Griener v. United States
ORDER AND REASONS denying 23 Motion for Reconsideration. Signed by Judge Martin L.C. Feldman on 4/5/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DR. THAYNE GRIENER
UNITED STATES OF AMERICA
ORDER AND REASONS
reconsideration of the Court’s Order and Reasons dismissing the
case pursuant to Federal Rules of Civil Procedure Rule 12(b)(1).
For the following reasons, the motion is DENIED.
The facts underlying this case are set out fully in the
Court’s previous Order and Reasons and for the sake of brevity are
not repeated here. Dr. Thayne Griener filed this lawsuit under the
Federal Tort Claims Act (FTCA) against the Government. He worked
at the Southeast Louisiana Veterans Health Care System in New
Orleans as a part-time employee. Following his termination in July
2012, Dr. Griener pursued numerous administrative remedies, all of
which were denied. He ultimately filed this civil lawsuit claiming
he had been subjected to a prohibited personnel practice, namely,
terminated in retaliation for complaining about VA practices. In
response, the Government contended that his FTCA claims were
preempted by the Civil Services Reform Act (CSRA) and moved the
reconsideration of that dismissal under Rule 59.
A district court has considerable discretion to grant or to
deny a motion for reconsideration.
See Edward H. Bohlin Co. v.
reconsideration of an earlier order is an extraordinary remedy,
which should be granted sparingly.
See Fields v. Pool Offshore,
Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998),
aff'd, 182 F.3d 353 (5th Cir. 1999); Bardwell v. George G. Sharp,
Inc., Nos. 93-3590, 93-3591, 1995 WL 517120, at *1 (E.D. La. Aug.
The Court must "strike the proper balance" between the
need for finality and "the need to render just decisions on the
basis of all the facts."
Edward H. Bohlin Co., 6 F.3d at 355.
Thus, the Fifth Circuit has held that "a 59(e) motion to reconsider
should not be granted unless: (1) the facts discovered are of such
a nature that they would probably change the outcome; (2) the facts
alleged are actually newly discovered and could not have been
discovered earlier by proper diligence; and (3) the facts are not
merely cumulative or impeaching."
Infusion Resources, Inc. v.
Minimed, Inc., 351 F.3d 688, 696-97 (5th Cir. 2003).
consistently denied relief under Rule 59(e) where the moving party
seeks only to reargue the same points without offering new evidence
or new legal support.
Sears v. Lee, 2010 WL 324385, at *1 (E.D.
La. Jan. 20, 2010).
At the root of the plaintiff’s argument for reconsideration
is an idea that there is a fundamental unfairness in his inability
to pursue an FTCA claim in this Court when the Merit System
Protection Board (MSPB) also dismissed an appeal of his termination
because of his part-time employee status. The issue, he argues, is
that the MSPB precluded him from pursuing his termination claims
because he was a part-time employee and this Court also precludes
his termination claims because his appointed position falls in a
category statutorily preempted from bringing FTCA claims. As such,
the plaintiff has hit a dead end of avenues upon which to sue the
In dismissing the plaintiff’s case, the Court relied on
Congress’ intent, and courts’ interpretations of that intent, when
enacting the CSRA. The Court now reiterates that “[t]he Fifth
Circuit has held that in view of the remedial system set forth in
the CSRA, the CSRA provides the exclusive remedy for claims against
federal employers for conduct constituting ‘prohibited personnel
practices,’ and ‘preempts any judicial remedy for such claims.”
Buckhanan v. Shinseki, No. 13-278, 2013 WL 5517903, *3 (S.D. Miss.
Oct. 3, 2013) (quoting Schwartz v. Int’l Federation of Prof’l &
Tech. Eng’rs, AFL-CIO, 306 F. App’x 168, 172 (5th Cir. 2009))
(emphasis added). “In fact, a federal employee’s personnel-related
complaints are preempted ‘even if no remedy [is] available . . .
under the CSRA.’” Mangano v. United States, 529 F.3d 1243, 1246
(9th Cir. 2008) (quoting Collins v. Bender, 195 F.3d 1076, 1079
(9th Cir. 1999)).
In this motion, the plaintiff does not allege newly discovered
facts or evidence or a change in law. Rather, he implies that the
Court overlooked the unfairness in its outcome when it held he
could not pursue his personnel-related complaints in this Court,
knowing that the MSPB also precluded him from pursuing his claims.
offering new evidence or new legal support demonstrating that
courts have interpreted the relevant statutes differently. See
Sears, 2010 WL 324385, at *1.
Accordingly, IT IS ORDERED: that Dr. Griener’s motion for
reconsideration is hereby DENIED.
New Orleans, Louisiana, April 5, 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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