Demoruelle v. United States

• Decision Date: 26 October 2015
• Docket Number: CIVIL 15-00208 LEK-KSC
• Parties: SANDRA LEE DEMORUELLE and JOSEPH LOUIS DEMORUELLE, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Hawaii

SANDRA LEE DEMORUELLE and JOSEPH LOUIS DEMORUELLE, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

CIVIL 15-00208 LEK-KSC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

October 26, 2015

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AS MOOT

Before the Court is pro se Plaintiffs Sandra Lee Demoruelle and Joseph Louis Demoruelle's ("Plaintiffs") Motion for Summary Judgment, filed on July 17, 2015, and Defendant the United States of America's ("the Government") Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) ("Motion to Dismiss"), filed on August 28, 2015. [Dkt. nos. 8, 16.] Along with its Motion to Dismiss, the Government filed a Memorandum in Support of Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and in Opposition to Plaintiffs' Motion for Summary Judgment ("8/28/15 Memorandum"). [Dkt. no. 16.] On September 10, 2015, Plaintiffs filed a Memorandum of Law in Opposition to Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and in Support of Plaintiffs' Motion for Summary Judgment ("9/10/15 Memorandum"). [Dkt. no. 22.]

The Court finds these matters 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 motions, memoranda, and the relevant legal authority, the Government's Motion to Dismiss is HEREBY GRANTED and Plaintiffs' Motion for Summary Judgment is HEREBY DENIED AS MOOT.

BACKGROUND

Plaintiff Joseph Demoruelle is a veteran with a 100% service-related disability rating. On July 7, 2014, Mr. Demoruelle requested his medical records from the Department of Veterans Affairs Pacific Islands Health Care System ("VAPIHCS"). In response, Plaintiffs received some of Mr. Demoruelle's requested medical records, along with the medical records of seven other Hawai`i veterans. Upon closer inspection, Plaintiffs found that twenty-six of their requested documents were not included in the package. [Complaint, filed 6/2/15 (dkt. no. 1), at ¶¶ 10, 12-13.] Plaintiffs contacted the Veterans Administration ("VA"), and sent the other veterans' medical records to Hawai`i Senator Mazie Hirono. After being told what happened, the Government provided free credit monitoring to Plaintiffs. [Id. at ¶¶ 17-19.] Further, the Government informed Plaintiffs that they would ask the seven veterans whose records were mistakenly disclosed if they, too,received other veterans' records, and, if so, would ask that they return the mistakenly disclosed records.¹ [Id. at ¶¶ 32-33.]

Pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 ("FTCA"), [id. at ¶ 4,] the Complaint alleges violations of Haw. Rev. Stat. § 663-1, [id. at ¶ 30,] as well as the Privacy Act of 1974, 5 U.S.C. § 552a ("Privacy Act"), and the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d, et seq., ("HIPAA"), [id. at ¶ 40,] and seeks "compensatory damages for the time and work, as well as the economic loss from the actual costs incurred from the negligence, wrongful acts or omissions of the Defendant" [id. at ¶ 36]. Plaintiffs filed an FTCA Administrative Claim on August 28, 2014, and VAPIHCS offered Plaintiffs a settlement of $35.60 in February 2015, which they rejected. [Id. at ¶¶ 7-8.]

DISCUSSION

Plaintiffs are proceeding pro se, and the Court "construe[s] the complaint liberally." See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (citation omitted). The Government argues that the instant matter should be dismissed for lack of subject matter jurisdiction. [Motion to Dismiss at 2.]In a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), "[w]hether subject matter jurisdiction exists . . . does not depend on resolution of a factual dispute, but rather on the allegations in [the plaintiff's] complaint." Wolfe, 392 F.3d at 362 (citations omitted).

I. Standing

Article III, Section I of the United States Constitution limits federal jurisdiction to cases and controversies. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992); see also DeShaw v. Bank of Am., N.A., Civ. No. 15-00118 ACK-BMK, 2015 WL 5598321, at *4 (D. Hawai`i Sept. 22, 2015). "The plaintiff has the burden of establishing standing based on the complaint." DeShaw, 2015 WL 5598321, at *4 (some citations omitted) (citing Raines v. Byrd, 521 U.S. 811, 818 (1997)). This Court has stated that Article III standing requires a plaintiff to establish "'injury in fact, causation, and a likelihood that a favorable decision will redress the plaintiff's alleged injury.'" Brewer Envtl. Indus., LLC v. Matson Terminals, Inc., Civil No. 10-00221 LEK-KSC, 2011 WL 1637323, at *5 (D. Hawai`i Apr. 28, 2011) (quoting Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010)). An injury in fact must be "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000) (citation omitted).

The issue of standing was not addressed by the parties, but this district court has stated:

"[W]hether or not the parties raise the issue, federal courts are required sua sponte to examine jurisdictional issues such as standing." D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008) (quotation marks, citation, and alterations omitted). This court therefore has "both the power and the duty" to examine the [Plaintiffs'] standing. Id.; Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002).

Amsterdam v. Abercrombie, Civil No. 13-00649 SOM-KSC, 2013 WL 6198183, at *1 (D. Hawai`i Nov. 26, 2013) (emphasis and some alterations in Amsterdam).

It is clear to this Court that Plaintiffs have not suffered an injury due to VAPIHCS's improper disclosure of other veterans' records. Plaintiffs state that: they filed a request for Mr. Demoruelle's health records from VAPIHCS; when they received those records they also received the records of seven other Hawai`i veterans; and twenty-six of their requested documents were not included in the package. [Id. at ¶¶ 10, 12-13.] While Plaintiffs note that the Government provided them with free credit monitoring and planned to look into whether other veterans' medical records, including Mr. Demoruelle's, were improperly disclosed to third parties, [id. at ¶¶ 32, 39,] Plaintiffs do not allege that any of Mr. Demoruelle's recordswere actually disclosed without his authorization.²

To the extent that Plaintiffs bring the instant suit to remedy the improper disclosure of other veterans' medical records, they also lack standing. "'[A] litigant must normally assert his own legal interests rather than those of third parties.'" Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1104 (9th Cir. 2006) (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S. Ct. 2965, 86 L. Ed. 2d 628 (1985)). The United States Supreme Court has found that third party standing may be necessary in certain cases, namely, when there is a "close relationship with the person who possesses the right" and when "there is a hindrance to the possessor's ability to protect his own interests." Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) (citations and internal quotation marks omitted). Neither exception applies here.

The Court FINDS that Plaintiffs lack standing and CONCLUDES that the Court does not have subject matter jurisdiction over the instant action. Because the Court lacks subject matter jurisdiction, this case must be DISMISSED in its entirety. See, e.g., Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) ("A suit brought by a plaintiff without ArticleIII standing is not a 'case or controversy,' and an Article III federal court therefore lacks subject matter jurisdiction over the suit. In that event, the suit should be dismissed under Rule 12(b)(1)." (some citations omitted) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998))). Although this ruling is a sufficient ground to grant the Government's Motion to Dismiss, for the sake of completeness, this Court will address the merits of Plaintiffs' FTCA claims.

II. FTCA

The instant suit is brought pursuant to the FTCA. [Complaint at ¶ 4.] This Court has stated:

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 sovereign immunity 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 tort cause of action." Id.(citing Wright v. United States, 719 F.2d 1032, 1034 (9th Cir. 1983), abrogated on other groundsas stated inGasho v. United States, 39 F.3d 1420, 1435 (9th Cir. 1994)).

[Demoruelle v. United States, CIVIL 15-00195 LEK-KSC, Order Granting Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and Dismissing the Compliant Without Prejudice, filed 9/25/15 (dkt. no. 20), at 7-8.³]

A. The FTCA Claims in the Complaint

While the Complaint asserts that the Court has jurisdiction under the FTCA, it also mentions HIPAA, [Complaint at ¶¶ 25-27, 34, 37, 40,] the Privacy Act, [id. at ¶¶...