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Thomas v. Nicholson

June 17, 2008


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Oscar Thomas is a retired Army veteran who has 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. He brought this case pro se against R. James Nicholson, Secretary of VA,*fn1 raising malpractice and other tort claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., based on a medical examination conducted by a VA doctor in 1991 and his visits to the VA Medical Center in Memphis, Tennessee. On March 20, 2008, the Court granted Defendant's motion to dismiss or for summary judgment. See Mem. Op. and Order [Dkt. ## 155 & 157]. Mr. Thomas now seeks reconsideration. As explained below, the motion will be denied.


The Court's Memorandum Opinion summarized its ruling granting the VA's motion to dismiss or for summary judgment as follows:

The results here are compelled by federal and Tennessee state law. A claimant under the FTCA must file his claim within two years of its accrual. Although he received the [VA's Statement of the Case "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 failure-to-inform 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 [VA Medical Center] 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.

Mem. Op. [Dkt. #155] at 20-21.


"A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Fox v. Am. Airlines Inc., 389 F.3d 1291, 1296 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). A Rule 59(e) motion is not "simply an opportunity to reargue facts and theories upon which a court has already ruled." New York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995). Nor is it an avenue for a "losing party . . . to raise new issues that could have been raised previously." Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993).


Mr. Thomas's motion for reconsideration merely reargues facts and theories upon which the Court already ruled. In a few instances, he attempts to reframe an issue and thereby to raise a "new" issue that he could have raised previously. The Court could deny his motion for reconsideration on these grounds alone. Even so, the Court addresses the "new" issues Mr. Thomas raises.

A. Scope-of-Employment Certification

Mr. Thomas again argues that the United States is not a proper defendant because the Attorney General failed to file a scope-of-employment certificate. This claim is without merit. See Mem. Op. [Dkt. #155] at n.1 ("Because Mr. Nicholson was sued in his official capacity, the United States is the appropriate defendant and proceeds accordingly here.") Mr. Thomas misconstrues the law in this area. Under the Westfall Act, 28 U.S.C. § 2679(d), when a federal employee is sued in a common law tort action, the U.S. Attorney General (or the U.S. Attorney in the district where the claim is brought) may issue a certification that the employee was acting within the scope of his employment. Such a certification is necessary to convert a state law tort action against an individual federal employee into a FTCA action against the United States, "if the plaintiff has not brought suit pursuant to the FTCA." Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 31-32 (D.D.C. 2006). Mr. Thomas brought this suit under the FTCA against the Secretary of the Department of Veterans Affairs, in his official capacity. See First Am. Compl. [Dkt. #51] ¶ 4 ("Plaintiff also files this Amended Complaint to include, inter alia, additional claims under the FTCA"); Id. ¶ 9 ("Defendant is the Secretary, Department of Veterans Affairs . . . acting within the scope of their [sic] employment . . .").

Mr. Thomas asserts that in addition to the Secretary he also sued numerous federal employees and thus that a scope-of-employment certification should have been filed as to the additional defendants. While the original thirteen count complaint in this action did name various federal employees, that complaint was dismissed on May 28, 2003. Mr. Thomas appealed, and the D.C. Circuit affirmed the dismissal as to ten counts but reversed and remanded on three.*fn2 On remand, Mr. Thomas filed a First Amended Complaint on March 1, 2006. The First Amended Complaint dropped the VA employees as defendants and named only "R. James Nicholson, et al. Secretary, Department of Veterans Affairs Agency" and "John Doe I, II, and III." The Court dismissed the John Doe defendants on August 6, 2007. See Defs.' Mot. to Dismiss [Dkt. #111] and Order [Dkt. #133]. The Court found:

In order to bring a lawsuit against a federal employee, a plaintiff must serve each defendant named in a suit with a copy of the summons. See F.R.C.P. 4(i)(1)(b). If a John Doe defendant is not timely served, he should be dismissed as a defendant because the Court lacks jurisdiction over the defendant unless the Court, in its discretion, grants additional time for the service of process on such defendants. See Olaniyi v. ...

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