The Lawletter Vol 42 No 5
Steven Friedman, Senior Attorney,National Legal Research Group
The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671–2680, "was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances." Richards v. United States, 369 U.S. 1, 6 (1962). Absent a waiver of immunity, the district courts are deprived of subject-matter jurisdiction for tort claims against the United States. See 28 U.S.C. § 1346(b)(1).
The FTCA's foreign-country exception provides that there is no waiver of immunity for "[a]ny claim arising in a foreign country." 28 U.S.C. § 2680(k). In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court held that the foreign-country exception "bars all claims based on any injury suffered in a foreign country." Id. at 712. Yet the Sosa Court left unanswered the question of how to determine where an injury is "suffered" for purposes of the foreign-country exception. See S.H. ex rel. Holt v. United States, 853 F.3d 1056, 1057–58 (9th Cir. 2017).
This question was directly addressed in a recently published decision by a unanimous panel of the Ninth Circuit. See id. at 1060. In S.H., the Holts' daughter was born prematurely while the family was stationed at a United States Air Force ("USAF") base in Spain. See id. at 1058. As a consequence of her premature birth, S.H. sustained a permanent injury to the white matter of her brain but was not diagnosed as suffering from cerebral palsy until after the family had returned to the United States. See id. 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. See id. The district court agreed that the injury occurred in the United States, because the cerebral palsy was only diagnosed in the United States, and ultimately awarded the Holts significant damages. See id. The United States appealed arguing, among other things, that the injury at issue was suffered in Spain and thus barred by the foreign-country exception of the FTCA. See id.
As a matter of first impression, the Ninth Circuit held that claims against the Government arose in Spain and, thus, the foreign-country exception barred the Holts' claims. The appellate court explained that the trial court erred by using the accrual analysis applicable to a statute of limitations under California law, which "is analytically distinct from the question of where a claim arises under the foreign country exception," which is governed by federal law. Id. at 1061. Whereas "the statute of limitations inquiry is concerned with a plaintiff's knowledge . . . the foreign country exception . . . [is] not concerned with the possibility of a blameless plaintiff losing a claim through delay." Id. The court described the appropriate analysis as follows:
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. [Sosa, 542 U.S. at 705.] 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." [Restatement (First) Conflict of Laws § 377, n.1 (1934)]. 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.
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.
Id. at 1061–62. It was "undisputed that S.H.'s cerebral palsy resulted from the brain injury she sustained in Spain as a consequence of her premature birth" and thus "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." Id. at 1062.
Finally, the Ninth Circuit noted that its conclusion was in accord with recent decisions from the District of Columbia Circuit, too. See id. at 1062–63 (citing Thompson v. Peace Corps, 159 F. Supp. 3d 56 (D.D.C. 2016); Gross v. United States, 771 F.3d 10, 13 (D.C. Cir. 2014); Harbury v. Hayden, 522 F.3d 413, 423 (D.C. Cir. 2008)).
Therefore, the appellate court held that the Holts' claims arose in Spain and thus the FTCA's foreign-country exception barred their suit against the United States. See id. at 1063. Accordingly, the appellate court vacated the lower court's order awarding the Holts' significant money damages and remanded the case with instructions to dismiss the matter for lack of subject-matter jurisdiction. See id.
