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May 23, 2001


The opinion of the court was delivered by: Whelan, District Judge.


Plaintiff Elisa Salcedo-Albanez ("Plaintiff") moves to amend pursuant to Rule 15 of the Federal Rules of Civil Procedure. Defendant the United States of America ("United States") opposes. All parties are represented by counsel. The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1 (d.1).


On November 19, 1998 Dr. Toba performed surgery to reposition Plaintiff's dislodged lens and gave her medicated eye drops for the pressure. (See Decl. of Dr. Cesar T. Chavez at 11.) On March 18, 1999 Dr. Toba continued Plaintiff's eye medication to control her intraocular pressure and cautioned "[t]o do otherwise [would] run the risk of permanent damage to the optical nerve." (Def.'s Opp'n Ex. A.) On August 11, 1999 Dr. Toba concluded that Plaintiff's medication was not adequately controlling her intraocular pressure and stated that "traveculaplastia surgery is required for better control." (Def.'s Opp'n Ex. B.)

On October 12, 1999 Plaintiff, represented by counsel, presented a $75,000 administrative claim to the Immigration and Naturalization Service ("INS") for damages arising from the accident. (See Def.'s Opp'n Ex. C.) Plaintiff sought $75,000 for personal injuries. (See id.) The INS took no action to deny Plaintiff's administrative claim within 6 months and thus the claim could be considered denied at the "option of the claimant" on April 12, 2000 or anytime thereafter pursuant to 28 U.S.C. § 2675 et seq.*fn1

On January 27, 2000 Dr. Cesar T. Chavez ("Dr. Chavez") medically examined Plaintiff. Plaintiff's visit with Dr. Chavez occurred about four months after Plaintiff filed her original administrative complaint. Dr. Chavez informed Plaintiff that in his opinion, "she would permanently lose the vision in her right eye due to the constant and prolonged pressure on her right optic nerve." (Pl.'s Mem. of P. & A. at 6.) Regardless, Plaintiff never sought to amend her original $75,000 administrative claim.*fn2

On October 6, 2000, approximately two years after the accident, Plaintiff initiated this action against the United States seeking damages under the Federal Tort Claims Act, 28 U.S.C. § 1346, 2671-2680 (the "FTCA"). Another six months passed before Plaintiff sought to amend the pleadings. Plaintiff, alleging more extensive eye injuries, now moves to file a First Amended Complaint seeking $500,000 in damages. Having read and considered the parties' moving papers, all exhibits and the applicable law, the Court DENIES Plaintiff's motion for the reasons expressed below.


The United States, as sovereign, is immune from suit except to the extent that it consents to be sued. See United States v. Mitchell, 445 U.S. 535, 538 (1980). The terms of the sovereign's consent define a court's jurisdiction. See United States v. Sherwood, 312 U.S. 584, 586 (1941). Any waiver of sovereign immunity must be unequivocally expressed. See Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982). Moreover, "[t]he party who sues the United States bears the burden of pointing to such an unequivocal waiver of immunity." Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983).

It is well-settled that the FTCA (28 U.S.C. § 1346, 2671-2680) provides the exclusive statutory remedy for torts committed by employees of the United States who act within the scope of their employment, that the United States is the only proper defendant in an action under the FTCA and that a plaintiff may not file suit under the FTCA unless he first exhausts his administrative remedies under the FTCA. See id. Under the FTCA, a claim for damages filed in district court may not exceed the amount sought in the underlying administrative claim filed with the appropriate federal agency. See 28 U.S.C. § 2675 (b).

Statutes involving "the Government's consent to be sued must be construed strictly in favor of the sovereign and not enlarge[d] . . . beyond what the language requires." United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992) (citations omitted). By its own terms, the FTCA bars actions for damages in excess of the administrative claim in all but two circumstances: (1) where the plaintiff proves "newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency," or (2) where the plaintiff identifies and proves "intervening facts" justifying a higher award. 28 U.S.C. § 2675 (b); Lowry v. United States, 958 F. Supp. 704, 711 (D. Mass. 1997). While a plaintiff may seek a larger amount if he meets either of these tests, the burden of proof under both falls on the plaintiff. See id.; Spivey v. United States, 912 F.2d 80, 85 (4th Cir. 1990) ("Plaintiffs bear the burden of proving that they are entitled to damages in excess of their administrative claim.") (citation omitted).

In determining whether the exception is available, the FTCA does not hold claimants to a standard that charges them with "knowing what the doctors could not tell [them]." Fraysier v. United States, 766 F.2d 478, 481 (11th Cir. 1985). "[W]hether the plaintiff is seeking an increase under the rubric of `newly discovered evidence' or `intervening facts,' one of the key issues is foreseeability. If the condition was reasonably foreseeable at the time the claim was filed, an increase will not be allowed. On the other hand, if it was not . . . [then] an increase may be allowed." Lowry, 958 F. Supp. at 711. Moreover, in determining whether a plaintiff satisfies one of the two exceptions to the FTCA, courts apply an objective standard. See Michels v. United States, 31 F.3d 686, 689 (8th Cir. 1994); ...

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