withholds FTCA jurisdiction from "[a]ny claim arising in a foreign country." As previously noted, the question of whether the District Court has subject matter jurisdiction depends on whether Antarctica is a foreign country within the meaning of the FTCA.
1. The Nature of Antarctica
Antarctica can properly be characterized as something of an international anomaly. It is a large continent which has never been and is not now subject to the sovereignty of any nation. Under the Antarctica Treaty of 1959 the signatory nations agreed not to exercise sovereignty in Antarctica, although their claims to sovereignty were not extinguished.
The United States currently operates four active year-round stations, several summer camps, and numerous temporary tent cities in Antarctica. McMurdo Base is America's largest station, with a summer population in excess of 850 persons and a winter population of about 92. It consists of approximately 130 buildings. McMurdo Station has been assigned a zip code by the United States Postal Service.
McMurdo Station has an airfield which supports frequent flights to and from New Zealand during the Antarctic summer. The airfield has two air traffic control facilities. One is Ice Tower; it is located adjacent to the runway, and has radio communication capability with incoming aircraft. The second facility is Mac Center, which has both radio capability to communicate with aircraft and radar capability to locate aircraft via radar returns.
These United States activities are not set forth to demonstrate that, by virtue of extensive involvement, the United States can bring some distant land within the scope of United States sovereignty. These activities are relevant only to a fairly narrow and straightforward issue — is Antarctica a foreign country? The answer to this question is determined in part by answering the question of whether the United States treats this admittedly sovereignless land like a foreign country. The answer is that it does not.
During the pendency of the Antarctica Treaty the United States has consistently reaffirmed its position regarding Antarctica. In 1981, for example, Assistant Secretary of State James L. Malone reiterated that, while the United States does not recognize territorial sovereignty in Antarctica, it maintains its own basis to claims of sovereignty in Antarctica.
Based on the foregoing information, and on a common sense approach to the plain language of the statute, it would appear obvious that Antarctica is not a foreign country within any ordinary meaning of that term. That sort of "plain meaning" approach formed part of the basis of the District Court's decision. As the District Court explained:
In view of this status of Antarctica, if the words of the statute are to be the decisive guide to statutory interpretation, the government's motion must fail, for clearly the instant claim did not arise in a foreign country as that term is commonly understood. Antarctica is not a foreign country; it is not a country at all; and it is not under the domination of any other foreign nation or country. Thus, if it be deduced from the language of the law that the section 2680(k) exception applies only where the government of a foreign nation has or asserts sovereignty, the Court would have to hold that with respect to Antarctica the exception does not, and the Act does, apply.
Reference to the legislative history and relevant case law illustrates that Congress did not intend the term "foreign country" to extend beyond its ordinary meaning.
2. The Legislative History
The FTCA was the product of many years of congressional drafting and redrafting. A variety of amendments were proposed to the original legislation, including several different ways to structure the foreign country exception. A look at some of the rejected language highlights the meaning which should be given to the version which was eventually passed. In 1940 language was proposed to the foreign country exception which would have delineated the geographical jurisdiction of the FTCA to approximately the area the government now contends is covered, and by a positive inclusion instead of the negative exclusion we now have. The suggested language read:
(12) This act shall be applicable only to damages or injury occurring within the geographical limits of the United States, Alaska, Hawaii, Puerto Rico or the Canal Zone.
Obviously, this language, if it had been accepted, would have limited the geographic jurisdictional scope of the FTCA to what the government now says it is. In fact, even if such language had never been suggested in the legislative history, the government would be hard put now to explain why, if the intent was to confine the FTCA solely to the geographical United States, the statute did not use straightforward language such as, "the applicability of the FTCA is limited to United States territory," or, "limited to claims arising in this country." However, no such language was accepted, and the previous "foreign country" version was retained. We find it persuasive that Congress did not place a strict geographical limit on the scope of the FTCA, preferring simply to make an exception in the case of foreign countries.
One instructive item of legislative history was highlighted in the only Supreme Court ease to interpret this section of the FTCA, United States v. Spelar. The Court quoted a pertinent colloquy between Assistant Attorney General Francis M. Shea, testifying to the House Committee on the Judiciary, and Congressman Robson of that Committee.
Mr. Shea: Claims arising in a foreign country have been exempted from this bill, H.R. 6463, whether or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission, it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty.
Mr. Robson: You mean by that any representative of the United States who committed a tort in England or some other country could not be reached under this?
Mr. Shea: That is right. That would have to come to the Committee on Claims in the Congress.
Although Mr. Shea did testify that it would be "wise to restrict the bill to claims arising in this country," the entire basis for that statement was his premise that liability is to be determined by the law of the situs of the wrongful act or omission.
It should be noted that in examining legislative history, one is justified in placing greater reliance on the exact choice of words in the bill as enacted than in oral testimony, to a committee hearing. Mr. Shea's words must be given their general intent, which is that liability based on the law of a foreign country was to be avoided.
Although the legislative history does not point decisively to any answer, the weight of the evidence is in favor of the concept that Congress did not intend to limit the application of the FTCA to the United States and its territories and possessions. It had the opportunity to do so and chose to retain only the "foreign country" limitation. Rather, the legislative will seems to be as the Supreme Court summarized it in Spelar, that "though 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."
3. Cases Interpreting Section 2680(k)
The only Supreme Court case to interpret § 2680(k) is United States v. Spelar. That case involved a suit for wrongful death arising out of the death of a flight engineer at a United States Air Base in Newfoundland, leased by the United States from Great Britain. The Supreme Court determined that even though the accident occurred on a United States Base, that the negligent acts complained of nevertheless arose in a foreign country. The law which would have been applied to the case was the wrongful death law of Newfoundland. The holding of Spelar is based on the principle that § 2680(k)'s purpose is to prevent the United States from being subject to "liabilities depending upon the laws of a foreign power," and that the mere presence of United States government activities in a foreign country will not convert that portion of the foreign country into something else.
Both parties in this proceeding cite a wealth of lower federal court cases relating to the issue of jurisdiction. Since the issue in this case is one of first impression, none of the cases can be said to be truly on point. However, these cases are instructive and stand for several helpful propositions.
B. Operative Effect Cases
Several cases have determined that a claim arises where the act or omission complained of occurs. Thus, a large body of the cases cited in the briefs illustrate that an FTCA claim may arise in the United States, because the negligent act or omission occurred here, even though the act or omission had its "operative effect," i.e., the injury occurred, in a foreign country.
For example, in the case of Sami v. United States an Afghanistani economist was arrested by German police in Germany, at the request of the United States representative for Interpol. Mr. Sami had fled to Germany with his children as a result of a child custody dispute. He sued the United States for false arrest after the State Department told Germany that the offense was not extraditable.
The District Court dismissed the case as one arising in a foreign country, because the last event necessary to liability had occurred in Germany. This Court responded that the FTCA focuses on the place where the negligent or wrongful act or omission of the government employee occurred. Since the instructions to make the arrest and most of the other operative facts in Sami occurred in the District of Columbia, this Court determined that § 2680(k) was not a bar, because the case actually arose in the United States.
These operative effect cases relate not so much to the definition of "foreign country," but to the meaning of "arising in." They determine that "arising in" does not necessarily refer to the situs of the injury, but to the situs of the negligence. The operative effect cases support subject matter jurisdiction over a portion of the plaintiffs' claims in this case, those which have been characterized as the "headquarters claims." The headquarters claims are the allegations of negligent selection, training, and supervision of the McMurdo Air Traffic Controllers by officials in Washington, D.C. Since these claims allege negligent acts or omissions by government employees which occur within the United States, and which merely had their operative effect in Antarctica, they are not claims which "arise in" a foreign country. However, the operative effect cases do not support subject matter jurisdiction over the claims of negligence by the air traffic controllers at McMurdo Base, Antarctica. These "Antarctica claims" constitute a separate ground for relief, with the negligent acts or omissions complained of occurring in Antarctica.
Thus, we accept for present purposes the validity of the headquarters claims, as we must on appeal of a Rule 12(b) motion. Doing so does not eviscerate the jurisdictional bar of the foreign country exception, as the government fears. For one thing, it has always been possible to allege headquarters claims in cases involving injury in a foreign land. But unless subject matter jurisdiction can be separately established for those claims truly arising in a foreign country, the parties would be left with the headquarters claims as their entire case. Since, with the exception of international anomalies such as Antarctica, those claims would be barred by § 2680(k), it is seldom worth their while to try to make a case live or die on the basis of headquarters claims standing alone.
C. The Foreign Country Cases
A variety of cases have been cited which merely decide that, despite outward appearances, the situs of the acts or omissions was a foreign country. For example, torts occurring on American embassies or military bases which are located in foreign countries are barred by the foreign country exception. This is also related to the idea that embassies and military bases in foreign countries often operate under agreement to apply that foreign country's laws in cases occurring there.
A variety of other cases make subtle distinctions as to the level of sovereignty existing in some foreign land. For example, in Burna v. United States, an FTCA case in post World War II Japan, the court concluded that, while the applicable treaty conferred some authority over Okinawa to the United States, Okinawa was still a foreign country within the meaning of the FTCA. This and other vestiges of sovereignty in Japan led the court to conclude that the foreign country exception applied. In Cobb v. United States, the court's extensive analysis led it to the conclusion that Japanese tort law would be applicable. The court determined that Okinawa was in a foreign country because of the fact that the United States Military Government was not free to alter the tort law of Okinawa at will but was bound to maintain the preexisting "foreign law." As the court concluded, "[sjince Congress was unwilling to subject the United States to liability based on that sort of law, the áction was properly dismissed." . Since Antarctica, by agreement, is not now and never has been subject to the sovereignty of any nation, the present case does not require such an analysis.
From this wealth of cases, plaintiffs have selected one case as that "most closely analogous to the present litigation," the case of In Re "Agent Orange" Product Liability Litigation. In Agent Orange, Vietnam veterans, their spouses and children- brought suit under the FTCA for alleged injuries incurred from exposure of the servicemen to the herbicide Agent Orange while they were stationed in Vietnam. The claims brought by the servicemen were dismissed pursuant to the doctrine enunciated in Feres v. United States. However, the independent claims of the wives and children were permitted to proceed. The government put forth several grounds for dismissal, one of which was the foreign country exception, since the alleged injuries occurred in Vietnam. In examining the foreign country exception, Judge Wein stein, "[a]t the peril of restating the obvious," stated that "the purpose of the exception, then, is to ensure that 'the United States [is not subject] to liabilities dependent upon the laws of a foreign power.' " He went on to say that
[t]he purpose of the "foreign claim" exception does not apply to this litigation: not only have none of the parties contended that foreign law should be applied, but there is no theoretical justification for application of foreign law____ The jurisdiction where most of the use of herbicides took place, South Vietnam, no longer exists and Cambodia appears to be an independent state in name only now taken over by Vietnam. North Vietnam, the jurisdiction that has replaced South Vietnam and Cambodia, was at war with the United States and it was in the prosecution of the war that the exposure to Agent Orange took place.
Because of the procedural posture of the case, the judge noted that "[i]t is unclear at this point if the decisions relating to that misuse took place in the United States or Vietnam____ There is no reason to attribute those mistakes to Vietnam rather than to the United States and no policy reason to apply the 'foreign claim' exception."
The exact reason for the court's decision that the foreign country exception did not bar the case is not clear from the language of the opinion. The court appears to have been influenced by cases such as Sami, an operative effect case, and yet it was also clearly influenced by the apparent lack of sovereignty in South Vietnam and Cambodia. Agent Orange, like the present case, involved an undetermined mix of acts or omissions, some occurring within the United States and others in a distant land, all contributing to the harm complained of. Agent Orange supports the proposition that § 2680(k) is not a bar to jurisdiction over cases arising at least in part outside the United States, and in areas where "there is no theoretical justification for application of foreign law."
For all of the above reasons, we conclude that the District Court has jurisdiction over this case. Congress, in drafting and passing section 2680(k), only intended to exclude foreign countries from the scope of the FTCA.
D. Analogous Statutes and Cases
Plaintiff also lists a potpourri of cases and statutes which have decided, in other contexts, that Antarctica was not a foreign country or a foreign state. By themselves, none of these eases would be persuasive, since they all involve interpretations of other statutes with other purposes. "Foreign country" is a fluid concept and Congress is capable of defining it very differently for different reasons. In addition, waiver of sovereign immunity is not to be inferred lightly. But these cases have a cumulative effect which is persuasive. They demonstrate that across a broad scheme of regulations Congress and the courts have consistently determined that Antarctica does not satisfy any definition of "foreign country."
For example, in Larry R. Martin .v. Commissioner the Tax Court held that Antarctica was not a foreign country within the meaning of income tax regulations which define "foreign country" as follows:
The term "foreign country" means territory under the sovereignty of a government other than that of the United States and includes the air space over such territory. It does not include a possession or territory of the United States.
The Tariff Act of 1930, the Interstate Transportation of Wagering Paraphernalia Act, and the State Conducted Lotteries Act each defined "foreign country" as "any empire, country, dominion, colony, or protectorate, or any subdivision or subdivisions thereof (other than the United States and its possessions)." The International Flight Information Manual, published by the Federal Aviation Administration, does not list Antarctica in its designations of "foreign countries" in international aviation. As previously noted, the McMurdo Station has been assigned a zip code by the United States Postal Service. United States dollars are the currency of exchange at McMurdo Base, and to obtain dollars to spend at McMurdo, New Zealanders must apply for permits to export money from New Zealand.
As Judge Greene noted, "to the extent that there is any assertion of governmental authority in Antarctica, it appears to be predominantly that of the United States. The United States conducts all search and rescue operations in Antarctica and, significantly, it controls all air transportation."
E. The Analogy to Outer Space
The legal status of Antarctica has been most frequently analogized to outer space. United States spokesmen suggested the 1959 Antarctic Treaty as a possible model for an outer space treaty during initial formulation discussions in 1965 and 1966. Obviously, the provisions of a treaty relating to outer space are only relevant to the present case by analogy. However, they are instructive as to the way in which the United States has acted with reference to sovereign immunity and liability for acts of its agents in a context very similar to Antarctica.
The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon- and Other Celestial Bodies [the Space Treaty], was signed at Washington, London, and Moscow on 27 January 1967, and entered into force on 10 October 1967. By the terms of the treaty, the United States has agreed to be internationally liable for its space objects and retain jurisdiction over its own objects and persons.
For example, Article VII of the Space Treaty provides:
Each State Party to the Treaty that launches or procures the launching of an object into outer space . and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or judicial persons by such object____
In addition, Article VIII of the Space Treaty provides
A State Party to the Treaty on whose registry an Object launched into outer space is carried shall retain jurisdiction over such object, and over any personnel thereof, while in outer space or on a celestial body.
The Space Treaty is obviously not couched in terms of tort claims. However, the basic principle is that in the sovereign-less reaches of outer space, each state party to the treaty will retain jurisdiction over its own objects and persons. Like the decisions under the statutes discussed in section D above, holding that Antarctica is not a "foreign country" for various purposes, the treatment of outer space is persuasive by analogy.
II. Venue
Venue of cases under the FTCA is governed by the provisions of 28 U.S.C. § 1402, which provides that any such "civil action on a tort claim against the United States . may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred." Since the plaintiffs in this case are all residents of Great Britain or New Zealand, venue must be satisfied through the place of the act or omission. This would be true even if the plaintiffs were American citizens resident in New Zealand, which brings into stark relief the state of utter lawlessness which would be created in Antarctica by adoption of the government theories.
Plaintiffs have posited two separate grounds for relief, which may be characterized as the headquarters claims and the Antarctica claims. The headquarters claims alleged negligence by officers of the United States, occurring in Washington, D.C., and in the Pentagon. On their face, the headquarters claims satisfy the venue requirements of section 1402(b). Of course, we must analyze these claims under the settled rule for assessing the propriety of dismissal under Rule 12(b) of the Federal Rules of Civil Procedure. Many potentially dispositive facts are intensely disputed by the parties. Because there has been neither factfinding by the district court nor very much if any discovery by the parties, we must accept as true all of the material allegations in the plaintiffs' complaint. Dismissal for failure to state a claim for relief is proper only when it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." All factual doubts must be resolved and all inferences made in favor of the plaintiffs. On that basis, it is clear that the headquarters claims satisfy the requirements of section 1402(b) by complaining of acts or omissions within the jurisdiction of the District Court for the District of Columbia.
This leaves us with the claims involving negligence in Antarctica. These claims satisfy the venue requirements under two discrete but interrelated theories.
The general rule is that venue must be established as to each separate cause of action. However, as one commentator has explained, the focus is on the word separate, Professor Moore notes that, whether the case involves a federal and nonfederal claim, or two federal claims, if they amount to only one cause of action with two grounds for relief, proper venue as to one federal ground will support adjudication of both grounds. His theory is that "there is no true problem of joinder of actions unless there be two or more causes of action; that a broad concept of cause of action eliminates or lessens the problem." He goes on to apply to the venue context the broad definition of cause of action from Hum v. Oursler. This notion of venue being required only for separate causes of action is still used, even though Hum's concept of cause of action has been replaced with respect to subject matter jurisdiction by the doctrine of pendent jurisdiction announced in United Mine Workers v. Gibbs.
Applying that principle to the present case, it is clear that this litigation can accurately be described as a single cause of action with separate grounds for relief. Plaintiffs seek damages for "an essentially single wrong," i.e., wrongful death. They allege against the same defendant two separate grounds for relief. These two grounds are identical as to parties and very similar as to the proof. There will be great- commonality as to witnesses and evidence. Recognizing that there is but a single cause of action, venue under § 1402(b) is satisfied for the entire case by virtue of the headquarters claims.
In the context of subject matter jurisdiction, the concept of "cause of action" has been replaced as the touchstone for analysis by the doctrine of pendent jurisdiction. This familiar concept has also spilled over into the rules of venue. The doctrine of "pendent venue" is now well established, particularly in cases where the court has previously exercised its discretion to hear a certain claim under pendent jurisdiction. As one commentator noted, "[i]t would seem that if procedural convenience is enough to avoid the constitutional limitations on the jurisdiction of the federal court, it should suffice also to dispense with the purely statutory requirements as to venue." Consequently, many pendent jurisdiction cases also apply the principles of pendent jurisdiction by analogy when one or more claims arising out of a common nucleus of operative facts do not satisfy the requirements of the applicable venue statute.
This has even been carried over into cases where subject matter jurisdiction was independently satisfied on each claim, although with a more limited application. This extension was foreseen by the authors of another treatise, in which they explain the rule that venue must be proper for each claim. They cite a Supreme Court case involving both patent and breach of contract claims. Jurisdiction was proper on all claims due to the complete diversity of the parties, but venue was only proper as to the patent claim. The other claims had to be dismissed. The authors note that the case was decided long before the concept of pendent jurisdiction was developed, and that the result should be different today.
It would seem that there is no practical reason for limiting the application of pendent venue to cases where pendent jurisdiction has also been applied, and judges have recognized this by utilizing pendent venue when the case has merited it.
For example, in Laffey v. Northwest Airlines the District Court for the District of Columbia found that it "need not decide whether [venue] is proper" for the cause of action under the Civil Rights Act of 1964 since venue was clearly proper under the Equal Pay Act claim. The Equal Pay Act claim involved allegations that Northwest Airlines paid female in-flight cabin attendants less than male in-flight cabin attendants, and sought past-due and future wages. The Civil Rights Act claim involved allegations that Northwest discriminated in its employment practices against its female in-flight cabin attendants in that it used a discriminatory employment classification scheme and employment conditions including male priority in the "chain of command" and unequal treatment in regard to weight and height requirements, eyeglasses, uniform cleaning, and hotel accommodations. Thus, Laffey can be aptly characterized as two separate causes of action arising out of a common nucleus of operative facts. This Court has subsequently cited Laffey, with respect to the general rule that venue must be satisfied as to each cause of action, for the notion that such a rule may be undesirable "when parties and proofs for all causes of action are identical."
These same principles were applied in the case of Zenith Radio Corp. v. Matsushita Electric Industrial Co. That case involved, among other things, allegations under the Anti-Dumping Act of 1916 and federal antitrust law. The court addressed defendant's argument that even if venue were proper under § 12 of the Clayton Act, it was not proper for the counts arising under the Anti-Dumping Act. As the court explained:
It would be senseless for this court to bifurcate these two exceedingly complex antitrust cases by dismissing or transferring the anti-dumping counts while retaining the antitrust counts since the facts underlying both sets of issues are essentially the same. If ever a case has cried out for the exercise of pendent venue, these two antitrust actions do. Accordingly, in the interest of judicial economy this court will retain jurisdiction over the anti-dumping counts under the doctrine of pendent venue.
In the case of Seamon v. Upham, which originally was a Voting Rights Act case charging that the Texas apportionment plan in various ways diluted minority voting strength, plaintiff sought to file a supplemental complaint, adding under Federal Rule of Civil Procedure 18(a) a claim challenging the legality and constitutionality of the Texas Governor's proclamation which set a date for a special congressional election. This supplemental complaint clearly lacked venue. The court, in its examination of the doctrine of pendent venue, noted that a court exercising its discretion in a pendent venue case "should consider the same factors that it would consider in deciding whether to exercise pendent jurisdiction _ Thus it should consider wheth er the claims derive from a 'common nucleus of operative fact,' . and whether the exercise of jurisdiction furthers the goals of judicial economy, convenience, and fairness to the litigants." The court also noted that
a federal court's exercise of pendent venue over an additional federal law claim— the issue presented in the case before us — does not raise either the question of the power or the propriety of federal court actions, the questions that were implicated in Gibbs. Nevertheless, we assume that the "common nucleus of operative fact" test should retain some weight in our discretionary deliberations, because it, in itself, embodies factors that bear upon judicial economy, convenience, and fairness.
The court went on to decline to exercise pendent venue because it determined that the supplemental complaint arose out of a completely discrete set of circumstances.
Goggi v. Outboard Marine Corp. was a case where plaintiff sought to apply the concept of pendent venue to a patent claim. The court explained that, at least with regard to the special patent venue statute, this area of "pendent venue" has received limited application. The court in Goggi distinguished those cases which did apply the concept of pendent venue by noting that "the sense of these opinions was that where there is substantial identity of issues and proof, it is most economical to try the various claims at one time." Certainly the present case bears the same identity of parties and proofs found in Laffey and other pendent venue cases.
Whether to apply the principle of pendent venue in any given case is a discretionary decision, based on applicable policy considerations. Some of these considerations will be the same as those that support the exercise of pendent jurisdiction — judicial economy, convenience, avoidance of piecemeal litigation, and fairness to the litigants. Other considerations unique to the context of venue will apply. For example, the purpose of venue rules is generally considered to be "primarily a matter of convenience of litigants and witnesses." It is also oriented to the convenience of the court system.
Given that all parties to this lawsuit will be properly before the district court on the headquarters claims, it does not seem too inconvenient to include the Antarctica claims in the same lawsuit. Indeed, even if the Antactica claims were sued on alone, the District of Columbia might well be the most convenient forum, since many of the witnesses will be either here in Washington, D.C. or scattered around the globe. Records relating to the accident investigation of the Air New Zealand flight are located in Washington, D.C. Much of the other evidence in the case will be either in the District of Columbia or at the Pentagon.
Hearing the Antarctica claims also allows the district court to act in harmony with congressional intent and a rule of construction adopted by the Supreme Court, both of which are explained in Brunette Machine Works v. Kockum Industries.' The court noted that there had been and perhaps still were occasional cases in which the federal courts have jurisdiction but there is no district in which venue is proper, but that Congress had acted to close such gaps in 1966 by amending the general venue statute. The court noted that "the development supports the view that Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional ground with the other. Thus, in construing venue statutes it is reasonable to prefer the construction that avoids having such a gap." In the present case, dismissal of the Antarctica claims for lack of venue creates a gap between jurisdiction and venue and works a hardship not usually found in dismissals for lack of venue, which are often done with an eye toward another court in which subject matter jurisdiction and venue can both be established. No one contends here that venue lies elsewhere. The government, consistent with its position that there is no law in Antarctica, maintains that venue exists — nowhere.
Whether viewed as a single cause of action with two grounds for relief (two claims), or as an appropriate case to apply the principle of "pendent venue" to the headquarters and Antarctica claims, this case satisfies the venue requirements of § 1402(b).
III. Choice of Law
Choice of law issues in FTCA actions are governed by 28 U.S.C. § 1346(b), which states that the district courts "shall have exclusive jurisdiction of civil actions on claims against the United States . under circumstances where 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." This section has been construed to mean that the district court should apply as a choice of law rule the whole law of the place where the act or omission occurred.
In this wrongful death case, some undetermined portion of the acts or omissions complained of occurred in the District of Columbia. Thus, at least as to the headquarters claims, and probably as to the entire case, application of D.C. law would mean that this "civil action" would be tried "in accordance with the law of the place where the act or omission occurred."
The Antarctica claims presents another novel issue. By directing application of the law of the place where the act or omission occurred, § 1346 leads the court to a place where this is no civil tort law to apply. As we have seen, this is a situation directly opposite to the fear of becoming entangled in foreign law, which produced the "foreign country" exception. Hence, for this and other reasons, contrary to the government's assertions, we do not feel that the logical conclusion to be derived therefrom is that the entire case ought to be dismissed. Rather, we feel that this represents a question not answered by the statute, and turn to those factors relevant to the choice of the applicable rule of law when there, is no such statutory directive. Those factors, outlined in Restatement 2d, Conflict of Laws § 6, point to the District of Columbia as the forum whose law should be applied in this case.
This is not a case such as Sami, where a foreign state's substantive law is supplanted by the law of the forum because it conflicts with a strong public policy of the forum. Rather, by traditional analysis, among the two "forums" with the greatest interest in the outcome of this litigation— Antarctica and the United States — only one has any civil law to apply. And, in fact, Antarctica has no "forum" either; fundamentally, because Antarctica is not a "country," foreign or otherwise.
These considerations are similar to those which influenced the court's decision in Agent Orange. In that case the erratic ebb and flow of sovereignty in Southeast Asia led the court to conclude that "there is no theoretical justification for application of foreign law."
These conclusions are buttressed by the recognized principle of international law that a nation may exercise jurisdiction over its nationals as a legitimate exercise of the nationality principle. The United States recognizes the validity of the nationality principle.
The United States has a strong public policy interest in the outcome of this litigation. In addition, the District Court for the District of Columbia has a strong interest in bringing to a resolution a case which has been properly filed in that court in which it has both subject matter jurisdiction and venue. In contrast to these and other strong interests of the District of Columbia forum, there is no foreign sovereign even to assert a countervailing interest in Antarctica. The proper law to be applied to the case would be District of Columbia law.
In summary, the government argument requires us to accept an analysis of the FTCA, section 2680(k), that there are two areas of the world only — first, the United States, and second, "foreign countries." There are obviously several other areas in which people operate, e.g., outer space, the high seas, and Antarctica. While the other non-United States/non-foreign country areas may be covered by some law, we have a no-man's land of law in Antarctica, unless United States law covers the actions of United States citizens — not an unfair concept — and United States law includes the Federal Tort Claims Act.
All of this attempted limitation of coverage rests on one indefensible concept — that Antarctica is a "foreign country." Such an interpretation does violence to the plain meaning of the statute and the purpose behind the "foreign country" exception. While there are theoretical procedural obstacles, these can be logically overcome once the basic concept that United States law applies at least to the actions of United States citizens in Antarctica is accepted, and the other side of the coin is visualized, i.e., that unless this concept is accepted, Antarctica is an area without any law whatsoever.
The decision of the District Court is Affirmed and the case is Remanded for further proceedings consistent with this opinion.
So Ordered.
. 28 U.S.C. § 1346(b), 2671 et seq. (1982).
. 28 id. § 2680(k) (1982).
. Id.
. Id.
. The Antarctica Treaty, 12 U.S.T. 795, T.I.A.S. No. 4780, Appendix at 55-60.
. National Science Foundation, Facts About the United States Antarctic Research Program 1-3 (July 1984).
. Id. The United States Postal Service Zip Code Directory 1984. The zip code listed is 96692.
. National Science Foundation, supra note 6, at 1.
. Hearings Before the Subcommittee on Arms Control, Oceans, International Operations and Environment, of the Senate Committee on Foreign Relations, 97th Cong., 1st Sess. (1981) (testimony of Ass't Sec. of State James L. Malone).
. Appendix at 42 (Mem.Op. by Harold Greene, J.) (citations omitted).
. Hearings on S. 2690 Before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 3d Sess. 38 (1940).
. See Tort Claims Against the United States: Hearings on H.R. 7236 Before Subcommittee No. 1 of the House Judiciary Committee, 76th Cong., 3d Sess. 3 (1940).
. 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949).
. Id. at 221, 70 S.Ct. at 12.
. Id.
. Id.
. 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949).
. Id. at 221, 70 S.Ct. at 12.
. See, e.g., Sami v. United States, 617 F.2d 755 (D.C.Cir.1979) ("[T]he FTCA, for purposes of imposing liability, focuses on the place of the government employee's act or omission.").
. See, e.g., id.; Leaf v. United States, 588 F.2d 733 (9th Cir.1978); In re Paris Air Crash of March 3, 1974, 399 F.Supp. 732, 737 (C.D.Cal.1975).
. 617 F.2d 755 (D.C.Cir.1979).
. Id. at 758.
. Brief for Appellees at 33.
. Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)).
. See, e.g., United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949); Broadnax v. United States, 710 F.2d 865 (D.C.Cir.1983); Meredith v. United States, 330 F.2d 9 (9th Cir.1964).
. North Atlantic Treaty Organization Status of Forces Agreement, 19 June 1951, art. VIII, 4 U.S.T. 1792, T.I.A.S. No. 2846, 199 U.N.T.S. 67.
. 240 F.2d 720 (4th Cir.1957).
. 191 F.2d 604 (9th Cir.1951).
. Id. at 611.
. Brief for Appellees at 13.
. 580 F.Supp. 1242 (E.D.N.Y.1984), aff'd, No. 84-381 (2d Cir. 25 Sept. 1984).
. 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).
. 580 F.Supp. at 1254.
. Id.
. Id. at 1255.
. Sami v. United States, 617 F.2d 755 (D.C.Cir.1979).
. 580 F.Supp. at 1254.
. 50 T.C. 59 (1968).
. Treas.Reg. § 1.911.1(a)(7) (in effect at the time of the Martin case).
. 19 U.S.C. § 1336(h)(3), 1338® (1982).
. 18 id. § 1953(d).
. Id. § 1307(c).
. See Brief for Appellees at 24 n. 22.
. Supra p. 93.
. See Brief for Appellees at 7.
. Appendix at 47 (Mem.Op. by Harold Greene, J.).
. I.A. Csabafi, The Concept of State Jurisdiction in International Space Law 66 (1971); see also McDougal, Lasswell, Vlasic & Smith, The Enjoy-merit and Acquisition of Resources in Outer Space, 111 U.Pa.L.Rev. 521, 589 (1963); Comment, Report of the National Citizen's Commission on Space, presented to the White House Conference on International Cooperation, Nov. 1965, 53 AmJ.Int'l L. 121, 126-31 (1959).
. See Brief for Appellees at 29 (citing S.H. Lay & H.J. Taubenfeld, The Law Relating to Activities of Man in Space 59-60 (1970)).
. 18 U.S.T. 2410, T.I.A.S. 6347, 61 U.N.T.S. 205 (1967).
. Appendix at 57.
. Id. at 57-58.
. 28 U.S.C. § 1402(b) (1982).
. Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)) (emphasis added).
. Shear v. National Rifle Ass'n, 606 F.2d 1251, 1253 (D.C.Cir.1979).
. 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3808 (1976).
. 1 J. Moore, Moore's Federal Practice ¶ 0.142[3] (2d ed. 1984).
. Id. ¶0.140[5].
. Id.
. Id.
. 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933).
. See, e.g., LaMont v. Haig, 590 F.2d 1124, 1135 (D.C.Cir.1978); International Patent Dev. v. Wyomont Partners, 489 F.Supp. 226, 230 (D.Nev.1980); Garfinkle v. Arcata Nat'l Corp., 360 F.Supp. 1296, 1298 (S.D.N.Y.1973).
. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).
. Hurn v. Oursler, 289 U.S. at 246, 53 S.Ct. at 590.
. C. Wright, The Law of Federal Courts § 10, at 32 (4th ed. 1983).
. The rationale of similarity of proofs was important in the pre-Gibbs case of Carolyn Chenilles, Inc. v. Ostow & Jacobs, Inc., 168 F.Supp. 894 (S.D.N.Y.1958). The court held that when the district court has jurisdiction over the patent infringement aspect of a case, and proofs as to both the patent infringement aspect and the unfair competition aspect would undoubtedly be substantially similar,- and the needs of efficient administration dictated that, if possible, they should be tried together, the district court would retain jurisdiction over the unfair competition aspect, even if there were any doubt as to the proper venue of the unfair competition aspect.
. Specifically, some courts have expressed reluctance about the application of pendent venue in patent infringement cases, with the special concerns those cases entail. See, e.g., Hoffacker v. Bike House, 540 F.Supp. 148, 149-50 (N.D.Cal.1981); Goggi Corp. v. Outboard Marine Corp., 422 F.Supp. 361, 366 (S.D.N.Y.1976).
. 15 C. Wright, A. Miller & E. Cooper, supra note 55, § 3808, at 42.
. Geneva Furniture Mfg. Co. v. S. Karpen & Bros., 238 U.S. 254, 35 S.Ct. 788, 59 L.Ed. 1295 (1915).
. See supra note 54.
. 321 F.Supp. 1041 (D.D.C.1971) (denial of motion to reconsider venue).
. 42 U.S.C. § 2000e-2, 2000e-5(g) (1982).
. 29 id. § 206(d)(1).
. 321 F.Supp. at 1042.
. LaMont v. Haig, 590 F.2d 1124, 1135 (D.C.Cir.1978); Relf v. Gasch, 511 F.2d 804, 807 (D.C.Cir.1975) (citing Laffey ).
. 402 F.Supp. 262 (E.D.Pa.1975) (Higginbotham, J.).
. 15 U.S.C. § 72 (1982).
. Specifically the Clayton Act, id. § 22.
. 402 F.Supp. at 328 n. 38.
. 563 F.Supp. 396 (E.D.Tex.1983).
. Id. at 399.
. Id. at 399 n. 3.
. Id. at 399. Many of these same considerations of judicial economy prompted this court to affirm a district court's denial of pendent venue over an FTCA claim in connection with a Privacy Act claim in the case of Reuber v. United States, 750 F.2d 1039 (D.C.Cir.1984). This court explained that many distinct issues of proof would be presented, and that "consideration of judicial economy must keep in mind that Reuber has identical claims to those considered here, including an FTCA action, already pending in federal district court in Maryland," at 1049, a consideration not present in this case. The court also noted that the FTCA "created a strong negative presumption against courts finding discretionary pendent venue elsewhere," id., that is, in some district other than where plaintiffs reside or where the acts or omissions complained of occurred. In Reuber, plaintiff attempted to try his case in the District of Columbia, a forum where he did not reside and where the acts or omissions complained of did not occur. Id. at 1046. Plaintiff sought to use pendent venue completely to circumvent the FTCA's venue provisions by bringing his FTCA claims under the general value provisions applicable to the Privacy Act. In the present case, pendent venue is used to satisfy venue requirements for a portion of plaintiffs' FTCA claims, based on the satisfaction of venue requirements by the remainder of plaintiffs' claims in this FTCA case.
. 422 F.Supp. 361 (S.D.N.Y.1976).
. The patent venue statute "reflects a Congressional awareness of the technical nature of patent litigation and the particular advantage in limiting its prosecution to forums where the acts of infringement occurred and the defendant is located." Hoffacker v. Bike House, 540 F.Supp. 148, 149 (N.D.Cal.1981).
. 422 F.Supp. at 366.
. Id.
. See Comment, Ancillary Process and Venue in the Federal Courts, 73 Harv.L.Rev. 1164 (1960).
. Denver & R.G.W.R. Co. v. Brotherhood of R.R. Trainmen, 387 U.S. 556, 560, 87 S.Ct. 1746, 1748, 18 L.Ed.2d 954 (1967).
. Whittier v. Emmet, 281 F.2d 24 (D.C.Cir.), cert. denied, 364 U.S. 935, 81 S.Ct. 380, 5 L.Ed.2d 367 (1961); Jones v. United States, 407 F.Supp. 873 (N.D.Tex.1976).
. Brief for Appellees at 40.
. Id.
. Id. at 40-41.
. 406 U.S. 706, 92 S.Ct. 1936, 32 L.Ed.2d 428 (1972).
. Id. at 710 n. 8, 92 S.Ct. at 1939 n. 8.
. . 28 U.S.C. § 1346(b) (1982).
. See Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).
. Brief for Appellants at 17.
. Id.
. See, e.g., E. Scoles & P. Hay, Conflict of Laws 551-606 (1984); Restatement (Second) Conflict of Laws § 6 (1971).
. Sami v. United States, 617 F.2d 755 (D.C.Cir.1979).
. Id. at 763.
. In re "Agent Orange" Product Liability Litigation, 580 F.Supp. 1242 (E.D.N.Y.1984).
. Id. at 1254.
. Restatement of Foreign Relations Law of the United States § 402 (Ten.Draft No. 2, 1981).