Demoruelle v. United States
| Decision Date | 25 September 2015 |
| Docket Number | CIVIL 15-00195 LEK-KSC |
| Parties | SANDRA LEE DEMORUELLE and JOSEPH LOUIS DEMORUELLE, Plaintiffs, v. United States of America, Defendants. |
| Court | U.S. District Court — District of Hawaii |
On May 22, 2015, pro se Plaintiffs Sandra Lee Demoruelle ("Ms. Demoruelle") and Joseph Louis Demoruelle ("Mr. Demoruelle," collectively "Plaintiffs") filed their Complaint. [Dkt. no. 1.] On August 4, 2015, Defendant United States of America ("the Government") filed its Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) ("Motion"). [Dkt. no. 11.] On August 19, 2015, Plaintiffs filed a memorandum in opposition, and the Government filed a reply on September 4, 2015. [Dkt. nos. 16, 18.]
The Court finds this matter suitable for disposition without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai'i ("Local Rules"). After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, the Government's Motion is HEREBY GRANTED for thereasons set forth below.
The instant lawsuit is brought under the Federal Tort Claims Act ("FTCA") for the Department of Veteran Affairs' ("VA") alleged negligence in their treatment of Plaintiffs' repeated requests for medical-related beneficiary travel ("beneficiary travel") reimbursement payments over the course of twenty-five years. In 1989, Mr. Demoruelle was awarded a permanent, 100% service-connected disability rating. Since that time, he has been eligible for beneficiary travel reimbursement for the 150-mile roundtrip journey between his home in Na"alehu and the VA medical facility in Hilo, both on Hawai'i Island. Starting in 1989, Plaintiffs orally requested reimbursement for beneficiary travel, but were repeatedly told that these reimbursements were only available for inter-island travel to Honolulu, and not intra-island travel. [Complaint at ¶¶ 4-7, 18.] In June 2014, Ms. Demoruelle accompanied her husband to the VA's Hilo facility and presented two completed VA Forms 10-3542 for reimbursement. In August 2014, Plaintiffs received beneficiary travel reimbursement for two trips to Hilo. [Id. at ¶¶ 80-82.]
Plaintiffs allege that they have received no "formal decision" on a number of 2014 reimbursement requests, [id. at ¶ 104,] that expenditures related to Mr. Demoruelle's July 2014 colonoscopy have not been reimbursed, [id. at ¶¶ 98-100,] andthat they have not received a final decision on reimbursement requests for the pre-2014 beneficiary travel [id. at ¶¶ 150-51]. Additionally, Plaintiffs allege that they applied for and were denied a waiver of a three-dollar-per-trip deductible,1 and their Notice of Disagreement with the denial was not properly transmitted to the Board of Veterans' Appeals ("BVA"). [Id. at ¶¶ 94-97.] Following what Plaintiffs state was an attempt at "administrative resolution" with the VA's "local and Central Business Office," Plaintiffs filed a FTCA Administrative Claim on November 11, 2014. [Id. at ¶ 20.] The VA Regional Counsel confirmed receipt of the administrative claim on November 17, 2014, and the claim was reassigned to VA Pacific Islands Health Care System's ("PIHCS") regional counsel soon thereafter. Plaintiffs waited the requisite six months for a response, and, after not hearing anything from the VA, they filed the instant lawsuit. [Id. at ¶¶ 21-24.]
Under the FTCA, Plaintiffs allege negligence; negligent infliction of emotional distress; and negligent training, supervision, and retention of tortfeasor agent or agents. [Id. at ¶ 24.] They seek special and general damages, post judgment interest, litigation costs, and any further relief the Court deems appropriate. [Id. at ¶ 259.]
In the Motion, the Government argues that, under the Veterans' Judicial Review Act ("VJRA"), the Secretary of the VA has exclusive jurisdiction over veterans' benefits questions, and this Court lacks subject matter jurisdiction over these issues. The Government also argues that, even if the VJRA did not bar this Court from hearing the instant case, this Court does not have jurisdiction because Plaintiffs "failed to allege the violation of any duty owed to Plaintiffs by the United States that would be owed by a private party to plaintiffs under state law." [Mem. in Supp. of Motion at 2.] Finally, the Government contends that at least some of Plaintiffs' claims are barred by the misrepresentation exception to the FTCA. [Id.]
In response, Plaintiffs assert that this Court has jurisdiction because the instant case is not about benefits, but access to administrative proceedings. [Mem. in Opp. at 3.] Plaintiffs also cite a number of Hawai'i criminal statutes as the source of the Government's "alleged torts," including perjury, false statements, and tampering with government records. [Id. at 5-12.] Plaintiffs counter the Government's misrepresentation argument by asserting that they seek the "performance of an operational task," not guidance or opinions. [Id. at 12.]
38 U.S.C. § 511. In VCS, the Ninth Circuit held that "§ 511 precludes jurisdiction over a claim if it requires the district court to review VA decisions that relate to benefits decisions, including any decision made by the Secretary in the course of making benefits determinations." 678 F.3d at 1025 (internal citations and quotation marks omitted). The Ninth Circuit continued, "[t]his preclusion extends not only to cases where adjudicating veterans' claims requires the district court to determine whether the VA acted properly in handling a veteran's request for benefits, but also to those decisions that may affect such cases." Id.
Plaintiffs submit that their "FTCA personal injury tort claim 'exists wholly independently of a need for any benefitsdetermination.'" [Complaint at ¶ 47 (quoting Anestis v. United States, 749 F.3d 520, 527 (6th Cir. 2014)).2] However, it is clear from the Complaint that the gravamen of Plaintiffs' case is the denial of beneficiary travel reimbursement payments. See, e.g., Complaint at ¶ 77 (); id. at ¶ 96 (); id. at ¶ 114 ().
While Plaintiffs claim that beneficiary travel reimbursement payments are not a benefit, [Complaint at ¶ 27,] this Court has ruled otherwise:
[T]he VCS Court explained, "[u]nder the VA's regulations, 'benefit' is defined as 'any payment, service, . . . or status, entitlement to which is determined under laws administered by the Department of Veterans Affairs pertaining to veterans and their dependents and survivors.'" 678 F.3d at 1026 (quoting 38 C.F.R. § 20.3(e)). Contrary to Plaintiffs' arguments, the plain reading of this definition includes beneficiary travel reimbursements. Further, the Ninth Circuit analyzed cases addressing denials of reimbursements in the same manner as the denial of other veterans' benefits. See, e.g., id. at 1024 (). This interpretation of the regulation is consistent with the goal of the VJRA in limiting federal court jurisdiction over benefit appeals. Seeid. at 1021.
Demoruelle v. Pfeffer, Civil No. 14-00547 LEK-BMK, 2015 WL 3463496, at *3 (D. Hawai'i May 29, 2015). Thus, pursuant to § 511 and the Ninth Circuit's holding in VCS, this Court lacks subject matter jurisdiction over this case, and it must be dismissed.
This Court also lacks jurisdiction under the FTCA. The FTCA "authorizes private tort actions against the United States 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'" United States v. Olson, 546 U.S. 43, 44 (2005) (quoting 28 U.S.C. § 1346(b)(1)). More specifically, "[t]he FTCA waives sovereignimmunity for claims against the federal government arising from torts committed by federal employees." Foster v. United States, 522 F.3d 1071, 1074 (9th Cir. 2008). This district court has stated that sovereign immunity is "'jurisdictional in nature,'" and, if claims do not "fall within the provided-for causes of action in the FTCA," there is no jurisdiction. Dettling v. United States, 983 F. Supp. 2d 1184, 1198-99 (D. Hawai'i 2013) (quoting F.D.I.C. v. Meyer, 510 U.S. 471, 475, 477-78, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994)). As such, "to bring an FTCA claim, a plaintiff must show the same elements that state law requires for the...
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