                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  January 11, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                  Clerk of Court



    LINDA VAN DYKE, as personal
    representative of the Estate of Jack
    Robert Van Dyke, deceased,

                 Plaintiff-Appellant,

    v.                                                    No. 11-8002
                                                 (D.C. No. 2:05-CV-00153-ABJ)
    UNITED STATES OF AMERICA,                               (D. Wyo.)

                 Defendant-Appellee,

    and

    GLAXO SMITHKLINE,

                 Defendant.


                              ORDER AND JUDGMENT *


Before KELLY, GORSUCH, and MATHESON, Circuit Judges.



          Linda Van Dyke, personal representative of the estate of her late husband

Jack Robert Van Dyke, appeals from the district court’s dismissal of her medical


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
malpractice claims against the United States under the Federal Tort Claims Act

(“FTCA”). The district court’s decision was premised upon Ms. Van Dyke’s

failure to file a claim with Wyoming’s medical review panel before instituting a

lawsuit against the United States as “a health care provider.” Wyo. Stat. Ann.

§ 9-2-1518(a). We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

                                 I. BACKGROUND

       Ms. Van Dyke’s husband was prescribed Paxil in 2004 and took it for

seventeen days before committing suicide. On May 31, 2005, she filed a

wrongful death and products liability diversity action in Wyoming federal court

against Paxil’s manufacturer. On January 26, 2007, she amended the complaint to

add the United States (“the government”) as a defendant and to assert claims

against it under the FTCA, 28 U.S.C. §§ 1346, 2671-2680. Among other things,

she alleged that the government was liable, based on a respondeat superior theory,

for the negligent failure of two of its employees at the Veteran Affairs Medical

Center in Sheridan, Wyoming, to convey known risks of suicidality associated

with Paxil. 1


1
       Under § 1346(b) of the FTCA,

       the district courts . . . have exclusive jurisdiction of civil actions on
       claims against the United States . . . for injury . . . 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
                                                                           (continued...)

                                           -2-
         The government filed a motion to dismiss Ms. Van Dyke’s claims for

failure to comply with the Wyoming Medical Review Panel Act of 2005

(“Wyoming Act” or “Act”), Wyo. Stat. Ann. § 9-2-1513 to § 9-2-1523. The Act

provides that “no complaint alleging [medical] malpractice shall be filed in any

court against a health care provider before a claim is made to the [medical

review] panel and its decision is rendered.” Id. § 9-2-1518(a); see also id.

§ 9-2-1519(a) (“[C]laimants shall submit a claim for the consideration of the

panel prior to filing a complaint in any court in this state . . . .”). The government

also filed a motion for summary judgment. On March 27, 2009, the district court

denied the government’s motion to dismiss. It found, under Fed. R. Civ. P. 15(c),

that Ms. Van Dyke’s January 2007 amended complaint adding the United States

as a defendant related back to her original May 2005 complaint, which she had

filed before the Wyoming Act became effective. See Wyo. Stat. Ann.

§ 9-2-1518(a) (excepting “claims . . . upon which suit has been filed prior to July

1, 2005”).

         The government sought reconsideration of the March 27 order, asserting

that the district court’s relation-back analysis under Rule 15 was fundamentally




1
    (...continued)
          private person, would be liable to the claimant in accordance with the
          law of the place where the act or omission occurred.

                                           -3-
flawed. 2 While the motion for reconsideration was pending, the district court

granted the government’s summary judgment motion on other grounds. The same

day, the district court denied the government’s motion for reconsideration “as

moot.” Aplt. App. at 224.

      Ms. Van Dyke appealed the district court’s summary judgment decision.

This court affirmed in part, reversed in part, and remanded for further

proceedings. Van Dyke v. United States, 388 F. App’x 786, 788, 794 (10th Cir.

2010) (“first appeal”). The panel explicitly declined to reach the government’s

alternative ground for affirming the district court’s judgment; namely, that under

Rule 15(c) Ms. Van Dyke’s amended complaint did not relate back to her original

complaint and her failure to file a claim under the Wyoming Act “foreclosed [her]

from bringing suit . . . in any court in Wyoming,” resulting in a failure to “state[]

a cognizable claim under the FTCA.” Aplee. Supp. App. Doc. 13 at 40. Citing

10th Cir. R. 10.3(B) and 10.3(D)(2), the panel explained that it would not

consider the alternative basis because, even though the record included the district

court’s March 27 order denying the government’s motion to dismiss, the record

did not contain the government’s motion to dismiss or Ms. Van Dyke’s response.


2
      The district court’s March 27 order did not dispose of Ms. Van Dyke’s
claims and was not a final judgment. Thus, the government’s motion for
reconsideration “invok[ed] the district court’s general discretionary authority to
review and revise interlocutory rulings prior to entry of final judgment.” Fye v.
Okla. Corp. Comm’n, 516 F.3d 1217, 1223-24 n.2 (10th Cir. 2008) (internal
quotation marks omitted).

                                         -4-
The record was therefore insufficient to invoke appellate review. See Van Dyke,

388 F. App’x at 791. Dissatisfied with the Tenth Circuit’s decision not to reach

the alternative basis for affirming, the government filed a petition for panel

rehearing, which was summarily denied.

      On remand, the government renewed its motion for reconsideration of the

March 27 order because the motion was “no longer moot.” Aplt. App. at 245 n.1.

Ms. Van Dyke opposed the motion, contending that “[a]ll issues concerning [her]

alleged failure to comply with the Act ha[d] been decided by [the district court]

and by the Tenth Circuit” and the doctrine of law of the case barred further

consideration of the matter. Id. at 255-56. The district court disagreed and

granted the government’s renewed motion for reconsideration, rejecting

Ms. Van Dyke’s law-of-the-case arguments and explaining that its March 27 order

“was clearly erroneous” and a “manifest injustice” would result if the errors were

not corrected. Id. at 315. Thus, the district court re-examined its application of

Rule 15(c) and concluded that it should not have determined, as a matter of law,

that the January 2007 amended complaint related back to the original May 2005

complaint.

      Turning to the merits of the government’s motion to dismiss, the district

court found that the pre-filing requirements in the Wyoming Act are substantive

and that compliance with the Act is required in an FTCA action. The court




                                         -5-
therefore granted the government’s motion to dismiss and dismissed

Ms. Van Dyke’s claims for failure to comply with the Act. This appeal followed.

                                 II. DISCUSSION

      As best we can discern, Ms. Van Dyke does not challenge the district

court’s determination, in deciding to reconsider its March 27 order, that the order

was “clearly erroneous” and “would work a manifest injustice” if not corrected.

Aplt. App. at 315; id. at 300. Cf. Servants of Paraclete v. Does, 204 F.3d 1005,

1012 (10th Cir. 2000) (observing that “the need to correct clear error or prevent

manifest injustice” are generally proper grounds for granting a motion to

reconsider). Instead, she asserts that the law of the case doctrine precluded the

district court from reconsidering the March 27 order.

A. The Law of the Case Doctrine

      We review for an abuse of discretion the district court’s decision to

reconsider its March 27 order. See Price v. Philpot, 420 F.3d 1158, 1167 & n.9

(10th Cir. 2005); Been v. O.K. Indus., Inc., 495 F.3d 1217, 1225 (10th Cir. 2007)

(noting that a district court generally remains free to reconsider its “earlier

interlocutory orders”). We review de novo whether the law of the case barred the

district court’s decision on reconsideration. Padilla-Caldera v. Holder, 637 F.3d

1140, 1145 (10th Cir. 2011).

      Ms. Van Dyke asserts that the Tenth Circuit in the first appeal considered

and rejected the government’s alternative ground for affirming the district court’s


                                          -6-
judgment, and implicitly rejected the same in denying the government’s motion

for panel rehearing. These “prior decisions,” she claims, should have been

afforded deference by the district court on remand. Aplt. Opening Br. at 10.

Stated differently, she submits that the Tenth Circuit’s “refusal to find ‘clear

error’ and ‘manifest injustice’” in the first appeal “should have been dispositive”

on remand. Id.

      Generally, the law of the case doctrine “posits that when a court decides

upon a rule of law, that decision should continue to govern the same issues in

subsequent stages in the same case. [It] directs a court’s discretion, [but] does

not limit the tribunal’s power.” Arizona v. California, 460 U.S. 605, 618 (1983)

(footnote omitted) (citation omitted). When an “original ruling was issued by a

higher court, a district court should depart from the ruling only in exceptionally

narrow circumstances,” such as “when the decision was clearly erroneous and

would work a manifest injustice.” Been, 495 F.3d at 1225 & n.4. Perhaps more

important in this appeal, “law of the case principles apply only to decisions on the

actual merits.” Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir. 2001)

(emphasis added). “[O]nly matters actually decided, explicitly or implicitly,

become law of the case,” and it is therefore “important to reconstruct the

pertinent circumstances surrounding and informing this court’s previous

decision[s].” Wilmer v. Bd. of Cnty. Comm’rs, 69 F.3d 406, 409 (10th Cir. 1995).




                                         -7-
      As previously noted, in the first appeal the government as appellee asked

the Tenth Circuit to consider an alternative basis for affirmance. The court

declined the invitation, agreeing with Ms. Van Dyke’s suggestion that it “not

consider the [government’s] argument given the insufficient record.” Van Dyke,

388 F. App’x at 791 (emphasis added). A conclusion that a record is insufficient

to consider an issue is not a decision on the merits. See Wilmer, 69 F.3d at 409

(“[W]hen a dispositive procedural deficiency has obviated . . . consideration of

the underlying merits of a claim, the law of the case doctrine does not reach

through that procedural ruling to enshrine a substantive determination never in

fact made.”). Similarly, the summary denial of a petition for panel rehearing is

not a decision on the merits. See Alpha/Omega Ins. Servs., Inc. v. Prudential Ins.

Co., 272 F.3d 276, 281 (5th Cir. 2001) (“Our denial of a motion for panel

rehearing does not amount to a decision on the merits.”); 16AA Charles Alan

Wright et al., Federal Practice and Procedure § 3986, at 605 (4th ed. 2008)

(“Denial of a petition for rehearing . . . does not of itself establish the law of the

case for further proceedings after the initial appeal.”). Thus, the district court’s

decision to grant the government’s renewed motion for reconsideration was not an

abuse of discretion precluded by the doctrine of law of the case. 3


3
      We are likewise unpersuaded by Ms. Van Dyke’s related contention that the
government’s failure in the first appeal to present a record sufficient for appellate
review of its alternative basis for affirmance waived the issue. This court did not
                                                                        (continued...)

                                           -8-
B. Wyoming Medical Review Panel

      Ms. Van Dyke next contends that even if the law of the case doctrine did

not preclude the district court’s reconsideration of the March 27 order, the court

erroneously dismissed her case because filing a pre-suit claim with the Wyoming

medical review panel pursuant to Wyo. Stat. Ann. § 9-2-1518(a) and § 9-2-1519

would be “redundant” and “futile.” Aplt. Opening Br. at 18. Her arguments fail.

      “Under the FTCA, the United States is liable for its tortious conduct in the

same manner and to the same extent as a private individual under like

circumstances in that jurisdiction would be liable.” Haceesa v. United States,

309 F.3d 722, 725 (10th Cir. 2002) (citing 28 U.S.C. §§ 1346(b), 2674). That is,

the government’s “source of substantive liability under the FTCA” is the law of

the place where the allegedly negligent or wrongful act or omission occurred—in

this case, Wyoming. FDIC v. Meyer, 510 U.S. 471, 478 (1994). We conclude

that the Wyoming Act is applicable to Ms. Van Dyke’s medical malpractice

claims against the government under the FTCA. Cf. Hill v. SmithKline Beecham


3
 (...continued)
mention waiver in the first appeal. Further, Ms. Van Dyke has not directed us to,
nor have we identified, any Tenth Circuit authority holding that an appellee’s
failure to provide a record sufficient to support an alternative basis for affirmance
waives the issue. Cf. Haynes Trane Serv. Agency, Inc. v. Am. Standard, Inc.,
573 F.3d 947, 963 (10th Cir. 2009) (observing that “we do not ordinarily require
appellees to raise every possible ground for affirmance in their appellate briefs”).
In any event, “discretion to waive a waiver” may be exercised in a case like this
one, “where injustice might otherwise result,” Crocker v. Piedmont Aviation, Inc.,
49 F.3d 735, 740 (D.C. Cir. 1995) (internal quotation marks omitted).

                                         -9-
Corp., 393 F.3d 1111, 1117 (10th Cir. 2004) (holding Colorado certificate of

review requirement applicable in a medical malpractice case against the United

States under the FTCA).

      Ms. Van Dyke asserts that compliance with the Wyoming Act would be

redundant of her compliance with the FTCA’s pre-suit administrative

requirements, see 28 U.S.C. § 2675. But the requirements under the Wyoming

Act are different than the requirements under § 2675. Under the Wyoming Act, a

claimant must file a claim containing “a statement in reasonable detail of the

elements of the health care provider’s conduct which are believed to constitute a

malpractice claim, the dates the conduct occurred, and the names and addresses of

all health care providers having contact relevant to the claim and all witnesses.”

Wyo. Stat. Ann. § 9-2-1519(a)(i). She must also provide a “statement prepared

and signed by an expert in the specialty or subspecialty of medical practice at

issue, setting forth the basis for the expert’s belief that the conduct is believed to

constitute a malpractice claim and the evidence currently available to support the

expert’s opinion.” Id. § 9-2-1519(b). 4 These requirements go far beyond those


4
       Effective July 1, 2010, the Wyoming Act was amended to provide that a
claimant need not submit an expert statement to the medical review board until
after the health care provider has answered the claimant’s claim. Wyo. Stat. Ann.
§ 9-2-1519(b) (2010). The version of the Act in effect at the time Ms. Van Dyke
filed her FTCA claim against the United States, however, required a claimant to
file an expert statement within 60 days of the date she filed her claim with the
medical review panel, regardless of whether the health care provider answered the
                                                                       (continued...)

                                          -10-
contained in § 2675 of the FTCA. The FTCA requires only that a claimant

“present[] to the appropriate federal agency (1) a written statement sufficiently

describing the injury to enable the agency to begin its own investigation, and (2) a

sum certain damages claim.” Staggs v. United States ex rel. Dep’t of Health &

Human Servs., 425 F.3d 881, 884 (10th Cir. 2005) (internal quotation marks

omitted).

      Thus, we hold that complying with the Wyoming Act does not constitute an

unnecessary repetition of the FTCA’s requirements. Rather, compliance furthers

Wyoming’s goal of “prevent[ing] where possible the filing in court of actions

against health care providers and their employees for professional liability in

situations where the facts do not permit at least a reasonable inference of

malpractice.” Wyo. Stat. Ann. § 9-2-1514.

      Finally, Ms. Van Dyke contends that it would have been futile for her to

initiate a proceeding under the Wyoming Act because the government would not

have participated. In other words, she claims that her non-compliance is

immaterial because the Act allows a claimant to proceed to court if a health care

provider fails to timely answer a claim. Id. § 9-2-1519(e).

      As the government aptly points out, however, a claimant’s compliance with

the Wyoming Act’s “requirements is mandatory, even if a health care provider


4
 (...continued)
claim. Wyo. Stat. Ann. § 9-2-1519(b) (2007).

                                        -11-
ultimately chooses not to participate in the process. Because a claimant’s

obligations are not excused when a private provider declines to participate, they

likewise cannot be excused merely because the United States will not participate.”

Aplee. Br. at 34-35 n.8. Where, as here, a state statute benefits a private person

by restricting medical malpractice suits, the United States in an FTCA case must

receive the same benefit. Cf. Haceesa, 309 F.3d at 729.

      Upon de novo review, we hold that the district court did not err in

dismissing Ms. Van Dyke’s FTCA claims for failure to comply with the Wyoming

Medical Review Panel Act.

                               III. CONCLUSION

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    Scott M. Matheson, Jr.
                                                    Circuit Judge




                                        -12-
