Chang-Williams v. Department of the Navy
Filing
30
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/7/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANGELE L. CHANG-WILLIAMS,
et al.
:
:
v.
Civil Action No. DKC 10-0783
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this action
under
the
increase
Federal
damages”
(ECF No. 26).
Tort
filed
Claims
by
Act
(“FTCA”)
Plaintiff
is
Angele
a
“motion
to
Chang-Williams.
The issues have been fully briefed and the court
now rules, no hearing being necessary.
See Local Rule 105.6.
For the reasons that follow, Chang-Williams’ motion to increase
damages will be denied.1
I.
Background
This case stems from a shooting incident in November 2002.
On the night of November 12, U.S. Marine Corps Sergeant Estabon
Eugene
appeared
at
Chang-Williams’
estranged wife, Chang-Williams’ niece.
home
looking
for
his
Not finding her, Eugene
shot and killed Chang-Williams’ husband, Kelvin, and her son,
Aldwin.
1
Eugene also shot Chang-Williams, but she survived.
In
Also pending is a motion for leave to file a surreply.
(ECF No. 29). That motion will be denied.
this
action,
Chang-Williams,
her
two
daughters,
and
husband’s mother all seek damages from the United States.
her
They
allege that members of the Marine Corps promised to protect
Chang-Williams and her family from Eugene.
On November 12, 2004, Chang-Williams and her two daughters,
DeLisia Carpenter and Vinele Chang, submitted an administrative
claim to the Department of the Navy.
That claim, which sought
damages for the 2002 shooting, was prepared by an attorney.
The
administrative claim describes many of the facts underlying this
suit,
lists
supporting
witnesses
and
documents,
and
requests
particular amounts of damages for each claimant.
In
from
total,
the
the
United
administrative
States
for
its
claim
role
sought
in
the
$2,616,147.12
2002
incident.
Chang-Williams requested $898,115 for her own personal injuries
and $1,018,032.12 for the wrongful deaths of her husband and
son.
Each
daughter
sought
an
additional
$350,000
wrongful deaths of their father and brother.
states
that
none
of
the
itemized
damage
for
the
Chang-Williams
requests
included
amounts for lost wages or other economic benefits.
After the Navy denied her administrative claim in September
2009, Chang-Williams filed a pro se complaint in this court in
March 2010.
In her original complaint, Chang-Williams sought
damages of $6 million on her own behalf – an amount almost $3.4
2
million above the total sum stated in the administrative claim.
Her daughters were not listed as plaintiffs.
The
government
subsequently
filed
a
motion
for
summary
judgment, which the court granted in part and denied in part.
See
Chang-Williams
(D.Md. 2011).
v.
Dep’t
of
the
Navy,
766
F.Supp.2d
604
Of particular relevance here, the opinion on that
motion observed that the Maryland Wrongful Death Act requires
all statutory wrongful death beneficiaries to be named in a
single action.
Id. at 629-30.
Accordingly, the court ordered
Chang-Williams to file an amended complaint “listing Vinele and
DeLisia
as
plaintiffs.”
Id
at
630.
The
court
further
instructed Chang-Williams to “notify the court if . . . there
exist other statutory beneficiaries (e.g., surviving parents of
Kelvin, other children, etc.) who should be included.”
After
the
court’s
decision
on
summary
Id.
judgment,
Chang-
Williams filed an amended complaint through new counsel that
went beyond simply adding her two daughters as plaintiffs.
No. 19).
added
a
(ECF
The amended complaint alleged a number of new facts,
new
party
(Kelvin’s
mother,
Isla
Washington),
requested an additional $4 million in damages.
and
The amended
complaint now seeks a total of $10 million in compensation from
the government – almost four times as much as Chang-Williams and
her daughters originally sought.
3
Several months later, on June 8, 2011, Chang-Williams filed
the present “motion to allow damages in excess of amount claimed
before agency.”
(ECF No. 26).
Evidently, Chang-Williams now
recognizes that the new request for damages was much higher than
the amount she sought at the administrative level.
that
she
should
be
permitted
to
seek
an
She contends
additional
amount
reflecting “economic” damages.
(ECF No. 26, at 1).
States opposes.
Chang-Williams has also filed a
reply.
II.
(ECF No. 27).
The United
(ECF No. 28).
Analysis
The FTCA places certain limits on the amount of damages a
plaintiff may seek under the Act.
Generally, an FTCA plaintiff
may not sue for “any sum in excess of the amount of the claim
presented to the federal agency.”
28 U.S.C. § 2675(b); see also
McNeil v. United States, 508 U.S. 106, 108 n.2 (1993); Sebroski
v. United States, 111 F.Supp.2d 681, 683 (D.Md. 1999).
2675(b) does allow, however, for some “flexibility.”
United States, 30 F.3d 514, 518 (4th Cir. 1994).
Section
Ahmed v.
In particular,
a plaintiff may seek a sum of damages in a civil action higher
than the amount she sought in her administrative claim where (1)
she has “newly discovered evidence not reasonably discoverable
at the time of presenting the claim to the federal agency,” or
(2) she can allege and prove “intervening facts” related to the
damage amount.
28 U.S.C. § 2675(b).
4
The plaintiff bears the
burden of showing that one of these two exceptions applies.2
Spivey v. United States, 912 F.2d 80, 85 (4th Cir. 1990); accord
Zurba v. United States, 318 F.3d 736, 739 (7th Cir. 2001).
Chang-Williams does not attempt to invoke either of the two
statutory exceptions to the cap on damages in section 2675(b).
Although she identifies the relevant exceptions, she offers no
argument concerning them.
A review of the record indicates she
would have no basis for arguing either exception applies.
First, her request does not rest upon “newly discovered
evidence,”
as
she
wishes
to
add
damages
for
lost
wages
and
economic benefits that were known at the time of initial filing.
At the outset, a new theory of damages can hardly be called
“evidence.”
Even
theory
“reasonable
was
administrative
if
claim
it
was
were
evidence,
discoverable”
made.
See
this
new
at
the
Spivey,
912
lost
wages
time
F.2d
the
at
85
(explaining that a plaintiff must show that the evidence “could
2
Chang-Williams misunderstands the nature of this
burden.
On reply, she points to proposed expert testimony
establishing economic damages for Aldwin and Kelvin Chang. (ECF
No. 28, at 1-3). Her burden under 28 U.S.C. § 2675(b) is not to
establish an entitlement to the new damages; this is not a
motion for summary judgment. Rather, she must show that the new
damages
rest
upon
either
newly
discovered
evidence
or
intervening facts.
See, e.g., Kielwien v. United States, 540
F.2d 676, 680 (4th Cir. 1976).
The proffered expert testimony
shows neither.
Nor is the expert testimony itself a newly
discovered piece of evidence or an intervening fact as
contemplated by § 2675(b).
5
not have been discovered” before the administrative filing to
constitute “newly discovered evidence”).
herself
recognizes
that
[w]rongful death action.”
“lost
wages
Indeed, Chang-Williams
[are]
(ECF No. 26, at 5).
inherent
in
a
She states that
a sum for lost wages “should have been included” as such damages
are “foreseeable.”
claims as “obvious.”
cannot apply.
704,
711
(Id. at 5, 6).
(Id. at 7).
And she characterizes such
Plainly, then, this exception
See, e.g., Lowry v. United States, 958 F.Supp.
(D.Mass.
1997)
(“If
the
condition
was
reasonably
foreseeable at the time the claim was filed, an increase will
not be allowed.”).
Second, her increased damages request does not relate to
“intervening facts.”
To the contrary, Chang-Williams does not
mention any facts in her motion that arose between the time of
her administrative filing and today.
To the extent she relies
upon her later realization that she could have sought additional
damages, no court has ever held that post-administrative-filing
remorse is an “intervening fact” under section 2675(b).
Instead
of
relying
upon
the
two
statutory
Chang-Williams appeals to principles of equity.
exceptions,
She asserts
that her attorney should have included her lost wage claim in
the original administrative claim, and that she did not catch
the mistake as a layperson recovering from a traumatic incident.
6
She emphasizes that her claim is meritorious.
And she points
out that the government would not be prejudiced.
None
of
these
quasi-equitable
arguments
is
relevant.
Section 2675(b) is part of a broader scheme that waives some
degree
of
the
government’s
sovereign
waiver must be narrowly construed.
F.3d 646, 650-51 (4th Cir. 2005).
Chang-Williams’
invitation
to
immunity,
and
the
FTCA
Welch v. United States, 409
Thus, the court cannot accept
read
new
exceptions
into
the
requirements of the statute.
As the cases cited by the government demonstrate, other
courts
have
also
routinely
rejected
the
arguments that Chang-Williams makes here.
types
of
equitable
Attorney error is not
a ground for increasing a damage claim under section 2675(b).
See
Davis
v.
Marsh,
807
F.2d
908,
910-12
(11th
Cir.
1987);
Martinez v. United States, 780 F.2d 525, 527-28 (5th Cir. 1986);
Hoehn v. United States, 217 F.Supp.2d 39, 43-44 (D.D.C. 2002).
Nor will a litigant’s lack of legal knowledge or skill justify a
higher damage claim.3
See Le Grand v. Lincoln, 818 F.Supp. 112,
3
Chang-Williams cites one case, McCarter v. United
States, 373 F.Supp. 1152 (E.D.Tenn. 1973), that might suggest
otherwise.
In McCarter, the court permitted a man with a
limited education to state additional claims not originally
presented because he was “not aware that he was entitled to
additional compensation.”
Id. at 1153.
The decision in that
case, however, is an outlier that “does not at all square with
the specific language of the statute relaxing the limitation
upon the amount of a permitted claim and . . . does not give due
7
115-16 (E.D.Pa. 1993); Schubach v. United States, 657 F.Supp.
348, 349-50 (D.Me. 1987); Robinson v. United States, 563 F.Supp.
312, 314 (W.D.Pa. 1983); cf. Adeleke v. United States, 355 F.3d
144, 153 (2d Cir. 2004) (explaining that the “procedural hurdle”
of administrative exhaustion “applies equally to litigants with
counsel and to those proceeding pro se” (citing McNeil, 508 U.S.
at
113)).
Nor
should
the
merits
application of this procedural rule.
of
a
claim
affect
the
See, e.g., Jackson v.
United States, 730 F.2d 808, 810 (D.C.Cir. 1984) (limiting an
FTCA plaintiff to the damages she claimed at the administrative
level, without expressing an opinion on the merits).
These
sorts of equitable considerations have no place in the section
2675(b)
context
because,
if
anything,
equity
favors
the
government in this context:
The
goal
of
the
administrative
claim
requirement is to let the government know
what it is likely up against: mandating that
a claimant propound a definite monetary
demand ensures that the government will at
all relevant times be aware of its maximum
possible exposure to liability and will be
in a position to make intelligent settlement
decisions. As between prospective defendant
and prospective plaintiff, the latter is in
recognition to the serious purpose of the statutory language in
defining the consent of the United States to be sued in tort.”
Schubach v. United States, 657 F.Supp. 348, 350 n.5 (D.Me.
1987); see also Exec. Jet Aviation v. United States, 507 F.2d
508, 516 n.4 (6th Cir. 1974) (noting that the court in McCarter
“clearly was straining the exception”).
8
by far the better position to determine the
worst-case scenario or, if uncertain, to
paint the picture as bleakly as reason
permits and conscience allows.
If a
plaintiff misjudges, as to matters known or
easily deducible when her claim is filed, it
seems more equitable for her to bear the
burden of miscalculation than to impose it
on the sovereign.
Reilly
v.
United
States,
863
F.2d
149,
173
(1st
Cir.
1988)
(citations, brackets, and quotation marks omitted).
Chang-Williams also references prejudice, which seems to be
an
allusion
found
in
to
the
Federal
ordinary
Rule
of
standard
Civil
for
amending
pleadings
15(a).
Section
Procedure
2675(b), however, imposes its own independent requirements; it
would
be
a
mistake
to
substitute
the
“liberal
pleading
requirements” of Rule 15(a) for the “narrower” requirement found
in the FTCA.
See O’Rourke v. Eastern Air Lines, Inc., 730 F.2d
842, 856 (2d Cir. 1984), overruled on other grounds by Salve
Regina Coll. v. Russell, 499 U.S. 225, 230 (1991); see also
Reilly v. United States, 665 F.Supp. 976, 1011 (D.R.I. 1987)
(explaining that the amendment of pleadings is governed by Rule
15,
but
2675).
such
pleadings
must
“independently
satisfy”
section
Thus, prejudice to the United States is not a proper
consideration here.
Even if prejudice were properly considered, the government
would be prejudiced by allowing Plaintiffs to multiply their
claims
against
the
United
States
9
several
times
over.
For
instance, permitting a tardy increase in the damages claimed
would
impair
the
government’s
ability
to
assess
a
claim’s
settlement value accurately, which is the very purpose of the
“sum
certain”
claimants.
Cir.
2000).
government
requirement
imposed
on
FTCA
administrative
Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278 (4th
Chang-Williams
should
have
cannot
anticipated
sincerely
a
argue
fourfold
that
increase
the
in
damages from the time of presentment to now.
Plaintiffs’
regrettable
include
that
present
their
everything
it
position
original
might
is
unfortunate.
administrative
have.
But
at
claim
bottom,
It
is
did
not
Chang-
Williams’ motion is largely a late attempt to change the theory
and value of the case.
The court cannot countenance such an
effort, as section 2675(b) “would be meaningless if claimants,
after
rejection
of
their
claim,
could
institute
actions
for
amounts in excess of the claim filed merely because they, or
their attorneys, are of the opinion that the claim has a greater
value.”
Kielwien v. United States, 540 F.2d 676, 681 (4th Cir.
1976); accord Lowry, 958 F.Supp. at 713 (“The purpose of section
2675(b) undoubtedly is to limit claims on which there is only a
change in valuation between the agency claim and the lawsuit.”).
Thus, Plaintiffs will be limited to the amount of damages
originally sought in the administrative action.
But in her
reply, Chang-Williams suggests this figure should include more
10
than the $2,616,147.12 sum she sought in her initial SF-95 form.
She contends that she also supplemented her original claim via a
letter dated January 25, 2005.
letter
“supplements”
the
(ECF No. 28, at 3-5).
original
economic damages of up to $58,860.
claim
by
adding
That
additional
(ECF No. 28-4, at 3).
Chang-Williams raised this supplementation argument only on
reply.
The government objects to its consideration (ECF No.
29), and rightfully so.
See Chang-Williams, 766 F.Supp.2d at
620 n.16 (explaining that courts generally do not consider new
arguments on reply).
The court notes that the supplement may
run afoul of the FTCA’s two-year statute of limitations for
administrative filings,
§
2401(b)),
as
it
Ahmed, 30 F.3d at 516 (citing 28 U.S.C.
was
filed
after
evidently ended on November 12, 2004.
that
the
supplement
relates
back
the
limitations
period
Although one might argue
to
the
original,
timely
administrative filing, the Fourth Circuit has never addressed
that idea and the circuit courts seem to be split on the issue.
Compare Lee v. United States, 980 F.2d 1337, 1339 (10th Cir.
1992) (finding untimely supplement to administrative claim did
not relate back to timely filing), and Manko v. United States,
830 F.2d 831, 840 (8th Cir. 1987) (same), with Avila v. INS, 731
F.2d 616, 620 (9th Cir. 1984) (finding amendment filed after
expiration of limitations period but before final agency action
related back to timely administrative claim).
11
See also Murrey
v. United States, 73 F.3d 1448, 1450 (7th Cir. 1996) (“There is
no ‘relation back’ provision [in the FTCA] corresponding to Rule
15(c)(1) of the civil rules.”).
to address the issue now.
Accordingly, the court declines
Even if the supplement was timely,
however, it would only justify an increase of $58,860, not the
several-million-dollar
increase
Chang-Williams
requests.
Therefore, even if Chang-Williams’ position is the correct one,
she would at most be entitled to seek only up to $2,675,007.12
in total damages.
III. Conclusion
For the foregoing reasons, the motion to increase damages
will be denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
12
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