S. H., et al v. USA

Filing

FILED OPINION (CARLOS F. LUCERO, SUSAN P. GRABER and ANDREW D. HURWITZ) VACATED; REMANDED. The parties shall bear their own costs on appeal. Judge: CFL Authoring, Judge: SPG Concurring. FILED AND ENTERED JUDGMENT. [10389297]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

S.H., a minor, by her guardian ad
litem, Chantal Holt; WILLIAM
KENNETH HOLT; CHANTAL HOLT,
Plaintiffs-Appellees,

No. 15-15000
D.C. No.
2:11-cv-01963MCE-DAD

v.
UNITED STATES OF AMERICA,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted December 15, 2016
San Francisco, California
Filed April 10, 2017
Before: Carlos F. Lucero,* Susan P. Graber,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Lucero;
Concurrence by Judge Graber

*

The Honorable Carlos F. Lucero, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

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S.H. V. UNITED STATES
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.
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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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.

COUNSEL
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 PlaintiffsAppellees.

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).

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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 commandsponsored 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 Edwards Air Force Base medical clinic
confirmed that Mrs. Holt was pregnant with their third child.

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After learning he was to be transferred overseas, Mr. Holt
requested command-sponsored travel for his family. To
obtain approval for this program, family members must be
screened to ensure that the overseas base is capable of
addressing their medical needs. Dr. Richard Stahlman, chief
of the medical staff at Edwards Air Force Base, approved the
Holt family’s command-sponsored travel to Spain. The
district court found that Dr. Stahlman knew Mrs. Holt was
pregnant and had experienced two prior preterm deliveries
and a miscarriage at the time he cleared her for overseas
travel.
In March 2005, when Mrs. Holt was approximately
twenty weeks pregnant, the family relocated to Spain. There,
Mrs. Holt was treated by Dr. Dennis Szurkus, a specialist in
obstetrics and gynecology at Naval Hospital Rota. During an
ultrasound appointment on May 11, 2005, Dr. Szurkus
determined that Mrs. Holt was exhibiting signs of preterm
labor and had her transferred by ambulance to an off-base
hospital—Puerto Real Hospital—where she underwent an
emergency cesarean section. S.H. was born on May 12, at
approximately 31 weeks gestation. She had difficulty eating
and breathing and was kept in the neonatal intensive care unit
for seventeen days.
In the months following S.H.’s birth, the Holts saw
several doctors in Spain regarding her medical issues and
expressed concern that S.H. was not developing like her two
older siblings, both of whom were also born preterm.
Doctors told the Holts that S.H. had strabismus, poor head
control, low tone in her abdominal muscles, and significant
motor and developmental delays. S.H. also experienced
seizure-like symptoms, for which she was prescribed
phenobarbital. When she was approximately five months old,

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S.H. underwent an MRI, which showed periventricular
leukomalacia, an injury to the white matter of her brain.
At around nine months of age, S.H. was evaluated by a
neurologist, Dr. Lisa Smith, who found that S.H. had
abnormally brisk reflexes and a mild increase in dynamic
tone in her lower extremities. Dr. Smith did not rule out
cerebral palsy at that time but declined to render a diagnosis.
Two other doctors in Spain did conclude that S.H. had
cerebral palsy.1
The family returned to the United States in mid-2006.
Late that year, S.H. was diagnosed with tetraplegia of all four
extremities. At the age of two, while living in South
Carolina, S.H. was definitively diagnosed with cerebral palsy.
It is undisputed that S.H.’s premature birth was the cause of
her cerebral palsy.
B
In June 2006, while the Holts were still in Spain, they
filed an administrative claim seeking damages from the
government for S.H.’s “catastrophic neurological injuries,
seizures, learning deficits, physical limitations,” and “cerebral
palsy.” They alleged that these injuries resulted from the
negligent approval of Mrs. Holt’s command-sponsored travel
overseas. The administrative claim was denied.

1

Those doctors were Dr. Paul Shales, a developmental pediatrician
at the Educational, Developmental and Intervention Services Clinic at
Rota, and Dr. Anthony Delgado, a general pediatrician at the Rota
pediatric clinic. The district court found Dr. Shales’ diagnosis unreliable.

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Having exhausted administrative remedies, the Holts filed
the instant action in district court. The government
unsuccessfully moved for summary judgment, contending
that the FTCA’s foreign country exception barred the Holts’
medical malpractice claims. Following a bench trial, the
court awarded the Holts $10,409,700 in damages. The
government filed a motion to alter or amend the judgment
under Fed. R. Civ. P. 59(e). The court granted the motion in
part but ultimately declined to alter the damages award. The
government timely appealed the amended judgment and all
related interlocutory orders.
II
We review a district court’s findings of fact following a
bench trial for clear error. Kohler v. Presidio Int’l, Inc.,
782 F.3d 1064, 1068 (9th Cir. 2015). However, “[w]hether
the United States is immune from liability in a FTCA action
is a question of federal law subject to de novo review.”
Montes v. United States, 37 F.3d 1347, 1351 (9th Cir. 1994)
(italics omitted).
The FTCA generally waives the United States’ sovereign
immunity from suits in tort, “render[ing] the Government
liable in tort as a private individual would be under like
circumstances.” Richards v. United States, 369 U.S. 1, 6
(1962); see also 28 U.S.C. § 2674. But that waiver is subject
to certain exceptions. See generally 28 U.S.C. § 2680. Under
the foreign country exception, the FTCA’s waiver of
immunity does not apply to “[a]ny claim arising in a foreign
country.” Id. § 2680(k).
In Sosa, the Supreme Court held that the foreign country
exception “bars all claims based on any injury suffered in a

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S.H. V. UNITED STATES

foreign country, regardless of where the tortious act or
omission occurred.” 542 U.S. at 712. The Court noted that
the foreign country exception codified Congress’
“unwilling[ness] to subject the United States to liabilities
depending upon the laws of a foreign power.” Id. at 707
(alteration in original) (quoting United States v. Spelar,
338 U.S. 217, 221 (1949)). At the time the FTCA was
passed, “the dominant principle in choice-of-law analysis for
tort cases was lex loci delicti: courts generally applied the
law of the place where the injury occurred.” Id. at 705.
Accordingly, the Court concluded that Congress likely
intended the phrase “arising in” to have the same meaning in
§ 2680(k) as it did in state choice-of-law statutes: that is, to
“express the position that a claim arises where the harm
occurs.” Id. at 711.2
The question at the center of this appeal is where S.H.’s
injury was “suffered” for the purposes of the foreign country
exception. Id. at 712. The Sosa opinion offers various

2

Sosa recognized that Congress’ intent in enacting the foreign
country exception was to prevent the United States from being subjected
to liability under the laws of a foreign power. See 542 U.S. at 707.
However, the Court also acknowledged that under its interpretation of the
statute, the foreign country exception would apply even “when a State’s
choice-of-law approach would not apply the foreign law of place of
injury.” Id. at 711. In rejecting a more selective approach, the Court
noted that Congress did not write the statutory language to bar claims only
“when foreign law would be applied” but rather to bar all claims “arising
in” a foreign country. Id. The Court further reasoned that even if such a
meaning could be inferred from the language of the statute, it would result
in “a scheme of federal jurisdiction that would vary from State to State,
benefiting or penalizing plaintiffs accordingly.” Id. Thus, a consequence
of the Court’s decision in Sosa is that the foreign country exception will
sometimes bar suits that would not have triggered the application of
foreign law.

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formulations of lex loci delicti, but provides little guidance on
this specific issue. See, e.g., id. at 705 (claim arises “where
the last act necessary to establish liability occurred; i.e., the
jurisdiction in which injury was received” (quoting John W.
Ester, Borrowing Statutes of Limitation & Conflict of Laws,
15 U. Fla. L. Rev. 33, 47 (1962))); id. at 706 (“the place
where the harmful force takes effect upon the body” (quoting
Restatement (First) of Conflict of Laws § 377, n.1 (1934)
(emphasis omitted))). In the ordinary case, an injury will be
experienced in the same place it is inflicted, thereby obviating
the need for further analysis. See, e.g., id. at 698 (seeking
damages for false arrest in Mexico). However, the inquiry
becomes more complicated when, as in this case, plaintiffs
allege injuries manifesting after the initial infliction of harm.
The district court concluded that state accrual law should
determine where an injury is suffered. Relying on California
law, it held that S.H.’s cerebral palsy occurred in the United
States because it was not until the Holts arrived in South
Carolina that doctors could identify S.H.’s symptoms as
cerebral palsy. But as we have previously noted, “[q]uestions
of interpretation under the [FTCA’s] exclusion provisions are
controlled by federal law.” Ramirez v. United States,
567 F.2d 854, 856 (9th Cir. 1977); accord United States v.
Neustadt, 366 U.S. 696, 706 (1961) (“[W]hether [a] claim is
outside the intended scope of the Federal Tort Claims Act . . .
depends solely upon what Congress meant by the language it
used . . . .”). The district court acknowledged this principle
as a general matter but concluded that because California law
governed the United States’ liability under 28 U.S.C.
§ 1346(b)(1), it also determined where the Holts’ claims
arose. However, § 2680(k) states that § 1346(b) “shall not
apply to” any claim falling within the foreign country
exception.

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The district court also failed to recognize that the question
of when a claim accrues for statute of limitations purposes is
analytically distinct from the question of where a claim arises
under the foreign country exception. See Manemann v.
United States, 381 F.2d 704, 705 (10th Cir. 1967) (“[I]n the
case at bar we are not concerned with either the time or place
of an accrued cause of action for the purpose of applying a
statute of limitations or a principle of conflict of law. We are
concerned only as to whether appellant’s claim arose in a
foreign country within the contemplation of section 2680(k)
. . . .”); In re Joint E. & S. Dist. Asbestos Litig., 721 F. Supp.
433, 435 (E.D.N.Y. & S.D.N.Y. 1988) (stating that the “last
event” required to establish liability “is not necessarily
plaintiff’s discovery of his illness; so to hold would be to
confuse the beginning of plaintiff’s cause of action with the
beginning of its end, i.e., with the starting of the statute of
limitations” (internal quotation marks omitted)). There may
be some overlap in the standards applied to these questions.
See United States v. Kubrick, 444 U.S. 111, 120 (1979)
(recognizing that “the general rule under the [FTCA] has
been that a tort claim accrues at the time of the plaintiff’s
injury”). But the statute of limitations inquiry is concerned
with a plaintiff’s knowledge, see id. at 118–24, to ensure that
a limitations period does not lapse before a reasonably
diligent plaintiff is aware of her injury, see In re Joint E. & S.
Dist. Asbestos Litig., 721 F. Supp. at 435 (equating
“plaintiff’s discovery of his illness” with the “starting of the
statute of limitations”). In deciding where a claim arises
under the foreign country exception, however, we are not
concerned with the possibility of a blameless plaintiff losing
a claim through delay. Thus, we ask only where “the last act
necessary to establish liability occurred,” Sosa, 542 U.S. at

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705 (internal quotation marks omitted), without taking into
account what the plaintiff knew or did not know.3
To determine where the Holts’ claims arose for the
purposes of the foreign country exception, we must therefore
look to governing choice-of-law principles at the time
Congress enacted the FTCA. And, as the Supreme Court held
in Sosa, we must apply lex loci delicti. Id. The Restatement
(First) of Conflict of Laws, upon which the Supreme Court
relied in Sosa, provides that “[t]he place of wrong is . . .
where the last event necessary to make an actor liable for an
alleged tort takes place.” § 377. The Restatement illustrates
application of this rule when an individual “sustains bodily
harm” as follows:
Such a force is first set in motion by some
human being. It is quite immaterial in what
state he set the force in motion. It must alone
or in cooperation with other forces harm the
body of another. The person harmed may
thereafter go into another state and die from
the injury or suffer other loss therefrom. The
place where this last event happens is also
immaterial. The question is only where did
the force impinge upon his body.

3

It is for this same reason that we reject any suggestion that the
Holts’ administrative claim, which lists “cerebral palsy” as an injury
caused by the USAF’s negligence, establishes that S.H. had cerebral palsy
in Spain. Where an injury is suffered for the purposes of the foreign
country exception is an objective inquiry, one that does not depend on
what the Holts knew at a particular time.

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Id. § 377, n.1. Thus, an injury “occurs” where it is first
suffered, even if a negligent act later results in further or
more serious harm. Accord Williams v. Gyrus ACMI, Inc.,
790 F. Supp. 2d 410, 415 (D. Md. 2011) (holding that
plaintiff’s injury occurred for purposes of lex loci delicti at
the time shim was left in her body, “even if she did not begin
to experience pain or other symptoms from the shim’s
presence until she relocated” to another state).
It is undisputed that S.H.’s cerebral palsy resulted from
the brain injury she sustained in Spain as a consequence of
her premature birth. The district court held that the Holts’
claims arose in the United States because that is where S.H.’s
cerebral palsy definitively manifested itself. In reaching that
determination, the court distinguished between S.H.’s brain
injury and her cerebral palsy diagnosis, reasoning that
because plaintiffs were suing to recover for the latter harm,
and cerebral palsy is not a disease but rather a collection of
symptoms, plaintiffs’ claims could not have arisen prior to
those symptoms being present and diagnosable. But S.H.’s
premature birth caused appreciable injury while the Holts
were in Spain, even if cerebral palsy was not definitively
diagnosed in that country. Under lex loci delicti, as it was
interpreted at the time of the FTCA’s passage, the fact that a
plaintiff suffers some “other loss” in a different jurisdiction
is “immaterial.” Restatement (First) Conflict of Laws § 377,
n.1. “The question is only where did the force impinge upon
[her] body.” Id. The undisputed facts of this case indicate
that the force—the brain injury S.H. suffered at or near the
time of her birth—impinged upon her body in Spain; thus,

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that is where the Holts’ claims arose. See Sosa, 542 U.S. at
705–06.4
Our conclusion is consistent with the application of the
foreign country exception by other federal courts. In
Thompson v. Peace Corps, 159 F. Supp. 3d 56 (D.D.C. 2016),
the court held that the foreign country exception barred the
plaintiff’s FTCA claims, which were based on injuries she
sustained as a result of taking an anti-malarial drug in
Burkina Faso. Id. at 61. The court reasoned that although the
plaintiff “complain[ed] of continuing side effects after her
return home,” as well as “a permanent brain injury,” the court
lacked jurisdiction because the “claims based on those
injuries arose out of the administration of mefloquine in
BurkinaFaso.” Id. at 58, 61. Similarly, the District of
Columbia Circuit has twice held that a district court lacked
jurisdiction over a plaintiff’s claims for emotional or

4

We recognize that courts have sometimes interpreted lex loci delicti
to different effect in the context of long-latency diseases. See, e.g.,
Pounders v. Enserch E&C, Inc., 306 P.3d 9, 13 (Ariz. 2013) (noting that
“[f]or long-latency diseases, the ‘last event’ takes place when the disease
is discoverable because, until then, a legally compensable injury does not
exist”); Trahan v. E.R. Squibb & Sons, Inc., 567 F. Supp. 505, 507–08
(M.D. Tenn. 1983) (rejecting argument that “last event” occurred when
plaintiff’s mother ingested DES, absent any evidence that “improper
development of the plaintiff’s cervix occurred immediately upon her
mother’s ingestion of the drug”). But in those cases, there was no
evidence that the plaintiffs’ exposure to a toxic substance resulted in any
immediate harm beyond the cellular level. By comparison, S.H.’s brain
injury, resulting from her premature birth, had appreciable effects while
the Holts were living in Spain. See In re “Agent Orange” Prod. Liab.
Litig., 580 F. Supp. 690, 707 (E.D.N.Y. 1984) (explaining, for purposes
of lex loci delicti, that “harmful force” of Agent Orange affected military
service members immediately, even though “many of the more serious
symptoms did not manifest themselves until years later”).

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economic injuries occurring in the United States because
those injuries were derivative of harm suffered abroad by the
plaintiffs’ spouses. See Gross v. United States, 771 F.3d 10,
13 (D.C. Cir. 2014) (holding that foreign country exception
applied because wife’s economic injuries in the United States
were derivative of injuries husband suffered as a result of
imprisonment in Cuba); Harbury v. Hayden, 522 F.3d 413,
423 (D.C. Cir. 2008) (holding that foreign country exception
applied to claims for emotional injuries that wife suffered in
United States but that resulted from physical abuse and death
of husband in Guatemala). In both cases, the court expressed
concern that plaintiffs would be able to “plead around the
FTCA’s foreign-country exception simply by claiming
injuries . . . that are derivative of the foreign-country injuries
at the root of the complaint.” Harbury, 522 F.3d at 423.
Like the injuries alleged in these cases, S.H.’s cerebral
palsy is derivative of the harm she sustained at birth. As the
Holts recognize, cerebral palsy is not itself a disease, but
rather a group of non-progressive motor conditions. It is
therefore a description of symptoms manifesting from S.H.’s
brain injury, rather than a separate, compensable harm.
Moreover, to hold that the Holts’ claims did not arise until
cerebral palsy could be definitively diagnosed would enable
plaintiffs in similar circumstances to avoid application of the
foreign country exception, either by pleading their injuries in
a particular way or by relocating to the United States before
obtaining a diagnosis. Cf. Sosa, 542 U.S. at 702–03
(rejecting idea that “allegations of negligent medical care . . .
can . . . be repackaged as headquarters claims based on . . .
the offering of bad advice” in the United States, even though
harm is suffered overseas, because the practice would
“swallow the foreign country exception whole” (citations
omitted)); Harbury, 522 F.3d at 423 (prohibiting plaintiffs

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from “plead[ing] around” the foreign country exception by
claiming domestic injuries “that are derivative of the foreigncountry injuries at the root of the complaint”). Jurisdiction
under the FTCA cannot turn on whether the Holts framed
their suit as seeking damages for S.H.’s cerebral palsy or the
brain injury she sustained at birth.
III
Because the Holts’ claims against the United States arose
in Spain, the FTCA’s foreign country exception bars their
suit. Accordingly, the district court’s order is VACATED,
and we REMAND the case with instructions to dismiss for
lack of subject matter jurisdiction.5 The parties shall bear
their own costs on appeal.

GRABER, Circuit Judge, concurring in the result:
I concur in the result reached by the majority opinion. I
write separately because, in my view, the timing and content
of the administrative claim filed by Plaintiffs, while they
were still in Spain, forecloses their claims under the Federal
Tort Claims Act (“FTCA”).
The FTCA requires that a plaintiff exhaust administrative
remedies:

5

The United States raises a number of other issues on appeal;
however, our conclusion that the district court lacked jurisdiction obviates
the need to address those arguments.

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An action shall not be instituted upon a
claim against the United States for money
damages for injury or loss of property or
personal injury or death caused by the
negligent or wrongful act or omission of any
employee of the Government while acting
within the scope of his office or employment,
unless the claimant shall have first presented
the claim to the appropriate Federal agency
and his claim shall have been finally denied
by the agency . . . .

28 U.S.C. § 2675(a). The administrative claim need not be
detailed; rather, “a skeletal claim form, containing only the
bare elements of notice of accident and injury and a sum
certain representing damages, suffices.” Avery v. United
States, 680 F.2d 608, 610 (9th Cir. 1982).
Although an administrative claim need not be detailed to
satisfy § 2675(a), such a claim serves to exhaust only those
basic theories encompassed in its scope. Of course, an FTCA
plaintiff may seek a greater amount of damages than the sum
certain contained in the administrative claim if “the increased
amount is based upon newly discovered evidence not
reasonably discoverable at the time of presenting the claim to
the federal agency, or upon allegation and proof of
intervening facts, relating to the amount of the claim.”
28 U.S.C. § 2675(b). For instance, an FTCA plaintiff who
files an administrative claim and later suffers additional harm
flowing from the incidents described in that claim may be
able to recover for the additional harm. Richardson v. United
States, 841 F.2d 993, 998–99 (9th Cir.), amended, 860 F.2d
357 (9th Cir. 1988). But the plaintiff cannot come into court
seeking redress on an entirely different claim.

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The majority opinion correctly holds that Plaintiffs
exhausted their FTCA claims. That is because those claims
are encompassed by the administrative claim—that is, they
relate to the same core set of facts. See Nagrampa v.
MailCoups, Inc., 469 F.3d 1257, 1264 n.2 (9th Cir. 2006) (en
banc) (“Under the federal system, the word ‘claim’ denotes
the allegations that give rise to an enforceable right to relief.”
(internal quotation marks and brackets omitted)); see also
Khan v. United States, 808 F.3d 1169, 1172–73 (7th Cir.
2015) (“All that must be specified [under 28 U.S.C.
§ 2675(a)], therefore, is facts plus a demand for money; if
those two things are specified, the claim encompasses any
cause of action fairly implicit in the facts.” (internal quotation
marks omitted)). Although it is true that some facts—such as
the definitive diagnosis of cerebral palsy—occurred after the
filing of the administrative claim, it is undisputed that S.H.’s
cerebral palsy resulted from the brain injury that she suffered
at birth, and that her brain injury was the focus of Plaintiffs’
administrative claim.
S.H. was born in Spain, where the family continued to
reside for more than an additional year before returning to the
United States. While still in Spain, Plaintiffs filed an
administrative claim seeking damages for, among other
things, “catastrophic neurological injuries, seizures, learning
deficits, [and] physical limitations” already suffered by S.H.
as a result of her premature and difficult birth. The claim
form also asserted, among other things, that “negligence on
the part of medical healthcare providers, penultimately in
Rota, Spain at USNaval Hospital, resulted in negligent failure
to promptly recognize and treat [the mother’s] abruptio
placenta, causing catastrophic injuries,” and that care “at
USNH Rota Spain failed to conform to the standard of
medical and surgical care in the community.” It is clear that,

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S.H. V. UNITED STATES

in bringing suit under the FTCA, Plaintiffs pressed the same
“claim” that they had presented to the government.1
What this means is that Plaintiffs’ claims necessarily
“arose” in Spain, because a claim cannot be “presented” to
the appropriate agency under 28 U.S.C. § 2675(a) until after
it has arisen. In other words, by filing an administrative
claim while still in Spain, containing allegations of a
premature birth that caused brain injuries to S.H., Plaintiffs
necessarily admitted2 that some claims based on those facts
already had arisen; because the claims in this action are the
same as those presented to the government in the
administrative process, those claims arose in Spain.
This would be a tragic case in any event, but the fact that
it is the foreign-country exception that ultimately bars relief
makes it especially tragic, as it was the alleged negligence of
the United States that led to Plaintiffs’ being in a foreign
country in the first place. But only Congress is in a position
to provide relief to Plaintiffs and those in similar situations.

1

Indeed, had Plaintiffs pressed a different claim, that claim would not
have been exhausted.
2

I do not necessarily mean “admitted” in the sense of a binding
judicial admission. See SEC v. Caserta, 75 F. Supp. 2d 79, 95 n.9
(E.D.N.Y. 1999) (discussing split in authority over the circumstances in
which admissions made in an administrative proceeding function as
judicial admissions). Rather, the timing and content of the administrative
claim limit the scope of the subsequent lawsuit. So although the majority
opinion is quite right that Plaintiffs’ listing of “cerebral palsy” as an injury
on the administrative claim does not establish that S.H. actually had
cerebral palsy while still in Spain, the fact that the administrative claim is
generally about brain injuries suffered at birth means that a claim related
to injuries of that sort had arisen by the time the administrative claim was
filed.

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S.H. V. UNITED STATES

19

We are bound by Sosa v. Alvarez-Machain, 542 U.S. 692
(2004), and, therefore, are compelled to reverse the district
court’s judgment.