NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-2604

___________

BLANCHE A. BROWN

 

v.

JENNA MERCADANTE, PSYD; IRA KEDSON, PSYD; 

BERNADETTE HAYBURN, PSYD; KRISTIN SUDOL, PSYD; 

EDWARD MOON, PH.D.; STEPHEN CAVICCHIA, PH.D.

(E.D. Pa. No. 2-15-cv-01593)

BLANCHE A. BROWN

 

v.

UNITED STATES OF AMERICA (COATESVILLE VA MEDICAL CENTER) 

(E.D. Pa. No. 2-15-cv-05178)

BLANCHE A. BROWN,

Appellant

 ____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action Nos.2-15-cv-01593 and 2-15-cv-05178)

District Judge: Honorable Petrese B. Tucker

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 20, 2017

Before: SHWARTZ, COWEN and FUENTES, Circuit Judges
2

(Opinion filed: April 24, 2017)

___________

OPINION*

___________

PER CURIAM

Blanche Brown appeals pro se from the District Court’s April 6, 2016 dismissal of 

her two consolidated civil actions. For the reasons that follow, we will affirm that 

dismissal in part, vacate it in part, and remand for further proceedings.

I.

Because we write primarily for the parties, who are familiar with the background 

of this case, we discuss that background only briefly. In April 2015, Brown filed a pro se 

complaint in the District Court against six health care providers who worked at 

Coatesville Veterans Affairs Medical Center (“CVAMC”) in Pennsylvania. We will refer 

to these defendants as the “Individual Defendants.” A few months later, Brown filed a 

second pro se complaint in the District Court, this time against the United States (“the 

Government”).1 The two complaints, which were docketed in separate actions, both 

concerned treatment that Brown received at CVAMC beginning in 2011. The complaint 

against the Government also concerned a 2013 disorderly conduct citation that was issued 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

1 Brown filed an amended version of her second complaint in October 2015; that version 

controls here. 
3

to her by a Department of Veterans Affairs (“VA”) police officer pursuant to 38 C.F.R. 

§ 1.218.2 

The District Court consolidated the two cases and the defendants filed motions to 

dismiss the claims against them.3 On April 6, 2016, the District Court granted those 

motions and closed the case. In doing so, the District Court explained that Brown could 

not proceed with her claims against the Individual Defendants because, under 38 U.S.C. 

§ 7316, a claim brought against the United States pursuant to the Federal Tort Claims Act 

(“FTCA”), 28 U.S.C. §§ 1346(b), 2671, 2680, was the exclusive remedy for the 

allegations concerning her treatment at CVAMC.4 The District Court then determined 

that Brown’s treatment-related FTCA claim was barred by the statute of limitations. As 

 

2 Section 1.218 concerns security and law enforcement at VA facilities. Subsection (b) 

sets forth a list of offenses and penalties, with disorderly conduct listed in (b)(11).

3 On appeal, Brown challenges the District Court’s consolidation of her two cases. The 

Appellees argue that she has waived this challenge by failing to raise it in the District 

Court, but that argument lacks merit because the record shows that she did raise this issue 

there. (See Dist. Ct. docket # 16 in Case No. 2:15-cv-01593 (opposing the defendants’ 

motion to consolidate).) That said, Brown’s challenge otherwise fails, for she has not 

established that the District Court erred in consolidating the two cases. See Fed. R. Civ. 

P. 42(a) (providing that a court may consolidate actions that “involve a common question 

of law or fact”); see also Lehman Bros. Holdings, Inc. v. Gateway Funding Diversified 

Mortg. Servs., L.P., 785 F.3d 96, 100 (3d Cir. 2015) (reviewing a district court’s ruling 

on a motion to consolidate for abuse of discretion).

4 Section 7316, which has been referred to as the “VA Immunity Statute,” see, e.g., 

Ingram v. Faruque, 728 F.3d 1239, 1240 (10th Cir. 2013), provides that an FTCA action 

alleging personal injury “arising from malpractice or negligence of a health care 

employee of the [VA] in furnishing health care or treatment while in the exercise of that 

employee’s duties . . . shall be exclusive of any other civil action or proceeding by reason 

of the same subject matter against [that employee].” 38 U.S.C. § 7316(a)(1) (emphasis 

added). Although a plaintiff generally cannot seek relief under the FTCA for harm 

caused by intentional torts, see 28 U.S.C. § 2680(h), that bar does not apply in this 

context pursuant to 38 U.S.C. § 7316(f). Accordingly, Brown was permitted to raise both 

negligence claims and intentional tort claims in her lawsuit against the Government. 
4

for the FTCA claims stemming from the disorderly conduct citation, the District Court 

concluded that those claims failed on the merits. Brown moved the District Court to 

reconsider its dismissal, but that motion was denied.

Brown now brings this appeal, challenging the District Court’s dismissal order.5

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we review 

de novo the District Court’s dismissal of Brown’s claims. See Estate of Lagano v. 

Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 853 (3d Cir. 2014). We may affirm 

aspects of the District Court’s decision on any basis supported by the record. See Murray 

v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

We begin our review with Brown’s claims against the Individual Defendants. As 

previously mentioned, the District Court concluded that these claims were barred by 38 

U.S.C. § 7316, and that Brown’s exclusive remedy was a claim against the Government 

under the FTCA. For substantially the reasons provided by the District Court, we agree 

with that conclusion.6 Accordingly, we will affirm the District Court’s dismissal of the 

claims against the Individual Defendants.

 

5 To the extent that Brown’s amended notice of appeal sought to include a challenge to 

the District Court’s order denying reconsideration, she has waived such a challenge by 

failing to develop it in her opening brief. See Laborers’ Int’l Union of N. Am., AFL-CIO 

v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless a 

party raises it in [her] opening brief, and for those purposes a passing reference to an 

issue will not suffice to bring that issue before this court.”) (internal quotation marks 

omitted); see also Emerson v. Thiel Coll., 296 F.3d 184, 190 n.5 (3d Cir. 2002) (per 

curiam) (applying waiver doctrine to pro se appeal).

 

6 For § 7316 to apply, the health care treatment in question must be provided “while in 
5

We now turn to the claims against the Government, and we begin with Brown’s 

allegations regarding the disorderly conduct citation. For substantially the reasons 

provided by the District Court, we agree with the District Court’s dismissal of Brown’s 

claim that the issuance of the disorderly conduct citation amounted to an abuse of 

process. We also see no reason to disturb the District Court’s dismissal of Brown’s claim 

that she was maliciously prosecuted for the alleged disorderly conduct offense.7 Under 

 

the exercise of [the health care] employee’s duties in or for the [VA].” 38 U.S.C. 

§ 7316(a)(1). When the Individual Defendants filed their motion to dismiss, they 

attached a certification from the Government averring that they had provided the 

treatment in question while acting within the scope of their duties. Such a certification is 

“prima facie evidence that the employee[s’] challenged conduct was within the scope of 

employment,” Schrob v. Catterson, 967 F.2d 929, 935 (3d Cir. 1992), and a plaintiff 

seeking to challenge that certification “has the burden of coming forward with specific 

facts rebutting it,” id. at 936. In this case, Brown challenged the Government’s 

certification, arguing that the Individual Defendants had acted outside the scope of their 

duties. Although the District Court declined to rule on that challenge — that court 

apparently believed that it did not need to do so, (see Dist. Ct. Mem. entered Apr. 6, 

2016, at 13) — we need not remand on this issue because it is apparent from our review 

of the record that Brown failed to allege sufficient facts to rebut the Government’s 

certification.

7

In arguing that this Court should affirm the District Court’s dismissal of Brown’s 

malicious prosecution claim, the Appellees do not rely on the District Court’s analysis of 

the merits of this claim. Instead, they argue that this claim is barred by the doctrine of 

sovereign immunity. We disagree. To be sure, the FTCA’s waiver of sovereign 

immunity generally does not extend to claims involving intentional torts. See 28 U.S.C. 

§ 2680(h). But there is an exception in § 2680(h), which the Appellees do not mention, 

that allows claims against the Government for malicious prosecution and certain other 

intentional torts when they stem from “acts or omissions of investigative or law 

enforcement officers of the United States Government.” Id. An “investigative or law 

enforcement officer” is defined as “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.” Id. Brown’s malicious prosecution claim stems from the acts or omissions of a VA 

police officer, who is empowered by statute to “make arrests on Department property for 

a violation of a Federal law.” 38 U.S.C. § 902(a)(2). Because that VA police officer 

qualifies as an “investigative or law enforcement officer,” see Celestine v. United States, 

841 F.2d 851, 852-53 (8th Cir. 1988) (per curiam), Brown’s malicious prosecution claim 
6

Pennsylvania law,8“[a] cause of action for malicious prosecution has three elements. 

The defendant must have instituted proceedings against the plaintiff 1) without probable 

cause, 2) with malice, and 3) the proceedings must have terminated in favor of the 

plaintiff.” Kelley v. Gen. Teamsters, Chauffeurs, and Helpers, Local Union 249, 544 

A.2d 940, 941 (Pa. 1988). We need not examine the first two factors of this test because 

Brown cannot satisfy the third factor. Although it appears that the United States 

Magistrate Judge who presided over Brown’s disorderly conduct case found her not 

guilty of that charge, the Magistrate Judge nevertheless (a) barred Brown from having 

any further contact with two CVAMC providers, and (b) ordered CVAMC personnel to 

escort her whenever she was at that facility. In light of these significant restrictions 

placed on Brown, we cannot conclude, for purposes of her malicious prosecution claim, 

that her criminal case was terminated in her favor. Cf. Gilles v. Davis, 427 F.3d 197, 211 

(3d Cir. 2005) (holding that the resolution of a criminal case through a pretrial diversion 

program was not sufficiently favorable to support a malicious prosecution claim). 

We next consider Brown’s treatment-related allegations against the Government. 

The District Court appeared to construe these allegations as raising a single claim: the 

providers at CVAMC failed to diagnose/treat her PTSD. However, it appears that 

Brown’s pro se amended complaint against the Government, which is far from a model of 

clarity, may have been trying to raise multiple treatment-related claims. Rather than 

 

falls within the exception in § 2680(h) and thus is not barred by the doctrine of sovereign

immunity.

8 The merits of an FTCA claim is determined by applying the substantive law of the state 

where the alleged tortious act took place. See DeJesus v. U.S. Dep’t of Veterans Affairs, 

479 F.3d 271, 279 (3d Cir. 2007).
7

trying to decipher that pleading on appeal, we believe the better course is to vacate the 

District Court’s dismissal of Brown’s treatment-related allegations against the 

Government and remand so that she can amend those allegations to more clearly identify 

the specific claims that she is trying to raise. Once that amendment is filed, the District 

Court may determine whether any of the treatment-related claims raised therein are 

timely. We do not weigh in on the timeliness question at this time; nor do we opine on 

whether Brown’s treatment-related allegations might be subject to dismissal for lack of 

exhaustion, see 28 U.S.C. § 2675(a) (requiring a plaintiff to administratively exhaust an 

FTCA claim); see also Shelton v. Bledsoe, 775 F.3d 554, 569 (3d Cir. 2015) (explaining 

that the FTCA’s exhaustion requirement “is jurisdictional and cannot be waived”), or for 

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

We have considered Brown’s remaining arguments and conclude that none 

warrants further relief here. Accordingly, we will affirm the District Court’s April 6, 

2016 order in part, vacate it in part, and remand with instructions to allow Brown to 

amend her treatment-related allegations against the Government. Although Brown 

appears to allege that the presiding District Judge has been biased against her, we see no 

evidence of bias, and we see no need to have this matter reassigned to another district 

judge on remand.