Appeal from the United States District Court for the Northern District of California; D.C. No. CV 84-6815-JPV; John P. Vukasin, Jr., District Judge, Presiding.
Joseph T. Sneed, Arthur L. Alarcon and Edward Leavy, Circuit Judges.
The memorandum disposition filed October 8, 1991, is redesignated as an authored opinion by Judge Leavy.
This is a comeback case, filed under the Federal Tort Claims Act ("FTCA"), in which the government appeals from the district court's order regarding the payment of interest on a revised damage award of $5.6 million in favor of the appellee, Lisa Desart. We affirm in part, reverse in part and remand.
FACTS AND PRIOR PROCEEDINGS
Lisa Desart suffered profound nerve, muscle, and brain damage as the result of negligent treatment she received for meningitis contracted shortly after her birth in a government medical facility. Lisa, acting by and through her mother as guardian ad litem, timely filed a FTCA claim against the government and, when her claim was denied, brought the instant action in federal district court. Following a trial on the merits, the district court entered judgment in favor of Lisa on April 29, 1988, awarding her some $3.4 million in damages "plus interest from the date of entry of judgment until paid." On May 5, 1988, Lisa served a certified copy of the judgment on the GAO's Comptroller General.
The government appealed, arguing that the action was time-barred, that the damage award should have been reduced to reflect anticipated insurance benefits, and that the district court had erred in applying a zero percent discount rate in calculating the present value of the damages. Lisa cross-appealed, arguing that the district court had erred in its determination of the amount of attendant care required and by applying California's $250,000 limitation of noneconomic damages in medical malpractice suits.
On August 22, 1989, we affirmed the district court on all but two points, viz., 883 F.2d 1023, the discount rate and the award of attendant care. Following our denial of the government's petition for rehearing, we issued a mandate of affirmance and remand on March 8, 1990.
The district court on remand revised the total damage award upward to $5.6 million and ordered that "interest shall run on the revised judgment as of May 5, 1988", i.e., the date of the original judgment, until paid. The government has again appealed.
The government does not challenge the amount of the revised damage award,*fn1 nor does it contend that it owes no interest on the appellee's judgment. Instead, the government argues that, pursuant to 31 U.S.C. § 1304(b)(1)(A), it is only required to pay interest on the $3.4 million judgment, and then only for that period of time between May 5, 1988, the date the Comptroller General received notice of the judgment, and March 7, 1990, the day before the mandate of affirmance issued. We accept this position.
"Interest is only recoverable against the United States when specifically provided for by statute." DeLucca v. United States, 670 F.2d 843, 846 (9th Cir. 1982). The Federal Courts Improvement Act of 1982 ("FCIA"), Pub. L. No. 97-164, tit. III, pt. B, § 302, 96 Stat. 25, 55-56 (1982), codified in part at 28 U.S.C. § 1961, governs the rate and timing of post judgment interest chargeable against a losing party except as provided in 31 U.S.C. § 1304. 28 U.S.C. § 1961(b). Section 1304(b)(1)(A) expressly states that "interest may be paid . . . on a judgment [against the government] . . . only when the judgment becomes final after review on appeal . . . and ...