Appendix — Thomas v. Shinseki (No. 09-411)
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Supreme Court, U.S.
FILED .
wo, 2974117 SEP 23 2009
OFFICE OF THE CLER
In The Wilfiam K. Suter a
Supreme Court of the United States
Oscar L. Thomas, Pro Se
Petitioner,
v.
Eric K. Shinseki,
Secretary, United States Department of Veterans Affairs, et
al
Respondent.
On Petition For Writ Of Certiorari
To The United States Court of Appeals for the
District of Columbia Circuit
APPENDIX A TO
PETITION FOR WRIT OF CERTIORARI
Oscar L. Thomas, Pro Se
CMR 454, Box 1746
APO AE 09250
Tel: (913) 738-4277
APPENDIX TO WRIT OF CERTIORARI
TABLE OF CONTENT
DC Circuit Court of Appeals Summary Affirmance
Order, dated May 7, 2009, Reproduced).......... A- 1 -—A-3
DC Circuit Court Order Denying Petition for
Rehearing and Rehearing En Banc, date
Jtaby 18, DOC CC TOGO) ons cicccscecescctsncieesenesnensietivens A-4
DC District Court Memorandum Opinion, dated
March 20, 2008, (Reproduced) ................ccceeeeeeee A-5 - A-29
DC Circuit Court’s Memorandum Opinion, dated
January 14, 2005, (Reproduced) ...............:0 A- 30 - A40
DC District Court (Initial Amended
Memorandum Opinion in the case), dated
May 28, 2003, (Reproduced) ...........sscssscrescrecees A-41 - A-50
Plaintiff's Memorandum in Opposition to
Defendants Motion to Dismiss John Does 1, 2
and 3 as Defendants in this Action and
Renewed Motion for Sanctions.................c00008 A-51 - A-67
Department of Veterans Affairs, Regional Office
Washington, DC, Statement of the Case (SOC)....... A-67.1
Department of Veterans Affairs Letter to
Oscar L.. Thomas, dated August 26, 2002,
CRE... .A-68-A-70
Article III, U.S. Constitution, Section 1-3
I oi os cis cdcndesaennresins cee A-71-A-72
The Veterans’ Judicial Review Act (VJRA)
of 1988, 38 U.S.C, § 511(a) and (b) (annotated)........... A-73
ge U.5.C. $ 1331 Cannotated).................ccccccccsrsessses A-74-A-76
oe 0).C. & £946(bX 1) Cannotated).................................. A-77
Se ys. © L402(D) Cannotated)...............ccccosccsceseee A-78- A-80
eee, Beil) Canmotated).............0....ccccocccssscoceseees A81
28 U.S.C. § 2671-2680 (annotated)....................066 A-82-A-92
28 U.S.C. § 2679(d)(1) (annotated)...................scsseeeceeeeees A-93
28 U.S.C. § 2679(d)(2) (annotated)... ............cssseseeesesseeeees A-94
SE Ot BOh w CMUOROE MOOT) .........ccccccseccccccoccescocesceccosseess A-95
Federal Rules of Civil Procedure
nsoicss.sienvavanaseinueuasuncbenanens A-36
ESE.” TTD A-97
ss ccunsiasndbpdcebunbeedacanunaenad -98
Neco scavenvessasdeciakalesnsvouenoans A-99
| A-100-A-102
United States Court of Appeals
For the District of Columbia Curcuit
No. 08-5349 September Term 2008
10:-cv-01743-RMC
Filed on: May 7, 2009
Oscar L. Thomas,
Appellant
v.
Eric K. Shinseki, Secretary, Department of
Veterans Affairs, et al.,
Appellees
BEFORE: Garland, Griffith, and Kavanaugh, Circuit Judges
ORDER
Upon consideration of the motion to appoint counsel or
amicus curiae; the motion for summary affirmance, the
opposition thereto and motion for summary reversal, the
response and reply in support of summary affirmance, and
the reply in support of summary reversal, which contains a
request for judicial notice, it is
ORDERED that the motion for appointment of counsel or
amicus curiae be denied. With the exception of defendants
appealing or defending in criminal cases, appellants are not
entitled to appointment of counsel when they have not
demonstrated sufficient likelihood of success on the merits.
It is
FURTHER ORDERED that the motion for summary
affirmance be granted and the motion for summary reversal
be denied. The merits of the parties’ positions are so clear
as to warrant summary action See Taxpayers Watchdog,
Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987)(per
curiam). The district count properly reviewed this case
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §
1346, because appellant’s amended complaint did not sue any
federal employee in their individual capacities. The
amendment complaint’s reference to ‘et al.” was not
sufficient to name all of the defendants from appellant’s
original complaint. See Fed. R. Civ. P. 10(a).
The district court properly concluded that the majority of
appellant’s FTCA claims were either time-barred or not
properly presented to the agency. See Simpkins v. United
States, 866 f.2d 483, 499 (D.C. Cir. 1989). The doctrine of
equitable estoppel is not applicable to appellant case, because
he presented no evidence that some _ extraordinary
circumstances prevented him from filing his claims before
the statue of limitation had run out. See Pace v.
DiGugiielmo, 544 U.S. 408, 415 (2005).
With respect to the only claim appellant properly
exhausted, the district court correctly determined tha the
failed to present expert testimony, as required by Tennessee
law, see Tarpeh-Doe v. U.S., 28 F.3d. 120, 123 (D.C. Cir.
1994), to establish the proper standard of care and
demonstrate that appellee’s action fell below that standard.
See Norris v. East Tn. Children’s Hosp., 195 S.W. 3d 78, 6-
87 (Tenn. Ct. App. 2005). Aside from being improperly
raised, see Singleton v. Wulf, 428 U.S. 106, 120 (1976) (“It is
the general rule...that a federal appellate court does not
consider an issue passed upon below.”), appellant’s
contention that under the doctrine of res ipsa loquitur and
A-2
common knowledge is claims do not require expert
testimony fails because even if these doctrines were
applicable, expert testimony would still be necessary to
prove that he alleged medical malpractice on the part of the
appellee was the proximate cause of appellant’s injury. See
Meek v. HealthSouth Rehab. Ctr., 2006 WL 2106001, at *3
(Tenn. Ct. App. July 28, 2006).
Finally, the district court did not abuse its discretion when
it dismissed the John Does from appellant’s complaint,
because appellant did not serve the summons upon the
individual designated as “John Doe” within the appropriate
time frame. See Fed. R. 4(m). Nor has appellant shown that
the suffered any prejudice from the various other rulings of
the district court that he challenges on appeal. See United
States v. Microsoft Corp., 253 F.3d 34, 100 (D.C. Cir.
2001)(circuit court will not disturb district court’s
management of its docket “except upon the clearest showing
that the procedures have resulted in actual and substantial
prejudice to the complaint”). It is
FURTHER ORDERED that appellant’s request for
judicial notice be denied. See Fed. R. Evid. 201(b).
Pursuant to D.C. Circuit Rule 36, this disposition will not
be published. The Clerk is directed to withhold issuance of
the mandate herein until seven days after resolution of any
timely petition for rehearing or petition for rehearing en
bane. See Fed. R. App.P. 41(b); D.C. Cir. Rule 41.
Per Curia
FOR THE COURT
Mark J. Langer, Clerk
By: Jennifer M. Clark
Deputy Clerk
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 08-5349 September Term 2008
1:02-cv-01743-RMC Filed On: July 16, 2009
Oscar L. Thomas,
Appellant
Vv.
Eric K. Shinseki, Secretary, Department of
Veterans Affairs, et al.,
Appellees
BEFORE: Sentelle, Chief Judge, and Ginsburg,
Henderson, Rogers, Tatel, Garland, Brown, Griffith, and
Kavanaugh, Circuit Judges
ORDER
Upon consideration of the petition for rehearing en
banc, and the absence of a request by any member of the
court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michae}] C. McGrail
Deputy Clerk
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Case 1:02-cv-01743-RMC Document 155 Filed 03/20/2008
Page 1 of 21
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OSCAR THOMAS, )
)
Plaintiff, )
)
Vv. ) Civil Action No.
) 02-1743 (RMC)
)
R. JAMES NICHOLSON, )
Secretary, Department of )
Veterans Affairs, )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Oscar Thomas is a retired Army veteran who has,
with mixed success, repeatedly sought benefit payments from
the Department of Veterans Affairs (“VA”) for physical and
mental health conditions that he believes are connected to his
military service. In this case, brought pro se, he sues R. James
Nicholson, Secretary of VA,' raising malpractice and other
tort claims based on a medical examination conducted
' Mr. Nicholson, sucd in his official capacity, was substituted for his
predecessor, Anthony J. Principi, the former Secretary of the Department
of Veterans Affairs, pursuant to Federal Rule of Civil Procedure 25(d)(1).
While the original Complaint [Dkt. #1] named Mr. Principi, the First
Amended Complaint [Dkt. #51] names Mr. Nicholson. Because Mr.
Nicholson was sued in his official capacity, the United States is the
appropriate defendant and proceeds here accordingly. Mr. Thomas’s
argument that the United States is not a proper defendant because the
Attorney General failed to file a scope-of-employment certificate is
without merit.
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by a VA doctor in 1991 and his visits to the VA Medical
Center in Memphis, Tennessee. The VA moves to dismiss,
and to the extent any claim survives dismissal, the VA seeks
summary judgment. See [Dkt. #121].
The Court will grant the motion to dismiss based on the
failure to exhaust administrative remedies under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 -e¢
seg. Further, summary judgment will be granted to the VA
on the claims surrounding the failure of Memphis VAMC to
provide medical attention to Mr. Thomas in November 2002.
With this disposition, all other pending motions will be
denied as moot.’
I. FACTS
Mr. Thomas filed a claim for disability compensation with
the VA on August 14, 1989, based, in part, on anxiety
neurosis. As a result, on March 5, 1991, he was examined by
. Pending at this time are numerous motions, including: Plaintiff's
Motion for Judgment on the Pleadings [Dkt. #94]; Plaintiff’s Motion for
Sanctions |Dkt. #95]; Plaintiff’s Second Renewed Motion for Partial
Summary Judgment [Dkt. #96]; Plaintiff's Motion for Sanctions [Dkt.
#99]; and Plaintiff's Motion to Strike [Dkt. #145]. The motion to strike is
part of Plaintiff's Opposition [Dkt. #131].
Mr. Thomas mistakenly asserts in his Opposition (see Pl.’s Opp. at 2)
that various other motions he filed remain pending, when in fact they
were stricken or denied: P}.’s Renewed Cross-Motion for Partial Summ.
J. {Dkt. #69], which was stricken by Order [Dkt. # 73); Pl.’s First Mot.
for Reconsideration |[Dkt. #76], which was cenied by Order [Dkt. #81];
Pl.’s Second Mot. for Reconsideration [Dkt. # 82], which was denied by
Minute Order on Dec. 5, 2006; and Pl.’s [Third] Mot. for Reconsideration
{[Dkt. #109, set forth in Dkt. #92], which was denied by Order [Dkt. #151).
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Dr. A.R. Kelly, a VA psychiatrist at the Washington, D.C.,
VA Medical Center. In his report of the examination, Dr.
Kelly noted that Mr. Thomas had complained of regularly
hearing voices in his head since about 1978 or 1979, which
had persisted up to the date of the examination. However,
because Mr. Thomas had “no other particular signs of
schizophrenia,” Dr. Kelly stated only that “a diagnosis of
schizophrenia probably is the most likely correct diagnosis”
without making a definite diagnosis. Def.’s Mem. in Supp. of
Mot. to Dismiss or For Summ. J. [Dkt. #121] (“Def.’s Mem.”),
Ex. 2. Critically, however, he did not share this possible
diagnosis with Mr. Thomas.
By a rating decision dated August 2, 1991, the VA granted
Mr. Thomas a 40% combined disability rating for those
conditions it determined to be service connected. Def.’s Mem.,
Ex. 3. It stated that “[s]ervice connection is denied for anxiety
neurosis, as the last psychiatric -3- examination in service
made no diagnosis regarding the veteran’s mental status [and]
[o]n the VA exam [conducted by Dr. Kelly], a final diagnosis
was not made.” Jd. The August 1991 rating decision also did
not mention the possibility that Mr. Thomas suffered from
schizophrenia. The VA sent a Notification Letter on August
19, 1991, Def.’s Mcm., Ex. 6, to Mr. Thomas’s Service
Representative, the Non-Commissioned Officers Association,
which sent it to Mr. Thomas. See Plaintiff's Second Renewed
Statement of Material Facts as to Which There Can Be No
Genuine Dispute [Dkt. #96] (“PI.’s Facts”) §§] 10-11.
Mr. Thomas filed what he deemed to be new material
evidence in support of his claims of a service-connected
disability on April 14, 1994. Def.’s Mem., Ex. 9. The Ratings
Office found that the evidence submitted was not new and
that it had been previously considered. /d., Ex. 10. On
November 10, 1999, Mr. Thomas appealed the adverse
ratings decision to the Board of Veterans Appeals. In the
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course of various disagreements over the Rating Office’s
determinations, Mr. Thomas received the VA’s Statement of
the Case (“SOC”). The SOC informed Mr. Thomas for the
first time that the VA had identified a “working diagnosis”
of schizophrenia on March 5, 1991.*
Thereafter, on October 11, 2001, Mr. Thomas filed an
administrative claim on Form SF 95 with the U.S. Army
Office of the Staff Judge Advocate, lst Infantry Division,
Katterbach Law Center, Germany, alleging that he had found
out on October 27, 1999, that the VA had since August 10,
1991, willfully and intentionally withheld from him
information concerning a serious medical condition which
had caused him to suffer intentional emotional distress,
exacerbation of his condition, and denial of federal and state
benefits (the “2001 Claim”). Def.’s Mem., Ex. 14. The -4-
VA denied the 2001 Claim on August 26, 2002:
Under the Federal Tort Claims Act (FTCA), VA is
responsible for any negligent or wrongful acts or
omissions by VA employees acting within the scope of
their employment which have caused death, personal
injury, and/or property damage. After reviewing of
our files and the materials you submitted in light of
the issues you raised in your claims, we have found no
such negligent or wrongful acts or omissions.
Moreover, determinations regarding veteran’s
benefits are not reviewable under the FTCA. See
Title 38 United States Code, Section 511(a).
3 ; me
The issue of when Mr. Thomas actually received the SOC is discussed
infra. 3
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Accordingly, your claims are hereby respectfully
denied.
Def.’s Mem., Ex. 24.Mr. Thomas filed this suit on August 30,
2002, alleging thirteen counts. The District Court dismissed
the case on May 28, 2003. Mr. Thomas appealed, and the
D.C. Circuit affirmed the dismissal on all but three counts —
Counts II], V, and X. With regard to these Counts, the
Circuit reversed and remanded, holding that the trial court
had jurisdiction to consider non-benefits claims, /e.,
“whether the alleged withholding of the diagnosis [of
schizophrenia] states a tort claim.” Thomas v. Principi, 394
I'.3d 970, 974 (D.C. Cir. 2005); see also United States v.
Brown, 348 U.S. 110 (1954) (a veteran may maintain an
action under the FTCA for negligent treatment at a VA
medical center even if his benefits have already been
increased because of such injury); Gl/arner v. U.S. Dep’t of
Veterans Admin., 30 F.3d 697 (6 Cir. 1994). th
On remand, Mr. Thomas filed a First Amended Complaint'
on March 1, 2006. The First Amended Complaint alleges the
following Counts: 4 -5-
Count [, failure to diagnose, inform, warn, and/or
refer for treatment based on:
a. schizophrenia
b. major depression
’ The original complaint named the Secretary as well as numerous VA
employees as 4 defendants. The First Amended Complaint dropped the
VA employees as defendants and named only the Secretary and three
John Does. The Court dismissed the John Doe defendants on August 6,
2007. See Defs.’ Mot. to Dismiss [Dkt. #111] and Order [Dkt. #133]. Thus,
the only remaining defendant is the Secretary.
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ec. PTSD
d. Type B personality disorder
e. brain cancer or disease
f. arterial sclerosis
g. cerebral sclerosis
h. HWS syndrome
i. sleeplessness
j. insomnia
k. GAF or 55 - 60 [sic]
1. medical complaints of November 2002
m. severe personality disorder, somatization,
fatigue,
nummular eczema, and bronchitis
n. paralysis
0. psychiatric examination of November 4
and/or 15, 2002
p. medical examination of November 8, 2000
q. medical examination of November 4 and/or
15, 2002
r. concealment
s. reliance
t. PTSD examination of July 23 and 24, 2003
Count II, gross negligence;
Count III, intentional infliction of emotional distress;
and
Count [V, negligent infliction of emotional! distress.
The First Amended Complaint contains allegations
relating to events that occurred after the original complaint
was filed on August 30, 2002. First, Mr. Thomas asserts that
he visited the VA Medical Center in Memphis, Tennessee
(“Memphis VAMC”), on November 4 and 15, 2002. He states
that he went to the Medical Center “seeking assessment,
evaluation and treatment for very severe chronic mental,
physical complaints surrounding dizziress, blurred vision,
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fear and a_ feeling lightheadedness . . . and a feeling of
almost drifting in and out of consciousness/subconsciousness
and the need of urgent medical treatment, to include
psychiatric evaluation and/or treatment.” Def.’s -6- Mem.,
Ex. 25 at 1-2. Memphis VAMC declined to provide medical
services because his conditions did “not show[] current
acuteness.” Jd. at 2. Thereafter, on a plane back to Germany,
Mr. Thomas collapsed and experienced severe breathing
problems. He was “strapped on/into a crew member’s jump
seat, where a heavy oxygen bottle was strapped around [his]
neck and an oxygen mask placed over [his] nose and mouth,
where [he] remained” for a great portion of the flight. Jd. Mr.
Thomas filed an FTCA claim based on this incident on
November 30, 2002. Jd.; see generally, Counts I.1, I.o, and I.q
Mr. Thomas submitted yet another administrative claim on
March 14, 2003 (the “2003 Claim”). Mr. Thomas faxed an SF
95 claiming $10 million in damages to the VA Office of
Regiona! Counsel in Washington, D.C., alleging:
The VA and VA doctors failed to evaluate/diagnose,
properly diagnose, inform, disclose, warn, treat,
engage claimant in a process of inform[ed] consent, or
refer claimant for treatment from March 5, 1991 to
the present, for the following conditions:
1) Photophobia, 2) Cervical muscle and trapezius
spasms, 3) failed to conduct Orthopedic examination,
evaluate and diagnose orthopedic problems; 4)
nummular eczema: 5) extreme fatigue; 6) constant
tinnitus in both ears, Myositis of the shoulders; 7)
Migratory Arthralgias and Tenosynovitis (pain in all
joints); 8) Flexor Tender Ganglion of both hands; 9)
Myofascial Pain; 10) Rack, Right Flank and
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Musculosketal Pain; 11) A_ severe Personality
Disorder; 12) Mental Stress; 13) Anxiety Neurosis
with Somatization; 14) Somatic Concerns of a Chronic
Nature; 15) Schizophrenia with Auditory
Hallucinations; 16) Arthralgias of the Knees; 17)
Bronchitis, Paryngitis, Laryngitis and Tonsillitis; 18)
Numbness of Left Forearm, hand, leg, and arm. (See
VA Rating Decision of 8-2-91); and for PTSD, Major
Depressions and other complaints.
Def.’s Mem., Ex. 26.:
Mr. Thomas also complains about a July 24, 2003, medical
examination at Memphis VAMC. See First Am. Compl. { 95.
He alleges that on that date, a VA physician requested that
he undergo a medical examination and that he return to the
Medical Center the next day for that purpose. Mr. Thomas
contends that this request caused him to collapse in the
doctor’s office and that he suffered additional injuries and
emotional distress. See generally, Count I.t.
The VA nivved to dismiss or for sammary judgment, Mr.
Thomas responded, and the VA replied; thus, the case is ripe
and ready for decision. This case was transferred to the
undersigned on February 15, 2008.
Il. LEGAL STANDARDS
> In fact, Mr. Thomas already had been diagnosed with some of these:
somatization on June 5 14, 1982 and August 7, 1981, and severe
personality disorder on February 4, 1980. Def.’s Mem., Ex. 5.
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A. Motion to Dismiss for Lack of Jurisdiction
Federal courts are courts of limited jurisdiction and the
law presumes that “a cause lies outside this limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994). Because subject matter jurisdiction is
an Article [JJ as well as a statutory requirement, “no action
of the parties can confer subject[}matter jurisdiction upon a
federal court.’” Akinseye v. District of Columbia, 339 F.3d
970, 971 (D.C. Cir. 2003). On a motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1), the
plaintiff bears the burden of establishing that the court has
subject matter jurisdiction. Evans v. B.F. Perkins Co., 166
F.3d 642, 647 (4th Cir. 1999); see also McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 182-83 (1936).
Because subject matter jurisdiction focuses on the court’s
power to hear the claim, -8- however, the court must give the
plaintiff's factual allegations closer scrutiny when resolving a
Rule 12(b)(1) motion than would be required for a Rule
12(b)(6) motion for failure to state a claim. Macharia v.
United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003).
Moreover, the court is not limited to the allegations contained
in the complaint. Hofr7 vy. United States, 782 F.2d 227, 241
(D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64
(1987). Instead, to determine whether it has jurisdiction over
the claim, the court may consider materials outside the
pleadings. Herbert v. Nat’/ Acad. of Scis., 974 F.2d 192, 197
(D.C. Cir. 1992).
B. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment must be granted when “the pleadings,
depositions, answers to interrogatories, and admissions on
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file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Diamond v. Atwood, 48 F.3d 1538, 1540 (D.C.
Cir. 1995). Moreover, summary judgment is properly granted
against a party that “after adequate time for discovery and
upon motion . . . fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. To determine which facts are
“material,” a court must look to the substantive law on which
each claim rests. Anderson, 477 U.S. at 248 (1986). A
“genuine issue” is one whose resolution could establish an
element of a claim or defense and, therefore, affect the
outcome of the action. Celotex, 477 U.S. at 322; Anderson,
477 US. at 248.
In ruling on a motion for summary judgment, the court
must draw all justifiable -9 inferences in the nonmoving
party’s favor and accept the nonmoving party’s evidence as
true. Anderson, 477 U.S. at 255. A nonmoving party,
however, must establish more than “the mere existence of a
scintilla of evidence” in support of its position. Jd. at 252. To
prevail on a motion for summary judgment, the moving party
must show that the nonmoving party “failfed] to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Ce/otex, 477 U.S. at 322.
By pointing to the absence of evidence proffered by the
nonmoving party, a moving party may succeed on summary
judgment. /d. In addition, the nonmoving party may not rely
solely on allegations or conclusory statements. Greene vy.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray,
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9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving
party must present specific facts that would enable a
reasonable jury to find in its favor. Greene, 164 F.3d at 675.
If the evidence “is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson,
477 U.S. at 249-50 (citations omitted).
it. ANALYSIS
Mr. Thomas advances claims concerning a failure to
diagnose, inform, warn, and/or refer for treatment for
schizophrenia and numerous other conditions as set forth in
his 2001 Claim and his 2003 Claim, both referring to the
benefits examination conducted by Dr. Kelly in March 1991.
He also sieges failure to diagnose, inform, warn, and/or
refer for treatment based on November 2002 and July 2003
visits to Memphis VAMC. The VA asserts that most of Mr.
Thomas’s claims should be dismissed for failure to exhaust
administrative remedies, and, with regard to the November
2002 visits to Memphis VAMC, summary judgment should be
granted due to failure to present expert testimony. -10-
A. Failure to Exhaust Remedies under the FTCA
Absent a specific waiver, the United States is protected
from suit by the doctrine of sovereign immunity. Fed.
Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). The
FTCA extends a limited waiver of sovereign immunity,
which provides a remedy against the Federal Government
for some torts committed by federal employees in the scope
of their employment. 28 U.S.C. § 1346(b); Sloan v. Dep’t of
Housing and Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001).
The FTCA bars claimants from bringing suit until they have
exhausted their administrative remedies. McNei/ v. United
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States, 508 U.S. 106, 113 (1993); see also 28 U.S.C. § 2675(a)
(“[a]n action shall not be instituted upon a claim against the
United States .. . unless the claimant shall have first
presented the claim to the appropriate Federal agency.”).
The exhaustion requirement is a mandatory jurisdictional
prerequisite, GAF' Corp. v. United States, 818 F.2d 901, 905
(D.C. Cir. 1987); Jackson v. United States, 730 F.2d 808, 809
(D.C. Cir. 1984), which the Court cannot excuse. As Plaintiff,
Mr. Thomas bears the burden of proving by a preponderance
of the evidence that the Court has subject matter jurisdiction
to review his claims. See Evans, 166 F.3d at 647; see also
McNutt, 298 U.S. at 182-83.
In order to exhaust administrative remedies under
the FTCA, a plaintiff must have presented the agency with
“(1) a written statement sufficiently describing the injury to
enable the agency to begin its own investigation and (2) a
sum-ertain damages claim,” and the agency must have
either denied the claim in writing or failed to provide a final
disposition within six months of the filing of the claim. GAF'
Corp., 818 F.2d at 905; accord Bembenista v. United States,
866 F.2d 493, 499 (D.C. Cir. 1989); Murphy v. United States,
121 F. Supp. 2d 21, 27 (D.D.C. 2000), aff'd, 64 Fed. Appx.
250 (D.C. Cir. 2003). The claimant must present the
administrative claim to the -1l-relevant agency within two
years of the claim’s accrual. See 28 U.S.C. §§ 2401(b),
2675(a). A tort claim accrues “by the time a plaintiff has
discovered both his injury and its cause.” Sexton v. United
States, 832 F.2d 629, 633 (D.C. Cir. 1987).
1. 2001 Claim Was Not Timely
The Court will dismiss all claims relating to Mr. Thomas’s
allegations of failure to diagnose, inform, warn, and/or refer
for treatment for schizophrenia as set forth in his 2001 Claim.
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Page 12 of 21
Such claims are based on the benefits examination conducted
by Dr. Kelly in March 1991, and Mr. Thomas failed to file an
administrative claim within two years after such claims
accrued.
Mr. Thomas argues that the statute of limitations did not
begin to run until early 2002 when he received a full copy of
his VA medical file in response to his request under the
Privacy Act, 5 U.S.C. § 552a, and the Freedom of
Information Act, 5 U.S.C. § 552. He argues that “the
information in the SOC _ raised curiosity, concerns,
misunderstanding and confusion, but provided absolutely no
knowledge, indication or basis to think or believe that there
had been anything wrong other than a mistake or
misstatement of facts by the VA; as there was, at the time,
no hint or indication of evidence of a tortious act.” Pl.’s Mem.
in Opp. to Def.’s Mot. to Dismiss or for Summ. J. (“PI.’s
Mem.”) at 21.
This argument must fail. Under D.C. law,’ a plaintiff is
deemed to have discovered 6 his injury when he knew or
reasonably should have known of it. Richards v. Duke Univ.,
480 F. Supp. 2d 222, 235 (D.D.C. 2007). Mr. Thomas’s 2001
Claim, which he submitted to the Army in -12- Germany,
reveals that he had enough information from the SOC to
have known of his alleged injury.
In the 2001 Claim, he alleged:
© Tort claims under the FTCA are reviewed under the substantive tort law
of the state in 6 which the alleged tort occurred. See Price v. United States,
228 F.3d 420, 422 (D.C. Cir. 2000), Tarpeh-Doe v. United States, 28 F.3d
120, 123 (D.C. Cir. 1994). Mr. Thomas’s 2001 Claim is based on
allegations of malpractice that occurred in Washington, D.C.
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Page 13 of 21
On or about August 19, 1991 and for more than 10
years, the US Department of Veterans Affairs and
Employees at the Washington DC Regional Office in
Washington, DC, by and through their willful, wanton,
and intentional negligence, omissions, carelessness,
error(s) in judgment and misconduct, has [sic] caused
and continucs to cause and inflicted [sic] upon me
great and serious injuries, harm, pain and intentional
emotional distress by their failure(s) to give me notice,
failure(s) and refusal(s) to treat and provide me with
the standard of care and to warn me of a serious
medical condition DVA diagnosed during a regular
C&P [Compensation and Pension] examination in
August 1991, which DVA willfully and wantonly
withheld from me for 10 year{s] or more, and which
has also resulted in the development and my sustaining
and suffering more serious medical problems than
previously existed (permanent impairments); and
which has also caused me and my family to be denied
numerous State and Federal benefits, loss of income, to
include earning capacity.
Def.’s Mem., Ex. 14. The claim form itself demonstrates that
Mr. Thomas had enough information from the SOC to seek
money damages in October 2001 for the VA’s failure to wam
him of the alleged diagnosis of schizophrenia.’ Therefore, his
' The Court is puzzled by Mr. Thomas’s argument that “il is true, this
Court does not have 7 subject{|matter jurisdiction over any of Plaintiffs’
FTCA claims under the FTCA framework,” PI.’s Mem. at 26, and that
“this Court does not have subject[|matter jurisdiction over Plaintiff's
complaint allegations and claims under the FTCA framework for the
reasons already alleged and argued, and
the Defendant’s and this Court’s continued adjudicative proceedings
under this framework is both prejudice and injurious to Plaintiff.” Pl.’s
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Page 14 of 21
claim accrued when he received the SOC and 7 not in 2002
when he received his entire file.
The only direct evidence in the record as to precisely when
Mr. Thomas received the -13- SOC is a letter from Mr.
Thomas to the VA in Washington, D.C., dated November 2,
1999. That 8 letter stated:
The veteran is in receipt of your letter and enclosed
Decision(s) and Statement of the Case(s), herein not
included, (received by the veteran on October 9,
1999), for an Appeal of an Earlier Effective Dated
[sic] for compensation purposes based on Individual
Unemployability, and the denial of service-connection
for Anxiety Neurosis and other Mental Problems.
The purpose of this correspondence (being sent to you
via facsimile) is to request a Sixty-day Extension of
the time limit within which to effect and file my
substantial Appeal to the Board of Veterans Appeals.
Def.’s Mem., Ex. 47. Thus, Mr. Thomas acknowledged
receiving on October 9, 1999, the VA’s SOC indicating a
“working diagnosis” of schizophrenia.
Mr. Thomas does not address this letter or explain why, in
November 1999, he acknowledged receipt of the SOC on
October 9, 1999, and then, in connection with the 2001
Mem. at 29. The Court assumes that Mr. Thomas means to argue that the
Court does have jurisdiction over his claims.
* Interestingly, Mr. Thomas faxed this letter to the VA’s Washington, D.C.
Regional Office 8 (Foreign Unit) in 1999. It is unclear why he submitted
his October 2001 Claim to the Army in Germany when the claim itself
identifies the VA as the responsible department.
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Page 15 of 21
Claim asserted that the date he became aware of the SOC on
October 27, 1999. See Pl.’s Facts { 12. Mr. Thomas further
states, in non-affidavit form, that “[o]n October 27, 1999,
Plaintiff became alarmed, mad, outraged, angry, sad, hurt,
felt deceived, mistreated, severely emotionally distressed and
shocked of [sic] not having been informed and denied the
rights as a patient, and due process right as a Veteran over
many years of this diagnosis, and of having further been
denied and deprived of medical information and treatment
over this same long period of time.” Pl.’s Facts { 13.
To resolve this question, which goes to the heart of the
Court’s jurisdiction, the Court -14- may consider affidavits
and other exhibits and weigh the conflicting evidence. See
Herbert, 974 F.2d at 197; Rann v. Chao, 154 F. Supp. 2d 61,
64 (D.D.C. 2001), afd 345 F.3d 192 (D.C. Cir. 2003). The
Court finds the November 2, 1999, letter and Mr. Thomas’s
silence about it compelling evidence that Mr. Thomas
received the SOC on October 9, 1999. Thus, this is when his
claim accrued and the statute of limitations for him to file an
administrative claim began. There is no doubt on this record
that Mr. Thomas had sufficient information from the SOC to
advance an FTCA claim as his own statements and the 2001
Claim demonstrates. In his own words, he admitted receiving
that information on October 9, 1999. Further, his written
admission was dated November 2, 1999, just a few weeks
after such receipt at a time when the importance of a few
days’ difference was not apparent. Therefore, a timely FTCA
claim had to be made no later than October 9, 2001. Mr.
Thomas did not timely file an administrative claim. At the
earliest, Mr. Thomas filed his claim with the Army on
October 11, 2001.
9 “a , ;
The VA contends that administrative filing was timely only if the VA
itself received the 9 form by October 9, 2001 and that the VA did not
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Page 16 of 21
To reiterate: Mr. Thomas received the SOC on October 9,
1999, which informed him that a potential diagnosis of
schizophrenia had been made. He therefore iad until
October 9, 2001, to file an FTCA claim based on the failure to
inform him of this potential diagnosis. He filed the claim on
October 11, 2001, after the statute of limitations had run.”
Because Mr. Thomas failed to 10 -15 timely file an
administrative claim, the Court lacks jurisdiction over Mr.
Thomas’s claims regarding the alleged failure to inform or
treat him for schizophrenia, Counts Ia, LI, Ill, and IV, and
any unnumbered counts relating to Mr. Thomas’s 2001
Claim."
receive the claim until November 14, 2001, when Mr. Thomas faxed it to
the VA in Washington, D.C. Mr. Thomas contends that he faxed the form
to the VA on October 25, 2001. Whether his filing with the Army on
October 11, 2001 was sufficient or whether the VA received his claim by
fax on October 25, 2001 or by fax on November 14, 2001 is immaterial; all
of these dates are too late to file a claim arising from the acknowledged
failure to inform Mr. Thomas of the potential diagnosis of schizophrenia.
10 Mr. Thomas also suggests that his Form 9 Appeal to the Board of
Veterans Appeals, filed 10 on November 10, 1999, should be deemed a
timely F*YI'CA Claim since it met all of the regulatory requirements to be
considered an FTCA claim except that it did not contain a sum certain.
Pl.’s Mem. at 35. This filing fails to contain a sum certain and thus it is in
insufficient to present a valid administrative claim. GAF' Corp., 818 F.2d
at 905.
'! ‘The VA also argues that Dr. Kelly made no firm diagnosis because Mr.
Thomas did not 11 exhibit sufficient symptoms of schizophrenia and that
there was no duty to inform him of the nonurgent results of a benefits
examination. It presents the declaration of Richard Rosse, M.V., Chief,
Psychiatry Service, at the Washington, D.C., VA Medical Center. Dr.
Rosse declares that a diagnosis of schizophrenia requires “two or more of
the characteristic active phase symptoms of schizophrenia, which include
delusions, hallucinations, disorganized speech, grossly disorganized or
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Page 17 of 21
Mr. Thomas argues that the D.C. Circuit has already
ruled in his favor on appeal in spite of similar jurisdictional
arguments from the VA, and therefore the jurisdictional
arguments are barred. This argument mis-reads the record.
The Court. of Appeals reversed the prior district court
opinion but did not address, or rule on, any of the VA’s
arguments except the one relied on by the district court in
the first instance: whether all of the counts in the initial
Complaint here constituted a challenge to a VA benefits
decision. See Thomas, 394 F.3d at 974-75. The Circuit did not
rule on whether Mr. Thomas presented his claims to the VA
on a timely basis." Moreover, jurisdiction is 12 a defense that
can be raised at any time prior to a final ruling on the merits.
See Settles v. United States Parole Comm’n, 429 F.3d 1098,
1105 (D.C. Cir. 2005). Even when not raised by any party,
the Court itself has a duty to ensure its own jurisdiction at
any time in a case. See American Library Ass’n v. FCC, 401
F.3d 489, 492 (D.C. Cir. 2005). Thus, the VA’s jurisdictional
arguments are -16- properly before this Court.
Mr. Thomas also moves to strike the VA’s motion and
exhibits because the exhibits contain very personal private and
sensitive medical records and are also “incomplete, unfit,
unreliable and/or untrustworthy as evidence” because they
involve a veteran’s benefit claim. Mr. Thomas also argues that
defense Exhibits 15 through 20 “are FT'CA claim transfer
documents” that were not provided to him in discovery and
that are now prejudicial. The Court recognizes that it is
without jurisdiction to review the VA’s handling of a veteran’s
catatonic behavior, and negative symptoms.” Rosse Decl. 4 2. Because the
Court finds that it lacks jurisdiction, it does not reach this issue.
” Further, the Circuit could not have ruled on the claims regarding later
events, such as 12 claims regarding Mr. Thomas's visits to Memphis
VAMC that were added after remand.
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Page 18 of 21
benefit claim. See Thomas, 394 F.3d at 974-75. However, the
documents to which Mr. Thomas objects are presented for
purposes of ruling on the timeliness of his FTCA claims and
their sufficiency to alert the VA to the nature of his FTCA
claims, not for purposes of reviewing any VA benefit
decisions. Exhibits 15 through 18 are letters that the Army
sent to Mr. Thomas in response to his FTCA claim
erroneously filed with the Army in Germany; Exhibit 19 is a
copy of the envelope whereby the Army in Germany
forwarded Mr. Thomas’s claim papers to Fort Meade in
Maryland; and Exhibit 20 is a copy of the cover letter
whereby the Army sent the file to the VA, with a copy to Mr.
Thomas. Inasmuch as Mr. Thomas was the addressee or
copied on these materials, the Court finds the VA’s reliance
on them here — to complete the record — permissible. Indeed,
Mr. Thomas himself relies on these same documents. Mr.
Thomas’s motion to strike will be denied.
2. The 2003 Claim Lacked Required Specificity
Mr. ‘Thomas’s 2003 Claim alleged that the VA failed to
diagnose, disclose, or refer him for treatment from March
1991 to the present for numerous conditions, including
among others: photo phobia, muscle spasms, fatigue, joint
pain, flexor tender ganglion, myofacial pain, back and
musculoskeletal pain, personality disorder, mental stress,
anxiety neurosis, schizophrenia, arthralgia, -17- bronchitis,
numbness, post traumatic stress disorder, and depression.
On April 29, 2003, Regional Counsel Michael Hogan
responded and informed Mr. Thomas that “[t]he Attorney’s
General’s Regulations require that you provide us with
certain information and evidence that we need to process and
investigate your claim.” See Def.’s Mem., Ex. 44. The VA
sought a complete list of health care providers outside the
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Page 19 of 21
VA system who had been caring for Mr. Thomas, those
whom he consulted for symptoms allegedly related to poor
care from the VA, a report from his attending physician
concerning the same, and other details. /d. Receiving no
response, Mr. Hogan wrote to Mr. Thomas on July 1, 2003,
denying his claim for failing to provide essentia) information.
Def.’s Mem., Ex.45. Mr. Thomas requested reconsideration
by letter dated October 23, 2003, which was denied by VA
Assistant General Counsel E. Douglas Bradshaw, Jr., on
November 20, 2003. Def.’s Mem., Ex. 46.
Mr. Thomas’s failure to respond to Mr. Hogan’s request
for more information renders his administrative exhaustion
incomplete and insufficient to support court jurisdiction. The
SF 95 submitted as the 2003 Claim lists specific diseases and
conditions but fails to provide information as to where the
alleged torts occurred or when. The VA contends that
“(sJearching all DVA files nationwide for a 12-year period to
determine when and where VA could or should have
diagnosed, referred, treated, or informed [Mr.] Thomas of
over twenty medical conditions would be equivalent to
searching for a needle in a haystack.” Def.’s Mem. at 14-15.
The Court agrees. Mr. Thomas was obliged to respond to the
VA’s request for information. He needed to submit a written
statement sufficiently describing the injury to enable the
agency to begin its own investigation. Bowden v. United
States, 106 F.3d 433, 441 (D.C. Cir. 1997); GAF’ Corp., 818
F.2d at 919. The 2003 FTCA Claim provided grossly
insufficient information for the VA to know who, how, where
and when the -18- alleged malpractice occurred. Its request
for further information was totally ignored by Mr. Thomas,
yet his silence prevented administrative processing of his
claim. Since his claim could not be processed due to Mr.
Thomas’s own conduct, the Court finds that he did not
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Page 20 of 21
exhaust his administrative remedies and cannot now present
this set of claims in litigation. Counts I.b-k, I.m-n, I.p., and T.
r-s, together with all unnumbered counts based on the 2003
Claim, will be dismissed for lack of jurisdiction.
3. Failure to Present Any Claim Based on the July 24,
2003 Visit to VAMC Memphis
Count 1t of the Amended Complaint alleges torts based on a
July 24, 2003 medical examination at Memphis VAMC. The
FTCA bars claimants from bringing suit until they have
exhausted their administrative remedies, McNeil, 508 U.S. at
113, and the VA never received an SF-95 after July 24, 2003
that encompassed this claim. See Def.’s Mem., Ex. 2, Decl. of
Baltimore Regional Counsel Frank D. Giorno { 4; Def.’s
Mem., Ex. 3, Decl. of Nashville Regional Counsel Tammy L.
Kennedy { 5. Mr. Thomas offers no proof whatsoever to
counter these sworn declarations, despite the fact that he
bears the burden of establishing that the court has subject
matter jurisdiction. Evans, 166 F.3d at 647; see also McNutt,
298 U.S. at 182-83. Because Mr. Thomas failed to exhaust his
administrative remedies concerning the July 24, 2003,
medical examination at Memphis VAMC, the Court is
without power to adjudicate this claim. Count 1t and all
unnumbered counts relating to Mr. Thomas’s July 2003 visit
to Memphis VAMC will be dismissed.
B. Failure to Present Expert Testimony In Support of
Claims Relating to November 2002 Visits to Memphis
VAMC
Mr. Thomas filed a timely FTCA claim associated with
his visit to Memphis VAMC on November 4 and 15, 2002, at
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Page 19 of 21
which time he alleges he was not informed, referred, or
warned for -19- “needed and necessary emergency medical
complaints.” First Am. Compl. { 92. He also alleges that
Memphis VAMC put information in his medical records
concerning migraine headache, limited motion of cervical
spine, allergic or vasomotor rhinitis, degenerative arthritis,
prostate gland condition, inflammation of cornea, and Axis
IV, without informing him. Jd. This claim was denied by
Regional Counsel on June 7, 2005. Def.’s Mem., Ex. 42.
To establish a prima facie case of negligence under
Tennessee law," a plaintiff bears 13 the burden of proving (1)
the “recognized standard of acceptable professional practice”
in the relevant speciality; (2) that the defendant “acted with
less than or failed to act with ordinary and reasonable care in
accordance with such standard;” and (3) “as a proximate
result of the defendant’s act or omission, the plaintiff
suffered injuries which would not otherwise have occurred.”
Tenn. Code § 29-26115. “No claim for negligence can
sueceed in the absence of any one of these elements.”
Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993).
A plaintiff must “prove by expert testimony” all four
elements of the negligence standard. Hurst by Hurst v.
Dougherty, 800 S.W.2d 183, 185 (Tenn. Ct. App. 1990). A
“plaintiff must offer expert testimony setting forth specific
facts demonstrating that a defendant’s acts or omissions fell
below the recognized standard of care and that those acts or
omissions proximately caused the subject injury.” Norris v.
East Tn. Children’s Hosp., 195 S.W.3d 78, 86 (Tenn. Ct.
'* Tennessee law governs this malpractice claim as Memphis VAMC is
located there. See 13 Price, 228 F.3d at 422 (the substantive tort law of
the state in which the alleged tort occurred applies to FTCA tort claims);
Tarpeh-Doe, 28 F.3d at 123 (same).
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Page 22 of 21
App. 2005). Tennessee law also requires that any expert be
licensed to practice in the relevant specialty in Tennessee or
one of the contiguous border states within one year of when
the injury or wrongful act or omission occurred. Tenn. Code
§ 29-26-115(b).
Mr. Thomas traces the failure to provide medical
services to him at Memphis VAMC with his collapse on the
airplane returning to Germany and his resulting emotional
distress. Whether the VA might have any liability would
depend upon whether Mr. Thomas’s statements on intake at
Memphis VAMC were sufficient to cause a reasonable health
care provider to recognize a need for immediate medical
attention and, then, whether the failure to provide such
attention at Memphis VAMC medically caused his collapse.
These points must be made through medical testimony by an
experienced physician. Under Tennessee law, they cannot be
proved by lay testimony.
Without sufficient evidence to prove the standard of
care, that the VA’s actions in denying him medical treatment
in November 2002 feil below that standard, and that the VA’s
denial of care was causally connected to his collapse on the
airplane, Mr. Thomas cannot sustain his allegations. See
Greene, 164 F.3d at 675 (nonmoving party may not rely
solely on allegations, but must present specific facts that
would enable a reasonable jury to find in its favor). Counts
I.l, Lo, I.q., and all unnumbered counts based on allegations
relating to the November 2002 visit to Memphis VAMC must
be dismissed.
IV. CONCLUSION
The results here are compelled by federal and Tennessee
state law. A claimant under the FTCA must file his claim
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Page 23 of 21
within two years of its accrual. Although he received the
SOC on October 9, 1999, the very earliest date on which it
might be said that Mr. Thomas filed an FTCA claim based on
the failuretoinform him of Dr. Kelly’s _ potential
schizophrenia diagnosis is October 11, 2001, more than two
years later. Because timely presentation of a claim is
jurisdictional, the Court must dismiss all allegations based on
the failure to inform of a schizophrenia diagnosis.
In addition to complying with the two-year requirement,
a claimant must provide sufficient information
for the relevant agency to investigate and respond. Mr.
Thomas failed to respond to VA’s request for specific
information concerning his malpractice claim that spanned a
dozen years and over a dozen medical conditions. His
inaction and silence prevented the VA from processing his
claim on the merits and, therefore, he did not fulfill his duty
to exhaust his administrative remedies. Further, there is no
record that Mr. Thomas ever filed an FTCA claim arising
from his July 23, 2004, visit to Memphis VAMC and,
therefore, he also failed to exhaust his administrative
remedies therewith.
Finally, the VA is entitled to summary judgment on
Mr. Thomas’s allegations concerning the failure of Memphis
VAMC to provide medical treatment to him in November
2002. Tennessee law requires expert testimony to support
his malpractice claim, and Mr. Thomas offers none.
Defendant’s motion to dismiss or for summary judgment
{Dkt. # 121] will be granted and the First Amended Complaint
will be dismissed. Plaintiff's motion to strike [Dkt. #145] will
be denied, and all other pending motions will be denied as
moot. A memorializing order accompanies this Memorandum
Opinion.
DATE: March 20, 2008
Cnet —
ROSEMARY M. COLLYER
United States District Judge
A Xs: 2 Y
United States Court of Appeals for the District of
Columbia Circuit
Argued November 12, 2004 Decided January 14, 2005
No. 03-5182
OSCAR L. THOMAS,
APPELLANT
V.
ANTHONY J. PRINCIPI, SECRETARY,
DEPARTMENT OF VETERANS AFFAIRS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01743)
Matthew T. Reinhard, appointed by the court, argued the
cause aS amicus curiae in support of appellant. With him on the
briefs was Alan I. Horowitz.
Oscar L. Thomas, pro se, filed briefs for appellant.
Pamela D. Huff, Assistant U.S. Attorney, argued the cause
for appellees. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney.
Before: GINSBURG, Chief Judge, and TATEL and
ROBERTS, Circuit Judges.
A-30
2
TATEL, Circuit Judge. The Veterans’ Judicial Review Act
not only provides that the Secretary of Veterans Affairs “shall
decide all questions of law and fact necessary to a decision ... .
under a law that affects the provision of benefits,” but also bars
district courts from reviewing such decisions. In this case, we
must decide whether this provision deprives the district court of
jurisdiction over an action brought pursuant to the Federal Tort
Claims Act by a veteran asserting (among other things) that the
VA failed to inform him that a VA doctor had diagnosed him
with schizophrenia. Because adjudicating this claim would not
require the district court to review a question “necessary to a
decision . . . under a law that affects the provision of benefits,”
we reverse the district court’s dismissal of the complaint and
remand for further proceedings consistent with this opinion.
18
Reviewing the district court’s dismissal of the complaint
for lack of subject matter jurisdiction and failure to state a
claim, see Fed. R. Civ. P. 12(b)(1), (6), “we construe the
complaint liberally, granting plaintiff the benefit of all
inferences that can be derived from the facts alleged.” Barr v.
Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (internal
quotation marks omitted). Viewed through that lens, the record
reveals the following.
Appellant Oscar L. Thomas, following his honorable
discharge from the United States Army, filed for mental and
physical disability benefits with the Department of Veterans
Affairs in 1989. Two years later, a VA doctor concluded that
Thomas had “persistent auditory hallucinosis which is
A-31
troubling, so a diagnosis of schizophrenia is the most likely
correct diagnosis. Some of the other adjunct symptoms are not
present, however, but this will be the working diagnosis for
him. He has slight social and industrial disability resulting from
this.” The VA nevertheless denied Thomas’s claim, stating in a
letter to him that a “final diagnosis was not made.” Neither the
rating decision nor the doctor’s report was mentioned in the
letter or attached to it. See Thomas v. Principi, 265 F. Supp. 2d
35, 37 (D.D.C. 2003); see also Appellee’s Br. at 4.
Thomas pursued a variety of appeals and claims for
benefits. Not until 1999, however, some eight years after the
VA doctor saw him, did the VA reveal to Thomas that the
doctor had diagnosed him with schizophrenia. Alleging that the
VA had wrongfully withheld notice of his diagnosis, thereby
severely limiting his ability to pursue his livelihood, Thomas
appealed to the Board of Veterans’ Appeals. That appeal
remains pending.
In 2001, Thomas filed an administrative tort claim—a
prerequisite to bringing suit under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 2675(a). Like 'Thomas’s appeal to the
Board, this claim asserted that the VA’s failure to disclose the
schizophrenia diagnosis and to treat him resulted in greater
medical problems, denial of state and federal benefits, and loss
of income, including earning capacity. Although the
administrative tort claim also remains pending, the VA is
deemed to have finally denied the claim because it failed to
“make a final disposition of [the] claim within six months after
it [was] filed.” See id.; see also Thomas, 265 F. Supp. 2d at 38.
Acting pro se, Thomas filed suit in the United States
District Court for the District of Columbia, alleging that the
A-32
4
VA had committed medical malpractice and caused him
intentional emotional distress by failing to inform him of the
working diagnosis of schizophrenia. In addition to these FTCA
claims, the forty-four-page complaint alleges Privacy Act
violations, constitutional violations by the VA and several VA
employees, defamation, fraud, loss of consortium, and estoppel.
In his prayer for relief, Thomas requested compensatory and
punitive damages of over one billion dollars from both the
government and individual VA employees.
The VA moved to dismiss, or alternatively for summary
judgment. Among other things, the VA argued that Thomas’s
FTCA claim was jurisdictionally barred by 38 U.S.C. § 511,
which prohibits district courts from reviewing “all questions of
law and fact necessary to a decision by the Secretary [for
Veterans Affairs] under a law that affects the provision of
benefits by the Secretary to veterans.”
The district court agreed with the VA, granting its motion
to dismiss the FTCA claims for lack of subject matter
jurisdiction. 265 F. Supp. 2d at 41. Reasoning that “the
gravamen of plaintiff’s claim is that [the VA]. . . failed to treat
[him] . . . for schizophrenia . . . and other medical conditions,”
the district court found that judicial review “would require the
Court to second-guess medical judgments made by DVA.” /d. at
39. Thus, “[a] favorable decision as to plaintiff's claims would
entail a finding that defendants should have provided a
particular quantum of medical treatment to plaintiff that they
did not in fact provide .. . . [S]uch a finding is flatly forbidden
by § 511.” Jd. at 39.
Via the same analysis, the district court dismissed
Thomas’s Privacy Act and constitutional claims for lack of
subject matter jurisdiction. /d. at 39-40. Finding that
A-33
5
Thomas’s defamation and fraud claims, though perhaps
permissible under section 511, were excluded from the FTCA’s
sovereign immunity waiver, the district court dismissed these
claims as well. Jd. at 40. Finally, the court denied Thomas’s
request for leave to amend his complaint to add (1) a Privacy
Act claim against the Assistant United States Attorney for
discussing Thomas’s medical records in the VA’s motion to
dismiss, (2) another tort claim against the VA for failure to
“diagnose, inform, warn, or treat,” and (3) a legal malpractice
claim against Thomas’s former legal representatives for failing
to give him documents sent to them by the VA. /d. at 40 n.5.
Following Thomas’s timely appeal, we appointed amicus
curiae, who has ably briefed and argued Thomas’s FTCA
claims. We consider those claims in Part II and Thomas’s other
claims in Part ITI.
Il.
The VA argues that the “District court properly granted
summary judgment in favor of the government [because]
Thomas did not provide any evidence that the VA’s action were
[sic] wrongful.” Appellee’s Br. at 9. This argument suffers from
two defects. First, it rests on an incorrect premise. The district
court did not grant summary judgment for the government.
Instead, it dismissed Thomas’s complaint pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). The government
did file a motion for summary judgment as an alternative to its
motion to dismiss, but the district court granted only the latter.
Second, Thomas’s failure to “provide any evidence” is hardly
surprising given that the district court’s ruling preceded
discovery, mooting Thomas’s motion to commence discovery.
A-34
6
Both in its brief and at oral argument, the VA also suggested
that Thomas may not in fact suffer from schizophrenia. The VA,
however, does not deny that for eight years it failed to advise
Thomas of the working diagnosis of schizophrenia, and whether
or not Thomas actually suffers from schizophrenia is a question
the district court will have to resolve if it has jurisdiction over
Thomas’s FTCA claim. We now turn to that jurisdictional issue.
Section 511 provides:
The Secretary shall decide all questions of law and fact
necessary to a decision by the Secretary under a law
that affects the provision of benefits by the Secretary to
veterans or the dependents or survivors of veterans. . .
[Tlhe decision of the Secretary as to any such question
shall be final and conclusive and may not be reviewed by
any other official or by any court, whether by an action
in the nature of mandamus or otherwise. 38 U.S.C. §
511.
Other provisions of the Act demarcate the path to appellate
review of secretarial benefits decisions: claimants may first
appeal to the Board of Veterans’ Appeals, id. § 7104(a), then to
the Court of Appeals for Veterans’ Claims, jd. § 7252(a), to the
Federal Circuit, jd. § 7292(c), and ultimately to the Supreme
Court, id.
According to the VA, “[flederal courts construing the
predecessors to section 511 have consistently recognized that
the statute barred district court consideration of individual
claims for veterans’ benefits.” Appellee’s Br. at 11. True
7
enough, but our task here is to determine whether Thomas has
presented any such claims.
We have addressed section 511’s scope only once. In Price
v. United States, we held that “the district court lacked
jurisdiction to consider [appellant’s] federal claim because
underlying the claim is an allegation that the VA unjustifiably
denied him a veterans’ benefit.” 228 F.3d 420, 421 (D.C. Cir.
2001) (per curiam). Assuming appellant’s damages claim was
cognizable under a Florida tort statute, we found that the
Florida cause of action depended on whether the insurer—in
that case the VA—had acted in bad faith. Jd. at 422. Reasoning
that a “determination whether the VA acted in bad faith or with
negligence would require the district court to determine first
whether the VA acted properly in handling Price’s request for
reimbursement,” we concluded that section 511 foreclosed
judicial review. /d.
Applying Price to the facts of this case, we must
determine whether adjudicating Thomas’s claims would require
the district court “to determine first whether the VA acted
properly in handling” Thomas’s benefits request. Jd. Given that
we hold pro se complaints “to less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404
U.S. 519, 520 (1972), and giving Thomas the benefit of all
inferences, as we must at this stage of the litigation, we think he
has alleged at least some VA actions that the district court can
adjudicate without “determin[ing] first” whether Thomas was
entitled to a certain level of benefits.
For example, Count III, alleging intentional infliction of
emotional distress, states that “Defendants [s/c] outrageous
conduct in covering up the presence of a diagnosis of
Schizophrenia with slight social and industrial disability
because of this, for more than 10 years, was intentionally and
recklessly directed at Plaintiff.” Compl. { 31. Count V,
A-36
8
labeled “Gross Negligence, Medical Negligence, and Legal
Misconduct,” alleges that defendants negligently “failed to
inform Plaintiff of the diagnosis, and about the risk of an
untoward outcome.” Compl. § 62. Similarly, Count X, entitled
“Medical Malpractice,” alleges that [e]lach of these defendants
failed to take responsibility by not ensuring and taking time to
communicate the risks and choices that were available to
Plaintiff, e.g., the right to know, (1) you have been diagnosed
with Schizophrenia with slight social and industrial impairment
because of this, (2) you have the choices of receiving medical
treatment care from DVA, or to not receive treatment from
DVA, and we let you make these choices; or inform Plaintiff
that .. . ‘your claims for Schizophrenia is [s/c] denied.’ Compl.
q 95.
Because none of these claims alleges that the VA failed to
pay for treatment (or even to provide for treatment), they raise
no “questions of law [or] fact necessary to a decision by the
Secretary under a law that affects the provision of benefits.” 38
U.S.C. § 511. The raised “questions of law and fact” relate to
whether the alleged withholding of the diagnosis states a tort
claim, and resolution of those questions is not “necessary” to
the benefits determination. See id. Putting the issue in Price’s
terms, no denial of benefits “underl{ies]” Thomas’s failure-to-
inform allegations. See 228 F.3d at 421. In reaching a different
conclusion, the district court cited the regulatory definition of
“benefit,” which includes “any . . . service, . . . entitlement to
which is determined under laws administered by the
Department of Veterans Affairs pertaining to veterans.” 38
C.F.R. § 20.3(e). But neither the district court nor the VA
maintains that “service” spans so broadly as to encompass an
alleged duty to inform. Indeed, when pressed at oral argument,
counsel for the VA agreed that if a VA doctor left a sponge
inside a
9
patient during surgery, section 511 would permit an FTCA
malpractice suit in district court. Reiterating our reliance on
Price, we reject any implication that all action or inaction by the
VA represents a type of “service,” and therefore automatically
constitutes a “benefit.”
To be sure, as amicus acknowledges, not all of Thomas’s
tort allegations survive the standard articulated in Price. For
example, Count X alleges that the VA “failed to render the
appropriate medical care services that are delivered to alleviate
a harmful medical condition, which is calculated to prevent,
diagnose, correct, cure, alleviate, or prevent the worsening in
the Plaintiff.” Compl. { 109. Likewise, Count III claims (among
other things) that the VA’s “continuous and persistent
deprivation and denial of known needed and necessary medical
care treatment .. . caused Plaintiff severe emotional distress.”
Compl. { 29. Because adjudicating these allegations—failure to
“render appropriate medical services” and “denial of .
necessary medical care treatment”—would require the district
court “to determine first whether the VA acted properly” in
providing Thomas benefits, these claims are barred by section
511. See Price, 228 F.3d at 422. The district court’s lack of
jurisdiction over these claims, however, has no effect on its
ability to consider the non-benefits claims also raised in Counts
ITI, V, and X.
Il.
Without benefit of amicus curiae, Thomas also challenges
the district court’s dismissal of his Privacy Act and Bivens
claims, as well as its denial of his motion for leave to amend.
These arguments require little discussion.
A-38
10
As to Thomas’s Privacy Act claims, the district court
correctly found them barred by section 511. Unlike the FTCA
claims, counts XI and XII allege only that the VA’s failure to
maintain accurate and complete records adversely affected
Thomas’s benefits determinations.
Thomas’s constitutional claims for money damages against
VA employees are also barred. Under Bivens, “special factors”
may counsel “hesitation in the absence of affirmative action by
Congress” establishing liability for the acts of individual
government employees. See Bivens v. Six Unknown Named
Agents of the Federa! Bureau of Narcotics, 403 U.S. 388, 396
(1971). “Special factors” include “an elaborate remedial system”
constructed by Congress “with careful attention to conflicting
policy considerations.” Bush v. Lucas, 462 U.S. 367, 388 (1983).
Here, “the administrative process created by Congress provides
for a comprehensive review of veterans’ benefits disputes.
Further, Congress has explicitly precluded judicial review of
veterans’ benefits disputes, which suggests that Congress’
failure to create a remedy against individual VA employees was
not an oversight.” Zuspann v. Brown, 60 F.3d 1156, 1161 (5th
Cir. 1995) (internal quotation marks omitted); accord Sugrue v.
Derwinsky, 26 F.3d 8, 12-13 (2d Cir. 1994).
Because we agree with the Fifth Circuit that this
combination forecloses a Bivens action against VA employees
for constitutional torts in the context of a dispute over
veterans’ benefits, we will affirm the district court’s dismissal
of these claims.
Finally, reviewing for abuse of discretion, see Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam), we
will also affirm the district court’s denial of leave to amend the
complaint to add a legal malpractice claim against Thomas’s
former legal representatives and another Privacy Act claim. See
265 F. Supp. 2d at 40 n.5. As the district court noted, Thomas
“remains free to assert [these] claims in a new action against
A-39
the appropriate defendants.” /d. In light of our determination
that the district court has jurisdiction over Thomas’s FTCA
claims, however, we will remand his request to add a claim
against the VA for “failure to diagnose, inform, warn, or treat,”
265 F. Supp. 2d at 40 n.5. Once Thomas amends his complaint,
the district court, applying Price and this decision, will need to
decide whether section 511 bars the additional allegation.
IV.
We reverse the dismissal of counts III, V, and X, as well as
the denial of Thomas’s request to amend his complaint to add
another tort claim, and remand for further proceedings
consistent with this opinion. In all other respects, we affirm.
So ordered.
A-40
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
OSCAR L. THOMAS, )
)
Plaintiff, )
)
V. ) Civil Action
) No. 02-1743
) (ESH)
)
ANTHONY J. PRINCIPI, )
et al. )
)
Defendants. )
)
AMENDED MEMORANDUM OPINION
Plaintiff Oscar Thomas, a retired army veteran, has
brought this pro se action against the Department of
Veterans’ Affairs (“DVA”), in which he contends that DVA
diagnosed him with a form of schizophrenia, but negligently
failed to inform him of that diagnosis or offer him any
treatment for his ailment. Plaintiff has asserted claims under
the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et
seq., as well as for alleged constitutional violations under 42
U.S.C. §§ 1983 and 1985. Defendants (the DVA itself as well
as a number of its officers and employees) have now moved
to dismiss under FED. R. CIV. P. 12(b)(1) and 12(b)(6), or, in
the alternative, for summary judgment. They argue
primarily the Court lacks subject matter jurisdiction
because, in essence, this is an action for suit for veterans’
benefits of the sort that Congress has reserved to DVA’s
A-4]
exclusive and unreviewable domain. The Court agrees, and
will therefore grant the motion to dismiss.
BACKGROUND
After being honorably discharged from the U.S. Army in
August 1989, plaintiff filed a claim for a number of service-
related mental and physical disability benefits, including one
for “anxiety neurosis.” In connection with this claim, he was
ordered to submit to a medical treatment examination in the
spring of 1991. On August 2, 1991, DVA issued its first
rating decision (VA Form 21-6796b) regarding plaintiff's
claim.
With respect to plaintiff's complaints about anxiety, the
Department’s internal report noted that “[e]xcept for
auditory hallucinations, he does not seem to have any
particular sign of schizophrenia, no paranoid tenancies.”
(Def.’s Mot. to ismiss, tab H.) However, the report continued,
“the examining psychiatrist thinks that the most likely
diagnosis is schizophrenia. Some of the adjunct symptoms of
schizophrenia were not present, but this will be the working
diagnosis for him. A definite diagnosis was not made on the
VA examination.” (/d.)' On this basis, the rating specialist
who prepared this document neurosis had been denied, using
the same language that appears in the rating decision. (Def.’s
3 Mot. to Dismiss, tab J (“Service connection is denied for
anxiety neurosis because the last psychiatric examination in
;, This statement was apparently based on the diagnosis reached by a Dr.
Kelly, who examined plaintiff on March 5, 1991. In his report, Dr. Kelly
wrote that plaintiff “has persistent auditory hallucinosis which is
troubling, so a diagnosis of schizophrenia probably is the most likely
correct diagnosis. Some of the other adjunct symptoms of schizophrenia
are not present, however, but this will be the working diagnosis for him.
Ife has slight social and industrial disability resulting from this.” (Defs.’
Mot. to Dismiss, tab BB, ex. M.)
A-42
3 Mot. to Dismiss, tab J (“Service connection is denied for
anxiety neurosis because the last psychiatric examination in
service made no diagnosis regarding your mental state. On
the VA examination, a final diagnosis was not made.”).)
While this notification letter was sent to plaintiff, it appears
that neither the rating decision itself (the VA Form 21-
6796b) nor Dr. Kelly’s report was included as an attachment.
(Defs.’ Mot. to Dismiss at 4.) Accordingly, plaintiff
apparently did not receive any documents indicating that
DVA had made a “working diagnosis” of schizophrenia,
although he was told that his request for benefits with
respect to his mental condition had been rejected. At any
rate, it seems that plaintiff did not file a formal notice of
disagreement contesting the Department’s denial of his
claim for service-connection for his anxiety neurosis.
On November 26, 1996, however, in response to an
objection lodged by plaintiff, DVA issued another rating
decision, which addressed whether plaintiff had presented
new and material evidence to reopen his claim for anxiety
neurosis and nervous tension. This decision, which was
transmitted to plaintiff on December 23, 1996, found that
such evidence had not been offered, and therefore did not
reopen the claim. (Defs.’ Mot. to Dismiss, tab R.) DVA
reached a similar result in March 1998, once again refusing
to reopen plaintiff's claim for anxiety neurosis. (Defs.’ Mot.
to Dismiss, tab Y.) Plaintiff filed a notice of disagreement
(“NOD”) with this decision on September 20, 1998 (Defs.’
Mot. to Dismiss, tab Z), to which DVA responded with a
“Statement of the Case” on September 29 of that year. In its
Statement, DVA _ recounted plaintiff's medical history,
highlighting the statements in the August 2, 1991 report that
“(njJo signs of schizophrenia were noted during examination
except auditory hallucinations,” but that a diagnosis “of
schizophrenia was shown as most likely the correct diagnosis
with slight social and industrial disability.” (Defs.’ Mot. to
Dismiss, tab AA.) This seems to have been the first time that
A-43
plaintiff learned that DVA had made any assessment
regarding his schizophrenia during his 1991 examinations.
On November 10, 1999, plaintiff filed an appeal with the
Board of Veterans’ Appeal (“BVA”), in which he alleged that
during the previous decade (since 1991, that is), DVA had
wrongfully withheld from him the fact that he had been
diagnosed with schizophrenia.
Moreover, he alleged that this failure to inform him had
caused him significant harm: “The diagnosis of schizophrenia
with slight social and industrial disability would have, and in
fact, did have a very severe impact on_ the
veteran/appellant’s ability to secure and follow a
substantially gainful occupation.” (Defs.’ Mot. to Dismiss, tab
K.) Plaintiff's internal appeal is still pending.
Plaintiff also filed an administrative tort claim against
DVA on October 11, 2001, based on this same allegation.:
Accordingly, on August 30, 2002, plaintiff filed a
complaint in this Court, in which he has mounted a number
of claims against a variety of defendants associated with
DVA. In essence, however, his contention here is the same as
has been advanced in his administrative tort action: that
DVA should be held liable under the FTCA for negligence
and medical malpractice based on the DVA’s failure to
disclose to plaintiff in October 1991 that he had been
diagnosed with some kind of
2 this step is required by the FTCA, which mandates that no tort claim
may be brought against the United States for money damages “unless the
claimant shall have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the agency.” 28
U.S.C. § 2675(a). While there is no indication that plaintiff's
administrative claim has been resolved, the FTCA provides that an
agency’s failure to “make a final disposition of a claim within six months
after it is filed shall, at the option of the claimant any time thereafter, be
deemed a final denial of the claim.” /d. (Defs.’ Mot. to Dismiss, tabs A,
BB.)
A-44
schizophrenia. (Compl. {{ 38, 84.) Defendants have
now filed a motion under FED. R. CIV. P. 12(b)\(1) and
12(b)(6), asking the Court to dismiss this case for lack of
subject matter jurisdiction and for failure to state a claim.
ANALYSIS
The central issue raised by defendants’ motion is
whether plaintiff's tort claims are barred by 38 U.S.C. § 511.
That provision reserves to the Secretary of Veterans Affairs
(7.e., DVA) the exclusive authority “to decide all questions of
law and fact necessary to a decision by the Secretary under a
law that affects the provision of benefits by the Secretary to
veterans or their dependents or survivors of veterans.”
Moreover, al! such decisions “shall be final and conclusive,
and may not be reviewed by any other official or by any
court.” 38 U.S.C. § 511.
This statute thus “precludes judicial review in Article
III courts of [DVA] decisions affecting the provision of
veterans’ benefits,” a term that includes medical services
provided to veterans for disabilities incurred or aggravated
in the line of duty. Price v. United States, 228 F.3d 420, 421
> Plaintiff has also asserted a claim under the Privacy Act, in which he
contends that defendants failed to keep complete and accurate records
about him in connection with his various claims for service-related
benefits. (Compl. { 111, Pl.’s Resp. in Opp. to Defs.’ Mot. to Dismiss at
5.) He has also advanced constitutional claims under 42 U.S.C. §§ 1983,
1985 (Compl. Ff 15, 24), as well as additional tort claims of defamation
(id. at J 32) and fraud (id. at {4 68, 70, 80). For reasons set out below,
these claims fail.
Instead, such determinations can be reviewed only by the Board of
Veterans Appeals, and from there, by the Court of Veterans Appeals and
the United States Court of Appeals for the Federal Circuit. See Beamon
v. Brown, 125 F.3d 965, 967 (6th Cir. 1998); Larabee v. Derwinski, 968
F.2d 1497 (2d Cir. 1992) (reviewing history of § 511).
A-45
(D.C. Cir. 2002); cf 38 C.F.R. § 20.38(e) (“Benefit means any
payment, service, commodity, function, or status, entitlement
to which is determined under laws administered by the
Department of Veterans Affairs pertaining to veterans and
their dependents and survivors.”) (emphasis added).
In construing this provision, “courts have consistently
held that a federal district court may not entertain
constitutional or statutory claims whose resolution would
require the court to intrude upon the VA’s exclusive
jurisdiction” over the allocation of veterans’ benefits. Price,
228 F.3d at 422 (upholding dismissal of veteran’s FTCA
claims based on DVA’s alleged bad faith failure to reimburse
him for medical expenses incurred at a non-DVA hospital).
Here, the gravamen of plaintiff's claim is that, having made
its “working” diagnosis of schizophrenia, DVA “failed to
treat or refer Plaintiff as a patient for medical treatment for
Schizophrenia, PTSD, a Psyco-vegetative Syndrome and
other medical conditions, causing increase in Plaintiff's
psychiatric condition and other physical symptoms.” (Compl.
{ 104.) In other words, plaintiff contends that the
Department failed to provide the level of care medically
appropriate for the condition with which it had allegedly
diagnosed him. As such, adjudicating these claims would
require the Court to second-guess medical judgments made
by DVA, including its decisions about how to treat the
psychological problems that its physicians may have
identified. Specifically, the Court would have to determine
whether defendants acted properly in not referring plaintiff
for further treatment after his 1991 psychological evaluation,
a determination that would necessarily involve a reevaluation
of DVA’s factual and legal conclusion that plaintiff was not
eligible for veterans’ benefits (7.e., hospital and medical care
for his alleged schizophrenia). 7
Thus, although he attempts to disguise the fact, plaintiff's
FTCA claims amount to a request that this Court review the
adequacy of the medical attention provided to plaintiff.
A-46
A favorable decision as to plaintiff’s claims would entail a
finding that defendants should have provided a particular
quantum of medica] treatment to plaintiff that they did not in
fact provide.
But such a finding is flatly forbidden by § 511. See
Derwinski, 968 F.2d at 1500 (federal courts may not hear
claims by veterans “seeking a particular type or level of
medical care”); Jn re Agent Orange Product Liability
Litigation, 818 F.2d 194, 201 n.2 (2d Cir. 1987) (claims
alleging the failure of DVA to “provide adequate medical
treatment . . . seek precisely the type of judicial review”
forbidden by Congress); cf Price, 228 F.3d at 422 (“Because
a determination whether the VA acted in bad faith or with
negligence would require the district court to determine first
whether the VA acted properly in handling Price’s request
for reimbursement, judicial review is foreclosed by 38 U.S.C.
§ 511(a).”). It thus follows that the Court lacks subject-matter
jurisdiction over plaintiff's negligence, emotional distress,
and medical malpractice claims.
For similar reasons, the Court lacks jurisdiction to hear
the remainder of plaintiff's claims as well. Invoking the
Privacy Act, plaintiff alleges that DVA failed to maintain
accurate and complete records concerning his medical
condition, records necessary to the Department’s
“determination(s) relating to the qualifications, characters,
rights, opportunities of, or benefits to the Plaintiff that was
made on the basis of such record.” (Compl. { 111.) This claim
is barred by § 511 because the injuries that allegedly
resulted from defendants’ failure to maintain his records all
ultimately concern the adverse benefits determination made
by the Department. in order to rule on the Privacy Act
claim, therefore, the Court would also have to pass judgment
on whether the underlying benefits decision was correct. As
such, the resolution of this claim “would require the district
court to determine not only that the VA intentionally failed
to maintain 8 complete records, but also whether, but for the
A-47
missing records, [the claimant] should have been awarded
disability benefits. This would involve a review of the prior
adverse VA decision to determine whether the absent
evidence affected the result and, if the court so concludes, it
must then act as the Veterans Administration itself, applying
benefits rules to the facts in order to determine the correct
award of disability had the files been adequately
maintained.” Rosen v. Walters, 719 F.2d 1422, 1425 (9th Cir.
1983); see also Quarles v. United States, '731 F. Supp. 428,
431 (D. Kan. 1990) (no jurisdiction to entertain veteran’s
Privacy Act claim that the Veterans Administration
deliberately destroyed records pertinent to his bid for
disability benefits); Castle v. United States, 2001 WL
1602689, at *7 (N.D. Cal. Dec. 10, 2001); Menendez v. United
States, 67 F. Supp.2d 42, 46 (D.P.R. 1999).
Plaintiff's constitutional claims are also precluded by §
511, for they too are at bottom challenges to DVA’s decision
not to provide veterans’ benefits at the level that plaintiff
desired.
For instance, plaintiff contends that defendants violated
the due process and equal protection clauses by depriving
him “of the proper mental, physical, emotional, health
satisfaction and enjoyment of being granted and receiving
needed and necessary vested veterans benefits, e.g., (medical
care treatment) as other similarly situated disabled
veterans.” (Compl. { 20.) This is little more than an attack on
the specific actions taken by DVA in connection with
plaintiff's application for benefits, the resolution of which
would once again require the Court to pass judgment on the
decisions of the Department in evaluating that application.
Accordingly, the fact that these claims have been clothed in
constitutional garb does not protect them from the preclusive
reach of § 511. See Cheves v. Dep’t of Veterans Affairs, 227
F. Supp.2d 1237, 1246 (M.D. Fla. 2002) (holding that § 511
interposes a bar to as-applied constitutional challenges to
A-48
DVA’s processing of a claim for veterans’ benefits); Verner
v. United States, 804 F. Supp. 381, 384-85 (D.D.C. 1992).
Finally, while plaintiff's claims for defamation and fraud
may not be barred by § 511, they are barred on sovereign
immunity grounds, as the FTCA, which contains the only
waiver of sovereign immunity applicable here, specifically
excludes such claims from the category of those that may be
asserted against the federal government. See 28 U.S.C. §
2680(h) (providing that the FTCA does not apply to claims
“arising out of .. . libel, slander, misrepresentation, [and]
deceit”); accord In re Orthopedic Bone Screw Litigation, 264
F.3d 344, 363 (7th Cir. 2001) (holding that common law
intentional fraud claim cannot be maintained under the
FTCA). These claims too must therefore be dismissed.°
> Plaintiff has also filed a Motion for Leave to File an Amended
Complaint. With this motion, he seeks to add three more claims: (1) a
Privacy Act claim against the Assistant United States Attorney handling
this case for disclosing plaintiff's medical records as part of defendants’
motion to dismiss; (2) a claim for failure to diagnose, inform, warn, or
treat against DVA based on its handling of plaintiffs medical care from
1991 forward; (3) a claim for legal malpractice against the Disabled
American Veterans and the Non-Commissioned Officers Association
(plaintiff's one-time legal representatives) for failing to provide him with
documents alluding to his alleged 1991 schizophrenia diagnosis.
As to the first claim, given the identity of the proposed defendant, the
Court believes that allowing such an amendment in the context of the
pending action would unduly prejudice the government. See Childers v.
Mineta, 205 F.R.D. 29, 31 (D.D.C. 2001) (“The court may also deny leave
to amend the complaint if amending would cause the opposing party
undue prejudice.”). Plaintiff's second proposed claim essentially repeats
the malpractice claims the Court has determined in this Memorandum
Opinion are barred by § 511. As such, providing leave to amend would be
futile because this new claim could not survive a motion to dismiss. See
Robinson v. Detroit News, Inc., 211 F. Supp. 2d 101, 114 (D.D.C. 2002).
Finally, the third claim is largely unrelated to plaintiff's original cause of
action, and would significantly alter the theory of the case from one about
medical decisions by DVA to one about legal decisions made by the
advocacy groups which represented plaintiff while his benefits claims
was pending. See Mississippi Ass’n of Cooperatives v. Farmers Home
A-49
CONCLUSION
For the reasons given above, defendants’ motion to
dismiss for lack of subject matter jurisdiction is granted, and
this case shall be dismissed with prejudice.
ELLEN SEGAL HUVELLE
United States District Judge
DATE: May 28, 2003
Admin., 139 F.R.D. 542, 54344 (D.D.C. 1992) (denying motion for leave
to amend where amendment “would radically alter the scope and nature
of the case and bears no more than a tangential relationship to the
original action”).
For these reasons, plaintiffs motion will be denied, although he
remains free to assert the first and third claims in a new action against
the appropriate defendants.
A-50
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OSCAR THOMAS,
Plaintiff
Civil Action No. 02-1743
(AK)
v.
R. JAMES NICHOLSON,
et al.
ee ee ee ee ee ee ee a
Defendants.
MEMORANDUM IN OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS JOHN DOES 1, 2, AND 3 AS
DEFENDANTS IN THIS ACTION AND RENEWED
MOTION FOR SANCTION
Come Now the Plaintiff with Opposition to
Defendant R. James Nicholson, et a/, [111] Motion to
Dismiss the three “John Doe” defendants listed in the
caption of Plaintiff's First Amended Complaint from this
action, pursuant to Federal Rules of Civil Procedure 4(m)
and 12(b)(4), due to defective service of process.
Defendants’ contend that [Plaintiffs First
Amended Complaint lists three “John Doe(s)” as
defendants, but does not provide the names of those
individuals. See Dkt. Entry 51; because, “Plaintiff has
submitted no evidence that those “John Doe(s)” have been
served with a copy of the summons or complaint.
Accordingly, they say, the Court should dismiss
A-5]
Plaintiff's claims against those defendants, leaving only
the Secretary of the Department of Veterans Affairs and
the United States as Defendants in this action.”
They allege, “to bring a claim against a federal
officer or employee, a plaintiff must serve that individual
with a copy of the complaint and summons. See Fed. R.
Civ. P. 4(i)(1)(B). That cannot occur unless the defendant
has been named. See, e.g., Brown v. Wachovia Bank, No.
06-0153, 2007 WL 1378491, at *5 n.7 (D.D.C. May 10,
2007) (dismissing “John Doe” defendants “because they
cannot effectively be served in order to confer jurisdiction
over them in this Court”); WK. v. Tenet, 99 F. Supp. 2d
12, 18 (D.D.C. 2000). Service must occur within 120 days
after the complaint is filed, unless plaintiff shows “good
cause” and the Court extends the time for service. See
Fed. R. Civ. P. 4(m), and that Plaintiff has not complied
with Rule 4(m), and that “The record shows no evidence
that any individual employees have been served. That is
unsurprising, given that Plaintiff has not amended his
complaint to specifically name the “John Doe” defendants.
See Brown, 2007 WL 1378491, at *5 n.7 (noting that
effective service cannot be made upon John Doe
defendants). Defendants’ contends that “The time for
service has long since expired. See Fed. R. Civ. P. 4(m)
(requiring that defendants be served within 120 days after
the filing of the complaint). They say that, “Although
courts occasionally extend that service period for a
plaintiff that cannot identify the John Doe defendants
absent discovery”, but, that “the discovery period in this
action ended several months ago. See M_K., 99 F. Supp.
2d at 17-19.
Accordingly, there is no reason to extend the time for
service to permit Plaintiff to serve individual federal
employees at this late stage, and the John Doe defendants
should be dismissed from this action. See Fed. R. Civ. P.
4(m); Brown, M_K., 99 F. Supp. 2d at 18.”
A-52
The conclude by “respectfully requesting that the
Court GRANT them motions to dismiss John Does 1, 2,
and 3 as Defendants in this action.
Plaintiff opposes Defendants’ Motion to Dismiss, and
for the following reasons stated in the attached supporting
Memorandum of Points and Authorities in opposition
below, the Court should deny Defendants’ Motion to
Dismiss.
Respectfully Submitted,
/s/
May 29, 2007 Oscar L. Thomas
Plaintiff, Pro Se
3
CMR 454, Box 1746
APO AE 09250
F-mail: thomas.o]l@an-netz.de
Tel of Fax: 011-49-981-12912
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MEMORANDUM IN OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS JOHN DOES 1, 2,
AND 3 AS DEFENDANTS IN THIS ACTION AND
RENEWED MOTION FOR SANCRION
3 INTRODUCTION
Plaintiff Opposes Defendants’ Motion to Dismiss
and Requests even stiffer Sanctions are levied.
On August 30, 2002, Plaintiff file and Original
Complaint in this United States District Court [Docket #
1] On January 27, 2003, United States, through its Justice
Department Attorney, purporting to represent some of
the named _ federalemployeedefendants’, served its
Answer, purporting to be answering on behalf of a
number of them, however the United States Attorney
General, nor his designee, never moved to issue
certifications - certifying that each federal employee
defendant named in the lawsuit was acting within the
scope of their employment at the time of the incident
giving rise to the incident causing injury, and never
obtained court-ordered substitutions, substituting the
United States as the “Defendant” in “each” of their places.
Thus, [The United States is not a proper defendant in this
case under the FTCA framework]; [See 28 U.S.C. §
2679(1) and (2). See OSBORN v. HALEY (No. 05-593) 422
F. 3d 359, affirmed, 127 S. Ct. 881, 901 (Jan 22, 2007)],
and since the scope of employment certifications defines
this Court’s subject-matter jurisdiction, this Court never
had jurisdiction to adjudication Plaintiff's claims under
the F-T'CA framework; making all of the time, work effort,
filings, fees and costs generated since the United States’
filing of its answer completely unnecessary,” now -making
sanctions more appropriate than ever.
5
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Equally unnecessary, on March 28, 2003, the United
States, who was not a proper defendant, purporting to
represent itself and each the named employee-defendants,
moved to dismiss, or in the alternative, for summary
judgment, on the erroneous grounds of a lack of subject-
matter jurisdictions, when in fact, the district court was
required to retain supplemental jurisdiction under 28
U.S.C. § 1867 and adjudicate Plaintiff's claims under
District of Columbia (statelaw); again, making all of the
time, work effort, filings, fees and costs that has been
generated since the United States’ filing of its answer
completely unnecessary,” now -making — sanctions
appropriate.
On May 2, 2008, plaintiffs filed and served opposition
memorandum and exhibits, [Court Docket [29] and [80],
wherein, Plaintiff sought cross motions for summary
judgment.
Although, Plaintiff's opposition and cross motions for
partial summary judgment raised the issues of [lack of
certifications and substitutions], they were disregarded,
dismissed and/or denied as moot.
On a “de novo” review of Plaintiff’s case by the United
States District Court for the District of Columbia Circuit,
this decision was affirm in part, reversed in part, and
remanded. The DC Circuit did not address the
certification/substitution issue, but ordered that Plaintiff
could ADD another tort claim based on the VA’s failure to
inform, warn, or treat.
On January 5, 2006, Plaintiff filed Motion to File
Amended Complaint against all defendants [51]. On
03/01/2006, this Court approved Motion to File Amended
Complaint.
Defendants’ attempt to disregard that Plaintiff named:
1. In the Original Complainant:
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Anthony J, Principi, now R. James Nicholson, et al., G.
' J. White, M. Corbin; Douglas A. Wallin; A. Butler;. J.
Jensen; C. Faye Norred; Sandra Mize; Dr. G. Thomas 6
Yungman; Lona (Shannon) Shipley; Lucille Dunlap; V.L.
Knott; L. Harvey; Iris Hirst; A. Vangordon; Thomas
Wayburn, and A. R. Kelly.
= In the First Amended Complaint:
James D. Nicholson, et al, [which also includes
defendants in 1 above}; Nancy J. Keesee; Rowland A.
Christian; Director, DWA; Ms. Payne; Neil S. Richman;
Diane Fuller; Elizabeth Biniakewitz; Karen A. Curd;
Sonya A. Harris; Samuel A. Herring; Nancy J. Keesee;
A.R. Kelly; Mary Koller; Lawrence E. Madlock; Ajit Pillai;
Jeffrey L. Todd; James B. Wood; Paul. G. Thomson, John
Doe I, IJ, and UI, and; The United States of America.
On 04/05/2006, [59], the United States, still purporting
to be a proper defendant and representing the named
employee-defendants’, filed its Answer, but, again, the
United States Attorney General, nor his designee, never
issued certifications - certifying that each federal
employee-defendant named in the lawsuit was acting
within the scope of his or her office or employment at. the
time of the incident giving rise to the incident-causing
injury, and never obtained court-ordered substitutions,
substituting the United States as “Defendant” in “each” of
their places’ [See 28 U.S.C. § 2679(1) and (2). See
OSBORN v. HALEY (No. 05-593) 422 F. 3d 359, affirmed,
1278. Ct. 881, 901 (Jan 22, 2007). Thus, the United States
is not a proper defendant and this Court lacks subject-
matter jurisdiction over Plaintiff's FTCA claims under the
FTCA framework and should adjudicate them under state
law. 28 U.S.C. § 1367. Issuance of scope of employment
certifications is and was a condition precedent to the
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continued prosecution of this suit” under the FTCA
framework).
As said certifications were not issued in this case, the
Court must find that it does not have subject matter
jurisdiction under the FTCA framework, and must
adjudicate Plaintiff's claims in accordance with state law;
and Plaintiff demands, if this case goes to trial, a jury.
Absent certification, § 2679(d)(3) directs that the case
must be remanded to the state court in which the action
commenced; which in effect means, the district court
lacked jurisdiction, but since this case originated in
federal district court, absent the certification, the case
remains and is to be adjudicated under state law. 28
U.S.C. 1367. A forum to adjudicate the case has already
been established. 7
Nonetheless, subsequently, on September 3, 2006,
after pleadings were closed, Plaintiff renewed the Cross-
Motion (Court Docket # [69], [70], [71] and [72]. Neither
the United State nor its counsel, purporting to represent
itself or any of the named employee-defendants’, moves to
file a response to Plaintiff's motion, or to seek any
extension of time to file the response. Defendants’
“responded”, answering the First Amended Complaint
raising all of its defenses without raising the defense of
insufficiency of service or process.
On September 18, 2006, by Minute order, this Court
struck Docket [71] and [72], but not the motion itself [69].
[See Court’s Minute Order, Court Docket # [73].
Currently pending before the Court is Plaintiff's initial
motion for leave to file (76[, [Docket # [72] that had been
Stricken from the record, was denied by the Court’s
Minute Order [81], and _ Plaintiffs motion for
reconsideration of the Court’s denial of the motion and
Plaintiffs two subsequent motions for further
reconsideration of the denial of the initial motion, (Court
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Docket # [76], [82} and [92]}, and Defendants’ subsequent
response to them [110].
Because of the initial problems in filing [Court Docket
# [69] and its Attachments via ECF, and knowing that the
Attachments were not completely filed via the ECF, which
then were also filed by Generic Mail Box. When the Court
struck [Docket # 71 and 72, this created the confusion as
to whether [Docket # 69] had been completely filed with
all of its attachments. This being unclear, Plaintiff moved
by motion [76] for clarification and Motion for Leave to re
file the stricken documents, the motion was denied [81].
Plaintiff then filed [82] - a Second Motion for Further
Reconsideration of the Magistrate Judge’s Order, the
motion was denied by Minute Order date 12/05/2006. 8
On 12/14/2006, in response to the Magistrate Judge’s
Order 12/05/2006 Minute Order of denial, Plaintiff filed
[92] seeking, among other relief, Motion for
Reconsideration of [76] and [82] and Further
Reconsideration, Motion for Leave to File an Amended
Complaint, and in the Alternative, for the Court to Grant
a Stay of all Proceedings. That motion was never timely
responded to by the Defendants and thus, and never acted
on by the Court and is still pending.
Defendants’ finally responded to the motion [92], way
out of time and after a length retroactive Court extension
on May 23, 2007, [Docket # 110].
Defendants JOHN DOE 1, 2 and 3 are individuals
whose identity at the relevant time was not then currently
known by the Plaintiffs. Upon information and belief, they
are employees of either the Department of Veterans
Affairs, VA Medical-Memphis, TN, and/or acted as agents
of either defendant Secretary, DVA or defendant United
States or both of them. They are sued in their individual
and official capacities. Plaintiff has timely and properly
served copies of the Original and Amended Complaints
and Summons on them by timely serving R. James
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Nicholson in his individual and official capacity, and upon
the United States. Plaintiff had named and served this
way out of an abundance of caution, because, the
Appellate Court had ruled when this case was on appeal -
that Plaintiff, in essence, could not sue a federal employee
in this case under the FTCA, Bivens, or the FOLA/Privacy
Act, because, that Court, as Plaintiff, had been
disregarded on the certifications and substitutions issues
- that is and was required to define this Court’s subject-
matter jurisdiction, that absent the certifications and
substitutions, this Court never had.
9
Therefore, except for the correct identity of
Defendants’ John Doe 1, 2 and 3, the United States had
actual, definitive, and constructive knowledge - and notice
- of the ensuing litigation and its content. The relevant
information needed to positive identify John Doe 1, 2, and
3 never reached Plaintiff because Defendant, when asked
for this information, balked and refused, and sought and
received a Protective Order [89] contending that, in effect,
“these individuals were not party’s to the lawsuit.”
Defendants’ are calling for dismissal of John 1, 2 and 3
from the First Amended Complaint but have no justifiable
legal grounds, because for one, they never filed any timely
opposition to Plaintiff's Motion for Leave to Amend until
way out of time, causing unnecessary delay, obstruction,
and prejudice in Plaintiff's moving to Amend - their delay
in responding surely cause unnecessary administration
and delay of the Court’s own decision, which is until now,
not yet rendered. Defendants’ concedes they never moved
for an extension of the deadline for filing a response to
Plaintiff [Docket # 92] Motion for Leave by having
requested unjustifiable extension, out of time to response
since December 14, 2006, and only recently responded on
May 23, 2007. See (Docket #’s 103, 98, 107 and 110].
A-S9
So, because, at the time Plaintiff filed the First
Amended Complaint, Plaintiff did not know the names or
identities of the John Doe employeedefendants, except
that they were likely federal employees of the DVA,
Plaintiff eventually needed to obtain this information from
Defendants’ DVA and the United States through
discovery, who Plaintiff had already
properly named and served without names.
However, Defendants’ delayed and balked on
discovery, and once additional discovery disputes arose
and the Court issued Defendants’ a Protective Order, it
became necessary and clear for Plaintiff's to seek
10 a further extension of time for leave to file a Second
Amended Complaint, [92] to try to obtain John Doe 1, 2
and 3’s correct identity information. Also, because of the
Defendants’ own direct (dilatoriness and ‘game playing’),
e.g., (delaying actions and omissions), preventing and
delaying Plaintiff from being able to obtain the needed
and necessary information to seek leave of the Court and
to file a Second Amended Complaint, Defendants’ cannot
now be permitted to treat a scheduling order as a
“frivolous piece of paper idly entered, which can be
cavalierly disregarded without peril.”
So, “due to circumstances not within [Plaintiffs]
control . . . the Motion for Leave to file an Amended
Complaint was unable to be filed before the original
scheduling order deadline - or by the court-ordered
extension deadline, and therefore, on 11/21/2006, [Docket
# 90], scheduling order sets the deadlines for subsequent
proceedings in the litigation, including amending the
pleadings. The Scheduling Order was not entered until
September 18, 2006.
The Court’s Scheduling Order issued on September
18, 2006 stated: Disclosures in accordance with 26(a)(1) of
the Federal Rules of Civil Procedure shall be made by not
later than 10/18/2006; Discovery due by 1/18/2007;
A-60
pleadings may be amended only with leave of the court;
any motion for leave to amend shall be filed by no later
than 11/22/2006; Dipositive Motions due 2/22/2007. The
Scheduling Order gave no deadlines for filing responsive
motion and replies. 11
Therefore, for the purpose of preserving Plaintiff's
interest in this lawsuit, Plaintiff has now moves again on
February 22, 2007 and filed a Second “dispositive”
Renewed Cross-Motion for Partial Summary Judgment on
the issue of liability with a Second Supplemental
Memorandum in Support thereof [96], and also
subsequently filed and have pending, Plaintiff's Motion for
Judgment on the Pleadings, [94]', and Plaintiff's Motion
for Sanction [95]. Plus, Defendants’ Motion to Dismiss
comes too late, as the Scheduling Order deadline for filing
[any other dipositivé motion] has expired, e.g., (for filing,
without leave of the Court - ANY OTHER DISPOSITIVE
MOTION - other than “Defendants’ Cross- Motion for
Summary Judgment, approved by the - still further
05/23/2007 extension of time - wherein - they are given
until June 12, 2007 to file their “Cross-motion for
Summary Judgment” - See Court Minute Order of
05/23/2007.
Thus, Defendants’ Motion to Dismiss is_ not
authorized, and is null and void. (The court of appeals
reversed on the razor-sharp ground that the district court
1 Federal Rule of Civil Procedure 12(c) provides that either party
can file a motion for judgment on the pleadings after the pleadings
are closed. Such motions are subject to the same standard as those
that are filed pursuant to Rule 12(b). See Hobinson v. D.C, 403 ¥
Supp. 2d 39, 47 (D.D.C. 2005). A plaintiff seeking judgment on the
pleadings is essentially saying that, as a matter of law, and without
looking beyond the pleadings, he or she is entitled to judgment on a
particular claim. See id. (citing EEOC vy. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)).
12
A-61
abused its discretion in accepting (and ruling upon) a
dispositive motion after the scheduling order deadline
expired). (Like the plaintiff, the employer coincidentally
waited 16 months past the deadline to file its third
dispositive motion. The district court was required (per
Fed. R. Civ. P. 6(b)) to find "excusable neglect” to allow
the late filing, but the defendant apparently never
bothered to offer a mea culpa (or, indeed, even to move for
leave to file a belated motion).
Service Under F.R.C.P., Rule 4(m)
Rule 4(m) of the Federal Rules of Civil Procedure
places a time limit on service of process. It states that:
“If service of the summons and complaint is not
made upon a defendant within 120 days after the
filing of the complaint, the court, upon motion or
on its own initiative after notice to the plaintiff,
shall dismiss the action without prejudice as to
that defendant or direct that service be effected
within a specified time; provided that if the
plaintiff shows good cause for the failure, the
court shall extend the time for service for an
appropriate period.
FED. R. CIV. P. 4(m).”
Because Plaintiff has shown herein that good cause
exist why service was unable to be effected - upon
Defendants in their correct name rather than in their
John Doe 1, 2, and 3 in their correct name within 120
days, [Plaintiff did service in their official capacity
through and by properly serving the United States], the
Court should, upon considering the aforementioned
filings, facts and circumstances, the entirety of Plaintiff's
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Complaint, the history of the case, and the relevant
statutes and case law, the Court should, for all of the
foregoing reasons, (1) GRANT Plaintiff's Motions for
Reconsideration of the Court’s December 5, 2006, and
October 20, 2006 Minute Orders and the Court’s
September 18, 2006 Scheduling Order, and the relief
requested therein. And, as already requested in Plaintiff's
Reply to Defendants’ Opposition to Plaintiff Motion of
December 14, 2006, that the Court should (2) STAY any
Order or ruling on Plaintiff's Request for Leave to File
another Amended complaint, and (3) STAY the requested
period of discovery, until after ruling and notice on the
Plaintiff's Renewed and Second Renewed Cross-Motion(s)
for Partial Summary Judgment; Plaintiff's Motions for
Judgment on the Pleadings, and Plaintiff’s Motion 13
for Sanctions [Docket #’s 94, 95 and 96]; and Defendants’
Response thereto; and Defendants’ Cross-Motion for
Summary Judgment and Plaintiff's Response
thereto.
The question, then, is whether good cause exists to
extend the usual 120-day deadline for service under Rule
4(m) of the Federal Rules of Civil Procedure. The Court
has broad discretion under Rule 4(m) to extend the time
for service. See FED. R. CIV. P. 4 advisory committee’s
note, 1993 Amendments, subdivision (m) (Rule 4(m)
“authorizes thecourt to relieve a _ plaintiff of the
consequences of an application of this subdivision even if
there is no good cause shown.”).
In light of the United States’, (who is not a proper
Defendant in this case under the FTCA framework],
Defendants’ initial motion for extension to time to file an
answer or otherwise respond [56], which once granted
resulted in the first responsive pleading being filed within
the 120 days for service had elapsed, and the two motions
for extension of time to respond to discovery and for
Protective Order [89] and [90], and the three motions for
A-63
additional extension; (1) Motion for Leave to File Motion
for Extension of Time, (2) the Attached Motion for
Extension of Time, and (3) the subsequent Motion for
Extension of Time to File Cross-Motion for Summary
Judgment and to file response to Plaintiff to Plaintiff's
Motions and Dispositive Motions, which again, once
granted, and they were, resulted in the several additional
responsive pleading being filed after the 120 days for
service had elapsed, wherein, in none of them did the
United States and the named Defendants’ named in the
Original and First Amended Complaint, and those
additional defendants’ “John Doe’s 1, 2, and 3’s”
(attempting to be named by Plaintiff], raise the defense of
defective service of process and therefore, have failed -
waive it. In order to 14 reach the merits of this case on
John Doe’s 1, 2, and 3, the Court should retroactively
extend Plaintiff's time for service on John Doe 1, 2, and 3
and deem the Defendants’ responsive pleadings -without
raising the defense of “defective service of process” - as a
waiver and as actual service; since the Plaintiff has now
actually named John Doe 1, 2, and 3 and others in a prior
motions and responsive pleadings - giving notice of the
correct naming of these John Doe’s to the already-named
Defendant’s, the United States and to the Court - saving
any prejudice whatsoever to the United States and the
Defendants’ - their having already filed responses to some
of these motions and pleadings; for example, [Docket #
100] responding to [Docket #’s 82 and 92]....service
sufficient under Rule 4(i) (1)(A)(B); under Rule 4(i)(2)(A)
and (B); and (3); and under Rule 4(m) of the Federal Rules
of Civil Procedure.
Under § (3) of this Rule: The court shall allow a
reasonable time to serve process under Rule 4(i) for the
purpose of curing the failure to serve:
(A) all persons required to be served in an action
governed by Rule 4(i)(2)(A), if the plaintiff has served
A-64
either the United States attorney or the Attorney General
of the United States, or
(B) the United States in an action governed by
Rule 4(i)(2)(B), if the plaintiff has served an officer or
employee of the United States sued in an individual
capacity.
JUDICIAL NOTICE
Plaintiff asks and requests the Court take Judicial
Notice of the following facts:
1) “that the United States and the named employee-
defendants are, which can be seen through their filing
actions, trying to create a situation, through which their
court filing, have Plaintiff file an Amended Complaint so
United States and the Defendants’ can have a third bite of
the Apple to file the scope of employment certifications it
previously lacked filing.”
2) “that there is written evidence that the named
employee-defendants’ and the United States have consulted
in writing with Plaintiff seeking Plaintiff's position and
concurrence on the United States moving to issue
certifications and substitutions of the United States in
place of the named employee-defendants.” 15
Il. CONCLUSION
Therefore, for all of the reasons stated herein and
elsewhere, considering all the relevant facts and
circumstance, to include the raised jurisdictional question
that points out the United States’ failures to issue scope of
employment certifications and to obtain United States’
substitutions in place of the named employee-defendant
and their legal posture in both the Original and First
A-65
Amended Complaint from and sent the outset, the
Defendants’ Motion to Dismiss should be denied, and the
Court should assess very serious, harsh and extreme
monetary and other sanctions against the United State
and all named employee-defendants’ in favor of Plaintiff
for its outrageous legal and judicial misconduct; and also
because, and since the scope of employment certifications
defines this Court’s subject-matter jurisdiction, this Court
never had jurisdiction to adjudication Plaintiff's claims
under the FTCA framework; made all of the time, work
effort, filings, fees and costs and grave generated since
the United States’ filing of its original answer [11] and
second answer [56] and [59] completely unnecessary,”
making sanctions now more appropriate than ever.
Respectfully Submitted,
May 29, 2007 Oscar L. Thomas
Plaintiff, Pro Se
CMR 454, Box 1746
APO AE 09250
Tel of Fax: 011-49-981-12912
I-mail: thomas.o]@an-netz.de
CERTIFICATE OF SERVICE
I hereby certify that on May 29, 2007, I caused a copy
of the foregoing Memorandum in Opposition to
Defendants’ Motion to Dismiss John Doe 1, 2, and 3 as 16
Defendants, and Motion for Renewed Sanctions to be filed
and served upon plaintiff via the Court’s Electronic Case
Kiling System or, should | receive notice that electronic
service upon Defendants’ was unsuccessful, by first class
mail, postage prepaid, addressed to:
A-66
ROBIN M. MERIWEATHER, D.C. Bar. # 490114
Assistant United States Attorney
555 Fourth Street N.W.
Washington, D.C. 20530
Phone: (202) 514-7198
F'ax: (202) 514-8780
Robin.Meriweather2@usdoj.gov
A-67
Statement of | Department of Page 18
the Case Veteran Affairs 09/29/99
Washington Regional
Office Disabled American
Veteran
Name of Veterans VA File Number Social Security
Number
O. Thomas NA NA
VA examination August 2, 1991 indicated history of
hearing voices in his head, which began when to stressed
from double duty as recruiting sergeant. The veteran
indicated he had treatments with Valium and other
psychiatric medications. No signs of Schizophrenia were
noted during the examination except auditory
hallucinations. No paranoid tendencies were noted.
Proverb interpretation was abstract. Cognitive functions
and judgment were good. Diagnosis of Schizophrenia was
shown most likely the correct diagnosis with slight social
and industrial disability.
No medical evidence was submitted to establish a
relationship between the complaints noted in service and
the diagnosis of Schizophrenia shown two years post
discharge. Diagnosis in service was shown as personality
disorder.
No clear and unmistakable error under the provisions
of 38 CFR 3.105(a) has been established in rating decision
dated August 2, 1991 in not establishing service
connection for chronic psychiatric abnormality to include
anxiety neurosis.
The rule regarding benefit of reasonable doubt does not
apply because the preponderance of evidence is
unfavorable.
PREPARED BY:
A. Butler DRO “OMAS 1772 SOC
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DEPARTMENT OF VETERANS AFFAIRS
OFFICE OF GENERAL COUNSEL
1722 I Street, NW, 3" floor
Washington, DC 200421
(202) 530-9420 ~ Telephone
(202) 530-9431 - Facsimile
Baltimore Office:
3900 Leach Raven Boulevard,
Bldg. 4
Baltimore, MD 212218
August 26, 2002
Mr. Oscar L. Thomas
CMR 454, Box 1746
APO AE 09250
Subject: Administrative Claim
Dear Mr. Thomas:
We have completed out investigation of your
administrative tort claim dated October 11, 2001, as
amended by your letter dated November 1, 2001, and your
administrative claim dated November 14, 2001, both of
which are for personal] injury as an alleged result of the
actions of employees of the U.S. Department of Veterans
Affairs (VA) in determining your entitlement to veterans
disability benefits. Please not that your letter to our office
of March 6, 2002, in which you applied for VA benefits
under 38 U.S.C. § 1151, has been forwarded to the
Washington Regional Office for their review and
A-68
appropriate action, as they have jurisdiction over such
applications.
Under the Federal Tort Act (FTCA), VA is
responsible for any negligent of wrongful acts or
omissions by VA employees acting within the scope of
their employment which has caused death, personal
injury, and/or property damage. After reviewing our
files and the material you submitted in light of the issues
you raised in your claims, we have found no such
negligent or wrongful acts or omissions. Moreover,
determinations regarding veteran’s benefits are not
reviewable under the FTCA. See Title 38, United States
Code, Section 511(a). Accordingly, your claims are hereby
respectfully denied.
If you are dissatisfied with this decision, you may
file a request for reconsideration of your claims with the
VA General Counsel by any of the following means: (1)
you may mail your request to the Department of Veterans
Affairs, General Counsel (021B), 810 Vermont Avenue,
N.W., Washington, DC 20420; (2) you may file you request
by data facsimile (fax) to (202) 273-6385; or (3) you may e-
mail your request to OGC.torts@mail.va.gov. To be timely
filed, VA must receive this request. prior to the expiration
of 6 months from the date of the mailing of this final
denial. Upon filing such a request for reconsideration, VA
shall have 6 months from the date of that filing in which to
make final disposition of the claims, and your option to file
suit in an appropriate U.S. District Court under 28 U.S.C.
2675(a) shall not accrue until 6 months after the filing of
such request for reconsideration (28 C.F.R. Section 14.9).
In the alternative, if you are dissatisfied with the
action taken on your claims, you may file suit in
accordance with the Federal Tort Claims Act, sections
1346(b) and 2671-2680, Title 28, United States Code,
which provides that a tort claim that is administratively
denied may be presented to a Federal district. court for
A-69
judicial consideration. Such a suit must be initiated
within 6 month after the date of the mailing of this notice
of final denial as as shown by the date of this letter
(section 2401(b), title 28, United States Code). If you do
initiat such a suit, you further advised that the proper
defendant is the United States, not VA.
Sincerely
-S
MICHAEL R. HOGAN
Assistant Regional Counsel
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Article II, U.S. Constitution
Section 1. The judicial power of the United States, shall
be vested in tne Supreme Court, and in such inferior
courts as the Congress may from time to time ordain and
establish. The judges, both of the supreme and inferior
courts, shall hold their offices during good behaviour, and
shall, at stated times, receive for their services, a
compensation, which shall not be diminished during their
continuance in office.
Section 2. The judicial power shall extend to all cases,
in law and equity, arising under this Constitution, the
laws of the United States, and treaties made, or which
shall be made, under their authority;-to all cases affecting
ambassadors, other public ministers and consuls;-to all
eases of admiralty and maritime jurisdiction;-to
controversies to which the United States shall be a party;-
to controversies between two or more states;- between a
state and citizens of another state;-between citizens of
different states;-between citizens of the same _ state
claiming lands under grants of different states, and
between a state, or the citizens thereof, and foreign states,
citizens or subjects.
In all cases affecting ambassadors, other public
ministers and consuls, and those in which a state shall be
party, the Supreme Court shall have original jurisdiction.
{n all the other cases before mentioned, the Supreme
Court shall have appellate jurisdiction, both as to law and
fact, with such exceptions, and under such regulations as
the Congress shall make.
The trial of all crimes, except in cases of impeachment,
shall be by jury; and such trial shall be held in the state
where the said crimes shall have been committed; but
when not committed within any state, the trial shall be at
A-71
such place or places as the Congress may by law have
directed.
Section 3. Treason against the United States, shall
consist only in levying war against them, or in adhering to
their enemies, giving them aid and comfort. No person
Shall be convicted of treason unless on the testimony of
two witnesses to the same overt act, or on confession in
open court.
The Congress shall have power to declare the
punishment of treason, but no attainder of treason shall
work corruption of blood, or forfeiture except during the
life of the person attainted.
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The Veterans’ Judicial Review Act (VJRA) of 1988
38 U.S.C, § 511(a), which states:
The Secretary shall decide all questions of law and fact
necessary to a decision by the Secretary under a law that
affects the provision of benefits by the Secretary to
veterans or the dependents or survivors of veterans. The
decisiow of the Secretary as to any such question shall be
final and conclusive and may not be reviewed by any other
official or by any such question shall be final and
conclusive and may not be reviewed by any other official
or by any court, whether by an action in the nature of
mandamus or otherwise. 38 U.S.C. § 511(a)
TITLE 28-JUDICIARY AND JUDICIAL
PROCEDURE PART IV-JURISDICTION AND VENUE
CHAPTER 85-DISTRICT COURTS; JURISDICTION
Sec. 1331. Federal question
28 U.S.C. § 1331, states:
The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States. (June 25, 1948, ch. 646, 62
Stat. 930; Pub. L. 85-554, Sec. 1, July 25, 1958, 72 Stat.
415; Pub. L. 94-574, See. 2, Oct. 21, 1976, 90 Stat. 2721;
Pub. L. 96486, Sec. 2(a), Dec. 1, 1980, 94 Stat. 2369.)
Historical and Revision Notes Based on title 28, U.S.C.,
1940 ed., Sec. 41(1) (Mar. 3, 1911, ch. 231, Sec. 24, par. 1,
36 Stat. 1091; May 14, 1934, ch. 283, Sec. 1, 48 Stat. 775;
Aug. 21, 1937, ch. 726, Sec. 1, 50 Stat. 738; Apr. 20, 1940,
ch. 117, 54 Stat. 143). Jurisdiction of federal questions
arising under other sections of this chapter is not
dependent upon the amount in controversy. (See
annotations under former section 41 of title 28, U.S.C.A.,
and 35 C.J.S., p. 833 et seq., Secs. 3043. See, also,
reviser's note under section 1332 of this title.) Words
** wherein the matter in controversy exceeds the sum or
value of $3,000, exclusive of interest and costs," were
added to conform to rulings of the Supreme Court. See
construction of provision relating to jurisdictional amount
requirement in cases involving a Federal question in
United States v. Sayward, 16 S.Ct. 371, 160 U.S. 493, 40
L.Ed. 508; Fishback v. Western Union [{Page 331]] Tel.
Co., 16 S.Ct. 506, 161 U.S. 96, 40 L.Ed. 630; and Halt v.
Indiana Manufacturing Co., 1900, 20 S.Ct. 272, 176 U.S.
68, 44 L.Ed. 374. Words ~ all civil actions” were
substituted for ‘all suits of a civil nature, at common law
or in equity” to conform with Rule 2 of the Federal Rules
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of Civil Procedure. Words ~° or treaties" were substituted
for ‘or treaties made, or which shall be made under their
authority,” for purposes of brevity. The remaining
provisions of section 41(1) of title 28, U.S.C., 1940 ed., are
incorporated in sections 1332, 1341, 1342, 1345, 1354, and
1359 of this title. Changes were made in arrangement and
phraseology. Amendments 1980-Pub. L. 96-486 struck out
‘*; amount in controversy; costs" in section catchline,
struck out minimum amount in controversy requirement
of $10,000 for original jurisdiction in federal question
eases which necessitated striking the exception to such
required minimum amount that authorized original
jurisdiction in actions brought. against the United States,
any agency thereof, or any officer or employee thereof in
an official capacity, struck out provision authorizing the
district court except where express provision therefore
was made in a federal statute to deny costs to a plaintiff
and in fact impose such costs upon such plaintiff where
plaintiff was adjudged to be entitled to recover less than
the required amount in controversy, computed without
regard to set-off or counterclaim and exclusive of interests
and costs, and struck out existing subsection designations.
1976-Subsec. (a). Pub. L. 94-574 struck out $10,000
jurisdictional amount where action is brought against the
United States, any agency thereof, or any officer or
employee thereof in his official capacity. 1958-Pub. L. 85-
554 included costs in section catchline, designated existing
provisions as subsec. (a), substituted **$10,000" for
~~ $3,000", and added subsec. (b). Effective Date of 1980
Amendment; Applicability Section 4 of Pub. L. 96-486
provided: **This Act [amending this section and section
2072 of Title 15, Commerce and Trade, and enacting
provisions set out as a note under section 1 of this title]
shall apply to any civil action pending on the date of
enactment of this Act [Dec. 1, 1980]." Effective Date of
1958 Amendment Section 3 of Pub. L. 85-554 provided
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that: -° This Act [amending this section and sections 1332
and 1345 of this title] shall apply only in the case of
actions commenced after the date of the enactment of this
Act [July 25, 1958]."
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28 U.S.C. § 1346(b)(1), states:
Subject to the provisions of chapter 171 of this title, the
district courts, together with the United States District
Court for the District of the Canal Zone and the District
Court of the Virgin Islands, shall have exclusive
jurisdiction of civil actions on claims against the United
States, for money damages, accruing on and after January
1, 1945, for injury or loss of property, or personal injury
or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment, under
circumstances where the United States, if a private
person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.
28 U.S.C. §§ 2671-2680
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TITLE 28-JUDICIARY AND JUDICIAL PROCEDURE
PART IV-JURISDICTION AND VENUE CHAPTER 87-
DISTRICT COURTS; VENUE Sec. 1402.
28 U.S.C. § 1402(b), states:
United States as defendant (a) Any civil action in a district
court against the United States under subsection (a) of
section 1346 of this title may be prosecuted only: (1)
Except as provided in paragraph (2), in the judicial
district where the plaintiff resides; (2) In the case of a civil
action by a corporation under paragraph (1) of subsection
(a) of section 1346, in the judicial district in which is
located the principal place of business or principal office
or agency of the corporation; or if it has no principal place
of business or principal office or agency in any judicial
district (A) in the judicial district in which is located the
office to which was made the return of the tax in respect
of which the claim is made, or (B) if no return was made,
in the judicial district in which lies the District of
Columbia. Notwithstanding the foregoing provisions of
this paragraph a district court, for the convenience of the
parties and witnesses, in the interest of justice, may
transfer any such action to any other district or division.
(b) Any civil action on a tort claim against the United
States under subsection (b) of section 1346 of this title
may be prosecuted only in the judicial district where the
plaintiff resides or wherein the act or omission
complained of occurred. (c) Any civil action against the
United States under subsection (e) of section 1346 of this
title may be prosecuted only in the judicial district where
the property is situated at the time of levy, or if no levy is
made, in the judicial district in which the event occurred
which gave rise to the cause of action. (d) Any civil action
under section 2409a to quiet title to an estate or interest
in real property in which an interest is claimed by the
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United States shall be brought in the district court of the
district where the property is located-or, if located. in
different districts, in any of such districts. (June 25, 1948,
ch. 646, 62 Stat. 937; Pub. L. 85-920, Sept. 2, 1958, 72
Stat. 1770; Pub. L. 89-719, title Ll, Sec. 202(b), Nov. 2,
1966, 80 Stat. 1149; Pub. L. 92-562, Sec. 2, Oct. 25, 1972,
86 Stat. 1176; Pub. L. 97-164, title I, Sec. 131, Apr. 2,
1982, 96 Stat. 39.) Historical and Revision Notes Based on
title 28, U.S.C., 1940 ed., Sees. 762, 931(a) (Mar. 3, 1887,
ch. 359, Sec. 5, 24 Stat. 506; Aug. 2, 1946, ch. 753, Sec.
410(a), 60 Stat. 843). Section consolidates the venue
provisions of section 762 of title 28, U.S.C., 1940 ed., with
the venue provisions of section 931(a) of such title, the
latter provisions relating to tort claims cases. The
jurisdictional provisions of such section 931l(a) are
incorporated in section 1346(b) of this title. For other
provisions thereof, see Distribution Table. Provisions of
section 762 of title 28, U.S.C., 1940 ed., relating to the
verification and contents of a petition filed against the
United States were omitted as unnecessary. Section 265
of title 28, U.S.C., 1940 ed., relative to the petition in
cases filed in the Court of Claims was also omitted from
the revised title. (See, also, Rule 11 of the Federa) Rules
of Civil Procedure.) Words civil action" were
substituted for “*suit" in view of Rule 2 of the Federal
Rules of Civil Procedure. Changes were made in
phraseology. Amendments 1982-Subsec. (a). Pub. L. 97-
164 inserted © ‘in a district court" after ~° civil action" in
introductory provisions preceding par. (1). The phrase
** civil action” also appeared in par. (2), but no change was
made to reflect the probable intent of Congress as
indicated on page 79 of House Report No. 97-312. 1972-
Subsec. (d). Pub. L. 92-562 added subsec. (d). 1966-
Subsee. (c). Pub. L. 89-719 added subsec. (c). 1958
Subsec. (a). Pub. L. 85-920 provided for venue and change
of venue in tax refund suits by corporation. Effective Date
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of 1982 Amendment Amendment by Pub. L. 97-164
effective Oct. 1, 1982, see section 402 of Pub. L. 97-164,
set out as a note under section 171 of this title. Effective
Date of 1966 Amendment Amendment by Pub. L. 89-719
applicable after Nov. 2, 1966, see section 203 of Pub. L.
89-719, set out as a note under section 1346 of this title.
Section Referred to in Other Sections This section is
referred to in title 26 section 7429.
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28 U.S.C. § 2401(b), states:
A tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues
or unless action is begun within six months after the date
of mailing, by certified or registered mail, of notice of final
denial of the claim by the agency to which it was
presented.
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28 U.S.C. ch. 171 - Tort Claims Procedure, (28 U.S.C. §§
2671-2680), states:
28 U.S.C. § 2671 - Definitions
As used in this chapter and sections 1346(b) and
2401(b) of this title, the term "Federal agency” includes
the executive departments, the judicial and legislative
branches, the military departments, independent
establishments of the United States, and corporations
primarily acting as instrumentalities or agencies of the
United States, but does not include any contractor with
the United States. "Employee of the government" includes
(1) officers or employees of any federal agency, members
of the military or naval forces of the United States,
members of the National Guard while engaged in training
or duty under section 115, 316, 502, 503, 504, or 505 of
title 32, and persons acting on behalf of a federal agency
in an official capacity, temporarily or permanently in the
service of the United States, whether with or without
compensation, and (2) any officer or employee of a Federal
public defender organization, except when such officer or
employee performs professional services in the course of
providing representation under section 3006A of title 18.
"Acting within the scope of his office or employment’, in
the case of a member of the military or naval forces of the
United States or a member of the National Guard as
defined in section 101(3) of title 32, means acting in line of
duty.
28 U.S.C. § 2672 - Administrative adjustment of claims
The head of each Federal agency or his designee, in
accordance with regulations prescribed by the Attorney
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General, may consider, ascertain, adjust, determine,
compromise, and settle any claim for: money damages
against the United States for injury or loss of property or
personal injury or death caused by the negligent or
wrongful act or omission of any employee of the agency
while acting within the scope of his office or employment,
under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred:
Provided, That any award, compromise, or settlement in
excess of $25,000 shall be effected only with the prior
written approval of the Attorney General or his designee.
Notwithstanding the proviso contained in the preceding
sentence, any award, compromise, or settlement may be
effected without the prior written approval of the
Attorney General or his or her designee, to the extent that
the Attorney General delegates to the head of the agency
the authority to make such award, compromise, or
settlement. Such delegations may not exceed the authority
delegated by the Attorney General to the United States
attorneys to settle claims for money damages against the
United States. Each Federal agency may use arbitration,
or other alternative means of dispute resolution under the
provisions of subchapter IV of chapter 5 of title 5, to settle
any tort claim against the United States, to the extent of
the agency's authority to award, compromise, or settle
such claim without the prior written approval of the
Attorney General or his or her designee.
Subject to the provisions of this title relating to civil
actions on tort claims against the United States, any such
award, compromise, settlement, or determination shall be
final and conclusive on all officers of the Government,
except when procured by means of fraud.
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Any award, compromise, or settlement in an amount of
$2,500 or less made pursuant to this section shall be paid
by the head of the Federal agency concerned out of
appropriations available to that agency. Payment of any
award, compromise, or settlement in an amount in excess
of $2,500 made pursuant to this section or made by the
Attorney General in any amount pursuant to section 2677
of this title shall be paid in a manner similar to judgments
and compromises in like causes and appropriations or
funds available for the payment of such judgments and
compromises are hereby made available for the payment
of awards, compromises, or settlements under this
chapter.
The acceptance by the claimant of any such award,
compromise, or settlement shall be final and conclusive on
the claimant, and shall constitute a complete release of
any claim against the United States and against the
employee of the government whose act or omission gave
rise to the claim, by reason of the same subject matter.
28 U.S.C. § 2673 - Reports to Congress
The head of each federal agency shall report annually to
Congress all claims paid by it under section 2672 of this
title, stating the name of each claimant, the amount
claimed, the amount awarded, and a brief description of
the claim.
28 U.S.C. § 2674 - Liability of United States
The United States shall be liable, respecting the
provisions of this title relating to tort claims, in the same
manner and to the same extent as a private individual
under like circumstances, but shall not be liable for
interest prior to judgment or for punitive damages. If,
however, in any case wherein death was caused, the law of
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the place where the act or omission complained of
occurred provides, or has been construed to provide, for
damages only punitive in nature, the United States shall
be liable for actual or compensatory damages, measured
by the pecuniary injuries resulting from such death to the
persons respectively, for whose benefit the action was
brought, in lieu thereof.
With respect to any claim under this chapter, the
United States shall be entitled to assert any defense based
upon judicial or legislative immunity which otherwise
would have been available to the employee of the United
States whose act or omission gave
rise to the claim, as well as any other defenses to which
the United States is entitled.
With respect to any claim to which this section applies,
the Tennessee Valley Authority shall be entitled to assert
any defense which otherwise would have been available to
the employee based upon judicial or legislative immunity,
which otherwise would have been available to the
employee of the Tennessee Valley Authority whose act or
omission gave rise to the claim as well as any other
defenses to which the Tennessee Valley Authority is
entitled under this chapter.
28 U.S.C. § 2675 - Disposition by federal agency as
prerequisite; evidence
(a) An action shall not be instituted upon a claim against
the United States for money damages for injury or loss of
property or personal injury or death caused by the
negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office
or employment, unless the claimant shall have first
presented the claim to the appropriate Federal agency
and his claim shall have been finally denied by the agency
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in writing and sent by certified or registered mail. The
failure of an agency to make final! disposition of a claim
within six months after it is filed shall, at the option of the
claimant any time thereafter, be deemed a final denial of
the claim for purposes of this section. The provisions of
this subsection shall not apply to
such claims as may be asserted under the Federal Rules of
Civil Procedure by third party complaint, cross-claim, or
counterclaim.
(b) 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 allegation and proof of
interveningfacts, relating to the amount of the claim.
(c) Disposition of any claim by the Attorney General or
other head of a federal agency shall not be competent
evidence of liability or amount of damages.
28 U.S.C. § 2676 - Judgment as bar
The judgment in an action under section 1346(b) of this
title shall constitute a complete bar to any action by the
claimant, by reason of the same subject matter, against
the employee of the government whose act or omission
gave rise to the claim.
28 U.S.C. § 2677 - Compromise
The Attorney General or his designee may arbitrate,
compromise, or settle any claim cognizable under section
1346(b) of this title, after the commencement of an action
thereon.
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28 U.S.C. § 2678 - Attorney fees; penalty
No attorney shall charge, demand, receive, or collect for
services rendered, fees in excess of 25 per centum of any
judgment rendered pursuant to section 1346(b) of this
title or any settlement made pursuant to section 2677 of
this title, or in excess of 20 per centum of any award,
compromise, or settlement made pursuant to section 2672
of this title.
Any attorney who charges, demands, receives, or
collects for services rendered in connection with such
claim any amount in excess of that allowed under this
section, if recovery be had, shall be fined not more than
$2,000 or imprisoned not more than one year, or both.
28 U.S.C. § 2679 - Exclusiveness of remedy
(a) The authority of any federal agency to sue and be
sued in its own name shall not be construed to authorize
suits against such federal agency on claims which are
cognizable under section 1346(b) of this title, and the
remedies provided by this title in such cases shall be
exclusive.
(b)(1) The remedy against the United States provided by
sections 1346(b) and 2672 of this title for injury or loss of
property, or personal injury or death arising or resulting
from the negligent or wrongful act or omission of any
employee of the Government while acting within the scope
of his office or employment is exclusive of any other civil
action or proceeding for money damages by reason of the
same subject matter against the employee whose act or
omission gave rise to the claim or against the estate of
such employee. Any other civil action or proceeding for
money damages arising out of or relating to the same
subject matter against the employee or the employee's
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estate is precluded without regard to when the act or
omission occurred.
(2) Paragraph (1) does not extend or apply to a civil
action against an employee of the Government-
(A) which is brought for a violation of the Constitution
of the United States, or
(B) which is brought for a violation of a statute of the
United States under which such action against an
individual is otherwise authorized.
(c) The Attorney General shall defend any civil action or
proceeding brought in any court against any employee of
the Government or his estate for any such damage or
injury. The employee against whom such civil action or
proceeding is brought shall deliver within such time after
date of service or knowledge of service as determined by
the Attorney General, all process served upon him or an
attested true copy thereof to his immediate superior or to
whomever was designated by the head of his department
to receive such papers and such person shall promptly
furnish copies of the pleadings and process therein to the
United States attorney for the district embracing the
place wherein the proceeding is brought, to the Attorney
General, and to the head of his employing Federal agency.
(d)(1) Upon certification by the Attorney General that
the defendant employee was acting within the scope of his
office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
commenced upon such claim in a United States district
court shall be deemed an action against the United States
under the provisions of this title and all references
thereto, and the United States shall be substituted as the
party defendant.
(2) Upon certification by the Attorney General that the
defendant employee was acting within the scope of his
office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
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commenced upon such claim in a State court shall be
removed without bond at any time before trial by the. .
Attorney General to the district court of the United States
for the district and division embracing the place in which
the action or proceeding is pending. Such action or
proceeding shall be deemed to be an action or proceeding
brought against the United States under the provisions of
this title and all references thereto, and the United States
shall be substituted as the party defendant. This
certification of the Attorney General shall conclusively
establish scope of office or
employment for purposes of removal.
(3) In the event that the Attorney General has refused
to certify scope of office or employment under this
section, the employee may at any time before trial petition
the court to find and certify that the employee was acting
within the scope of his office or employment. Upon such
certification by the court, such action or proceeding shall
be deemed to be an action or proceeding brought against
the United States under the provisions of this title and all
references thereto, and the United States shall be
substituted as the party defendant. A copy of the petition
shall be served upon the United States in accordance with
the provisions of Rule 4(d)(4) of the Federal Rules of Civil
Procedure. In the event the petition is filed in a civil
action or proceeding pending in a State court, the action
or proceeding may be removed without bond by the
Attorney General to the district court of the United States
for the district and division embracing the place in which
it is pending. If, in considering the petition, the district
court determines that the employee was not acting within
the scope of his office or employment, the action or
proceeding shall be remanded to the State court.
(4) Upon certification, any action or proceeding subject
to paragraph (1), (2), or (3) shall proceed in the same
manner as any action against the United States filed
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pursuant to section 1346(b) of this title and shall be
subject to the limitations and exceptions applicable to
those actions.
(5) Whenever an action or proceeding in which the
United States is substituted as the party defendant under
this subsection is dismissed for failure first to present a
claim pursuant to section 2675(a) of this title, such a claim
shall be deemed to be timely presented under section
2401(b) of this title if-
(A) the claim would have been timely had it been filed
on the date the underlying civil action was commenced,
and
(B) the claim is presented to the appropriate Federal
agency within 60 days after dismissal of the civil action.
(e) The Attorney General may compromise or settle any
claim asserted in such civil action or proceeding in the
manner provided in section 2677, and with the same
effect.
28 U.S.C. § 2680 - Exceptions
The provisions of this chapter and section 1346(b) of
this title shall not apply to-
(a) Any claim based upon an act or omission of an
employee of the Government, exercising due care, in the
execution of a statute or regulation, whether or not such
statute or regulation be valid, or based upon the exercise
or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not
the discretion involved be abused.
(b) Any claim arising out of the loss, miscarriage, or
negligent transmission of letters or postal matter.
(c) Any claim arising in respect of the assessment or
collection of any tax or customs duty, or the detention of
any goods, merchandise, or other property by any officer
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of customs or excise or any other law enforcement officer,
except that the provisions of this chapter and: section
1346(b) of this title apply to any claim based on injury or
loss of goods, merchandise, or other property, while in the
possession of any officer of customs
or excise or any other law enforcement officer, if-
(1) the property was seized for the purpose of forfeiture
under any provision of Federal law providing for the
forfeiture of property other than as a sentence imposed
upon conviction of a criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or
mitigated (if the property was subject to forfeiture); and
(4) the claimant was not convicted of a crime for which
the interest of the claimant in the property was subject to
forfeiture under a Federal criminal forfeiture law.
(d) Any claim for which a remedy is provided by
sections 741-752, 781-790 of Title 46, relating to claims or
suits in admiralty against the United States.
(e) Any claim arising out of an act or omission of any
employee of the Government in administering the
provisions of sections 1-31 of Title 50, Appendix.
(f) Any claim for damages caused by the imposition or
establishment of a quarantine by the United States.
(g) Repealed. Sept. 26, 1950, c. 1049, § 13(5), 64 Stat.
1043.}
(h) Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse
of process, libel, slander, misrepresentation, deceit, or
interference with contract rights: Provided, That, with
regard to acts or omissions of investigative or law
enforcement officers of the United States Government,
the provisions of this chapter and section 1346(b) of this
title shall apply to any claim arising, on or after the date of
the enactment of this proviso, out of assault, battery, false
imprisonment, false arrest, abuse of process, or malicious
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prosecution. For the purpose of this subsection,
"investigative or law enforcement officer” means any
officer of the United States who is empowered by law to
execute searches, to seize evidence, or to make arrests for
violations of Federal law.
(i) Any claim for damages caused by the fiscal
operations of the Treasury or by the regulation of the
monetary system.
(j) Any claim arising out of the combatant activities of
the military or naval forces, or the Coast Guard, during
time of war.
(k) Any claim arising in a foreign country.
(ij) Any claim arising from the activities of the
Tennessee Valley Authority.
(m) Any claim arising from the activities of the Panama
Canal Company.
(n) Any claim arising from the activities of a Federal
land bank, a Federal intermediate credit bank, or a bank
for cooperatives.
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28 U.S.C. § 2679(d) (1) of The Federal Employees’
Liability Reform and Tort Compensation Act of 1988 (the
" Westfall Act), 28 U.S.C. § 2679, states:
Upon certification by the Attorney General that the
defendant employee was acting within the scope of his
office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
commenced upon such claim in a United States district
court shall be deemed an action against the United States
under the provisions of this title and all references
thereto, and the United States shall be substituted as the
party defendant.
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28 U.S.C. § 2679(d)(2) of The Federal Employees'
Liability Reform and Tort Compensation Act of 1988 (the
" Westfall Act), 28 U.S.C. § 2679, states:
Upon certification by the Attorney General that the
defendant employee was acting within the scope of his
office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
commenced upon such claim in a State court shall be
removed without bond at any time before trial by the
Attorney General to the district court of the United States
for the district and division embracing the place in which
the action or proceeding is pending. Such action or
proceeding shall be .deemed to be an action or proceeding
brought against the United States under the provisions of
this title and all references thereto, and the United States
shall be substituted as the party defendant. This
certification of the Attorney General shall conclusively
establish scope of office or employment for purposes of
removal.
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28 C.F.R. § 15.3 Agency report, states:
(a) The Federal employee’s employing Federal agency
shall submit a report to the United States Attorney for the
district embracing the place where the civil action or
proceeding is brought fully addressing whether the
employee was acting within the scope of his office or
employment with the Federal Government at the time of
the incident out of which the suit arose, and a copy of the
report shall be sent by the employing Federal agency to
the responsible Branch Director of the Torts Branch, Civil
Division, Department
of Justice.
(b) The appropriate Federal agency shall submit a
report to the United States Attorney for the district
embracing the place where the civil action or proceeding
is brought fully addressing whether the person was acting
as a covered person at the time of the incident out of
which the suit arose, and a copy of the report shall be sent
by the appropriate Federal agency to the responsible
Branch Director of the Torts Branch, Civil Division,
Department of Justice.
(c) A report under this section shall be submitted at the
earliest possible date, or within such time as shall be fixed
upon request by the United States Attorney or the
responsible Branch Director of the Torts Branch.
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Federal Rules of Civil Procedure
Rule 4 (m), states:
Time Limit for Service.
If a defendant is not served within 120 days after the
complaint is filed, the court ~ on motion or on its own
after notice to the plaintiff — must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period. This
subdivision (m) does not apply to service in a foreign
country under Rule 4(f) or 4(j)(1).
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Rule 10. Form of Pleadings
(a) Caption; Names of Parties, states:
Every pleading must have a caption with the court's name,
a title, a file number, and a Rule 7(a) designation. The title
of the complaint must name all the parties; the title of
other pleadings, after naming the first party on each side,
may refer general! to other parties.
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Rule 12:
(b) How to Present Defenses.
Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But
a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be
granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made
before pleading if a responsive pleading is allowed. If a
pleading sets out a claim for relief that does not require a
responsive pleading, an opposing party may assert at trial
any defense to that claim. No defense or objection is
waived by joining it with one or more other defenses or
objections in a responsive pleading or in a motion.
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Rule 15. Amended and Supplemental Pleadings:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course.
A party may amend its pleading once as a matter of
course:
(A) before being served with a responsive pleading; or
(B) within 20 days after serving the pleading if a
responsive pleading is not allowed and the action is not
yet on the trial calendar.
(2) Other Amendments.
In all other cases, a party may amend its pleading only
with the opposing party's written consent or the court's
leave. The court should freely give leave when justice so
requires.
(3) Time to Respond.
Unless the court orders otherwise, any required
response to an amended pleading must be made within
the time remaining to respond to the original pleading or
within 10 days after service of the amended pleading,
whichever is later
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Rule 56. Summary Judgment
(a) By a Claiming Party.
A party claiming relief may move, with or without
supporting affidavits, for summary judgment on all or
part of the claim. The motion may be filed at any time
after:
(1) 20 days have passed from commencement of the
action; or
(2) the opposing party serves a motion for summary
judgment.
(b) By a Defending Party.
A party against whom relief is sought may move at any
time, with or without supporting affidavits, for summary
judgment on all or part of the claim.
(c) Serving the Motion; Proceedings.
The motion must. be served at least 10 days before the
day set for the hearing. An opposing party may serve
opposing affidavits before the hearing day. The judgment
sought should be rendered if the pleadings, the discovery
and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.
(d) Case Not Fully Adjudicated on the Motion.
(1) Establishing Facts.
If summary judgment is not rendered on the whole action,
the court should, to the extent practicable, determine
what material facts are not genuinely at issue. The court
should so determine by examining the pleadings and
evidence before it and by interrogating the attorneys. It
should then issue an order specifying what facts —
including items of damages or other relief — are not
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genuinely at issue. The facts so specified must be treated
as established in the action.
(2) Establishing Liability.
An interlocutory summary judgment may be rendered on
liability alone, even if there is a genuine issue on the
amount of damages.
(e) Affidavits; Further Testimony.
(1) In General.
A supporting or opposing affidavit must be made on
personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant is competent to
testify on the matters stated. If a paper or part of a paper
is referred to in an affidavit, a sworn or certified copy
must be attached to or served with the affidavit. The court
may permit an affidavit to be supplemented or opposed by
depositions, answers to interrogatories, or additional
affidavits.
(2) Opposing Party's Obligation to Respond.
When a motion for summary judgment is properly made
and supported, an opposing party may not rely merely on
allegations or denials in its own pleading; rather, its
response must — by affidavits or as otherwise provided in
this rule — set out specific facts showing a genuine issue
for trial. If the opposing party does not so respond,
summary judgment should, if appropriate, be entered
against that party.
(f) When Affidavits Are Unavailable.
If a party opposing the motion shows by affidavit that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained,
depositions to be taken, or other discovery to be
undertaken; or
(3) issue any other just order.
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(g) Affidavits Submitted in Bad Faith.
If satisfied that an affidavit under this rule is submitted in
bad faith or solely for delay, the court must order the
submitting party to pay the other party the reasonable
expenses, including attorney's fees, it incurred as a result.
An offending party or attorney may also be held in
contempt.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.