Demoruelle et al v. Pfeffer et al
Filing
59
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS; DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AS MOOT; AND DISMISSING THE COMPLAINT WITHOUT PREJUDICE re 33 Motion for Summary Judgment; re 47 Motion to Dismiss S igned by JUDGE LESLIE E. KOBAYASHI on 05/29/2015. Defendants' Motion, filed April 14, 2015, is HEREBY GRANTED, and Plaintiffs' Motion, filed March 9, 2015, is HEREBY DENIED AS MOOT. Since this Court does not have ju risdiction over the Complaint, it HEREBY DISMISSES the Complaint WITHOUT PREJUDICE. Plaintiffs shall have until June 30, 2015 to file a second amended complaint, if they so choose. The Court CAUTIONS Plaintiffs that if they do not file their second a mended complaint by June 30, 2015, the Court will DIRECT the Clerk's Office to close this case. (eps )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SANDRA LEE DEMORUELLE and
JASON LOUIS DEMORUELLE,
)
)
)
)
Plaintiffs,
)
vs.
)
)
WAYNE L. PFEFFER, BRANDON
)
)
YAMAMOTO, DAVID PANGELINAN,
LEWIS JOYNER, TONIA BAGBY,
)
ROBERT McDONALD, KATY SHEBESH )
)
and SHEILA CULLENS,
)
)
Defendants.
_____________________________ )
CIVIL 14-00547 LEK-BMK
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS;
DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AS
MOOT; AND DISMISSING THE COMPLAINT WITHOUT PREJUDICE
On March 9, 2015, pro se Plaintiffs Sandra Lee
Demoruelle (“Ms. Demoruelle”) and Joseph Louis Demoruelle
(“Mr. Demoruelle,” collectively “Plaintiffs”) filed their Motion
for Summary Judgment (“Plaintiffs’ Motion”).1
[Dkt. no. 33.]
On
April 14, 2015, Defendants Wayne L. Pfeffer, Brandon Yamamoto,
1
Along with their motion, Plaintiffs also filed their:
Separate Concise Statement of Facts in Support of Plaintiffs’
Motion for Summary Judgment (“Pltfs.’ CSOF”), attaching multiple
exhibits; [filed 3/10/15 (dkt. no. 35);] Memorandum in Support of
Plaintiffs’ Motion for Summary Judgment; [filed 3/10/15 (dkt. no.
36);] and Affidavit of Document Authenticity of Exhibits Filed in
Support of Plaintiffs’ Motion for Summary Judgment [filed 3/18/15
(dkt. no. 37)]. The latter most document, executed under penalty
of perjury by Plaintiffs, attests that Plaintiffs have the
requisite personal knowledge to authenticate the exhibits
attached to their CSOF. Plaintiffs also filed numerous other
documents, which appear to relate to trial and a motion for an
extension of time filed by Defendants, and so the Court does not
here consider them. See, e.g., dkt. nos. 38, 39, 42, 43, 44, 46.
David Pangelinan, Lewis Joyner, Tonia Bagby, Robert McDonald,
Katy Shebesh, and Sheila Cullens (collectively “Defendants”)
filed their Motion to Dismiss (“Defendants’ Motion,” collectively
“Motions”).
[Dkt. no. 47.]
Attached to their motion, Defendants
filed an omnibus Memorandum in Support of Defendants’ Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) and in Opposition to
Plaintiff’s Motion for Summary Judgment.2
[Dkt. no. 47-1.]
On
April 17, 2015, Plaintiffs filed their Response to Defendants
[sic] Motion to Dismiss (“Plaintiffs’ Memorandum in Opposition”)
and, on April 27, 2015, they filed their Reply in Support of
their Motion for Summary Judgment (“Plaintiffs’ Reply”).3
[Dkt.
2
The Court will refer to this document simply as
“Defendants’ Memorandum.” Defendants also filed their Response
to Plaintiffs’ CSOF (“Defs.’ CSOF”). [Filed 4/14/15 (dkt. no.
48).]
3
Plaintiffs also filed their: “Supplemental Brief:
Plaintiffs’ Response to Defendants[;]” [dkt. no. 51 (filed
4/17/15);] Table of Authorities; [dkt. no. 52 (filed 4/20/15);]
Supplemental Brief to Plaintiffs’ Reply in Support of their
Motion for Summary Judgment; [dkt. no. 54 (filed 4/27/15);] and
Memorandum of Law in Opposition to Defendants’ Motion to Dismiss
the Defendants for Lack of Jurisdiction Pursuant to Fed. R. Civ.
12(b)(6) [dkt. no. 55 (filed 4/27/15)]. Pursuant to Rule LR7.4
of the Local Rules of Practice of the United States District
Court for the District of Hawai`i (“Local Rules”) the Court does
not consider these additional materials since Plaintiffs did not
move the Court for leave to file them. See Local Rule LR7.4 (“No
further or supplemental briefing shall be submitted without leave
of court.”). Although Plaintiffs are proceeding pro se, and this
Court will construe their filings “liberally,” see Wilhelm v.
Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012), normal court rules
and procedures still apply to them. See Solis v. McKessen, 465
F. App’x 709, 710 (9th Cir. 2012) (“‘Pro se litigants must follow
the same rules of procedure that govern other litigants.’”
(continued...)
2
nos. 50, 53.]
The Court finds these matters suitable for disposition
without a hearing pursuant to Local Rule LR7.2(d).
After careful
consideration of the Motions, supporting and opposing memoranda,
and the relevant legal authority, Defendants’ Motion is HEREBY
GRANTED and Plaintiffs’ Motion is HEREBY DENIED AS MOOT for the
reasons set forth below.
BACKGROUND
On February 17, 2015, Plaintiffs filed their Amended
Complaint (“Complaint”).
[Dkt. no. 23.]
This lawsuit is an
attempt to collect twenty-five years’ worth of medical-related
travel reimbursements purportedly owed to Plaintiffs by the
Department of Veterans Affairs (“the VA”) for Mr. Demoruelle’s
treatment, and to require oversight related to reimbursement
requests in general.
It is undisputed that, since 1989, Mr. Demoruelle has
been awarded a permanent, 100% service-connected disability
rating, following a decision by the Board of Veterans Appeals
(“BVA”).
For the past twenty-five years, he has been eligible
for medical-related travel reimbursement (“beneficiary travel”)
for mileage between his home and the VA medical facility in Hilo
3
(...continued)
(quoting King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987))).
Even if the Court did consider all of Plaintiffs’ filings, the
Court’s rulings on the Motions would remain the same.
3
(“Hilo Facility”), which is roughly 150 miles round trip.
[Pltfs.’ CSOF at ¶ 1; Defs.’ CSOF at p. 2 (admitting ¶ 1).]
Plaintiffs allege that, over the ensuing years, Mr. Demoruelle
orally requested reimbursement at the Hilo Facility, but he was
misinformed that reimbursement was only available for trips to
the VA facility in Honolulu, and he was never provided with forms
or information necessary to apply for beneficiary travel.
[Complaint at ¶¶ 7-12.]
On June 17, 2014, Ms. Demoruelle accompanied
Mr. Demoruelle to the Hilo Facility and presented completed VA
Forms 10-3542 for reimbursement, and within days received
reimbursement.
[Id. at ¶¶ 13-15.]
Thereafter, she submitted
multiple reimbursement forms, including for 2014-2015, many of
which appear to have been honored.
See, e.g., id. at ¶ 37;
Defs.’ Mem., Decl. of David Pangelinan (“Pangelinan Decl.”) at
¶ 5.
However, not all were, including the one for reimbursement
for travel prior to 2014.
Decl. at ¶¶ 5, 8-9.]
[Complaint at ¶¶ 37-40; Pangelinan
In an October 20, 2014 letter, Defendant
Pfeffer, Director of the VA, Pacific Islands Health Care System,
advised Senator Mazie K. Hirono that Plaintiffs’ “[m]ileage claim
reimbursements for the period of 1989 - 2013 will not be
processed for payment because they do not meet the criteria for
filing within 30 days.”
Letter”).]
[Pltfs.’ CSOF, Exh. 2 (“Hirono
Plaintiffs allege that this was a final denial letter
4
that closed their case as to those reimbursements, and they had
no wherewithal to appeal it.
See, e.g., Complaint at ¶¶ 28-31.
Plaintiffs further allege that: this was the “last
straw” for Ms. Demoruelle; [id. at ¶¶ 34;] thereafter she
exhausted administrative procedures; [id. at ¶¶ 44-45;] and
Plaintiffs brought the present lawsuit against multiple VA
employees in their personal capacities for disregarding VA policy
and procedures in denying their requests, thereby violating
Plaintiffs’ constitutional due process rights, see, e.g., id. at
¶¶ 46-47, 53-56, 79-83.
The Complaint seeks the following
remedies: judicial oversight over beneficiary travel to
“implement administrative compliance with Due Process[;]” an
order requiring “training throughout [the VA] to improve delivery
of services[;]” judicial oversight to “provide professional
guidance to Hawaii Veterans/Caregivers[;]” general, specific, and
punitive damages; attorneys’ fees and costs; and all other
appropriate relief.
[Id. at pgs. 21-22.]
DISCUSSION
At the heart of this matter, Plaintiffs’ claim is an
appeal of the denial of Mr. Demoruelle’s benefits and an attempt
to force VA employees to improve their support of veterans and
their caregivers in applying for reimbursement.
goals are understandable and admirable.
Both of these
However, Congress has
created a well-developed statutory and judicial scheme for such
5
appeals, and it has not given federal district courts, such as
this one, the jurisdiction to participate in it.
See supra.
Recognizing this impediment and anticipating
Defendants’ arguments, Plaintiffs filed their motion, attempting
to show that this Court does have jurisdiction.
Their central
argument is that beneficiary travel is a reimbursement, not a
“benefit,” and thus falls outside of the statutory scheme.
See,
e.g., Pltfs.’ Motion at 1 (“The evidence cited below proves the
Defendants have failed in their affirmative defense because
Beneficiary Travel is not a benefit subject to the VA Secretary’s
exclusive jurisdiction.”).4
This argument, however, is
inconsistent with the plain language of the statute, the purpose
behind Congressional action to consolidate the appeals process,
and case law that binds this Court.
Veterans for Common Sense v. Shinseki, 678 F.3d 1013,
1019 (9th Cir. 2012) (“VCS”), which Defendants amply cite,
provides a good history of the statutory scheme of veterans
4
Plaintiffs’ reasoning in bringing their motion to, in
essence, negate a jurisdictional defense appears to be that: if
they show that Defendants – who have not yet filed an answer –
cannot prove the only defense they expressly raised at the
Federal Rule of Civil Procedure Rule 16 conference, then they are
entitled to summary judgment on their claims. Although this
approach has logical appeal, it is not quite accurate since
Defendants may still raise other defenses in their answer, and
Plaintiffs must also prove their case to prevail on any
constitutional claim. However, the Court need not consider these
issues beyond jurisdiction, because it finds that it has none to
hear the case.
6
appeals, and forecloses Plaintiffs’ arguments.
The Court here
highlights some of the more important analysis and conclusions
from that opinion.
In 1988, Congress passed the Veterans’ Judicial Review
Act, Pub. L. No. 100–687, div. A, 102 Stat. 4105 (1988) (“VJRA”),
which is codified at various sections in Title 38.
One of
Congress’s primary goals in passing the VJRA was to limit the
“judiciary’s involvement in technical VA decision-making.”
VCS,
678 F.3d at 1021 (citation and internal quotation marks omitted).
To this end, it made three changes that affected the courts’
ability to hear veterans’ appeals.
It: (1) created the United
States Court of Appeals for Veterans Claims to handle all appeals
from the BVA regarding VA benefits decisions (“Veterans Court”);
(2) required all appeals from the Veterans Court to be heard by
the Federal Circuit; and (3) limited judicial review by revising
the statute stripping federal court jurisdiction, 38 U.S.C.
§ 511(a).
Id. at 1021-23.
Section 511(a) provides that: “The
Secretary shall decide all questions of law and fact necessary to
a decision by the Secretary under a law that affects the
provision of benefits by the Secretary to veterans or the
dependents or survivors of veterans.”5
5
There are only a few limited exceptions, which are not at
issue in this case. See § 511(b).
7
In VCS, the Ninth Circuit interpreted this scheme and
statute to determine whether the district court had jurisdiction
to review claims brought by veterans’ rights groups challenging,
inter alia, wait times for mental health care, adjudication of
disability benefits, and the structure of regional claim
procedures.
In short, the Ninth Circuit held that it only had
jurisdiction over the latter claims.
Id. at 1026-35.
In reaching its conclusions, it created a general
standard for determining whether a district court has
jurisdiction over a VA claim: “we conclude 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.”
Id. at 1025 (citations and internal
quotation marks omitted).
Moreover, it rejected appeals of
denials of benefits that plaintiffs might fashion to appear as
constitutional claims as an end run around the jurisdictional
limits.
Id. at 1023 (“review of decisions made in the context of
an individual veteran’s VA benefits proceedings are beyond the
jurisdiction of federal courts outside the review scheme
established by the VJRA . . . even if the veteran dresses his
claim as a constitutional challenge” (citations omitted)).
The
court solely left open facial constitutional challenges to a
federal statute regarding the scheme itself, and claims related
8
to procedures affecting adjudication of claims at the regional
office level.
Id. at 1034.
Here, Plaintiffs’ claims fall squarely within the
exclusive domain of the Veterans Court, no matter how they are
presented, and do not fit the exceptions.
Plaintiffs claim that:
they were wrongly denied reimbursements – both prior to 2014, and
for specific reimbursements during 2014; reimbursements were
delayed; and the employees at the Hilo Facility were either not
properly trained or not doing their jobs in advising
Mr. Demoruelle.
The Ninth Circuit in VCS specifically found that
federal district courts do not have jurisdiction over these types
of claims.
Id. at 1023, 1025.
Moreover, the 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.’”
F.3d at 1026 (quoting 38 C.F.R. § 20.3(e)).
678
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 (analyzing Price v. United States, 228 F.3d
420, 422 (D.C. Cir. 2000), in which the D.C. Circuit found that
9
“§ 511 precluded the district court’s jurisdiction to consider a
veteran’s claim for reimbursement of medical expenses”).
This
interpretation of the regulation is consistent with the goal of
the VJRA in limiting federal court jurisdiction over benefit
appeals.
See id. at 1021.
Thus, this Court CONCLUDES that it does not have
jurisdiction over Plaintiffs’ claims.
Consistent with the
statutory scheme, Plaintiffs may bring their appeal before the
Veterans Court.6
Since, pursuant to the VJRA, the Court does not have
jurisdiction to consider Plaintiffs’ claims, it GRANTS
Defendants’ Motion and DENIES Plaintiffs’ Motion as MOOT.7
The
6
The Court offers no opinion on the merits of Plaintiffs’
claims. However, there is some evidence in the record that
Plaintiffs have failed to exhaust their administrative remedies,
in particular, for all reimbursement prior to June 2014.
[Pangelinan Decl. at ¶ 9.] The allegations in the Complaint
related to the Hirono Letter appear to concede this failure as
well. [Complaint at ¶¶ 28-29.]
7
Moreover, the Court rejects Plaintiffs’ other grounds for
jurisdiction. The Administrative Procedure Act allows nonmonetary suits against federal agents acting in their official
capacity. See 5 U.S.C. § 702; see also, e.g., United States v.
Park Place Assocs., Ltd., 563 F.3d 907, 929 (9th Cir. 2009).
Similarly, 42 U.S.C. 1983 allows claims against officials acting
under “color of state law,” but does not apply to federal
employees acting under color of federal law. See, e.g., Reiner
v. Mental Health Kokua, No. CV 10-00340 DAE LEK, 2011 WL 322535,
at *5 (D. Hawai`i Jan. 31, 2011) (“‘§ 1983 provides no cause of
action against federal agents acting under color of federal law’”
(quoting Billings v. United States, 57 F.3d 797, 801 (9th Cir.
1995)). And the VJRA precludes lawsuits, pursuant to Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
(continued...)
10
Court thus DISMISSES the Complaint in its entirety for lack of
jurisdiction.
The dismissal, however, is WITHOUT PREJUDICE.
See
Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“A district
court should not dismiss a pro se complaint without leave to
amend unless it is absolutely clear that the deficiencies of the
complaint could not be cured by amendment.” (citation and
internal quotation marks omitted)).
Conceivably, Plaintiffs
could amend their claims to state a claim against Defendants,
over which this Court would have jurisdiction.
However, their
claims must fall within the narrow exceptions left open by VCS as
to facial constitutional challenges of federal VA statutes or the
implementation of VA procedures unrelated to their specific
claims for beneficiary travel.
Plaintiffs should consider
whether they might best be served by asserting their claims from
the Complaint, or similar ones related to the purported denial of
their reimbursement claims, in a more appropriate court such as,
for instance, the Veterans Court.
7
(...continued)
388 (1971), for money damages against agents acting under the
color of federal law. Hicks v. Small, 69 F.3d 967, 969 (9th Cir.
1995) (“The district court correctly held that a Bivens action
was inappropriate in light of the comprehensive, remedial
structure of the VJRA”). Thus, these arguments do not provide
support for this Court’s jurisdiction.
11
CONCLUSION
On the basis of the foregoing, Defendants’ Motion,
filed April 14, 2015, is HEREBY GRANTED, and Plaintiffs’ Motion,
filed March 9, 2015, is HEREBY DENIED AS MOOT.
Since this Court
does not have jurisdiction over the Complaint, it HEREBY
DISMISSES the Complaint WITHOUT PREJUDICE.
Plaintiffs shall have
until June 30, 2015 to file a second amended complaint, if they
so choose.
The Court CAUTIONS Plaintiffs that if they do not
file their second amended complaint by June 30, 2015, the Court
will DIRECT the Clerk’s Office to close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 29, 2015.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
SANDRA LEE DEMORUELLE, ET AL. VS. WAYNE L. PFEFFER, ET AL.; CIVIL
14-00547 LEK-BMK; ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS;
DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AS MOOT; AND
DISMISSING THE COMPLAINT WITHOUT PREJUDICE
12
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