United States District Court, D. Connecticut
EDWARD A. PERUTA, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OF DECISION ON MOTION TO DISMISS [DKT.
Vanessa L. Bryant United States District Judge.
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.
following facts derive from the Complaint and documents
submitted by the parties as they relate to subject matter
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.
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.
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].
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].
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).
“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)).
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.