S.H. ex rel. Holt v. United States

Concurrence by Judge GRABER

OPINION

In Sosa v. Alvarez-Machain, 542 U.S. 692 , 124 S.Ct. 2739 , 159 L.Ed.2d 718 (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 , 124 S.Ct. 2739 . The Court left unanswered, however, the issue *1058 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.l (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…

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:

28 U.S.C. § 2675 (a). The administrative claim need not be detailed; rather, “a skeletal claim form, containing only the *1064 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).…