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.