                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 12-1662


NATALIA LOPATINA,

                Plaintiff - Appellee,

           v.

UNITED STATES OF AMERICA,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Charles B. Day, Magistrate Judge.
(8:09-cv-02852-CBD)


Argued:   May 15, 2013                      Decided:   June 14, 2013


Before KING and AGEE, Circuit Judges, and David C. NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED:    Jeffrey Eric Sandberg, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant.    Ernest W. McIntosh,
Jr., NEWMAN & MCINTOSH, LLC, Washington, D.C., for Appellee. ON
BRIEF:   Rod J. Rosenstein, United States Attorney, Stuart F.
Delery, Acting Assistant Attorney General, Thomas M. Bondy,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellant.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Plaintiff-Appellee               Natalia           Lopatina        (“Lopatina”)            was

injured when she was struck by a United States Postal Service

(“USPS”)       truck     while        riding    her       bicycle.        Lopatina         filed    an

administrative claim with the USPS for $75,750 in damages under

the    Federal       Tort     Claims      Act    (“FTCA”).             When    that       claim    was

denied, she commenced this action in the United States District

Court for the District of Maryland.                             Following a bench trial,

the     district         court      awarded          Lopatina         $176,132       in     damages,

concluding that 28 U.S.C. § 2675(b) permitted her to recover

damages       in     excess      of      her    administrative           claim       because       she

presented            “newly         discovered             evidence           not         reasonably

discoverable” at the time she filed her claim.                                     The Government

appeals, contending that the district court committed errors of

law in interpreting and applying 28 U.S.C. § 2675(b).                                        For the

reasons       that    follow,       we    affirm         the    judgment      of     the    district

court.



                                                 I.

                                                 A.

       The     accident        occurred         on       May    30,    2007,       in     Rockville,

Maryland.          Lopatina, who had stopped at an intersection, began

to    cycle    through        the     crosswalk          when    the    light       turned    green.

Allen    Wang,       a   USPS    employee        acting         within    the       scope    of    his

                                                     2
employment, was stopped at the traffic light in a USPS truck.

While looking to the left, he began to make a lawful right turn

on red.      As his truck moved forward at low speed, it collided

with Lopatina, causing her to fall from her bicycle.                       After the

accident,     Lopatina     was     treated    at    the    emergency       room    for

abrasions and scratches.

      Two days later, Lopatina went to an urgent-care facility

complaining of pain in her left shoulder.                 The facility referred

her to an orthopedic surgeon, Dr. Richard Meyer (“Dr. Meyer”).

On June 5, 2007, Dr. Meyer diagnosed Lopatina with, among other

things,      cervical    spine      strain    and      left     shoulder     sprain.

Lopatina underwent physical therapy.                Dr. Meyer discharged her

after eight weeks, but advised that it might take a year for her

shoulder to fully heal.            Lopatina did not seek or receive any

medical treatment for her shoulder during the ten months that

followed—from August 2007 through June 2008.

      In March 2008, Lopatina filed an administrative claim with

the   USPS    for    injuries     allegedly    arising        from   the   accident,

including to her shoulder.           The claim demanded a sum of $75,750,

comprising     $75,000     in     personal    injury      damages    and    $750    in

property losses.         Lopatina certified that she would “agree to

accept said amount in full satisfaction and final settlement of

this claim.”        (J.A. 503.)



                                         3
     While    her   administrative       claim     was      pending,     Lopatina

returned to Dr. Meyer complaining of continued pain in her left

shoulder, which had remained symptomatic since the accident.                  An

MRI revealed “mild leading edge supraspinatus tendinosis” in her

shoulder—a   chronic    degenerative      condition       in    the    connective

tissue of a tendon in the rotator cuff of the shoulder.                     (J.A.

252, 396, 451.)     In July 2008, Dr. Meyer referred Lopatina to

another    orthopedic    surgeon,        Dr.     Benjamin       Shaffer    (“Dr.

Shaffer”), a “nationally known shoulder expert.”                (J.A. 252.)

     Lopatina first visited Dr. Shaffer in October 2008.                       At

that visit, Dr. Shaffer noted that Lopatina’s “left shoulder has

been symptomatic since” the accident.             (J.A. 284, see also J.A.

421–22.)     He speculated that instead of, or in addition to,

supraspinatus tendinosis, Lopatina might have sustained a tear

to the labrum in her shoulder.             Dr. Shaffer “advocated that

[Lopatina]   consider    arthroscopic          evaluation      with    definitive

treatment rendered at the time of surgery[,] which might include

repair of a labral injury.” 1       (J.A. 285.)          Lopatina decided not

to undergo surgery at that time.


     1
       The labrum is a cuff of cartilage that rings the interior
of the shoulder socket. (J.A. 401.) In contrast to tendinosis
or shoulder impingement, which may be caused by any number of
factors (including overuse or aging), labral tears are normally
caused by trauma. (J.A. 455; see generally J.A. 430–32, 446–56
(discussing possible causes of various shoulder conditions).)



                                     4
      In     December    2008,        Lopatina        sent    a    supplemented             list    of

damages to the USPS, including medical bills from Dr. Shaffer.

However,      Lopatina     did       not    amend      her    administrative            claim       or

otherwise state that she was increasing her sum-certain demand

for damages.

      Lopatina      visited      Dr.       Shaffer      again      in     April       2009.        Dr.

Shaffer reiterated his opinion that Lopatina may have sustained

a   labral    tear,     and     again      advised       that     she      was       “the   perfect

candidate for a diagnostic and probable operative arthroscopic

evaluation with possible labral repair.”                          (J.A. 288.)

      In     May   2009,       the    USPS       denied      Lopatina’s          administrative

claim, explaining that it could not “keep th[e] claim open for

an indefinite amount of time” while she explored further medical

treatment.         (J.A.       28.)        The       USPS    indicated          that    it    would

entertain      a    request      for       reconsideration            of       the    claim     once

Lopatina had “conclude[d] [her] investigation into [her] medical

condition.”        (J.A. 28.)

      In July 2009, Dr. Shaffer performed surgery on Lopatina’s

shoulder.          Although          he    had       suspected       a     labral       tear,       he

discovered during the surgery that the labrum was intact.                                           He

instead      observed      a    “partial          tearing       of       the     rotator      cuff,

specifically the supraspinatus [tendon] at the site which had

been identified in the MRI.”                 (J.A. 403.)             He further identified

a shoulder impingement—a “relative narrowing of the space in

                                                 5
which     the    supraspinatus       tendon        under[goes]     normal      excursion”

during movement of the joint.              (J.A. 403–04.)           In light of these

findings, Dr. Shaffer changed his primary diagnosis from “labral

tear” to “subacromial impingement, left shoulder.”                            (J.A. 453.)

Dr. Shaffer then proceeded to make several structural repairs to

the   shoulder      joint.         After   a       successful    operation,      Lopatina

obtained follow-up treatment from Dr. Shaffer and completed a

course of physical therapy.

      A    year    later,     in    July   2010,       Lopatina     returned      to   Dr.

Shaffer with further complaints.                     Dr. Shaffer opined that her

“symptoms [had] evolved in a way that clearly reflects a primary

cervical problem” and ordered a new MRI.                       (J.A. 297.)      In August

2010, after reviewing the new MRI, Dr. Shaffer stated that his

“working         diagnosis”        was     that        Lopatina         had     “cervical

strain/whiplash       syndrome.”           (J.A.       298.)       He    then    referred

Lopatina to a spine expert.

      Lopatina never provided the USPS with a new administrative

demand     for    damages,     including            expenses     incurred      after   her

surgery with Dr. Shaffer, nor did she seek reconsideration of

her prior claim.



                                           B.

      In October 2009, Lopatina filed suit under the FTCA in the

United States District Court for the District of Maryland.                             The

                                               6
parties consented to proceed before a magistrate judge, and a

two-day bench trial was held in December 2011.                    At trial, the

Government conceded that the postal driver had been negligent,

but contended that Lopatina had also been negligent and that her

contributory negligence barred her recovery under Maryland law.

The Government also averred that Lopatina had failed to show

that her shoulder injury was caused by the May 2007 accident, as

opposed to athletic activities or other motor vehicle accidents.

      In an oral decision at the close of trial, the district

court determined that the postal driver was solely responsible

for the May 2007 accident, and that the collision had caused

Lopatina’s injuries.            The court then found that Lopatina had

incurred damages of $176,132—medical expenses of $35,164; pain-

and-suffering losses of $140,656 (calculated as a multiplier of

four times her medical expenses); and property loss of $312.                 In

assessing pain and suffering, the court determined that Lopatina

had sustained a “permanent injury” to her shoulder in the sense

that she “got scarring” from the surgical incisions.                 (J.A. 199;

see   J.A.   403–05.)      The     court    rejected   Lopatina’s     argument,

however,     that   she   was    entitled    to   recover   any    damages   for

“future pain” or “future medical care and expenses,” finding her

evidence of such damages to be too speculative.                     (J.A. 197,

199.)



                                       7
       The Government asserted that Lopatina’s aggregate recovery

was limited by law to the amount of her administrative claim—

$75,750—because under the FTCA, a plaintiff generally may not

recover “any sum in excess of the amount of the claim presented

to the federal agency.”              28 U.S.C. § 2675(b).                  In response,

Lopatina     argued    that       she   should        be    permitted       to    recover

additional       damages     under      the        “newly    discovered          evidence”

exception of 28 U.S.C. § 2675(b) because at the time she filed

her administrative claim, she was not yet fully aware of the

extent or nature of the existing injury to her shoulder.

       The district court denied the Government’s motion to limit

Lopatina’s damages to the amount of her administrative claim,

ruling instead that Lopatina had satisfied the “newly discovered

evidence” exception under 28 U.S.C. § 2675(b).                        The court found

that    Lopatina    “was    not     aware     of    the    final    diagnoses      of   her

injuries from the accident until after Dr. Shaffer performed

surgery on her on July 1, 2009.”                   (J.A. 515.)      Additionally, the

court    found     that     Lopatina’s          symptoms     had     “evolved”      after

surgery,    and    that     those    evolving        symptoms      might   reflect      the

development       of   “a     primary       cervical        problem        or    whiplash

syndrome.”        (J.A. 515.)        Based upon those findings, the court

concluded that “the diagnoses, treatments of her newly diagnosed

conditions, and damages related to these diagnoses are ‘newly

discovered evidence not reasonably discoverable at the time of

                                            8
presenting the [administrative] claim.’”                   (J.A. 516.)         The court

then proceeded to enter judgment for the full amount of damages

it had assessed at trial: $176,132.

       In January 2012, the Government filed a partial motion for

reconsideration           directed     principally    to     the     calculation      of

Lopatina’s medical expenses.               In May 2012, the district court

granted the motion and reduced Lopatina’s total damages award to

$169,518.30.

       The     Government       timely     appealed,       and     the     Court     has

jurisdiction pursuant to 28 U.S.C. § 1291.



                                          II.

                                           A.

       The FTCA, 28 U.S.C. §§ 1346(b), 2671–2680, governs tort

claims       for   injuries     arising    from   the      negligent       conduct    of

federal employees acting within the scope of their employment.

A plaintiff proceeding against the United States under the FTCA

must    first      file    an   administrative       claim    with       the    relevant

federal agency within two years after the injury.                              28 U.S.C.

§§ 2401(b),        2675(a).      The    administrative       claim    must      contain,

among other things, a “sum certain” for damages.                      See 28 U.S.C.

§ 2675(b); see also 28 C.F.R. § 14.2(a); 39 C.F.R. § 912.5(a).

The presentation of an administrative claim containing a sum-

certain demand is a jurisdictional prerequisite to suit.                             See

                                           9
Kokotis v. U.S. Postal Serv., 223 F.3d 275, 278–79 (4th Cir.

2000).     While    a   claim    remains     pending   with   the    agency,   a

claimant may file an amended claim at any time to increase the

amount of her sum-certain demand.             See 28 C.F.R. § 14.2(c); 39

C.F.R. § 912.5(b)-(c).

     If the administrative claim is denied, or if six months

elapse without agency action on the claim, a claimant may bring

suit in federal court.           28 U.S.C. § 2675(a).          The amount of

damages that may be recovered is presumptively limited to the

“amount of the claim presented to the federal agency.”                      Id.

§ 2675(b).     A plaintiff may, however, recover a “sum in excess”

of that claim “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 allegation

and proof of intervening facts, relating to the amount of the

claim.”    Id.     A plaintiff “bear[s] the burden of proving that

they are entitled to damages in excess of [their] administrative

claim.”      Spivey v. United States, 912 F.2d 80, 85 (4th Cir.

1990).



                                       B.

     The Government contends that the district court erred in

entering     judgment      for   a     sum    in   excess     of     Lopatina’s

administrative     claim     because    it    failed   to     find   that   the

                                       10
“increased amount” of damages sought by Lopatina was “based upon

newly    discovered     evidence.”          28    U.S.C.      §    2675(b)       (emphasis

added).      Because     the     Government       failed     to    raise     this   issue

before    the    district       court,    however,      we    affirm       the    court’s

judgment.

      Notably, at oral argument, the Government conceded it had

failed to raise the issue below which it now asserts on appeal.

The Government’s memorandum of law before the district court

regarding the FTCA’s limitation on Lopatina’s potential recovery

markedly failed to include any mention of the argument it now

pursues.     In the district court, the Government only contended

that Lopatina was precluded from receiving an award in excess of

the     sum-certain     amount     in    her      administrative       claim.         The

entirety    of   the    argument        section    of   the       Government’s      trial

memorandum reads as follows:

        The plaintiff cannot demonstrate any “newly discovered
        evidence” or “intervening facts” that could not have
        been    discovered   when    she    supplemented    her
        administrative claim in December 2008.   She knew that
        she had supraspinatus tendinosis and needed surgery
        when she submitted her supplement.    Nonetheless, she
        declined to increase her sum certain.      Accordingly,
        she is precluded from receiving any award in excess of
        the $75,750.

(Dist. Ct. Docket No. 45, at 4.)

        On appeal in this Court, the Government now argues that the

district    court      committed    errors       of   law    in     interpreting      and

applying    28   U.S.C.     §    2675(b).         Specifically,       the    Government

                                           11
contends that although the district court found that Lopatina’s

changing diagnoses constituted “newly discovered evidence” that

were “not reasonably discoverable at the time” she presented her

administrative        claim,      the     court     failed     to   find    that     the

“increased amount” of damages sought in excess of Lopatina’s

administrative claim was “based upon” those changed diagnoses.

28 U.S.C. § 2675(b).           This is a substantively different argument

than    the    Government’s       trial    position,       which    was   simply    that

Lopatina was barred from any damages over the administrative

claim amount because she failed to amend that claim prior to

filing suit.

       The Government’s failure to raise its new argument in the

district court means that this Court will not consider it as a

basis    to    reverse     the    district       court’s     judgment.       “We    have

repeatedly held that issues raised for the first time on appeal

generally will not be considered.”                  Karpel v. Inova Health Sys.

Servs.,       134   F.3d   1222,     1227        (4th   Cir.   1998);      see,    e.g.,

Washington Metro. Area Transit Auth. v. Precision Small Engines,

227 F.3d 224, 227–28 (4th Cir. 2000); Muth v. United States, 1

F.3d 246, 250 (4th Cir. 1993).               “Exceptions to this general rule

are    made    only   in   very    limited        circumstances,     such    as    where




                                            12
refusal to consider the newly-raised issue would be plain error 2

or would result in a fundamental miscarriage of justice.”             Muth,

1 F.3d at 250 (citing Nat’l Wildlife Fed’n v. Hanson, 859 F.2d

313, 318 (4th Cir. 1988)).          We can find no evidence in the

record that such circumstances exist here.

     Accordingly, because the Government failed to preserve this

issue for appeal, we deem the Government’s argument waived and

thus decline to consider it.         We therefore conclude that the

district   court’s   entry   of   judgment   for   a   sum   in   excess   of

Lopatina’s administrative claim does not constitute plain error

or a fundamental miscarriage of justice.



                                   III.

     For the foregoing reasons, the judgment of the district

court is

                                                                  AFFIRMED.




     2
       Applying plain error review, we will not reverse unless
the Government can establish: “(1) there is an error; (2) the
error is plain; (3) the error affects substantial rights; and
(4) the court determines . . . that the error seriously affects
the fairness, integrity or public reputation of judicial
proceedings.”   In re Celotex Corp., 124 F.3d 619, 630–31 (4th
Cir. 1997) (citing United States v. Olano, 507 U.S. 725, 730
(1993)).   The Government is unable to show that the district
court committed plain error.



                                    13
