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S.H. v. United States

United States Court of Appeals, Ninth Circuit

April 10, 2017

S.H., a minor, by her guardian ad litem, Chantal Holt; William Kenneth Holt; Chantal Holt, Plaintiffs-Appellees,
v.
United States of America, Defendant-Appellant.

          Argued and Submitted December 15, 2016 San Francisco, California

         Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding D.C. No. 2:11-cv-01963-MCE-DAD

          John Samuel Koppel (argued) and Mark B. Stern, Attorneys, Appellate Staff; Benjamin B. Wagner, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellant.

          Steven B. Stevens (argued), Steven B. Stevens APC, Los Angeles, California; Martin M. Berman, Law Offices of Martin M. Berman, Palm Springs, California; for Plaintiffs-Appellees.

          Before: Carlos F. Lucero, [*] Susan P. Graber, and Andrew D. Hurwitz, Circuit Judges.

         SUMMARY[**]

         Federal Tort Claims Act

         The panel vacated the district court's judgment in favor of plaintiffs who brought a Federal Tort Claims Act ("FTCA") action against the United States; held that the plaintiffs' claims arose in Spain and therefore were barred by the FTCA's foreign country exception; and remanded with instructions to dismiss for lack of subject matter jurisdiction.

         Plaintiff S.H. was born prematurely while her family was stationed at a United States Air Force base in Spain, and as a consequence of her premature birth, S.H. suffered a permanent brain injury that led to a diagnosis of cerebral palsy after she returned to the United States.

         The FTCA generally waives the United States' sovereign immunity from suits in torts, but the waiver is subject to certain exceptions. Under the foreign country exception, the FTCA's waiver of immunity does not apply to any claim arising in a foreign country.

         The panel held that an injury is suffered where the harm first impinges upon the body, even if it is later diagnosed elsewhere. The panel concluded that the brain injury S.H. suffered at or near the time of her birth impinged upon her body in Spain; thus, that was where the plaintiffs' claims arose. The panel further held that S.H.'s cerebral palsy was derivative of the harm she sustained at birth.

         Judge Graber concurred in the result. She wrote separately because, in her view, the timing and content of the administrative claim filed by plaintiffs, while they were still in Spain, foreclosed their claims under the FTCA.

          OPINION

          LUCERO, Circuit Judge:

         In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court held that the foreign country exception to the Federal Tort Claims Act ("FTCA") "bars all claims based on any injury suffered in a foreign country." Id. at 712. The Court left unanswered, however, the issue currently before us: How to determine where an injury is "suffered." We hold that an injury is suffered where the harm first "impinge[s]" upon the body, even if it is later diagnosed elsewhere. See Restatement (First) Conflict of Laws § 377, n.1 (1934).

         Applying that test to the facts of this case, we conclude that the foreign country exception bars plaintiffs' claims. S.H., the daughter of William and Chantal Holt, was born prematurely while the family was stationed at a United States Air Force ("USAF") base in Spain. As a consequence of her premature birth, S.H. sustained a permanent injury to the white matter of her brain; she was diagnosed as suffering from cerebral palsy after the family returned to the United States. The Holts filed suit against the United States, contending that officials at a USAF base in California negligently approved the family's request for command-sponsored travel to a base in Spain ill-equipped to deal with Mrs. Holt's medical needs. They further argue that S.H.'s injury-the cerebral palsy diagnosis-first occurred upon their return to the United States. At trial, the district court agreed that the injury occurred in South Carolina and awarded damages of $10, 409, 700. Although we are sympathetic to the plaintiffs' situation, we agree with the United States that the injury at issue was suffered in Spain. We exercise jurisdiction under 28 U.S.C. § 1291 and reverse.

         I

         A

         Mr. Holt is a Master Sergeant in the USAF. He and his wife have four children. In 2004, when the family was stationed at Edwards Air Force Base in California, Mr. Holt was informed that he was being transferred to the USAF Air Base at Rota Naval Station in Spain. Shortly thereafter, a pregnancy test at the ...


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