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MACDONALD v. UNITED STATES

June 15, 1993

DONALD J. MACDONALD, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 June 15, 1993

 Background

 Plaintiff Donald J. MacDonald filed this action against the United States of America under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (FTCA), alleging that surgery performed on his left leg on April 2, 1986 at the Veterans Administration Medical Center at Wilkes-Barre, Pennsylvania was performed without his informed consent. *fn1" Plaintiff alleged that the surgery exacerbated, to an extreme degree, a pre-existing chronic venous insufficiency problem, leaving him substantially disabled.

 Following a bifurcated bench trial, the court issued its findings and conclusions in an order dated June 28, 1991, finding in plaintiff's favor on liability. Damages were calculated in a later order dated November 22, 1991, pursuant to which judgment was entered in favor of the plaintiff and against the United States in the amount of $ 682,367.00.

 The United States appealed the finding of liability and the award of damages to the Third Circuit Court of Appeals. Its notice of appeal was filed January 16, 1992. Plaintiff filed a cross-appeal on January 22, 1992, challenging the court's calculation of damages. In an order dated December 7, 1992, the Third Circuit affirmed the district court in all respects, without opinion.

 Following the affirmance, plaintiff obtained certified copies of the judgment and the orders of this court and the Third Circuit, which he then filed with the Comptroller General of the United States with a request for payment.

 In a decision dated February 16, 1993, the Comptroller General advised plaintiff that he would not be awarded post-judgment interest, citing plaintiff's failure to comply with 31 U.S.C. § 1304. *fn2" Plaintiff received a check from the Comptroller General on March 9, 1993 in the amount of $ 682,367.00, the amount of the judgment, exclusive of post-judgment interest.

 Plaintiff then filed the motion currently before this court (Record Document No. 89) seeking an order directing the United States to pay post-judgment interest from June 28, 1991 to March 8, 1993. The United States opposes the motion on the ground that post-judgment interest is recoverable from the federal government only if the prevailing plaintiff complies with all requirements of 31 U.S.C. § 1304, and then only for the period between the entry of judgment and the day before affirmance on appeal or notification by the Department of Justice (DOJ) that it does not intend to appeal the award. The United States asserts that plaintiff is not entitled to post-judgment interest under section 1304, because he did not notify the Comptroller General of the judgment until after that office had already been notified by the DOJ that a final judgment had been entered and it had no intention of filing a further appeal and requested that the judgment be paid.

 Plaintiff concedes that he did not file the judgment with the Comptroller General before that office received notification and a request for payment from the DOJ, as provided for in section 1304, but argues that that statute does not apply to judgments entered in a FTCA action.

 For the reasons discussed below, plaintiff's motion will be denied. We find that: 1) section 1304 governs the award of post-judgment interest against the United States in an FTCA action; 2) plaintiff did not file the judgment with the Comptroller General before that office was notified of the Third Circuit's affirmance by the DOJ; 3) under section 1304, post-judgment interest accrues only from the date the Comptroller General is notified of the judgment until the day before it receives notice that the judgment has been affirmed and that no further appeals will be taken; and 4) not having notified the Comptroller General until after the interest period had expired, plaintiff is not entitled to post-judgment interest.

 DISCUSSION

 Section 1304

 "Interest is recoverable against the United states only when expressly provided for by statute." Hull v. United States, 971 F.2d 1499, 1506 (10th Cir. 1992), cert. denied, 123 L. Ed. 2d 469, 113 S. Ct. 1844 (1993), citing Library of Congress v. Shaw, 478 U.S. 310, 314, 92 L. Ed. 2d 250, 106 S. Ct. 2957 (1986). Section 1304 permits an award of post-judgment interest against the United States under certain conditions. *fn3" Because it operates as a waiver of sovereign immunity, section 1304 is strictly construed, and its requirements must be followed to the letter. See: United States v. ...


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