author: PREGERSON, Circuit Judge:

text:
    Gilberto SANTILLAN, an individual, Plaintiff-Appellant, v. USA WASTE OF CALIFORNIA, INC., a Delaware Corporation, Defendant-Appellee.
    No. 15-55238
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 7, 2016, Pasadena, California
    Filed April 7, 2017

      Holly Noelle Boyer (argued), and Andrew N. Chang, Esner Chang & Boyer, Pasadena, California; Louanne Masry and John C. Taylor, Taylor & Ring LLP, Los Angeles, California; for Plaintiff-Appellant.
    Christopher J. Boman (argued), Fisher & Phillips LLP, Irvine, California; Kristen J. Nesbit, Fisher & Phillips LLP, Los Angeles, California; for Defendant-Appel-lee.
    Before: HARRY PREGERSON, JACQUELINE H. NGUYEN, and JOHN B. OWENS, Circuit Judges.
   OPINION

PREGERSON, Circuit Judge:

INTRODUCTION

This case arises from a wrongful employment termination dispute between Gilberto Santillan, a 53-year-old garbage truck driver, and his employer of 32 years, USA Waste of California, Inc. (“USA Waste”). Santillan filed this action against USA Waste alleging a wrongful termination claim based on age discrimination and retaliation. The district court granted summary judgment in favor of USA Waste.

We have jurisdiction under 28 U.S.C. § 1291. We reverse. We hold that the district court erred by granting summary judgment in favor of USA Waste because (1) Santillan established a prima facie case under both his age discrimination and retaliation theories; and (2) USA Waste failed to introduce any evidence that it had a legitimate reason for firing him.

We also hold that the district court did not abuse its discretion when it denied Santillan’s oral request for leave to amend the complaint eight months after the filing deadline.

FACTUAL BACKGROUND

Gilberto Santillan started working for USA Waste as a residential garbage truck driver in 1979. For 32 years, he serviced the community of Manhattan Beach, California.

Exemplary Employee

In March 2011, USA Waste’s garbage collection contract with the City of Manhattan Beach was up for renewal. In presenting its case to the Manhattan Beach City Council, USA Waste specifically highlighted Santillan’s exemplary service to the community. After hearing from Manhattan Beach homeowners who praised Santillan’s exemplary service to their community, the Manhattan Beach City Council renewed USA Waste’s contract.

December 5, 2011, Termination

Santillan was rarely disciplined during his first 30 years at USA Waste. But this situation changed in January 2009, after USA Waste assigned Steve Kobzoff as Santillan’s new Manhattan Beach route manager.

Between January 2009 and July 2010, Kobzoff attempted to discipline Santillan six times. The parties dispute whether these “write ups” violated the procedural protections afforded by USA Waste’s collective bargaining agreement. USA Waste does not defend its termination of Santillan based on these six disputed write-ups.

On December 5, 2011, USA Waste fired Santillan for the first time. USA Waste contends that it fired Santillan then because he had four accidents in a 12-month period for which Kobzoff disciplined Santil-lan using the procedures required by USA Waste’s collective bargaining agreement. Santillan disputes both that he had four accidents and that USA Waste followed the procedures required by the collective bargaining agreement.

Another employee, Janson Vartanian, replaced Santillan. At summary judgment, USA Waste submitted a declaration from its human resources employee Maria Diaz stating that the employee who replaced Santillan was “over 40 years of age” and had eleven years experience driving garbage trucks.

Santillan testified that he was one of five older Spanish-speaking employees fired or suspended once Kobzoff was assigned as USA Waste’s Manhattan Beach route manager. Although Santillan could not recall the names of the four other Spanish-speaking employees, Kobzoff corroborated Santillan’s statement by identifying Jesus Zamora and Rojilio Mejia as two such Spanish-speaking employees who were terminated.

Public Outcry

On December 7, 2011, pursuant to the collective bargaining agreement and with the assistance of his attorney, Santillan filed a formal grievance against USA Waste challenging his December 5, 2011, termination.

After Santillan’s formal grievance was filed, USA Waste received hundreds of letters from Manhattan Beach homeowners who live in the area served by Santillan, demanding that USA Waste reinstate Santillan’s employment. In their letters, the homeowners reminded USA Waste that it succeeded in securing the renewal of its important garbage collection contract with Manhattan Beach in March 2011, because the homeowners came out in droves to support Santillan, their “First Class” residential garbage truck driver.

The homeowners demanded that USA Waste reinstate Santillan because he “positively impacted every family on [the] street,” and was “extremely helpful,” going above and beyond his responsibilities. One homeowner made it a point to introduce her sons to Santillan because he “works hard, and has a beautiful spirit and attitude,” and “in terms of class and integrity and a radiant personality there is no one in the world who can hold a candle to Gilberto [Santillan].” In contrast, days after San-tillan was fired, Manhattan Beach residents reported being frustrated finding their trash cans emptied at dusk and left “sitting in[ ] the street — creating a hazard to oncoming cars.”

The homeowners’ sentiments were published in a local newspaper, which also included a story from a homeowner whose son dressed up as Santillan for Halloween because he considers Santillan “a hero.”

The May 2012, Settlement Agreement

On May. 17, 2012, in the presence of USA Waste’s attorney, Santillan’s attorney, and a union representative, USA Waste and Santillan signed a “Settlement Agreement and Last Chance Agreement” (“Settlement Agreement”), in which USA Waste agreed to reinstate Santillan’s employment if he passed the California Department of Transportation drug test and physical exam, a criminal background check, and “e-Verify.” In exchange, San-tillan agreed to dismiss the December 7, 2011, grievance he filed against USA Waste.

USA Waste Fails to Reinstate Santillan

Santillan successfully completed the California Department of Transportation drug test, the physical exam, and the criminal background check.

In response, USA Waste’s human resources employee Maria Diaz sent Santil-lan a letter informing him that his first day back at work would be July 16, 2012. The letter also told Santillan, “you will need to complete an 1-9 form and show documentation of your right to work in the U.S.” Diaz’s letter to Santillan was written in English, even though USA Waste was aware that Santillan communicated in Spanish. The letter only included the fifth page of the employment eligibility verification Form 1-9 (“Form 1-9”), which was printed in English even though it was available in Spanish.

Santillan reported to work on July 16, 2012, with his driver’s license and social security card to compléte the Form 1-9. However, Diaz informed Santillan that he also needed a work authorization number and its expiration date. Santillan did not have that information with him. Diaz asked Santillan to bring that information to work the next day.

On each of the following two days, San-tillan attempted to provide the requested information by giving Diaz a letter with an identification number. According to Diaz, Santillan was unable to provide the expiration date and she could not complete electronic employment verification of his work authorization without the expiration date.

On the third day, Diaz sent Santillan home. Diaz testified that she “told him he couldn’t work, and that we would be in contact.” Six days later, on July 24, 2012, USA Waste sent a letter to Santillan informing him that USA Waste was firing him because he did not provide “proof of your legal right to work in the United States within three days of hire, as required by the Immigration Control and Reform Act of 1986, [sic][and] the Settlement Agreement.”

PROCEDURAL BACKGROUND

On December 4, 2013, Santillan filed a complaint against USA Waste in Los An-geles County Superior Court, alleging wrongful termination in violation of California public policy. Santillan advanced two different theories for this claim based on the violation of two different public policies: (1) age discrimination in violation of the public policy evinced in the Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12940; and (2) that he was wrongfully terminated in retaliation for having an attorney represent him during the Settlement Agreement negotiations with USA Waste. USA Waste removed this case to federal court.

On November 14, 2014, USA Waste filed a summary judgment motion. The district court held a hearing on January 12, 2015. At the summary judgment hearing, Santil-lan’s attorney asked the court for leave to amend the complaint to add a breach of contract claim.

On January 16, 2015, the district court: (1) granted summary judgment in favor of USA Waste on Santillan’s wrongful termination claim based on age discrimination, holding that Santillan failed to establish a prima facie case; (2) granted summary judgment in favor of USA Waste on Santil-lan’s wrongful termination claim based on retaliation, holding that Santillan’s failure to provide the documentation that USA Waste demanded in the three-day time frame it required was a “legitimately ], non-retaliatory reason for the July 2012 termination;” and (3) denied Santillan’s request for leave to amend.

Santillan timely appealed these rulings.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s grant of summary judgment. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In our de novo review of the district court’s summary judgment ruling, we view the evidence in the light most favorable to the non-moving party. Albino, 747 F.3d at 1168.

We review a district court’s denial of leave to amend for abuse of discretion. Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013).

DISCUSSION

Santillan appeals the district court’s (1) grant of summary judgment in favor of USA Waste on Santillan’s wrongful termination claim under an age discrimination theory; (2) grant of summary judgment in favor of USA Waste on Santillan’s wrongful termination claim based on retaliation for using an attorney; and (3) denial of Santillan’s request for leave to amend the complaint.

I. McDonnell Douglas’s, three-prong burden-shifting framework

In a non-mixed motive case such as this, a California wrongful termination claim in violation of public policy is analyzed under the three-prong burden-shifting framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Diego v. Pilgrim United Church of Christ, 231 Cal.App.4th 913, 930, 180 Cal.Rptr.3d 359 (2014); see also Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1112, 1118 (9th Cir. 2011) (applying burden-shifting analysis to wrongful termination claim based on age discrimination in violation of FEHA and public policy).

Under the first prong of the McDonnell Douglas framework, Santillan must establish a prima facie case under either his age discrimination or retaliation theory. See Earl, 658 F.3d at 1112; Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065-66 (9th Cir. 2003). If Santillan establishes a prima facie case, there is a “presumption of discrimination.” Reid v. Google, Inc., 50 Cal.4th 512, 520 n.2, 113 Cal.Rptr.3d 327, 235 P.3d 988 (2010); Yanowitz v. L’Oreal USA Inc., 36 Cal.4th 1028, 1042, 32 Cal. Rptr.3d 436, 116 P.3d 1123 (2005); see also Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir. 1996).

Then, under the second prong, the burden of production shifts to USA Waste to rebut the presumption by producing admissible evidence that it had a legitimate, nondiscriminatory reason for its adverse employment action. See Guz v. Bechtel Nat’l, Inc., 24 Cal.4th 317, 355-56, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000); see also Earl, 658 F.3d at 1112.

If USA Waste satisfies its burden, then, under the third prong, Santillan must show that the reason advanced by USA Waste constitutes mere pretext, or he must produce other evidence of intentional discrimination. Reid, 50 Cal.4th at 520 n.2, 113 Cal.Rptr.3d 327, 235 P.3d 988; see also Earl, 658 F.3d at 1112; Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1284 (9th Cir. 2001).

Finally, “the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer’s motion for summary judgment.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (quoting Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000)).

II. We reverse summary judgment in favor of USA Waste on Santillan’s age discrimination claim

The district court erred when it evaluated Santillan’s age discrimination theory in a vacuum by not considering any events occurring before USA Waste fired Santil-lan for the first time on December 5, 2011. In analyzing Santillan’s claim based on age discrimination, we will consider the facts leading up to and including Santillan’s July 24, 2012, termination.

A. The district court erred in holding that Santillan failed to establish a prima facie age discrimination case

To state a prima facie age discrimination case under FEHA, Santillan must establish that: (1) he was a member of a protected class (i.e., 40 years of age or older); (2) he was performing competently in the position he held; (3) he suffered an adverse employment action, such as termination; and (4) “some other circumstance that suggests discriminatory motive.” See Guz, 24 Cal.4th at 355, 100 Cal.Rptr.2d 352, 8 P.3d 1089.

The district court did not consider whether Santillan established the first three elements of a prima facie age discrimination case. It is undisputed that he did, as Santillan: (1) was a member of a protected class (i.e., 40 years of age or older) given that he was 53 years old; (2) was performing competently in the position he had; and (3) suffered an adverse employment action because USA Waste fired him.

The district court found that Santillan could not establish the fourth element: some other circumstance that suggests a discriminatory motive. We disagree. Evaluating the fourth element “with some flexibility,” Nidds, 113 F.3d at 917, and construing the facts in the light most favorable to Santillan, we conclude that he established a prima facie age discrimination case. Therefore, there is a presumption that USA Waste unlawfully discriminated against Santillan. See Reid, 50 Cal.4th at 520 n.2, 113 Cal.Rptr.3d 327, 235 P.3d 988; see also Nidds, 113 F.3d at 917.

Two pieces of evidence lead us to this conclusion. First, Santillan testified that he was one of five older Spanish-speaking employees who were fired or suspended once Kobzoff was assigned as USA Waste’s Manhattan Beach route manager. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000) (holding that an employee established a prima facie age discrimination case because she was among a group of older employees that were terminated at a higher rate than younger employees). Santillan could not remember the other Spanish-speaking employees’ names, but Kobzoff identified Jesus Zamora and Rojilio Mejia as two Spanish-speaking employees who were terminated. USA Waste identified no other supervisees of Kobzoff who were fired or suspended after Kobzoff became Santillan’s route manager.

Second, there is a potential thirteen-year age gap between Santillan and his replacement, Vartanian, who also has 21 fewer years experience as a garbage truck driver. See Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir. 2012) (holding that an employee can establish a prima facie age discrimination case with evidence that his or her replacement was substantially younger with equal or inferior qualifications); see also France v. Johnson, 795 F.3d 1170, 1174 (9th Cir. 2015) (age difference of ten years or more between a plaintiff and his or her replacement is presumptively substantial); cf. Douglas v. Anderson, 656 F.2d 528, 530, 533 (9th Cir. 1981) (replacing a 54-year-old bookstore manager with someone five years younger was sufficient to establish a prima facie case of age discrimination).

For the two reasons discussed above, the district court overlooked “the flexibility these cases require and erred in concluding that” Santillan failed to establish a prima facie age discrimination case. Nidds, 113 F.3d at 917. Because Santillan has established a prima facie age discrimination case, there is “a presumption that [USA Waste] unlawfully discriminated against [him].” Id. (citation omitted); see also Reid, 50 Cal.4th at 520 n.2, 113 Cal. Rptr.3d 327, 235 P.3d 988. Therefore, the burden shifts to USA Waste to rebut this presumption.

B. USA Waste failed to rebut the presumption of unlawful discrimination because it did not offer a legitimate reason for firing San-tillan

Under McDonnell Douglas’s second prong, USA Waste bore the burden to produce admissible evidence of a legitimate, non-discriminatory reason for firing Santillan. Earl, 658 F.3d at 1112. USA Waste’s only proffered reason for firing Santillan in July 2012 was that his “reinstatement was contingent, in part, upon providing proof of [his] legal right to work in the United States within three days of hire, as required by the Immigration Control and Reform Act of 1986, [sic] [and] [the] Settlement Agreement.”

However, USA Waste cannot rely on the IRCA or the Settlement Agreement to establish that it is entitled to summary judgment as a matter of law because, as explained below: (1) the IRCA exempts Santillan from the proof of employment eligibility that USA Waste demanded; and (2) making Santillan’s reinstatement contingent upon such proof would violate California public policy.

1. The IRCA does not require proof of employment eligibility from Santillan

The IRCA requires employers review certain documents at the hiring stage to confirm that new employees hired after November 6, 1986, are authorized to work in the United States. See 8 U.S.C. § 1324a(a)(l)-(4). As part of this process, employers review certain documents specified by statute to attest to the new employee’s employment eligibility on a Form 1-9. See id. at § 1324a(b); 8 C.F.R. § 274a.2(b)(l)(i). An employer may not seek “more or different documents than are required under [the IRCA] or refus[e], to honor documents tendered that on their face reasonably appear to be genuine,” as doing so is an “unfair immigration-related employment practice.” 8 U.S.C. § 1324b(a)(6); see also Rivera v. NIBCO, Inc., 364 F.3d 1057, 1073 (9th Cir. 2004).

In contrast to the IRCA’s mandate with respect to new employees, two different IRCA regulations exempt Santil-lan from providing the employment eligibility documents demanded by USA Waste. First, the IRCA exempts Santillan from having to provide proof of employment eligibility because he was “continuing in his ... employment [after being] reinstated after disciplinary suspension for wrongful termination ... resolved through reinstatement or settlement.” 8 C.F.R. § 274a.2(b)(l)(viii)(A)(5).

Second, a different IRCA “grandfather” provision exempts employees hired before November 7, 1986, from the employment eligibility verification requirements applicable at the hiring stage. Maka v. I.N.S., 904 F.2d 1351, 1360 (9th Cir. 1990); see also 8 U.S.C. § 1324a(a)(4); 8 C.F.R. § 274a.7(a)(l). USA Waste hired Santillan in 1979, and even though he was fired in 2011, his reinstatement thereafter qualified him as a continuing employee, rather than a new employee. See 8 C.F.R. § 274a.2(b)(l)(viii)(A)(5). Thus, Santillan is exempt from the IRCA employment eligibility verification requirement under this IRCA provision as well.

USA Waste cites no authority to the contrary. Instead, it argues that “the law” required Santillan to provide in three days the employment eligibility documents that USA Waste demanded. But that is not what the law required, and an employer’s incorrect view of the law is not a legitimate reason for firing an employee.

2. USA Waste could not make Santil-lan’s reinstatement contingent on verification of his immigration status because doing so would violate California public policy

USA Waste alternatively argues that firing Santillan within three days of his reinstatement was permitted by the Settlement Agreement provision that required that he pass “e-Verify.” However, a contractual provision that contravenes public policy, as expressed in a statute or implied from its language, is “either void or unenforceable.” Akopyan v. Wells Fargo Home Mortg., Inc., 215 Cal.App.4th 120, 135-36, 155 Cal.Rptr.3d 245 (2013). USA Waste’s interpretation of the Settlement Agreement would violate the public policy expressed in several California statutes. Therefore, the e-Verify provision in the Settlement Agreement was unenforceable.

California provides that “[a]ll protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state.” Cal. Lab. Code § 1171.5(a) (emphasis added); see also Incalza v. Fendi N. Am., Inc., 479 F.3d 1005, 1009 (9th Cir. 2007); Salas v. Sierra Chem. Co., 59 Cal.4th 407, 425-26, 173 Cal.Rptr.3d 689, 327 P.3d 797 (2014).

California “statutes leave no room for doubt about this state’s public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights, and employee housing laws.” Hernandez v. Paicius, 109 Cal.App.4th 452, 460, 134 Cal.Rptr.2d 756 (2003), disapproved of on other grounds by People v. Freeman, 47 Cal.4th 993, 103 Cal.Rptr.3d 723, 222 P.3d 177 (2010). Therefore, under California public policy, USA Waste could not make Santillan’s reinstatement remedy contingent upon verification of his immigration status. See Akopyan, 215 Cal.App.4th at 135-36, 155 Cal. Rptr.3d 245 (disregarding an express contract term that was contrary to public policy).

C. USA Waste failed to meet its burden as to Santillan’s claim based on age discrimination

Because neither the IRCA nor the Settlement Agreement justified firing Santil-lan, USA Waste failed to meet its burden to show it had a legitimate, nondiscriminatory reason for firing Santillan in July 2012. We therefore REVERSE the district court’s grant of summary judgment on Santillan’s wrongful termination claim arising from age discrimination.

III. We reverse summary judgment in favor of USA Waste on Santillan’s retaliation claim

Santillan’s alternative theory for his wrongful termination claim is that USA Waste fired him in July 2012, in retaliation for having an attorney represent him during the Settlement Agreement negotiations with USA Waste. California retaliation claims follow the same McDonnell Douglas burden-shifting framework as age discrimination claims. Yanowitz, 36 Cal.4th at 1042, 32 Cal.Rptr.3d 436, 116 P.3d 1123; Diego, 231 Cal.App.4th at 930, 180 Cal.Rptr.3d 359.

A. Santillan established a prima fa-cie retaliation case and a presumption of unlawful retaliation

Santillan can establish a prima facie case of retaliatory wrongful termination in violation of public policy by show-mg that: (1) having an attorney represent him during the Settlement Agreement negotiations with USA Waste is activity protected by California public policy; and (2) there was a nexus between the public policy and his termination. See Dep’t of Fair Emp’t & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 749 (9th Cir. 2011). As with the age discrimination claim, if Santillan establishes a prima facie retaliation case, there is a presumption that USA Waste unlawfully retaliated against him. See Reid, 50 Cal.4th at 520 n.2, 113 Cal.Rptr.3d 327, 235 P.3d 988.

1. Santillan’s use of an attorney is activity protected by California public policy

The district court concluded that Santillan did not engage in .protected activity when he used an attorney to negotiate his reinstatement, reasoning that California public policy recognizes a right to an attorney only in the collective bargaining context. This conclusion is incorrect. For decades, California courts have recognized a wrongful termination claim based on the public policy reflected in California Labor Code Section 923 where an employer retaliates against an employee who has “designated an attorney to represent [him] for the purpose of negotiating the terms and conditions of employment.” Montalvo v. Zamora, 7 Cal.App.3d 69, 75, 86 Cal. Rptr. 401 (1970) (recognizing wrongful termination where an employer fired workers shortly after their attorney sent a letter demanding a minimum wage). California courts have rejected the argument that such a claim “applies only to collective bargaining.” Gelini v. Tishgart, 77 Cal.App.4th 219, 223, 91 Cal.Rptr.2d 447 (1999). Because California public policy protects Santillan’s right to representation by an attorney to negotiate the terms and conditions of employment, he engaged in protected activity when he was represented by an attorney during the Settlement Agreement negotiations.

2. USA Waste fired Santillan because he was represented by his attorney at the Settlement Agreement negotiations

Santillan also established a nexus between his termination in July 2012, and his protected activity because USA Waste fired him roughly two months after an attorney represented him during the Settlement Agreement negotiations with USA Waste. “The causal link between a protected activity and the alleged retaliatory action ‘can be inferred from timing alone’ when there is a close proximity between the two.” Thomas v. City of Beaverton, 379 F.3d 802, 812 (9th Cir. 2004); see also Nidds, 113 F.3d at 919 (holding that a prima facie case was established where employee’s “layoff occurred only four months after” he first engaged in protected activity by filing a complaint and “only one month after he filed his second complaint”); Flait v. N. Am. Watch Corp., 3 Cal.App.4th 467, 478, 4 Cal.Rptr.2d 522 (1992) (finding nexus established where employee “was terminated only a few months after” he engaged in protected activity).

We hold that Santillan established a pri-ma facie retaliation case, which in turn gives rise to a presumption of unlawful retaliation.

B. The district court erred in holding that USA Waste provided a legitimate reason for firing San-tillan

As discussed supra in Part U.B., USA Waste cannot rebut the presumption that it retaliated against Santillan by relying on the IRCA’s employment eligibility verification requirements for new employees or the Settlement Agreement as a legitimate reason for firing Santillan. These reasons for firing Santillan are not legitimate because (1) the IRCA exempts Santillan from these requirements since he was continuing his employment with USA Waste because he was reinstated as a result of a settlement, and (2) USA Waste could not make Santillan’s reinstatement contingent upon verification of his immigration status because doing so would violate California public policy. See discussion supra Part II.B.

C. USA Waste failed to meet its burden as to Santillan’s claim based on retaliation discrimination

For the foregoing reasons, we REVERSE the district court’s grant of summary judgment in favor of USA Waste on Santillan’s wrongful termination claim based on retaliation.

IV. The district court did not abuse its discretion by denying Santillan’s request for leave to amend the complaint

At the summary judgment hearing, Santillan’s attorney orally requested leave to amend the complaint to add a breach of contract claim.

Santillan failed to show that he was diligent in seeking to amend the complaint, as his request for leave to amend came eight months after the deadline for making such a request. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) (“If [the moving] party was not diligent, the inquiry should end.”). Moreover, Santillan failed to show good cause for modifying the previously issued scheduling order. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for good cause and with the judge’s consent.”).

We therefore conclude that the district court did not abuse its discretion by denying Santillan’s request for leave to amend the complaint.

CONCLUSIONS

In sum, we REVERSE the district court’s grant of summary judgment in favor of USA Waste on Santillan’s wrongful termination claim based on age discrimination and retaliation and REMAND for further proceedings consistent with this opinion.

We AFFIRM the district court’s denial of Santillan’s request for leave to amend the complaint.

Costs shall be taxed against Defendant-Appellee USA Waste of California, Inc.

REVERSED IN PART, AFFIRMED IN PART, and REMANDED.

      . Unless otherwise indicated, this factual background contains facts that either are undisputed or USA Waste has conceded are immaterial and therefore do not foreclose summary judgment.

      . The term "e-Verify” was not defined in the Settlement Agreement. Our case law has described "e-Verify” as an "electronic verification system” that is "voluntary” under federal law and is used "to check the work-authorization status of employees through federal records.” Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 860 (9th Cir. 2009), aff'd, Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011). USA Waste argues that this term meant Santillan agreed to abide by a regulation under the Immigration Reform and Control Act of 1986 ("IRCA”) addressing the documentation that new employees submit to show their authorization to work in the United States. However, the IRCA contains two provisions that, for the reasons discussed below, exempt Santillan from this requirement. See discussion, infra, Part II.B.l.

      . The operative version of the Form 1-9 was five pages when USA Waste fired Santillan on July 24, 2012. See Form 1-9 Employment Eligibility Verification, OMB No. 1615-0047 (ex-' pired 08/31/12).

      . USA Waste argues that it needed Santillan’s information within three days because the IRCA requires that an employer complete the verification of a new employee’s work authorization status within the new employee’s first three days of work. See 8 C.F.R. § 274a.2(b)(l)(ii). However, as discussed below, Santillan was exempt from this regulation because he was continuing his employment. See discussion, infra, Part II.B.l.

      . It is an unlawful employment practice for an employer to discriminate against a person based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.” Cal. Gov’t Code § 12940.

      .Santillan also alleged the following claims: (1) failure to pay overtime, Cal. Lab. Code § 1194; (2) waiting time penalties, Cal. Lab. Code §§ 201-03; and (3) failure to provide meal and rest breaks, Cal. Lab. Code §§ 226.7, 512, 1174. However, Santillan later abandoned these claims during the hearing on USA Waste’s summary judgment motion. These claims are not relevant to this appeal.

      . In reviewing a FEHA claim, this court may rely on related federal cases interpreting the Age Discrimination in Employment Act ("ADEA”), 29 U.S.C. §§ 621 et seq., and Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. See Nidds, 113 F.3d at 916.

      . An employee's "albeit uncorroborated and self-serving” testimony is sufficient to establish a prima facie workplace discrimination case if a reasonable jury could infer discrimination from the employee’s testimony. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 498 (9th Cir. 2015) (holding that an employee’s self-serving declaration and deposition testimony established a prima facie case of unlawful discrimination and created a genuine dispute of material fact whether the employer’s reason for firing the employee was pretextual). This is because, "[w]hen judging the evidence at the summary judgment stage, the district court is not to make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the nonmoving party.” Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”).

      . USA Waste's human resources employee Maria Diaz submitted a declaration in which she provided Santillan’s and Vartanian’s personal information obtained through USA Waste's computerized human resources records. Diaz provided detailed information about Santillan, such as his employment start date, pay rate, and home address. In contrast, Diaz limited her description of Vartanian to the fact that he was "over forty years old” and had worked as a residential garbage truck driver for eleven years. That Diaz was aware of Vartanian’s age but chose not to disclose more detail supports the inference that there exists a potentially significant age gap between Santillan and Vartanian.

      . The IRCA exemption provides in relevant part:
      (viii) An employee will not be deemed to have hired an individual for employment if the individual is continuing in his or her employment and has a reasonable expectation of employment at all times.
      (A) An individual is continuing in his or her employment in one of the following situations:

      (5) An individual is reinstated after disciplinary suspension for wrongful termination, found unjustified by any court, arbitrator, or administrative body, or otherwise resolved through reinstatement or settlement{.]”
      8 C.F.R. § 274a.2(b)(l)(viii)(A)(5) (emphasis added).

      . As discussed supra Part II.B.l., Santillan’s reinstatement remedy is not prohibited by federal law because it was the result of the Settlement Agreement. See 8 C.F.R. § 274a.2(b)(lXviii)(A)(5).

      . See also Cal. Gov’t Code § 7285 (same); Cal. Civ. Code § 3339(b) (”[N]o inquiry shall be permitted into a person's immigration status except where the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.”).

      . "[T]he public policy of this State is declared as follows: Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employees .... Therefore it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of ... other mutual aid or protection." Cal. Lab. Code § 923 (emphasis added).

      . We leave to the district court to determine on remand whether triable issues of fact remain that would preclude a grant of summary judgment in favor of Santillan. See Albino, 747 F.3d at 1176-77 (reversing summary judgment for defendant and remanding with instructions to enter summary judgment for plaintiff); Portsmouth Square, Inc. v. S’holders Protective Comm., 770 F.2d 866, 869 (9th Cir. 1985); Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir. 1982); see also Fed. R. Civ. P. 56(f).


source: Caselaw Access Project

author: REINHARDT, Circuit Judge:

license: Public Domain

text:
    Brendan NASBY, Petitioner-Appellant, v. E. K. MCDANIEL; Nevada Attorney General, Respondents-Appellees.
    Nos. 14-17313
    15-16264
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 14, 2016 San Francisco, California
    Filed April 10, 2017
    Thomas L. Qualls (argued), Law Office of Thomas L. Qualls Ltd., Reno, Nevada, for Petitioner-Appellant.
    Victor-Hugo Schulze, II (argued), Senior Deputy Attorney General; Adam Paul Lax-alt, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.
    Before: STEPHEN REINHARDT and JOHN B. OWENS, Circuit Judges, and SALVADOR MENDOZA, JR., District Judge.

       The Honorable Salvador Mendoza, Jr., United States District Judge for the Eastern District of Washington, sitting by designation.

   OPINION

REINHARDT, Circuit Judge:

Petitioner Brendan Nasby was convicted of murder in Nevada in 1999. His case has made its way through the state courts, and he now appeals the federal district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254(d). In his petition, Nasby asserts serious constitutional violations based on prosecutorial misconduct, the use of coerced testimony, ineffective assistance of trial and appellate counsel, and errors in the jury instructions. The district court rejected Nasby’s claims and dismissed his petition. Because it did so without obtaining or reviewing the record of the relevant proceedings in state court, we vacate and remand for its review of the pertinent state court record.

BACKGROUND

1.

In August 1998, Brendan Nasby was arrested and charged with the gang-related murder of Michael Beasley. Nasby was hardly well-represented at trial. His state-appointed counsel opened with a joke about the likely length of Nasby’s sentence. Although counsel submitted a list of alibi witnesses, he did not call a single one of them at trial. He failed to investigate other witnesses to support Nasby’s position, and failed to introduce important evidence on Nasby’s behalf. After a seven day trial, the jury found Nasby guilty of murder with the use of a deadly weapon and of conspiracy to commit murder. The judge sentenced Nasby to two life sentences to run consecutively, along with 120 months for the conspiracy conviction. Nasby has always maintained that he was not involved in the murder.

After sentencing, Nasby’s counsel, Joseph S. Sciscento, informed the court of a conflict of interest. He explained that he had accepted and begun employment with the Special Public Defender’s Office prior to trial — an office that concurrently represented one of Nasby’s co-defendants, who had testified against him at trial. The court granted counsel’s request to withdraw and appointed a new lawyer, Frederick A. San-tacroce, to represent Nasby on appeal.

Nasby then challenged his convictions on a number of grounds before the Nevada Supreme Court. Prosecutors, Nasby claimed, offered other gang members significantly reduced sentences in exchange for testifying against him and threatened them with contempt if they did not do so. In addition to his claim that the State relied on coerced testimony, Nasby argued that the trial court wrongly denied a motion for mistrial, and failed to give necessary jury instructions. The Nevada Supreme Court affirmed the convictions.

2.

Nasby fared no better on state collateral review. He filed a petition for habeas corpus in state court seeking relief on five grounds. He challenged his conviction under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); argued that multiple instances of prosecutorial misconduct cumulatively violated his right to due process; made two claims that the trial court failed to give the legally required jury instructions; and asserted that his trial and appellate counsel were unconstitutionally ineffective. The petition was not successful.

Nasby later filed a second state habeas petition. This petition asserted that the cumulative effect of prosecutorial misconduct violated Nasby’s Fourth, Fifth, Sixth and Fourteenth Amendment rights. Specifically, Nasby alleged seven instances of prosecutorial misconduct, including that the prosecutor prevented a defense witness from testifying, improperly vouched for the credibility of a state witness, told the jury of facts not in evidence, misstated the law in closing argument, presented false testimony, withheld vital information from the defense, and improperly used a jailhouse informant to obtain incriminating information against Nasby. Nasby also argued that the trial court erred by allowing the introduction of evidence of prior bad acts and by failing to instruct the jury properly. Finally, Nasby again claimed ineffective assistance of trial and appellate counsel. He pointed to trial counsel’s failure to call witnesses, counsel’s application of improper and extreme pressure to plead guilty, his conflict of interest in having accepted employment in the Public Defender’s office, his failure sufficiently to investigate and present evidence, his failure to object to erroneous jury instructions, and his refusal to allow Nasby to testify.

The state trial court held an evidentiary hearing pertaining to Nasby’s ineffective assistance of counsel claims. His lawyers, Sciscento and Santacroce, both testified as witnesses. Nevertheless, the court denied Nasby’s petition. It found that Nasby’s claims of prosecutorial misconduct and trial court error were procedurally barred due to his failure to raise the claims on direct appeal. The court also found that the evidence did not support the ineffective assistance of trial and appellate counsel claims because “the decisions of counsel were reasonable and within the discretion of decision making.” The Nevada Supreme Court affirmed.

3.

Nasby filed a federal habeas petition in the district court under 28 U.S.C. § 2254. He asserted constitutional violations based on: (1) the cumulative effect of prosecutorial misconduct; (2) the trial court’s errors in allowing the introduction of prior bad acts evidence and its failure to properly instruct the jury; (3) ineffective assistance of trial and appellate counsel; (4) the State’s use of coerced testimony; (5) the lack of corroborating evidence to support his conviction for conspiracy to commit murder; (6) the trial court’s failure to provide a cautionary instruction to the jury regarding accomplice testimony; and (7) the trial court’s failure to instruct the jury on willfulness, deliberation, and premeditation.

The district court found some of Nasby’s claims unexhausted and the rest procedurally defaulted. It initially rejected Nasby’s attempt to return to state court to litigate the unexhausted claims, but after Nasby cited the ineffectiveness of post-conviction counsel and inadequate law library facilities in prison as causes for his failure to exhaust, the court reversed itself and put the federal petition aside while Nasby exhausted his claims in state court. Nasby then failed to obtain relief in state court and, in due course, returned to federal court.

Addressing the merits of a number of Nasby’s ineffective assistance of counsel claims, the district court held that Nasby failed to meet his high burden under 28 U.S.C. § 2254(d) of proving that the Nevada Supreme Court’s rulings were contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or that the rulings were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. It reached the same conclusion with regard to one of Nasby’s jury instruction claims. Nasby’s remaining claims, the court found, were procedurally defaulted. The court nevertheless addressed the defaulted claims on the merits and concluded that those claims, too, would not merit relief under § 2254(d). Accordingly, the district court dismissed Nasby’s petition and denied a Certifícate of Appealability (“COA”).

Nasby filed a timely notice of appeal to this court. He also filed a motion in district court to alter or amend its judgment pursuant to Fed. R. Civ. P. 59(e). The district court denied that motion. Nasby also filed an unsuccessful Rule 60(b) motion, requesting that the district court vacate its orders denying his habeas petition and his Rule 59(e) motion, and either review and grant his habeas petition and/or Rule 59(e) motion, or grant a COA on all grounds of his petition and the Rule 59(e) motion. Finally, we granted Nasby a COA as to five issues.

ANALYSIS

We face a threshold obstacle to reviewing Nasby’s petition. The district court failed to examine important parts of the record of the state court proceedings in its adjudication of Nasby’s claims. Specifically, the district court never obtained or reviewed the transcript of Nasby’s trial or the transcript of the evidentiary hearing that the state court conducted on collateral review. Nor did the district court conduct an evidentiary hearing on Nasby’s claims. Instead, it simply relied on the facts as described in the Nevada Supreme Court’s opinion denying Nasby relief.

Among the several issues we certified for appeal was “whether the district court erred in ruling on the merits of Nasby’s claims without first requiring the State to submit all relevant portions of the state record, including trial and evidentiary hearing transcripts.” Because we conclude that the district court did err in this regard and that the case must therefore be remanded for further proceedings, including a further review of the other certified issues, we do not consider the merits of those issues here.

1.

Nasby contends that if the role of a federal habeas court were simply to accept on faith the state court’s description of the facts, free from any obligation to review the record on which the state court based its judgment, “there would hardly be a reason to have a federal habeas statute at all.” We agree.

In Jones v. Wood, we held that a habeas court must either obtain and review the relevant portions of the record on which the state court based its judgment, or conduct an evidentiary hearing of its own. 114 F.3d 1002 (9th Cir. 1997). In Jones, a habeas petitioner contended that his state conviction was unconstitutional because it was supported by insufficient evidence. The district court dismissed the petition without obtaining the record of proceedings in state court. We reasoned that meaningful collateral review of the state court’s adjudication of petitioner’s claims requires an “independent” assessment of the basis for the state court’s decision. Id. at 1008. Without such an independent assessment, the district court would be unable to “determine whether the state court adjudication rested on an unreasonable application of clearly established federal law or an unreasonable determination of fact.” Id. at 1013. Because the district court in Jones did not independently review the record before the state court or develop its own factual record on which to assess the state court’s adjudication, we explained that we had “no alternative” but to remand. Id. at 1008.

Jones built on a long line of our cases requiring federal habeas courts to examine independently the basis for the state court’s decision, rather than to accept the state court’s determination of the facts on faith. See, e.g., Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987) (“We may not affirm a district court’s denial of a writ of habeas corpus unless the court either held a hearing, or the record shows that the district court independently reviewed the relevant portions of the state court record.”); Johnson v. Lumpkin, 769 F.2d 630, 636 (9th Cir. 1985) (same); Turner v. Chavez, 586 F.2d 111, 112 (9th Cir. 1978) (“In considering a petition for a writ of habeas corpus, the district court must make its determination as to the sufficiency of the state court findings from an independent review of the record, or otherwise grant a hearing and make its own findings on the merits. A reading of the well-reasoned opinion of the state court would indicate that appellant’s allegations may bé without merit. However, this cannot be said with certainty without a review of the record. The very nature of the habeas corpus action demands an independent review.” (internal citations omitted)).

The principle we articulated in the Jones line of cases requires us to remand Nasby’s petition to the district court. The district court failed to obtain and review the relevant portions of the state court record and did not hold an evidentiary hearing on Nasby’s claims. As a result, it did not perform the “independent review” of the basis for the state court’s decision that Jones requires. Nasby’s petition makes serious claims of ineffective assistance of counsel, prosecutorial misconduct, and improper jury instructions, among others. There can be no doubt that the trial transcript and the transcript of the evidentiary hearing held by the state court are relevant to the adjudication of Nasby’s claims. Although Jones involved a petition claiming insufficient evidence, not ineffective assistance of counsel or prosecutorial misconduct, nothing in Jones’s reasoning limits its holding to such petitions. We therefore have “no alternative” but to remand. Jones, 114 F.3d at 1008.

Five other Circuits have reached the same conclusion and held that remand is necessary in similar circumstances. See Magouirk v. Phillips, 144 F.3d 348, 363 (5th Cir. 1998) (“This case must be remanded so that the record can be supplemented with those portions of the state court record necessary to conduct a meaningful review.”); Beck v. Bowersox, 257 F.3d 900, 901 (8th Cir. 2001) (explaining that the habeas statutes “require meaningful federal court review of the evidentiary record considered by the state courts” and that it was error to “reach the merits of [petitioner’s] Fifth and Sixth Amendment claims without reviewing the transcript and including it in the record of this federal habeas proceeding”); Jeffries v. Morgan, 522 F.3d 640, 644 (6th Cir. 2008) (“[A] District Court must make a review of the entire state court trial transcript in habeas cases, and where substantial portions of that transcript were omitted before the District Court, a habeas case should be remanded to the District Court for consideration in light of the full record.”); Aliwoli v. Gilmore, 127 F.3d 632, 633-34 (7th Cir. 1997) (explaining that because key-parts of the state record are missing, “we are unable to examine Aliwoli’s claims in light of the whole record of this case, and we must vacate in part the district court’s denial of Aliwoli’s petition” and “remand this ease to the district court, which should ensure that any necessary state materials are submitted by the parties”); Thames v. Dugger, 848 F.2d 149, 151 (11th Cir. 1988) (“Absent careful review of the record, a district court has no measure to determine whether a petitioner’s constitutional claim received a full and fair hearing.”).

On remand, the district court should order the State to submit the relevant portions of the state court record and, after examining them, newly adjudicate Nasby’s petition. Regardless of what documents the parties originally submit, it is the district court’s independent obligation to obtain the relevant portions of the record. Jones, 114 F.3d at 1008 (“That Jones did not include the state court record as part of his habeas petition is of no import. ... [T]he district court has the duty to obtain that record itself.”). Only if the court is satisfied that obtaining the record itself is not feasible, for some legitimate reason, should the district court pursue the alternative that Jones provides, an eviden-tiary hearing. Here, the State has given us no indication that it will not be able to produce the relevant portions of the record. We therefore expect the district court to obtain and examine the record on remand.

2.

The State rather remarkably asserts that AEDPA prevents a federal habeas court from reviewing the record and obliges it, instead, to accept the state court’s description of facts on faith. At oral argument, the State’s counsel even stated that a district court should be reversed if it examined the record in granting relief. This is clearly wrong. Far from requiring that a federal court accept the state court’s description of the facts without conducting an independent examination of the record, AEDPA demands the opposite.

Under 28 U.S.C. § 2254(d), a federal habeas court is charged with determining whether a state court’s disposition of a claim for relief “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” § 2254(d)(1), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(2).

The text of the statute provides that a petitioner who seeks relief under Section (d)(2) — unreasonable determination of the facts — -must show that the state court unreasonably determined the facts “in light of the evidence presented” to the state court. The Supreme Court has held that review under Section (d)(1) — unreasonable application of law — is similarly “limited to the record that was before the state court,” Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), even though AEDPA’s text imposes no such limitation. The Supreme Court reasoned that the statute’s “backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time, ie., the record before the state court.” Id. at 181-82, 131 S.Ct. 1388.

It is not clear how a federal court could evaluate whether a state court unreasonably determined the facts “in light of the evidence” before it without first ascertaining what evidence was before it. It is equally difficult to imagine how a federal habeas court could determine whether a state court unreasonably applied clearly established law to the petitioner’s case without itself reviewing independently the nature and extent of that case. To accept the state court’s description of the facts or to uphold its application of law without independently evaluating what supports (or does not support) the court’s determination of the facts and what factual basis justifies (or does not -justify) the court’s application of the law is inconsistent with the responsibilities of a federal habeas court under Section 2254(d).

Nowhere in the habeas statute is there any suggestion that the district court could not or should not examine the state court record. In fact, the statute expressly provides that “the official records of the State court ... shall be admissible in the Federal court proceeding.” 28 U.S.C. § 2254(g). Nor are we aware of any case that holds or even hints that the district court could not or should not examine the record. To the contrary: two circuits have expressly held that AEDPA requires federal courts to do so. See Beck, 257 F.3d at 901 (the provisions of AEDPA “require meaningful federal court review of the evidentiary record considered by the state courts”); Jeffries, 522 F.3d at 644-45 (holding, under AED-PA, that review of the record is necessary “in order to properly assess [a] habeas petition”). For its bizarre suggestion, the State only quotes § 2254(e)(1), a provision that we have held does not apply to habeas petitions, like Nasby’s, that seek relief solely on the basis of the record before the state court. Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004).

In sum, it is clear that in order to provide adequate habeas review as contemplated by AEDPA, the court is required to review the state court record. The petition must be remanded.

CONCLUSION

For the foregoing reasons, we VACATE the district court’s dismissal of Nasby’s petition and REMAND with instructions to consider his claims after obtaining and reviewing all relevant portions of the state court record.

      . Nasby states that his lawyer "called no witnesses to testify on Petitioner's behalf, presented no defense at all, and ... failed to introduce any evidence on Petitioner’s behalf.”

      . Oddly, the State included the transcript of the hearing in the excerpts of record on this appeal, although it submitted neither the trial transcript nor the transcript of the hearing to the district court, which decided the case without the benefit of either of those documents.

      .Specifically, the court found that the defaulted claims were rejected in state court because they were "untimely pursuant to NRS § 34.726(1), successive pursuant to NRS § 34.810(1)(b)(2), an abuse of the writ pursuant to NRS § 34.810(2), and barred by laches pursuant to NRS § 34.800(2).”

      . The certified issues were: "(1) Whether trial counsel was ineffective due to a conflict of interest; (2) whether the district court erred in failing to address the claim that appellate counsel was ineffective for failing to raise Grounds 1 and 2, and for failing to federalize the claims that counsel did raise; (3) whether the district court properly concluded that the prosecutorial misconduct and violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) claims were procedurally defaulted; and (4) whether the district court erred in ruling on the merits of appellant’s claims without first requiring the State to submit all relevant portions of the state record, including trial and evidentiary hearing transcripts.” We also certified for appeal the question “whether the district court properly denied appellant’s motion to alter or amend a judgment pursuant to Fed. R. Civ. P. 59(e).”

      . See, however, fn. 8, infra.

      . It is, as a result, unnecessary for us to discuss further the nature of the hearing that the district court would be obliged to hold should the original record, or any material part of it, be unavailable.

      . When asked if, had the district court ordered the transcripts and granted relief, “we would have to reverse that,” counsel for the State responded, "Yes, absolutely.”

      . For the same reasons, we VACATE the district court's order denying Nasby's motion to alter or amend the judgment under Rule 59(e). The district court will likely find it necessary to also vacate its order denying Nasby's motion for relief from judgment under Rule 60(b), which judgment was entered after the grant of the Certificate of Appealability.


author: LUCERO, Circuit Judge: GRABER, Circuit Judge,

text:
    S.H., a minor, BY her guardian ad litem, Chantal HOLT; William Kenneth Holt; Chantal Holt, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
    No. 15-15000
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 15, 2016 San Francisco, California
    Filed April 10, 2017

      John Samuel Koppel (argued) and Mark B. Stern, Attorneys, Appellate Staff; Benjamin B. Wagner, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellant.
    Steven B. Stevens (argued), Steven B. Stevens APC, Los Angeles, California; Martin M. Berman, Law Offices of Martin M. Berman, Palm Springs, California; for .Plaintiffs-Appellees.
    Before: CARLOS F. LUCERO, SUSAN P. GRABER, and ANDREW D. HURWITZ, Circuit Judges.

       The Honorable Carlos F. Lucero, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

   Concurrence by Judge GRABER

OPINION

LUCERO, Circuit Judge:

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 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 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. They further argue that S.H.’s injury — the cerebral palsy diagnosis — first occurred upon their return to the United States. At trial, the district court agreed that the injury occurred in South Carolina and awarded damages of $10,409,700. Although we are sympathetic to the plaintiffs’ situation, we agree with the United States that the injury at issue was suffered in Spain. We exercise jurisdiction under 28 U.S.C. § 1291 and reverse.

I

A

Mr. Holt is a Master Sergeant in the USAF. He and his wife have four children. In 2004, when the family was stationed at Edwards Air Force Base in California, Mr. Holt was informed that he was being transferred to the USAF Air Base at Rota Naval Station in Spain. Shortly thereafter, a pregnancy test at the Edwards Air Force Base medical clinic confirmed that Mrs. Holt was pregnant with their third child.

After learning he was to be transferred overseas, Mr. Holt requested command-sponsored travel for his family. To obtain approval for this program, family members must be screened to ensure that the overseas base is capable of addressing their medical needs. Dr. Richard Stahlman, chief of the medical staff at Edwards Air Force Base, approved the Holt family’s command-sponsored travel to Spain. The district court found that Dr. Stahlman knew Mrs. Holt was pregnant and had experienced two prior preterm deliveries and a miscarriage at the time he cleared her for overseas travel.

In March 2005, when Mrs. Holt was approximately twenty weeks pregnant, the family relocated to Spain. There, Mrs. Holt' was treated by Dr. Dennis Szurkus, a specialist in obstetrics and gynecology at Naval Hospital Rota. During, an ultrasound appointment on May 11, 2005, Dr. Szurkus determined that Mrs. Holt was exhibiting signs of preterm labor and had her transferred by ambulance to an off-base hospital — Puerto Real Hospital — where she underwent an emergency cesarean section. S.H. was born on May 12, at approximately 31 weeks gestation. She had difficulty eating and breathing and was kept in the neonatal intensive care unit for seventeen days.

In the months following S.H.’s birth, the Holts saw several doctors in Spain regarding her medical issues and expressed concern that S.H. was not developing like her two older siblings, both of whom were also born preterm. Doctors told the Holts that S.H. had strabismus, poor head control, low tone in her abdominal muscles, and significant motor and developmental delays. S.H. also experienced seizure-like symptoms, for which she was prescribed phenobarbital. When she was approximately five months old, S.H. underwent an MRI, which showed periventricular leuko-malacia, an injury to the white matter of her brain.

At around nine months of age, S.H. was evaluated by a neurologist, Dr. Lisa Smith, who found that S.H. had abnormally brisk reflexes and a mild increase in dynamic tone in her lower extremities. Dr. Smith did not rule out cerebral palsy at that time but declined to render a diagnosis. Two other doctors in Spain did conclude that S.H. had cerebral palsy.

The family returned to the United States in mid-2006. Late that year, S.H. was diagnosed with tetraplegia of all four extremities. At the age of two, while living in South Carolina, S.H. was definitively diagnosed with cerebral palsy. It is undisputed that S.H.’s premature birth was the cause of her cerebral palsy.

B

In- June 2006, while the Holts were still in Spain, they filed an administrative claim seeking damages from the government for S.H.’s “catastrophic neurological injuries, seizures, learning deficits, physical limitations,” and “cerebral palsy.” They alleged that these injuries resulted from the negligent approval of Mrs. Holt’s command-sponsored travel overseas. The administrative claim was denied.

Having exhausted administrative remedies, the Holts filed the instant action in district court. The government unsuccessfully moved for summary judgment, contending that the FTCA’s foreign country exception barred the Holts’ medical malpractice claims. Following a bench trial, the court awarded the Holts $10,409,700 in damages. The government filed a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e). The court granted the motion in part but ultimately declined to alter the damages award. The government timely appealed the amended judgment and all related interlocutory orders.

II

We review a district court’s findings of fact following a bench trial for clear error. Kohler v. Presidio Int'l, Inc., 782 F.3d 1064, 1068 (9th Cir. 2015). However, “[wjhether the United States is immune from liability in a FTCA action is a question of federal law subject to de novo review.” Montes v. United States, 37 F.3d 1347, 1351 (9th Cir. 1994) (italics omitted).

The FTCA generally waives the United States’ sovereign immunity from suits in tort, “rendering] the Government liable in tort as a private individual would be under like circumstances.” Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); see also 28 U.S.C. § 2674. But that waiver is subject to certain exceptions. See generally 28 U.S.C. § 2680. Under the foreign country exception, the FTCA’s waiver of immunity does not apply to “[a]ny claim arising in a foreign country.” Id. § 2680(k).

In Sosa, the Supreme Court held that the foreign country exception “bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.” 542 U.S. at 712, 124 S.Ct. 2739. The Court noted that the foreign country exception codified Congress’ “unwilling[ness] to subject the United States to liabilities depending upon the laws of a foreign power.” Id. at 707, 124 S.Ct. 2739 (alteration in original) (quoting United States v. Spelar, 338 U.S. 217, 221, 70 S.Ct. 10, 94 L.Ed. 3 (1949)). At the time the FTCA was passed, “the dominant principle in choice-of-law analysis for tort cases was lex loci delicti: courts generally applied the law of the place where the injury occurred.” Id. at 705, 124 S.Ct. 2739. Accordingly, the Court concluded that Congress likely intended the phrase “arising in” to have the same meaning in § 2680(k) as it did in state choice-of-law statutes: that is, to “express the position that a claim arises where the harm occurs.” Id. at 711, 124 S.Ct. 2739.

The question at the center of this appeal is where S.H.’s injury was “suffered” for the purposes of the foreign country exception. Id. at 712, 124 S.Ct. 2739. The Sosa opinion offers various formulations of lex loci delicti, but provides little guidance on this specific issue. See, e.g., id. at 705, 124 S.Ct. 2739 (claim arises “where the last act necessary to establish liability occurred; 1.e., the jurisdiction in which injury was received” (quoting John W. Ester, Borrowing Statutes of Limitation & Conflict of Laws, 15 U. Fla. L. Rev. 33, 47 (1962))); id. at 706, 124 S.Ct. 2739 (“the place where the harmful force takes effect upon the body” (quoting Restatement (First) of Conflict of Laws § 377, n.l (1934) (emphasis omitted))). In the ordinary case, an injury will be experienced in the same place it is inflicted, thereby obviating the need for further analysis. See, e.g., id. at 698, 124 S.Ct. 2739 (seeking damages for false arrest in Mexico). However, the inquiry becomes more complicated when, as in this case, plaintiffs allege injuries manifesting after the initial infliction of harm.

The district court concluded that state accrual law should determine where an injury is suffered. Relying on California law, it held that S.H.’s cerebral palsy occurred in the United States because it was not until the Holts arrived in South Carolina that doctors could identify S.H.’s symptoms as cerebral palsy. But as we have previously noted, “[qjuestions of interpretation under the [FTCA’s] exclusion provisions are controlled by federal law.” Ramirez v. United States, 567 F.2d 854, 856 (9th Cir. 1977); accord United States v. Neustadt, 366 U.S. 696, 706, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961) (“[Wjhether [a] claim is outside the intended scope of the Federal Tort Claims Act ... depends solely upon what Congress meant by the language it used.... ”). The district court acknowledged this principle as a general matter but concluded that because California law governed the United States’ liability under 28 U.S.C. § 1346(b)(1), it also determined where the Holts’ claims arose. However, § 2680(k) states that § 1346(b) “shall not apply to” any claim falling within the foreign country exception.

The district court also failed to recognize that the question of when a claim accrues for statute of limitations purposes is analytically distinct from the question of where a claim arises under the foreign country exception. See Manemann v. United States, 381 F.2d 704, 705 (10th Cir. 1967) (“[I]n the case at bar we are not concerned with either the time or place of an accrued cause of action for the purpose of applying a statute of limitations or a principle of conflict of law. We are concerned only as to whether appellant’s claim arose in a foreign country within the contemplation of section 2680(k).... ”); In re Joint E. & S. Dist. Asbestos Litig., 721 F.Supp. 433, 435 (E.D.N.Y. & S.D.N.Y. 1988) (stating that the “last event” required to establish liability “is not necessarily plaintiffs discovery of his illness; so to hold would be to confuse the beginning of plaintiffs cause of action with the beginning of its end, i.e., with the starting of the statute of limitations” (internal quotation marks omitted)). There may be some overlap in the standards applied to these questions. See United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (recognizing that “the general rule under the [FTCA] has been that a tort claim accrues at the time of the plaintiffs injury”). But the statute of limitations inquiry is concerned with a plaintiffs knowledge, see id. at 118-24, 100 S.Ct. 352, to ensure that a limitations period does not lapse before a reasonably diligent plaintiff is aware of her injury, see In re Joint E. & S. Dist. Asbestos Litig., 721 F.Supp. at 435 (equating “plaintiffs discovery of his illness” with the “starting of the statute of limitations”). In deciding where a claim arises under the foreign country exception, however, we are not concerned with the possibility of a blameless plaintiff losing a claim through delay. Thus, we ask only where “the last act necessary to establish liability occurred,” Sosa, 542 U.S. at 705, 124 S.Ct. 2739 (internal quotation marks omitted), without taking into account what the plaintiff knew or did not know.

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. Id. 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.” § 377. 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. Accord Williams v. Gyrus ACMI, Inc., 790 F.Supp.2d 410, 415 (D. Md. 2011) (holding that plaintiffs injury occurred for purposes of lex loci delicti at the time shim was left in her body, “even if she did not begin to experience pain or other symptoms from the shim’s presence until she relocated” to another state).

It is undisputed that S.H.’s cerebral palsy resulted from the brain injury she sustained in Spain as a consequence of her premature birth. The district court held that the Holts’ claims arose in the United States because that is where S.H.’s cerebral palsy definitively manifested itself. In reaching that determination, the court distinguished between S.H.’s brain injury and her cerebral palsy diagnosis, reasoning that because plaintiffs were suing to recover for the latter harm, and cerebral palsy is not a disease but rather a collection of symptoms, plaintiffs’ claims could not have arisen prior to those symptoms being present and diagnosable. But 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. Under lex loci de-licti, as it was interpreted at the time of the FTCA’s passage, the fact that a plaintiff suffers some “other loss” in a different jurisdiction is “immaterial.” Restatement (First) Conflict of Laws § 377, n.1. “The question is only where did the force impinge upon [her] body.” Id. The undisputed facts of this case indicate that the force — the brain injury S.H. suffered at or near the time of her birth — impinged upon her body in Spain; thus, that is where the Holts’ claims arose. See Sosa, 542 U.S. at 705-06, 124 S.Ct. 2739.

Our conclusion is consistent with the application of the foreign country exception by other federal courts. In Thompson v. Peace Corps, 159 F.Supp.3d 56 (D.D.C. 2016), the court held that the foreign country exception barred the plaintiffs FTCA claims, which were based on injuries she sustained as a result of taking an antimalarial drug in Burkina Faso. Id. at 61. The court reasoned that although the plaintiff “complain[ed] of continuing side effects after her return home,” as well as “a permanent brain injury,” the court lacked jurisdiction because the “claims based on those injuries arose out of the administration of mefloquine in Burkina Faso.” Id. at 58, 61. Similarly, the District of Columbia Circuit has twice held that a district court lacked jurisdiction over a plaintiffs claims for emotional or economic injuries occurring in the United States because those injuries were derivative of harm suffered abroad by the plaintiffs’ spouses. See Gross v. United States, 771 F.3d 10, 13 (D.C. Cir. 2014) (holding that foreign country exception applied because wife’s economic injuries in the United States were derivative of injuries husband suffered as a result of imprisonment in Cuba); Harbury v. Hayden, 522 F.3d 413, 423 (D.C. Cir. 2008) (holding that foreign country exception applied to claims for emotional injuries that wife suffered in United States but that resulted from physical abuse and death of husband in Guatemala). In both cases, the court expressed concern that plaintiffs would be able to “plead around the FTCA’s foreign-country exception simply by claiming injuries ... that are derivative of the foreign-country injuries at the root of the complaint.” Harbury, 522 F.3d at 423.

Like the injuries alleged in these cases, S.H.’s cerebral palsy is derivative of the harm she sustained at birth. As the Holts recognize, cerebral palsy is not itself a disease, but rather a group of non-progressive motor conditions. It is therefore a description of symptoms manifesting from S.H.’s brain injury, rather than a separate, compensable harm. Moreover, to hold that the Holts’ claims did not arise until cerebral palsy could be definitively diagnosed would enable plaintiffs in similar circumstances to avoid application of the foreign country exception, either by pleading their injuries in a particular way or by relocating to the United States before obtaining a diagnosis. Cf. Sosa, 542 U.S. at 702-03, 124 S.Ct. 2739 (rejecting idea that “allegations of negligent medical care ... can ... be repackaged as headquarters claims based on ... the offering of bad advice” in the United States, even though harm is suffered overseas, because the practice would “swallow the foreign country exception whole” (citations omitted)); Harbury, 522 F.3d at 423 (prohibiting plaintiffs from “plead[ing] around” the foreign country exception by claiming domestic injuries “that are derivative of the foreign-country injuries at the root of the complaint”). Jurisdiction under the FTCA cannot turn on whether the Holts framed their suit as seeking damages for S.H.’s cerebral palsy or the brain injury she sustained at birth.

Ill

Because the Holts’ claims against the United States arose in Spain, the FTCA’s foreign country exception bars their suit. Accordingly, the district court’s order is VACATED, and we REMAND the case with instructions to dismiss for lack of subject matter jurisdiction. The parties shall bear their own costs on appeal.

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 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). 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.

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 S.H., Plaintiffs necessarily admitted 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.

      . Those doctors were Dr. Paul Shales, a developmental pediatrician at the Educational, Developmental and Intervention Services Clinic at Rota, and Dr. Anthony Delgado, a general pediatrician at the Rota pediatric clinic. The district court found Dr. Shales’ diagnosis unreliable.

      . Sosa recognized that Congress’ intent in enacting the foreign country exception was to prevent the United States from being subjected to liability under the laws of a foreign power. See 542 U.S. at 707, 124 S.Ct. 2739. However, the Court also acknowledged that under its interpretation of the statute, the foreign country exception would apply even "when a State’s choice-of-law approach would not apply the foreign law of place of injury.” Id. at 711, 124 S.Ct. 2739. In rejecting a more selective approach, the Court noted that Congress did not write the statutory language to bar claims only "when foreign law would be applied” but rather to bar all claims "arising in” a foreign country. Id. The Court further reasoned that even if such a meaning could be inferred from the language of the statute, it would result in “a scheme of federal jurisdiction that would vary from State to State, benefiting or penalizing plaintiffs accordingly.” Id. Thus, a consequence of the Court’s decision in Sosa is that the foreign country exception will sometimes bar suits that would not have triggered the application of foreign law.

      . It is for this same reason that we reject any suggestion that the Holts' administrative claim, which lists "cerebral palsy” as an injury caused by the USAF’s negligence, establishes that S.H. had cerebral palsy in Spain. Where an injury is suffered for the purposes of the foreign country exception is an objective inquiry, one that does not depend on what the Holts knew at a particular time.

      . We recognize that courts have sometimes interpreted lex loci delicti to different effect in the context of long-latency diseases. See, e.g., Pounders v. Enserch E&C, Inc., 232 Ariz. 352, 306 P.3d 9, 13 (2013) (noting that "[flor long-latency diseases, the last event’ takes place when the disease is discoverable because, until then, a legally compensable injury does not exist”); Trahan v. E.R. Squibb & Sons, Inc., 567 F.Supp. 505, 507-08 (M.D. Tenn. 1983) (rejecting argument that "last event” occurred when plaintiff's mother ingested DES, absent any evidence that “improper development of the plaintiff's cervix occurred immediately upon her mother's ingestion of the drug”). But in those cases, there was no evidence that the plaintiffs' exposure to a toxic substance resulted in any immediate harm beyond the cellular level. By comparison, S.H.'s brain injury, resulting from her premature birth, had appreciable effects while the Holts were living in Spain. See In re “Agent Orange” Prod. Liab. Litig., 580 F.Supp. 690, 707 (E.D.N.Y. 1984) (explaining, for purposes of lex loci delicti, that "harmful force” of Agent Orange affected military service members immediately, even though "many of the more serious symptoms did not manifest themselves until years later”).

      . The United States raises a number of other issues on appeal; however, our conclusion that the district court lacked jurisdiction obviates the need to address those arguments.

      . 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.