S.H., a minor, by her guardian ad litem, Chantal Holt; William Kenneth Holt; Chantal Holt, Plaintiffs-Appellees,
United States of America, Defendant-Appellant.
and Submitted December 15, 2016 San Francisco, California
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
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.
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.
Tort Claims Act
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
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.
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.
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.
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.
LUCERO, Circuit Judge:
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).
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.
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 ...