Supervisors (NAPS), Mutual of Omaha, two current employees and one former employee of the Office of Personnel Management (OPM), alleging common-law and constitutional torts. On June 21, 1984, this Court dismissed with prejudice under the applicable statute of limitations, all claims arising prior to May 16, 1980; all common-law claims against the officials of OPM because of those officials' immunity; and all of plaintiff's constitutional claims. The Court dismissed without prejudice, for resolution elsewhere, all of plaintiff's common-law claims against the non-federal defendants arising after May 16, 1980, as well as NAPS' counterclaims. On July 2, 1984, plaintiff filed a motion for reconsideration. The Court now denies the motion.
For the most part, plaintiff's motion simply raises issues previously considered and rejected by this Court in its Memorandum Opinion. With respect to the issue of the statute of limitations, plaintiff has attached to his motion for reconsideration another affidavit in support of his argument that the statute of limitations should be tolled under the doctrine of fraudulent concealment. Specifically, in paragraph 9 of that affidavit plaintiff differs with the Court's conclusion, slip op. at 7, that the letter by defendant George MacWhorter, dated January 23, 1980, should have alerted plaintiff to the alleged conspiracy.
Even accepting, for the moment, plaintiff's argument with respect to that particular letter, plaintiff does not address any of the other considerations articulated by the Court requiring dismissal under the statutes of limitations. The Court found that other than the barest of allegations, plaintiff did not show how the conspiracy was concealed from him, nor what specifically occurred in the 1981 Superior Court litigation that suddenly revealed and shed light on the alleged conspiracy. In a lawsuit where the essence of plaintiff's claim appears to be defendants' failure to reimburse plaintiff for expenses incurred, plaintiff, in exercising due diligence, should have been alerted to some impropriety in April 1980 when his requests for reimbursement were partially denied. "The test of due diligence measures the plaintiff's efforts to uncover his cause of action against what a reasonable person would have done in his situation given the same information." Richards v. Mileski, 213 U.S. App. D.C. 220, 662 F.2d 65, 71 (D.C. Cir. 1981). A reasonable person would have been alerted in April 1980 at the latest.
Equally meritless are plaintiff's arguments concerning the immunity of the defendants from suits alleging common-law torts. Plaintiff now attempts to circumvent the federal defendant's absolute immunity, contending that the common-law torts actually rise to the level of constitutional torts, from which federal defendants are only qualifiedly, not absolutely, immune. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Even accepting that rather strained argument, this Court ruled that there were no constitutional violations on the facts alleged by plaintiff. At 278-279. Thus, converting his common-law claims into meritless constitutional claims cannot help plaintiff or bolster his position.
Plaintiff seeks reconsideration of this Court's dismissal of his due process claim, arguing that he was not afforded the process that was his due. However, the Court finds that as a matter of law, the opportunities available to plaintiff, both before and after OPM's final decision to deny reimbursement, were sufficient process to satisfy the due process clause. See, e.g., Jordan v. City of Lake Oswego, 734 F.2d 1374 (9th Cir. 1984).
In short, the Court denies plaintiff's motion for reconsideration in its entirety.
NAPS, though it did not file a motion for reconsideration, nonetheless, in its opposition to plaintiff's motion, also seeks a number of modifications of this Court's Memorandum Opinion. First, NAPS, a citizen of the District of Columbia, argues that there may exist diversity jurisdiction on its common-law counterclaims, which the Court dismissed without prejudice for lack of federal jurisdiction, and that consequently the Court should conduct a hearing to determine plaintiff's citizenship. On July 20, 1984, plaintiff filed an affidavit declaring that he is a citizen of the District, with his motor vehicles registered in the District, and that he is a taxpayer and voter in the District. Given that affidavit, the Court finds that plaintiff is a citizen of the District of Columbia, and that diversity of citizenship is absent.
Second, NAPS argues that this Court erred in applying the three-year limitation of D.C. Code § 12-301(8) to plaintiff's claim of intentional infliction of emotional distress. Instead, NAPS contends, that under Hanoch Tel-Oren v. Libyan Arab Republic, 517 F. Supp. 542, 550-51 (D.D.C. 1981), aff'd on other grounds, 233 U.S. App. D.C. 384, 726 F.2d 774 (D.C. Cir. 1984), petition for cert. filed, 52 U.S.L.W. 3922 (U.S. June 14, 1984) (No. 83-2052), the one-year limitation of D.C. Code § 12-301(4) applies. In Hanoch, plaintiffs' lawsuit stemmed from a terrorist attack on a bus in Israel; plaintiffs alleged, in part, assault, battery, false imprisonment, and intentional infliction of emotional distress. The Court held that those claims were barred by the one-year limitation of D.C. Code 12-301(4), which by its terms applies to "assault, battery . . . [and] false imprisonment." The Court held that the one-year limitation applied even to the claim of intentional infliction of emotional distress -- even though that cause of action was not specifically listed in D.C. Code § 12-301(4) -- because that claim was dependent on "the same personal interests infringed by the intentional torts" that were subject to the one-year limitation. Tel-Oren, 517 F. Supp. at 550. Here, in contrast, the claim of emotional distress is intertwined with claims which fall within the three-year limitation. Thus, even the reasoning of the district court in Tel-Oren would result in the application of a three-year limitation to the emotional distress claim on the facts presented here.
Based on the foregoing, it is this 27th day of July, 1984,
That plaintiff's motion for reconsideration is denied.
That this Court's Memorandum Opinion of June 21, 1984, is re-affirmed in all respects.