The opinion of the court was delivered by: Whelan, District Judge.
ORDER DENYING PLAINTIFF'S MOTION TO AMEND
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
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
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
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); ...