## Facts

- An active-duty Air Force member received transfer orders to a U.S. base in Spain while his wife was pregnant with their third child and had a history of high-risk pregnancies (including preterm births and miscarriages).
- For “command-sponsored” family travel, an Air Force physician, Dr. Richard Stahlman, was required to medically clear the family for relocation based on available care at the Spanish base.
- Dr. Stahlman cleared the family for command-sponsored travel despite knowing the pregnancy’s elevated risk.
- In Spain, the mother received obstetric care on-base; at about 31 weeks gestation she went into preterm labor and was transferred to an off-base Spanish hospital.
- An emergency cesarean section was performed in Spain, and S.H. was born prematurely.
- After birth, Spanish doctors noted significant motor and developmental delays and raised concern for cerebral palsy.
- A definitive cerebral palsy diagnosis was made about two years later after the family returned to the United States.

## Issues

1. Whether the FTCA’s foreign-country exception, 28 U.S.C. § 2680(k), bars an action when the alleged negligent medical clearance occurred in the United States but the birth and initial injury occurred abroad.
2. For § 2680(k) purposes, whether the place of injury is where the underlying harm occurred (Spain) or where the condition was definitively diagnosed and its long-term effects became clear (United States).

## Decision

- The Ninth Circuit reversed the district court’s judgment and remanded with instructions to dismiss for lack of subject-matter jurisdiction.
- The court held the claim “arose in a foreign country” because the injury occurred in Spain, triggering § 2680(k).
- The later definitive diagnosis in the United States did not change the injury’s situs for FTCA jurisdiction.

## Legal Principles

- The FTCA is a limited waiver of sovereign immunity; exceptions to the waiver are construed in favor of the United States, and jurisdiction depends on the claim falling outside an applicable exception.
- Under 28 U.S.C. § 2680(k), an FTCA claim “arises in a foreign country” when the injury is suffered abroad, even if the alleged negligent act or omission occurred in the United States.
- The injury’s location is determined by where the operative harm was sustained, not by where the harm was later diagnosed or fully appreciated.
- A later domestic diagnosis is treated as recognition of an existing injury rather than a new, independent injury that would relocate the claim’s situs.

## Conclusion

Because the premature birth and resulting physical harm occurred in Spain, the FTCA’s foreign-country exception applied, the United States did not waive sovereign immunity, and the federal courts lacked subject-matter jurisdiction over the claim.


S.H. ex rel. Holt v. United States, 853 F.3d 1056 (9th Cir. 2017)