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Peruta v. United States

United States District Court, D. Connecticut

February 21, 2018

EDWARD A. PERUTA, Plaintiff,


          Hon. Vanessa L. Bryant United States District Judge.

         This action is related to the alleged failure of the Department of Veterans Affairs (“VA”) to reinstate the fee basis services card for Plaintiff Edward Peruta (“Plaintiff” or “Peruta”). The United States of America (“Defendant” or “United States”) has been substituted as the proper Defendant in this action. See [Dkt. 10 (Order Substitution)]. Before the Court is Defendant's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. Plaintiff does not dispute that his vicarious liability claim is moot now that the United States is the substituted Defendant; nor does Plaintiff challenge dismissal of his claim for violation of procedural due process under the Fourteenth Amendment relating to the VA's failure to provide notice and a hearing prior to the termination of fee basis status. Accordingly, only the tort claims for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress (Counts I, IV, and V, respectively) remain. For the foregoing reasons, the Court GRANTS the motion for lack of subject matter jurisdiction.

         I. Facts

         The following facts derive from the Complaint and documents submitted by the parties as they relate to subject matter jurisdiction.

         Plaintiff Edward A. Peruta (“Plaintiff” or “Peruta”) is a veteran of the United States Marine Corps who served from August 31, 1966 through August 27, 1969. [Dkt. 1 (Compl.) ¶ 18]. As of the filing of the Complaint, Peruta had a 38-year history of contact with the Department of Veterans Affairs (“VA”). Id. ¶ 9. In 1985, he was determined to have a 100% service-connected permanent disability for Post-Traumatic Stress Disorder (“PTSD”) and he was subsequently authorized for fee basis services on October 1, 1986. See Id. ¶¶ 19, 39. Peruta's fee basis card was deemed to apply to all medical conditions in 1990. See Id. ¶ 103.

         The Complaint indicates Peruta used his fee basis card until October 2009 when his fee basis status was terminated and/or lapsed. See Id. ¶¶ 168, 174-76. Peruta appealed his loss of fee basis status. See Id. ¶ 168. On April 4, 2014, the Board of Veterans' Appeals concluded “[t]he October 15, 2009, denial of eligibility for a fee basis medical identification card was improper, ” and ordered his entitlement to a fee basis card be restored. See Id. ¶¶ 168-69. The restoration took effect July 18, 2014. See Id. ¶ 172.

         In June 2015, Peruta received approval for equitable relief in the form of reimbursements for (1) United Healthcare's costs during the period of October 15, 2009, through April 14, 2014; (2) Peruta's out-of-pocket costs during the same period; (3) attorney's fees; and (4) the costs of future claims falling within the scope of the Board's order. Id. ¶ 178; [Dkt. 14-4 (Mot. Dismiss Ex. B, Mem. 7/2/15) at 4 of PDF]. Peruta's fee basis status was terminated and/or lapsed due to administrative error. [Dkt. 14-4 at 3 of PDF].

         On February 28, 2015, Peruta filed before the VA a negligence claim for damages against VA physicians, providers, and administrators for allowing his fee basis status to lapse “without a medical justification or notice to [him].” [Dkt. 30-5 (Form 95 2/25/15)]; see [Dkt. 1 ¶ 179]. On March 20, 2015, the VA issued a letter to Attorney Rachel M. Baird, Peruta's counsel, acknowledging receipt of the claim ten days prior. See [Dkt. 1 ¶ 180; Dkt. 30-7 (VA Letter 3/20/15)]. The VA denied Peruta's claim on August 27, 2015, for failure to present the claim within the requisite two-year time period after the claim accrued. See [Dkt. 30-7 at 4 of PDF]. The Complaint and associated documents indicate neither Peruta nor Attorney Baird received notice of the denial until June 22, 2016, when the VA faxed Attorney Baird the notice in response to Attorney Baird's inquiry about the status of the case. See [Dkt. 1 ¶ 181-82; Dkt. 30-7]. The VA did not send Peruta or Attorney Baird a tracking number for the certified mail. See [Dkt. 1 ¶¶ 184, 188].

         II. Legal Standard

         “Federal courts are courts of limited jurisdiction. . . .” Gunn v. Minton, 568 U.S. 251, 256 (2013). Subject matter jurisdiction is not waivable, and a lack of subject matter jurisdiction may be raised at any time, by a party or the court sua sponte. See Gonzalez v. Thaler, 565 U.S. 134, 141 (2012); see also Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 153 (2013) (“Objections to a tribunal's jurisdiction can be raised at any time, even by a party that once conceded the tribunal's subject-matter jurisdiction over the controversy.”). If a court lacks subject matter jurisdiction, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3).

         A “district court must take all uncontroverted facts in the complaint [ ] as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). However, “where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings. . . .” Id. “In that case, the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).

         III. Analysis

         Defendants move to dismiss Counts I, IV, and V for lack of subject matter jurisdiction on two grounds: (1) that the violations of the VA regulations are not actionable under the FTCA, and (2) the claims are time- barred by the FTCA statute of limitations. Defendant also argues the Complaint fails to state a claim upon which each of the three torts may be granted. The Court will address the subject matter jurisdiction issues are they are dispositive of this case.

         A. Pr ...

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