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

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:

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 *1064bare 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.

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 US Naval 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, 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 *1065S.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. We are bound by Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), and, therefore, are compelled to reverse the district court’s judgment.

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

. 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.