Demoruelle et al v. Pfeffer et al
Filing
69
ORDER GRANTING DEFENDANTS' SECOND MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) AND DISMISSING THE SECOND AMENDED COMPLAINT WITH PREJUDICE re 63 Motion to Dismiss. Signed by JUDGE LESLIE E. KOBAYASHI on 09/25/2015. -- On the basis of the foregoing, Defendants' Motion, filed July 13, 2015, is HEREBY GRANTED. Since this Court does not have jurisdiction over the Second Amended Complaint, it HEREBY DISMISSES the Second Amended Complaint WITH PREJUDICE. The Court DIRECTS the Clerk's Office to close this case on October 16, 2015, unless Plaintiffs file a motion for reconsideration of this Order by October 12, 2015. (eps)CERTIFICATE OF SERVICE< /center>Participants 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
JOSEPH LOUIS DEMORUELLE,
)
)
)
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Plaintiffs,
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vs.
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WAYNE L. PFEFFER, BRANDON
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YAMAMOTO, DAVID PANGELINAN,
LEWIS JOYNER, TONIA BAGBY,
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ROBERT McDONALD, KATY SHEBESH )
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and SHEILA CULLENS,
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Defendants.
_____________________________ )
CIVIL 14-00547 LEK-BMK
ORDER GRANTING DEFENDANTS’ SECOND MOTION TO DISMISS
PURSUANT TO FED. R. CIV. P. 12(b)(1) AND DISMISSING
THE SECOND AMENDED COMPLAINT WITH PREJUDICE
On July 13, 2015, Defendants Wayne L. Pfeffer,
Brandon Yamamoto, David Pangelinan, Lewis Joyner, Tonia Bagby,
Robert McDonald, Katy Shebesh, and Sheila Cullens (collectively
“Defendants”) filed their Second Motion to Dismiss Pursuant to
Fed. R. Civ. P. 12(b)(1) (“Motion”).
[Dkt. no. 63.]
On July 27,
2015, pro se Plaintiffs Sandra Lee Demoruelle (“Ms. Demoruelle”)
and Joseph Louis Demoruelle (“Mr. Demoruelle,” collectively
“Plaintiffs”) filed Plaintiffs’ Memorandum of Law in Opposition
to Defendants’ Motion to Dismiss the Defendants for Lack of
Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(1) Case 1:14-cv00547-LEK-BMK Document 63 Filed 7/13/2015 (“Memorandum in
Opposition”), and on September 4, 2015, Defendants filed their
Reply.
[Dkt. nos. 66, 68.]
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 of the District of
Hawai`i (“Local Rules”).
After careful consideration of the
Motion, supporting and opposing memoranda, and the relevant legal
authority, Defendants’ Motion is HEREBY GRANTED for the reasons
set forth below.
BACKGROUND
Defendants filed a motion to dismiss on April 14, 2015,
[dkt. no. 47,] which this Court granted on May 29, 2015 [dkt. no.
591].
On June 25, 2015, Plaintiffs filed their Second Amended
Complaint.
[Dkt. no. 61.]
The relevant factual and procedural
history is set forth in the 5/29/15 Order, and it is not
necessary to repeat it here.
In the Second Amended Complaint,
Plaintiffs allege two counts of violations of their Fifth
Amendment rights for (1) failure to provide notice and
(2) failure to provide a hearing and a decision based on
evidence.
Plaintiffs submit that the instant suit asks only for
the “application of the [Veterans Affairs (“VA”)] law” and seeks
“injunctive and declaratory judgment to redress the injury caused
by the deprivation of their Constitutional Rights and to correct
1
The Order Granting Defendants’ Motion to Dismiss; Denying
Plaintiffs’ Motion for Summary Judgment as Moot; and Dismissing
the Complaint Without Prejudice (“5/29/15 Order”) is also
available at 2014 WL 3463496.
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the Defendants’ unlawful administration of VA statutes, rules,
regulations, policies and procedures thereby diminishing future
State of Hawaii Veteran/Caregiver barriers to Federal Due Process
Rights.”
[Second Amended Complaint at ¶ 14.]
The Second Amended Complaint seeks the following
remedies: “Declaratory Judgment providing a remedial effect to
all Veterans and Caregivers in the State of Hawaii” for
violations of “[]VA statutes” and the “Constitutional Due Process
Right” to written decisions, [id. at ¶ 150;] declaratory judgment
affirming VA’s Pacific Islands Health Care System’s (“PIHCS”)
“duty and obligation” to install travel reimbursement software at
VA check-in kiosks, [id. at ¶ 151;] injunctive relief for the
“wrongful conduct of the Defendants,” [id. at ¶ 152;]
“preliminary and then a permanent mandatory injunction” for the
infringement of Plaintiffs’ “Constitutional Right to Due Process”
and “repair of past violations of the law” via issuance of
decisions “on all Plaintiffs’ past oral claims for reimbursement
prior to June 2014,” [id. at ¶ 155;] a preliminary injunction “to
compensate the petitioners or issue a denial decision” on the
costs related to Mr. Demoruelle’s July 2014 colonoscopy, [id. at
¶ 157;] preliminary injunction seeking the processing of
Plaintiffs’ beneficiary travel reimbursement appeal; appointment
of counsel; $1,000,000 in punitive damages from Defendant Wayne
L. Pfeffer; punitive damages of $5,000 each from Defendants
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Brandon Yamamoto, David Pangelinan, Lewis Joyner, and Tonia
Bagby; $100,000 in punitive damages from Defendant
Robert McDonald; $50,000 in punitive damages from Defendant
Katie Shebesh; $10,000 in punitive damages from Defendant
Sheila Cullens; attorneys’ fees and costs; and any further relief
the court deems appropriate [id. at ¶¶ 158, 163-169].
DISCUSSION
In the 5/29/15 Order, this Court informed Plaintiffs
that any subsequent amended complaint “must fall within the
narrow exceptions left open by [Veterans for Common Sense v.
Shinseki, 678 F.3d 1013 (9th Cir. 2012) (“VCS”),] as to facial
constitutional challenges of federal VA statutes or the
implementation of VA procedures unrelated to their specific
claims for beneficiary travel.”
[5/29/15 Order at 11.]
Plaintiffs argue that, “[t]his being a Due Process deprivation,
review of the instant case in no way involves the Court in
complex aspects of VA policy or in any aspect of a benefits
decision.”
[Second Amended Complaint at ¶ 32 (footnotes
omitted).]
Furthermore, Plaintiffs argue that their “claim is
based upon the process of PIHCS administrative procedures related
to VJRA due process rights (or acts or omissions), and is not ‘on
its face,’ a benefits dispute, as the Defendants maintain.”
[Mem. in Opp. at 2 (emphasis in original).]
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Plaintiffs have not cured the defects in the Amended
Complaint.
It is clear to the Court that Plaintiffs’ claims
still “fall squarely within the exclusive domain of the Veterans
Court, no mater how they are presented, and do not fit the
exceptions.”
See 5/29/15 Order at 9.
Plaintiffs claim that VA
employees violated their constitutional rights by not following
VA policies and procedures, mistakenly denied their repeated
requests for travel reimbursement, denied their requests for
reimbursement of costs related to Mr. Demoruelle’s colonoscopy,
and did not provide notice of decisions on these requests for
reimbursement.2
In 1988 Congress passed the Veterans’ Judicial
Review Act (“VJRA”), which “expressly disqualified [district
courts] from hearing cases related to VA benefits” and “conferred
exclusive jurisdiction over such claims to the Veterans Court and
the Federal Circuit.”
VCS, 678 F.3d at 1023 (citations omitted).
In VCS, the Ninth Circuit found that this provision of the VJRA,
codified at 38 U.S.C. § 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
2
Plaintiffs cite Cushman v. Shinseki, 576 F.3d 1290 (Fed.
Cir. 2009), to support their Due Process claim. [Second Amended
Complaint at ¶ 22.] It is worth noting that in Cushman, the
plaintiff filed his claim with the regional office of the
Department of Veterans Affairs and sought review with the Board
of Veterans’ Appeals, the Court of Appeals for Veterans Claims,
and, finally, the Federal Circuit. Id. at 1294-95. Thus, the
jurisdictional defect here was not at issue in Cushman.
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Secretary in the course of making benefit determinations.”
Id.
at 1025 (internal citations and quotation marks omitted).
Even
though Plaintiffs “dress[] [their] claim as a constitutional
challenge,” id. at 1023 (citation omitted), “[a]t 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.”
See 5/29/15 Order at 5; see also
Recinto v. United States Dep’t. of Veterans Affairs, 706 F.3d
1171, 1176 (9th Cir. 2012) (holding that review of the
plaintiffs’ due process claim “would necessarily require
consideration of individual cases”).
Plaintiffs’ frustrations are understandable, their
goals admirable, and their persistence commendable, but that does
not change the fact that Congress has not given federal district
courts, like this one, jurisdiction to hear this case.
This
Court makes no findings as to the merits of Plaintiffs’ claims.
Pursuant to the VJRA, this Court does not have
jurisdiction to consider Plaintiffs’ claims.
This Court has
afforded Plaintiffs an opportunity to amend their complaint to
state a claim over which this Court would have jurisdiction, and
Plaintiffs were unable to do so.
amend would be futile.
Any further opportunity to
This Court GRANTS Defendants’ Motion and
DISMISSES the Second Amended Complaint it its entirety WITH
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PREJUDICE.
See Ciacci v. Hawaii Gov’t, Civil No. 12-00511 JMS-
KSC, 2012 WL 6697569, at *5 (D. Hawai`i Dec. 24, 2012) (“Given
the history of this action . . . the court finds that granting
Plaintiff leave to file a third amended complaint would be
futile.” (citing Leadsinger, Inc. v. BMG Music Pub., 512 F.3d
522, 532 (9th Cir. 2008))).
CONCLUSION
On the basis of the foregoing, Defendants’ Motion,
filed July 13, 2015, is HEREBY GRANTED.
Since this Court does
not have jurisdiction over the Second Amended Complaint, it
HEREBY DISMISSES the Second Amended Complaint WITH PREJUDICE.
The Court DIRECTS the Clerk’s Office to close this case on
October 16, 2015, unless Plaintiffs file a motion for
reconsideration of this Order by October 12, 2015.
DATED AT HONOLULU, HAWAII, September 25, 2015.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
SANDRA LEE DEMORUELLE, ET AL. VS. WAYNE L. PFEFFER, ET AL; CV 1400547 LEK-BMK; ORDER GRANTING DEFENDANTS’ SECOND MOTION TO
DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) AND DISMISSING THE
SECOND AMENDED COMPLAINT WITH PREJUDICE
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