                    Revised February 1, 2002

                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                           No. 00-50505



      RYAN DICKERSON, A Minor, by and through his Parents,
       Daniel Dickerson and Suzanne Dickerson, and as Next
        Friends; DANIEL DICKERSON, as Next Friend of their
      Minor Son, Ryan Dickerson; SUZANNE DICKERSON, as Next
         Friend of their Minor Son, Ryan Dickerson; DANIEL
    DICKERSON, Individually; SUZANNE DICKERSON, Individually,

                                            Plaintiffs-Appellees,


                              VERSUS


                    UNITED STATES OF AMERICA,

                                                Defendant-Appellant.




          Appeal from the United States District Court
                for the Western District of Texas


                         January 16, 2002
Before JONES, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

     Plaintiffs sued the United States under the Federal Tort

Claims Act (“FTCA”) for damages to Ryan Dickerson incurred during

his childbirth. The government acknowledged liability and the sole

issue at trial was damages.    The United States Government now
appeals a judgment against it for damages of $44,717,681 on the

grounds that the damages are limited by the plaintiffs’ prior

administrative claims of $20 million.                 In the alternative, the

government argues that the award should be reduced, in accordance

with       the    “maximum   recovery”   rule,   to    $28.45   million.   The

government additionally asserts that the guardian ad litem fees

should be taxed, in part, as attorney’s fees rather than the whole

amount being taxed to the government.



                                   BACKGROUND

       On March 19, 1998, a pregnant Suzanne Dickerson was diagnosed

with a condition called pregnancy-induced hypertension (“PIH”).

This condition can impair the placenta’s ability to extract and

exchange oxygen which in turn impairs the oxygen supply of the

unborn child.1         This causes the unborn child not only to receive

insufficient oxygen, but also results in a build-up of carbon

dioxide, which causes the blood’s pH to decrease and results in a

condition known as acidosis which can result in severe organ

damage.          Damage to the unborn child can be avoided by a timely

caesarean section; however, no such operation was performed on

Suzanne Dickerson.            On March 20, 1998, Suzanne Dickerson was

admitted to Sheppard Air Force Base Hospital for the delivery of



       1
                 The placenta is the organ of respiration for the unborn
child.

                                         2
her child. After approximately 15 hours of labor, the obstetrician

attempted to perform an operative vaginal delivery of her baby,

Ryan. After unsuccessfully trying to deliver Ryan with forceps and

a vacuum extractor, the obstetrician resorted once again to using

forceps and Ryan was delivered at about 11:00 p.m. on March 20,

1998.           Unfortunately, the conditions surrounding Ryan’s birth,

including the failure to perform a caesarean section, caused Ryan

to suffer catastrophic brain damage, destroying 65%-70% of his

brain tissue.

       Ryan demonstrated profound injuries at birth and had an

extremely low pH level of 6.75 for his blood.2                     For the first ten

days       of    his   life,   Ryan   was   in     a    coma.     Ryan   continued   to

demonstrate signs of severe damage throughout his time at the

hospital until his release to his parents on April 10, 1998.

       In May of 1998, Ryan’s father filed a “Request For CHAMPUS

Benefits”         and,   in    that   form,       Dr.   Charles   Morton,   Chief    of

Developmental Pediatrics at Wilford Hall Medical Center in San

Antonio, indicated that Ryan was at a high risk for spastic

quadriplegia cerebral palsy and severe developmental disorders. On

June 1, 1998, Dr. Eltman, a neurologist who had been treating Ryan,

wrote a letter in support of the Dickersons’ request to the Air

Force that Ryan’s father be assigned to an installation that could


       2
          A normal human’s blood has a pH of 7.35-7.45 though it is
not uncommon for a newborn baby to have a pH of 7.2. Lower numbers
indicate that the blood is more acidic than normal.

                                              3
support Ryan’s needs.      In that letter, Dr. Eltman gave a prognosis

that Ryan would suffer from mental retardation, cerebral palsy and

visual impairment as well as a high likelihood of seizures as a

result of his neurological injury.

     On June 24, 1998, the Dickersons prepared administrative

claims with the Department of the Air Force pursuant to 28 U.S.C.

§ 2675 seeking $20 million in damages.        Specifically, they sought

$15 million on behalf of Ryan and $5 million total on behalf of

Ryan’s parents in their individual capacities. In January of 1999,

after   they    deemed   their    administrative    claims    denied,   the

Dickersons filed a FTCA action.          The government did not contest

liability, and the only issue at trial was damages.

     In their original complaint, the Dickersons sought damages of

$20 million, consistent with their administrative claims.                 In

December   of   1999,    the   Dickersons   filed   their    first   amended

complaint asking for $55 million ($25 million for Ryan and $30

million for themselves).       The Dickersons accompanied their motion

for leave to amend with a declaration stating that, when they filed

their administrative claims, they did not have a complete set of

medical records or know the severity of Ryan’s injuries.                 The

district court granted their motion to file an amended complaint on

December 9, 1999.    The government filed a timely amended answer to

the amended complaint preserving the defense that the Dickersons




                                     4
were not entitled to damages in excess of the $20 million requested

in their administrative complaint.

       The district court found damages for the plaintiffs in the

total amount of $44,717,681.       The government now appeals, claiming

it was error to allow the damages in excess of the administrative

claims.



                                  DISCUSSION

The Administrative Damages Cap in FTCA Cases

       The standard of review for factual determinations in a FTCA

case    is   whether   the   district       court’s   findings    are    clearly

erroneous. Fed.R.Civ.P. 52(a); Low v. United States, 795 F.2d 466,

470 (5th Cir. 1986); Ferrero v. United States, 603 F.2d 510, 512

(5th Cir. 1979) (“In FTCA cases the clearly erroneous standard

governs our review of factual determinations, including damages.”).

A   trial    court’s   findings   are       clearly   erroneous   when,   after

reviewing the entire evidence, the Court is left with the definite

and firm conviction that a mistake has been committed.                  Ferrero,

603 F.2d at 512.

       The government asserts that the Dickersons’ claims should have

been limited by 28 U.S.C. § 2675(b), which states:

             Action under this section shall not be instituted
             for any sum in excess of the amount of the claim
             presented to the federal agency, except where 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

                                        5
             allegation and proof of intervening facts, relating
             to the amount of the claim.

Under the above section, claimants under the FTCA cannot claim more

than   asked   for   in   their   administrative       claims   unless   it   is

justified by newly discovered evidence.           The government contends

that   the   Dickersons     failed   to   meet   the    standard   for   newly

discovered evidence set out in Low v. United States, 795 F.2d 466

(5th Cir. 1986).

       At the outset, the Dickersons claim that the government’s case

should be dismissed because it failed to raise the administrative

cap as an affirmative defense and also because it did not specify

the amount of the administrative cap.            Both of these contentions

are without merit.        It is clear from the record and the district

court’s findings of fact that the government at least included the

affirmative defense of limiting the damages in its answer to the

complaint.     The cases cited by the Dickersons involved situations

where the government did not include the affirmative defense in

their pleadings. Pleading the administrative cap defense, however,

is enough to preserve the defense for appeal.             Ingraham v. United

States, 808 F.2d 1075, 1079 (5th Cir. 1987) (stating, in a FTCA

case, that the affirmative defense of damage limitation by statute

must be pleaded timely).

       Further, the Dickersons’ contention that the government should

lose because it failed to include the amount of the administrative

claims is not supported.          The district court’s findings of fact

                                      6
included a statement that “[t]he Defendant timely answered, raising

the defense that the Plaintiffs are limited to the damages alleged

in their administrative claims (Standard Form 95s) and original

complaint. . . .”    Also, the reference to the original complaint’s

damage request could act as giving the trial court notice of the

amount.3   Furthermore, in order for jurisdiction to exist in this

case, an administrative claim had to be filed pursuant to 28 U.S.C.

§ 2675. The district court recognized this filing as an undisputed

fact and therefore could examine the claim to determine the reach

of its jurisdiction.        Cf. Frantz v. United States, 29 F.3d 222,

224-25 (5th Cir. 1994) (holding that, because an administrative

claim was a jurisdictional prerequisite to suit under the FTCA, the

claims made in the administrative claim put the government on

notice of the possibility of such claims being made in the actual

suit); Bush v. United States, 703 F.2d 491, 494 n.1 (11th Cir.

1983)    (finding   that,   because   an   administrative   claim   was   a

prerequisite to jurisdiction, the district court was obliged to

examine the claim).     If nothing else, the amount, and the other

information provided in the claim, was recognized by virtue of the

fact that the administrative claims were taken on judicial notice.

     Now turning to the question of whether the amount in the claim

limits the Dickersons’ recovery, in Low, this Court held that the



     3
          The administrative claims amount is also stated in the
government’s proposed findings of fact.

                                      7
question of whether damages could be increased under § 2675(b)

presented a twofold issue.     Low, 795 F.2d at 470.   First, did the

district court err in finding that the post-claim evidence as to

the extent of the injuries, the prospects of recovery, the extent

of recovery, and of the life expectancy could not have been

discovered at the time the plaintiff filed its administrative

claim?   Id.   Second, do these facts represent newly discovered

evidence or intervening facts for the purposes of § 2675(b)?      Id.

The second prong of the analysis has several requirements. “First,

the evidence must support the increase in the prayer over the

administrative claim.”   Id.   “Next, the allegedly newly discovered

evidence or intervening facts must not have been reasonably capable

of detection at the time the administrative claim was filed.”4    Id.

Therefore, it seems there is first a subjective test as to whether

the specific injuries were known at the time the administrative

complaint was made.   Then there is an objective test as to whether

the plaintiff could have made out its worst-case scenario based on

the basic severity of the injuries that were known.        Reilly v.

United States, 863 F.2d 149, 172-73 (1st Cir. 1988).

     In its findings of fact and conclusions of law, the district

court articulates that it permitted the plaintiffs to exceed their


     4
          Though   this language seems confusingly similar to the
first prong, the   court in Reilly v. United States, 863 F.2d 149,
172-73 (1st Cir.   1988), has interpreted this to mean that the two
prongs establish   a subjective and an objective test.

                                   8
administrative claims because at the time that claim was filed,

“the full extent and ramifications of the minor’s brain damage were

not known. . . . Plaintiffs had not been able to obtain a complete

set of the medical records describing the minor’s birth at the time

the administrative claim was filed.”          This finding really only

speaks to the first prong, however, and does not shed any light on

the question of whether the plaintiffs knew the basic severity of

their son’s injuries and if they could have made out a worst-case

scenario from this knowledge.

     Though it seems that the district court was not clearly

erroneous in its finding that the Dickersons did not have knowledge

as to the specific injuries, it is clear that they could have

reasonably obtained this information based on the basic severity of

Ryan’s injuries, and so the second prong is not met.         Many factors

work against the Dickersons and in favor of the government on this

point.     One of the elements of the second prong is that “the

evidence    must   support   the   increase   in   the   prayer   over   the

administrative claim.”       Low, 795 F.2d at 470.   A comparison of the

complaints compared to the administrative claims does not support

the increase in the present case.

     The Dickersons’ administrative claims were for $20 million.

In their first complaint, the Dickersons requested damages in this

same amount to compensate for Ryan’s irreversible brain damage and

the neurologic sequlae of such brain damage.         This was consistent



                                     9
with their administrative claims which stated Ryan’s injuries as

being severe, permanent and irreversible neurologic sequelae and

permanent irreversible brain damage.       The Dickersons then filed a

motion for leave to file an amended complaint stating that they

were entitled to ask for an amount over the administrative claims

because they now knew that Ryan’s injuries would make him severely

mentally retarded and cause him to suffer severe cerebral palsy and

cortical blindness.      The Dickersons were granted leave, but, in

their amended complaint, the injuries and elements of damages

sections were virtually the same as in the first complaint that was

consistent with the administrative claims. The only difference was

that the Dickersons were now asking for a total of $55 million.

Yet nothing cited in their leave to amend or in their amended

complaint justifies a $35 million increase over the amount asked

for in the administrative claims that is for the same injuries.

     The second prong also contains an element that the “allegedly

newly discovered evidence or intervening facts must not have been

reasonably capable of detection at the time the administrative

claim   was   filed.”    Id.    This    element    proves    fatal    to   the

Dickersons’    attempt    to   increase    their    claims     over    their

administrative claims based on a combination of facts in the

record. First, based on the amount asked for in the administrative

claims ($20 million), it would appear that the Dickersons must have




                                   10
had some inkling of the severity of Ryan’s injury.5      Second, on the

administrative claims made by the Dickersons, they indicated that

they were seeking relief due to Ryan’s severe, permanent and

irreversible neurologic sequelae and permanent irreversible brain

damage.   See, e.g. Lebron v. United States, ___ F.3d ___ (5th Cir.

2002) (stating, in a factually similar case, that the worst-case

scenario could have been made based on the severity known and

described in the administrative claims).       Also, on June 1, 1998,

Dr. Eltman wrote a letter in support of the Dickersons’ request to

the Air Force that Ryan’s father be assigned to an installation

that could support Ryan’s needs stating that Ryan would suffer from

mental retardation, cerebral palsy and visual impairment as well as

a high likelihood of seizures as a result of his neurological

injury.

     The Dickersons indicate that they never saw this letter, but

it is clear from the record that they maintained continuous contact

with Dr. Eltman from the time of Ryan’s birth and throughout the

trial.    It certainly was possible for them to ask Dr. Eltman to

give them his prognosis of Ryan so that they could make out the

“worst-case   scenario”   for   their   administrative   claims.   The

Dickersons defend that when dealing with these type of injuries to


     5
          Though this fact by itself is not and should not be
determinative, combined with the other facts in the record it
displays that the Dickersons knew the basic severity of Ryan’s
injury and should have thus made out their worst-case scenario when
filing the administrative claims.

                                   11
an infant, it is impossible to give a reasonable prediction of the

severity of the injuries sustained.6 This argument fails, however,

because it relies on the very reasoning that § 2675(b) is intended

to avoid.    In Low, this Court enunciated the policy behind the

administrative cap, stating:

            [I]f the exact nature, extent and duration of each
            recognized   disability   must  be   known   before
            § 2675(b) will be given effect, that section will
            be rendered useless; and the government will be
            unable to evaluate any claim made against it
            without the threat that, if it does not settle, its
            liability may increase substantially.

Low, 795 F.2d at 471; see also Lebron, ___ F.3d ___ (noting that

the provision encourages settlements).     It is apparent from the

record that the Dickersons were at all times since his birth aware

of the basic severity of their son’s injuries.    There is no reason

why they could not have taken this into account when making their

administrative claim so as to envision their “worst-case scenario.”

As the Dickersons have failed to meet the second, objective prong



     6
          The Dickersons also contend that there were delays in
getting the medical record that prevented them from knowing the
extent of Ryan’s injuries.     The timing of when Ryan’s medical
records were requested or received is unclear. It appears that a
formal written request for medical records concerning Ryan was not
made by the Dickersons’ attorney until June 24, 1998 (the same day
the administrative claims were filed). The receipt of such records
is irrelevant, however, in light of the above facts supporting a
finding that the Dickersons could have objectively made out their
“worst-case scenario” in their initial administrative claims. Even
if the Dickersons did not request the medical records until filing
the claims, they still could have amended their administrative
claims after filing at any time before bringing suit pursuant to 28
C.F.R. § 14.2(c) (1998).

                                  12
of Low, they are precluded from enhancing their claims for damages

beyond the amount asked for in their administrative claims.



The Guardian Ad Litem Fees as Costs

     The government contends that it was error for the district

court to assess all of the guardian ad litem’s fees as costs to the

government because the guardian ad litem was acting as an attorney

when he rendered some services.         The district court has broad

discretion in determining the appropriateness of an award of

attorneys’ fees and costs.     Gibbs v. Gibbs, 210 F.3d 491, 500 (5th

Cir. 2000).   Therefore, the court should review a district court’s

award or denial thereof for an abuse of discretion.    Id.; duPont v.

Southern Nat’l Bank of Houston, Tex., 771 F.2d 874, 882 (5th Cir.

1985).    Under Gibbs, the only part of a guardian ad litem’s

expenses that are taxable as costs are those expenses related to

his role as the guardian ad litem.          Gibbs, 210 F.3d at 507.

“[W]here the same person acts in the capacities as both a minor’s

guardian ad litem and as his attorney ad litem, only the person’s

expenses in the former role are taxable as costs under Fed.R.Civ.P.

54(d).”   Id. at 506.

     The major issue, therefore, is whether the guardian ad litem

went beyond his court appointed role and acted as an attorney.   The

government cites to the record on appeal numerous times in support

of this contention.     However, even if the guardian did participate


                                   13
in the case, this could be to adequately protect the minor’s

interests as is consistent with his role as guardian ad litem.

Under Gibbs, the activities that can be attributed to being the

attorney ad litem should not be taxed as costs so it becomes

necessary to determine what activities should be attributed to what

role.    It does not appear that this point was adequately developed

at the trial court and therefore, on remand an evidentiary hearing

should    be   held   to   determine   what,   if   any,   activities   were

attributable to the guardian ad litem acting as an attorney ad

litem.    Lebron, ___ F.3d at ___.



The Awarding of Post-Judgment Interest

     The government never addressed this issue in its original

appellate brief and only raises the issue in its response brief.

The government claims this is permissible because the issue is

jurisdictional in nature and, as such, can be raised at any time.

The government contends that interest should only accrue from the

date of filing of the transcript of the judgment with the Secretary

of the Treasury in accordance with 31 U.S.C. § 1304(b)(1)(A).

     Though the government is raising this for the first time in

its response brief, they are correct in asserting that this is

permissible.     “Interest is recoverable against the United States

only when specifically provided for by statute because only by

statute can the United States waive its sovereign immunity.”


                                       14
Transco Leasing Corp. v. United States, 992 F.2d 552, 554 (5th Cir.

1993) (quoting Reminga v. United States, 695 F.2d 1000, 1001-02

(6th Cir. 1982)).   In a suit under the FTCA, recovery can only be

had to the extent that Congress has waived its sovereign immunity.

Lucas v. United States, 807 F.2d 414, 417 (5th Cir. 1986).   Waiver

of sovereign immunity, therefore, is a jurisdictional prerequisite

to being sued.      This court has stated that the government’s

sovereign immunity, being a jurisdictional prerequisite, may be

asserted at any stage of the proceedings.    Bank One, Tex., N.A. v.

Taylor, 970 F.2d 16, 34 (5th Cir. 1992).

     Under 28 U.S.C. § 1961(b), interest shall be compounded daily

to the date of payment except as provided in § 1304(b) of Title 31.

Section 1304(b) authorizes interest to accrue when the judgment of

the district court is filed with the Secretary of the Treasury, and

it ceases to accrue on the day before the day the mandate of

affirmance is issued by a court of appeal.   Section 1304 applies to

post-judgment interest in FTCA cases because § 1304 lists 28 U.S.C.

§ 2414 as one of the statutes covered thereby and § 2414 is the

statutory authority for payment of judgments against the United

States.   Lucas, 807 F.2d at 423.      Therefore, the government is

correct in its assertion that the interest should not accrue until

such time as the judgment was filed.



                            CONCLUSION


                                15
       Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court clearly erred in allowing the

Dickersons to recover more than the amount asked for in their

administrative       claims.     The    district      court’s   judgment      must

therefore be vacated and the case remanded to the district court

for entry of a new judgment which does not exceed the $20 million

asked for by the Dickersons in their administrative claims under

the Federal Tort Claims Act. Upon remand, the district court shall

reapportion this sum in a manner so as to indicate the separate

amounts to be recovered by the mother and father individually, the

separate amounts to be awarded to the mother and father in trust

for future medical care for Ryan, and the separate amounts to be

awarded in trust for the benefit of Ryan.                This judgment should

likewise be revised to provide for the accrual of interest from the

date   the   final    judgment   is    filed   with    the   Secretary   of    the

Treasury.    Finally, in regard to the issue of whether the fees and

expenses of the guardian ad litem are taxable as costs, we hold

that, under Gibbs, only those activities that were performed in the

attorney’s role as guardian ad litem can be taxed as costs.                     As

this issue was not developed in the district court, we remand it so

that   the   district    court   may    hold   an     evidentiary   hearing    to

determine what portion, if any, may be recovered as costs of court.

 We therefore VACATE the district court’s judgment and REMAND the



                                        16
case so that the district court may enter a judgment consistent

with this Court’s decision.

          VACATED and REMANDED.




                                  17
