DANIEL R. DOMÍNGUEZ, District Judge.
Pending before the Court are the following motions: (a) Motion for Summary Judgment; the Statement of Uncontested Material Facts; and the Memorandum of Law in Support of Motion for Summary Judgment, filed by the defendant United States of America (hereinafter the "defendant" or the "Government"), Docket No. 155; (b) Plaintiffs' Response to United States of America Memorandum in Support of Motion for Summary Judgment, Docket No. 160; (c) Plaintiffs' Response to United States' Motion to Dismiss, Docket No. 161; (d) Motion to Dismiss filed by Servicios de Salud en El Hogar y Hospicio San Lucas, Inc., Docket No. 276, and (e) Response to Defendant Servicios de Salud en El Hogar y Hospicio San Lucas, Inc., Docket No. 279 filed by plaintiffs. For the reasons set forth below, the Government's motion for summary judgment is granted.
The instant action stems from several claims filed by plaintiffs Daniel Rosario González and Juan Vélez Padilla, (hereinfter "Plaintiffs" or "Messrs. Rosario and Vélez") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et seq. seeking damages from the United States for the wrongful death of Mr. David Rosario Rosado. Plaintiffs allege that Mr. David Rosario's death was the result of medical malpractice of the professionals in charge of Mr. David Rosario's medical care at the Veterans Administration Caribbean Health Center System in San Juan, Puerto Rico ("VA Hospital"). See Complaint, Docket No. 1. Plaintiffs also aver multiple claims for alleged constitutional violations, civil rights violations, loss of benefits and physical injuries.
The record shows that Mr. David Rosario passed away on August 5, 2008. Id. and Docket No. 157-8. Thereafter, plaintiffs
On November 25, 2009, plaintiffs filed the instant action pro se. The record further shows that Mr. Daniel Rosario is the son of the deceased Mr. David Rosario. Mr. Vélez, however, has no blood kinship with the deceased Mr. David Rosario, or at least there is no evidence in the record to support said finding. As of this date, plaintiffs continue to appear pro se, notwithstanding that the Court has encouraged them to undertake legal representation due to the potential/complex issues involved in the case at bar, which can be seemed quite challenging to the Court to be handled by the pro se plaintiffs. After the filing of the instant action, plaintiffs filed seventy-three additional administrative claims under the FTCA from December 18, 2009 through March 22, 2011. See Docket No. 157-11.
As stated above, the instant action was filed on November 25, 2009.
1. Mr. David Rosario Rosado was an 81 year old veteran who passed away on August 8, 2005 at the VA Hospital. See Docket No. 157-8, Ms. Ana M. Margarida Julia's Unsworn Declaration under Penalty of Perjury, given on August 25, 2011.
2. Veteran David Rosario had been admitted at the VA Hospital on or about four times, to wit:
3. Veteran David Rosario suffered from diabetes, and from other chronic ailments. See Docket No. 158-1 and 158-4 (the Autopsy Report, which was performed on August 6, 2008).
4. On August 4, 2008, plaintiff Daniel Rosario-González filed four pro se cases:
5. As stated above, plaintiff Daniel Rosario has filed thirty-seven administrative claims prior to the filing of the instant case, however, only one claim has been filed by plaintiff Vélez, that is, Claim No. 6. See Docket No. 157-4.
6. The record further shows that when plaintiffs filed the instant action, the Veterans Administration ("VA") had not taken any action on the pending administrative claims presented by plaintiffs. According to the FTCA, a federal agency has six months to decide the administrative claim. When the federal agency does not issue a decision within the six month period, then the administrative claims are deemed denied. In the instant case, the VA denied the first thirty-two administrative claims, that is, from November 2008 to October 26, 2009, based on the fact of plaintiffs' legal action filed on November 25, 2009. See Docket No. 157-6, Declaration of Regional Counsel [of the Department of Veterans Affairs] Gary Slemmens, given on August 25, 2011. "Since the Plaintiff Daniel Rosario-González elected to file suit before the Federal District Court on November 25, 2009, by operation of law he deprived the Department of Veterans Affairs of authority to act on his administrative claims." Id.
7. As to the claims filed on October 26, 2009, Claims No. 33-35, the same were not analyzed by the agency, as they were barred by the filing of the instant action on November 25, 2009. See Docket No. 157-12.
8. As to the claims filed after November 25, 2009, Claims No. 36-37, the same were not considered by the agency, as the filing of the action in the district court deprives the agency of administrative jurisdiction. "Once the claimant opts to file
9. On February 10, 2012, Mr. Gary Slemmens, Regional Counsel of the Department of Veterans Affairs, sent a letter to plaintiff Daniel Rosario González, informing plaintiff that the claims filed on November 18, 2008 through October 26, 2009 were "denied as you have elected to pursue your litigative remedy." See Docket No. 157-1. "Additionally, no reference is here made to administrative appeal process as that has been mooted by the litigation election." Id. As to the advance payments requested by plaintiff Daniel Rosario, the agency denied them. "Your claims also request advance payment of $100,000.00 for each one of the claims received. Please be advised that the Office of Regional Counsel has no authority to provide an advance payment prior to complete investigation and administrative or litigative disposition of a claim." Id.
10. The Court notes that plaintiffs are requesting the entry of a declaratory judgment and a damages award in excess of $4,000,000,000,000.00 plus costs and interest, and the reasonable amount of not less than $4,000,000,000,000.00 for compensatory damages. See Complaint, Docket No. 1, page 18.
Rule 12(b) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") provides the grounds for dismissal of an action. Fed. R.Civ.P. 12(b)(1) provides that an action may be dismissed for lack of subject matter jurisdiction, and Rule 12(b)(6) provides that dismissal is warranted if the complaint fails to state a claim upon which relief can be granted. "Although co-defendants' motion to dismiss is filed under both Rule 12(b)(1) and 12(b)(6) the matter is distinctive since both motions are subject to similar threshold standards. See Murphy v. United States, 45 F.3d 520, 522 (1st Cir.1995); Negrón-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 27 (1st Cir. 1994); Torres Maysonet v. Drillex, S.E., 229 F.Supp.2d 105, 107 (D.P.R.2002).
"When a court is confronted with motions to dismiss under both Rules 12(b)(1) and 12(b)(6), it ordinarily ought to decide the former before broaching the latter," (citations omitted), Deniz v. Municipality of Guaynabo, 285 F.3d 142, 149 (1st Cir. 2002). "After all, if the court lacks subject matter jurisdiction, assessment of the merits becomes a matter of purely academic interest." 285 F.3d at 150.
Rule 12(b)(1) provides that a complaint will be dismissed if the court lacks subject matter jurisdiction. It is settled that the standard followed by the court when considering a dismissal request under Rule 12(b)(1), is that the court "must accept as true all well-pleaded factual claims and indulge all reasonable inferences in plaintiff's favor." Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). To determine jurisdiction under Rule 12(b)(1), the court may also review the evidence on record, including affidavits and depositions, as opposed to a dismissal request under any other subsection of Rule 12(b). Once the jurisdiction of the court is challenged by the defendant through a motion to dismiss, "it is plaintiff's burden to establish that the court has jurisdiction." Rolón v. Rafael Rosario & Associates, Inc., et al., 450 F.Supp.2d 153, 156 (D.P.R.2006).
In the instant case, the defendant Servicios de Salud en el Hogar y Hospicio San Lucas moved for dismissal of the instant action on grounds of res judicata, and in support of the Government's motion for summary judgment, which the Court interprets, as a joinder to the Government's motion. See Docket No. 276. See also
After a careful review of defendant Servicios de Salud en el Hogar y Hospicio San Lucas' motion to dismiss, the Court finds that the dismissal request is warranted on two grounds: (a) the Court does not have jurisdiction over Servicios de Salud en el Hogar y Hospicio San Lucas, as it is not a federal entity, hence, the plaintiffs have no actionable cause of action under the FTCA; (b) the plaintiffs' tort action against the defendant Servicios de Salud en el Hogar y Hospicio San Lucas is time-barred, as veteran David Rosario Rosado passed away on August 5, 2008 and the instant action was filed on November 25, 2009. In addition, the record shows that this is the third time that plaintiff Daniel Rosario has filed an action against Servicios de Salud en el Hogar y Hospicio San Lucas on the same grounds. See Daniel Rosario-González v. Servicios de Salud en el Hogar y Hospicio San Lucas, Civil No. 08-1838(RLA), and Daniel Rosario-González v. Servicios de Salud en el Hogar y Hospicio San Lucas, Civil No. 08-2213(GAG). Both cases were dismissed. See supra pages 414-15.
Generally, "[s]ummary judgment is proper where `the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.' Fed.R.Civ.P. 56(c)." Richardson v. Friendly Ice Cream Corporation, 594 F.3d 69, 74 (1st Cir.2010). See also Celotex Corp. v. Catrett, 477 U.S. 317, 324-325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Coca-Cola, Co., 522 F.3d 168, 175 (1st Cir.2008). "The object of summary judgment is `to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required'." Dávila v. Corporación de Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007), citing from Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir.2004),(quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). In Davila, the Court held:
At the summary judgment stage, the Court "must scrutinize the evidence in the light most agreeable to the nonmoving party, giving that party the benefit of any and all reasonable inferences". Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005), citing Cox v. Hainey, 391 F.3d 25, 27 (1st Cir.2004). See also Richardson v. Friendly Ice Cream Corporation, 594 F.3d at 74. "[T]he nonmovant bears `the burden of producing specific facts sufficient to defect the swing of the summary judgment scythe.'" Noviello, 398 F.3d at 84. "Those facts, typically set forth in affidavits, depositions, and the like, must have evidentiary value; as a rule, `[e]vidence that is inadmissible at trial, such as, inadmissible hearsay, may not be considered on summary
Moreover, "[a] fact is material if it might `affect the outcome of the suit under the governing law.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Disputes over facts that are not outcome determinative will not preclude the entry of summary judgment." Id. See Emiabata d/b/a Nova Express v. The United States, 90 Fed.Cl. 22, 27 (2009).
In Sánchez v. United States, 671 F.3d 86, 97 (1st Cir.2012), the Court held:
Plaintiffs' "bald assertions and unsupportable conclusions are not enough to create a genuine issue of material fact" that may warrant a bench trial. See Sánchez v. United States, supra. "Disputes over facts that are not outcome determinative will not preclude the entry of summary judgment." Id. See also Emiabata d/b/a Nova Express v. The United States, 90 Fed.Cl. 22, 27 (2009). See also Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 332 (1st Cir.2005). In Colburn, supra, the Court held:
See also Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 35 (1st Cir.2001) ("We have refused to allow issues of fact to be created simply by submitting a subsequent contradictory affidavit"); Abreu-Guzmán, et al. v. Ford, et al., 241 F.3d 69, 74 (1st Cir. 2001) ("We have repeatedly held that a party opposing summary judgment may not manufacture a dispute of fact by contradicting his earlier sworn testimony without a satisfactory explanation of why the testimony was changed").
In González v. United States, 284 F.3d 281, 287-288 (1st Cir.2002), the Court held:
As stated above, the Court has decided to convert the defendant Servicios de Salud en el Hogar y Hospicio San Lucas' motion to dismiss to a motion for summary judgment, as Servicios de Salud en el Hogar y Hospicio San Lucas has formally joined the motion for summary judgment filed by Clinical Medical Services for VA, Docket No. 139, and has stated its support for the Government's motion for summary judgment, Docket No. 155.
In the instant case, the Department of Veterans Affairs denied plaintiffs' administrative claims filed from November 2008 until October 26, 2009. See Docket No. 157-6. "Since Plaintiff Daniel Rosario-González elected to file suit before the Federal District Court on November 25, 2009, by operation of law he deprived the Department of Veterans Affairs of authority to act on his administrative claims." Id.
Moreover, pursuant to 28 U.S.C. § 2675(a), the agency has six months to make an administrative determination of the claim. "Before the expiration of that term, the `DVA' on May 13, 2009, requested from `Daniel' a four-month extension to make the final determination." See Docket No. 157-8, and the letters dated on May 13, 2009, Docket No. 157-2. The record shows that on February 1, 2010, the agency denied thirty-two administrative claims, see Docket No. 157-1, as plaintiffs had already filed the instant action on November 25, 2009. "After the filing of this case on November 25, 2009, plaintiff `Daniel' submitted additional administrative claims, in excess of fifty (50), to the `DVA.'" See Docket No. 157-8.
On August 17, 2010, plaintiffs filed an Interlocutory Appeal with the United States Court of Appeals for the First Circuit (hereinafter the "First Circuit"), No. 10-2062. On October 28, 2010, the First Circuit entered judgment dismissing the case, "[a]s Appellants must wait until their entire action is adjudicated before obtaining appellate review of the orders denying default." See Docket entries No. 102 and 103.
Hence, the Court must now addressed the allegations made in the Complaint, as well as the Government's Motion for Summary Judgment, Docket No. 155. In order to properly address plaintiffs' claims, the Court will review whether indeed the plaintiffs exhausted the applicable administrative remedies prior to the filing of the instant action, and whether the administrative claims, if any, survived the administrative proceedings.
28 U.S.C. §§ 2671, et seq., govern the Federal Tort Claims Procedure, the administrative procedure that shall be followed by any individual that has a claim
Section 2675 provides in its relevant part:
In Román-Cancel v. United States, 613 F.3d 37, 41-44 (1st Cir.2010), the Court held:
The United States' motion for summary judgment thoroughly analyzed the FTCA scheme which starts with the filing of an administrative claim, a formal denial, or a deemed denial, followed by the filing of the lawsuit. The United States made reference to the law review article of Ugo Colello,
The core of the article, in Colello's own words is:
In Taumby v. United States, 902 F.2d 1362, 1366 (8th Cir.1990), the Eighth Circuit Court had decided that according to the legislative history of 28 U.S.C. § 2675(a) it could not be interpreted that the statute would allow claimants an indefinite time to file suit after the deemed denial period had elapsed. "We are concerned that adopting Taumby's contrary reading of section 2675(a) would fly in the face of the FTCA, its statute of limitations, and the legislative history of the section, because, it would, in essence, reward claimants for doing nothing." (Emphasis added). On rehearing, the Eighth Circuit reversed itself on the limitations issue, Taumby v. United States, 919 F.2d 69, 70, 72 (8th Cir.1990), and held that
The Justice Department argued on rehearing that the Taumby I panel incorrectly interpreted § 2675(a). The Department's brief on rehearing stated that:
Given the Department's reversal on rehearing, it is important to know exactly what the Department conceded. Plainly, the Justice Department did not concede that after an FTCA claimant deems a claim denied, no statute of limitations is triggered. Rather, consistent with the facts of Taumby's suit and the cases, the Department argued that (1) the mere expiration of the six-month settlement period, without any action taken by the claimant or the agency, does not automatically deem a claim denied; and (2) no limitations period is triggered at the conclusion of the six-month settlement period if the agency does not formally deny the claim or the claimant does not take action to deem the claim denied.
Unfortunately, the Justice Department's concession can be construed as somewhat ambiguous because the first sentence in the quoted portion of the United States'
Despite Taumby II, the Justice Department can still argue that under the borrowing principle "deemed deniers"
Examining the United States' Summary of Claims, Docket No. 157-4, and the last column which establishes the deemed denial date of the administrative claim filed, from this date we add six more months and we obtain the bar date for filing the lawsuit. Therefore, Claims 1-6 are time-barred (deemed denial dates running from May 14, 2009 up to May 18, 2009, and all refer to the period of time from November 13, 2007 until August 5, 2008 [the four hospitalizations], which includes the alleged wrongful death claims). Claims 7-10 which were filed on November 25, 2008, were deemed denied as the six month period expired on May 25, 2009. The record is silent as to whether plaintiffs completed the administrative appeals procedure. The Court notes that the instant action was filed on November 25, 2009. Hence, Claims 7-10 are also time-barred for failure to exhaust the administrative procedure.
However, the subsequent Claims 11-37, filed between June 1, 2009 and October 9, 2010, are also barred for filing because the claimants opted to file the instant lawsuit on November 25, 2009.
Therefore, the administrative Claims 11-37, filed between June 1, 2009 and October 9, 2010, as well as the administrative claims filed after the filing of the instant action on November 25, 2009, in excess of fifty (50) are also barred.
Claims 1-3 are time-barred, as these three claims were filed on the same date, that is, November 14, 2008, and amended on November 24-25, 2008. Hence, the six-month period provided by 28 U.S.C. § 2675(a), elapsed on or about May 24, 2009. In the instant case, the DVA requested an extension of time of four months to complete the administrative investigation and provide a final decision on the claims. See letters dated May 13, 2009 to Mr. Daniel Rosario González, requesting the extension of time, Docket No. 157-2. The four months requested would have elapsed on or about October 2009. Claimant did not appeal the claims "deemed denied" instead Mr. Daniel Rosario filed the instant action on November 25, 2009. From the date of the filing of the district court action, the DVA is deprived of jurisdiction. See 28 C.F.R. § 14.2(c), "a claim may be amended by the claimant at any time prior to final agency action or prior to the exercise of the claimant's option to file suit after six months." See also Docket
Claims 4-6 are time-barred, as these three claims were filed on the same date, that is, November 18, 2008. Hence, the six-month period provided by 28 U.S.C. § 2675(a), elapsed on or about May 18, 2009. In the instant case, the DVA requested an extension of time of four months to complete the administrative investigation and provide a final decision on the claims. See letters dated May 13, 2009 to Mr. Daniel Rosario González, requesting the extension of time, Docket No. 157-2. In the instant case, the DVA requested an extension of time of four months to complete the administrative investigation and provide a final decision on the claims. See letters dated May 13, 2009 to Mr. Daniel Rosario González, requesting the extension of time, Docket No. 157-2. The four months requested would have elapsed on or about October 2009. Claimant did not appeal the claims "deemed denied" instead Mr. Daniel Rosario filed the instant action on November 25, 2009. From the date of the filing of the district court action, the DVA is deprived of jurisdiction. See 28 C.F.R. § 14.2(c), "a claim may be amended by the claimant at any time prior to final agency action or prior to the exercise of the claimant's option to file suit after six months." See also Docket entries No. 157-2 (Summary of Claims); 157-6 and 157-8.
Claims 7-32 are time-barred by the filing of Claim 33, filed on October 26, 2009, to amend Claims 1-3, 11, 13, 15-19 and 20-29. By filing the instant action on November 25, 2009, plaintiff deprived the agency of jurisdiction to entertain the administrative claims pending. "Amended Claim 33 restarted the administrative consideration period of 6-months until April 26, 2010 and by this action the plaintiffs deprived the court from subject matter jurisdiction." See Docket No. 155-2, page 13. "Therefore, suit was barred during pendency of claims." Id. "Since the administrative exhaustion requirement is jurisdictional, a prematurely-filed suit is subject to dismissal even if the issue is first raised on appeal." Estate of Barrett v. United States, 462 F.3d 28, 38 (1st Cir. 2006). See Docket No. 155-2, page 13. "When plaintiffs opted to file the lawsuit on November 25, 2009, the agency lost its authority to consider them at the administrative stage." Id.
All claims (on or about 73) filed after November 25, 2009 are barred, as the agency is deprived of jurisdiction to entertain any claim after a legal proceeding has been filed in the district court. See Docket No. 157-11, and 157-6 and 157-8.
Hence, for the reasons set forth above, the Court finds that it lacks subject matter jurisdiction to entertain the above claims, as follows:
Claims No. 1-6: are time-barred.
Claims No. 7-32: are time-barred, as they were amended by Claim 33 which was filed on October 26, 2009. The Amended Claim 33 is barred by the filing of the instant action on November 25, 2009, which deprived the agency of jurisdiction to entertain the administrative claims pending.
All claims filed after November 25, 2009 (on or about 73 claims) are barred by the filing of the instant action.
In sum, the Court finds that it lacks subject matter jurisdiction to entertain all the administrative claims filed by plaintiffs, as plaintiffs failed to exhaust the administrative remedies provided by 28 U.S.C. § 2675. Hence, all the administrative claims filed by the plaintiffs are denied. "The First Circuit has rejected the argument that an FTCA action should be stayed while a plaintiff pursues his remedies
Other allegations referring to co-defendants, Servicios de Salud en el Hogar y Hospicio San Lucas, Inc. and Clinical Medical Services, which are not VA employees and/or federal entities, are not covered under the FTCA. Hence, the time to file the tort action against these entities and/or individuals in state court is one year after the underlying damage or the negligence occurs, see 31 L.P.R.A. §§ 5141, 5142.
In relation to the alleged loss of benefits, these are excepted from the FTCA by the discretionary function.
DVA officials who render decisions concerning VA benefits are required to exercise their judgment and as such, their actions fall within the discretionary function exception to the FTCA. The "DVA" was performing a discretionary function or duty when the veteran received the benefits rating decision. Therefore, all claims related to loss of benefits are barred. See Report of Compensation and Benefits, Docket entries No. 157-4, 157-5 and 157-7, for the benefits that were awarded to "the veteran." Docket No. 157-5 shows in the first columns the date of filing claims for benefits and compensation. It shows five (5) claims from 6/26/1974 to 1/16/2008. The last claim was for special monthly compensation and it was decided on 7/28/2008 and notified on 8/1/2008. Veteran David Rosario Rosado was granted 100% for permanent tracheostomy, 60% for post above the knee amputation and congestive heart failure, the previous rating of 30% for arterial hypertension and proteinuria was increased to 80%. DEA granted; automobile and adaptive equipment as well as specially adapted housing established; special monthly compensation (SMC) retroactively granted to November 13, 2007.
Therefore, those claims alleging loss of benefits must be summarily dismissed since there is no FTCA jurisdiction. In the alternative, if we apply the borrowing principle recommended by Ugo Colello for the computation of the limitation period for deemed denied claims, those claims would be time barred. See the Analysis of Claims, Docket No. 157-12.
Plaintiffs further argue open challenges to alleged denial or determination of the "veteran" benefits by DVA's employees intertwined with allegations of constitutional rights violations. Any challenge to determination on veteran benefits must be dismissed for lack of subject matter jurisdiction.
There is a statutory prohibition on judicial review on allegedly improper benefit determination or disability ratings by the DVA. 38 U.S.C. § 511(a) (formerly 38 U.S.C. § 211(a)). See Menendez v. U.S., 67 F.Supp.2d 42, 46 (D.P.R.1999). When enacting the Veterans Judicial Review Act, Congress established a multi-tiered framework for the adjudication of claims regarding veterans benefits. Citing Beamon v. Brown, 125 F.3d 965, 967 (6th Cir.1997). The Court further found that judicial review over decisions of the Court of Veterans Appeals reside in the Court of Appeals for the Federal Circuit. Id. at 45-46, citing 38 U.S.C. § 7252(a). The Court in Menendez, supra, also recognized court interpretations of § 511(a) precluding from
Plaintiffs' claims to challenge determinations of denial of veteran benefits related to the "veteran" cloaked as a constitutional claim or as a benefit claim are barred by sovereign immunity, and by the provisions of 38 U.S.C. § 511(a). Congress' reasons for the enactment of § 211(a) and then § 511(a) outlined by the Supreme Court in Johnson v. Robison, 415 U.S. 361, 372, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), apply with full force in this case: "[f]irst the interpretation would lead to an inevitable increase in litigation with consequent burdens upon the courts and the VA" and "[s]econd, Congress was concerned that the judicial interpretation of VA policy." Johnson, 415 U.S. at 372, 94 S.Ct. 1160. A plaintiff may not disguise his claims regarding denial of benefits in the garb of constitutional or other statutory violations. Menendez, 67 F.Supp.2d at 46.
The United States has not waived its sovereign immunity as to review of DVA decisions or procedures by any court other than the United States Court of Appeals for Veterans Claims (Veterans Court)
VA decisions under laws affecting benefits are subject to appeal within the VJRA scheme. Such appeals are taken first to the Board of Veterans' Appeals, an appellate body within VA, and are thereafter within the "exclusive jurisdiction" of the Veterans Court. 38 U.S.C. §§ 511(a), 7104(a), 7252(a). Congress has also authorized direct challenges to VA actions under 5 U.S.C. §§ 552(a)(1) or 553, including VA rules, interpretations, policy statements, and procedures, but has provided that such actions may be brought only in the Federal Circuit. 38 U.S.C. § 502. Section 511(a) of Title 38 precludes review of any VA decision under a law that affects the provision of benefits by VA, except as provided by sections 502 and 7252, or with respect to certain insurance and housing loan matters. Because Title 38 provides an adequate and exclusive remedy for challenges to any "final agency action," whether they involve adjudication, rulemaking, or general policies and procedures, the APA provides no independent waiver of sovereign immunity.
The Veterans Court has broad power to decide constitutional matters, to compel action unlawfully withheld or unreasonably delayed, and to issue writs of
Plaintiffs cannot circumvent the exclusive Title 38 procedures or the restrictions of 5 U.S.C. § 704 by purporting to challenge systemic defects in VA programs or practices as distinguished from discrete VA actions or decisions. To the extent plaintiffs are not challenging concrete VA rules or decisions on individual claims, but rather are broadly seeking improvements to programs they do not like, their claims do not satisfy the "final agency action" requirement of the APA's waiver of sovereign immunity under 5 U.S.C. § 704. As the Supreme Court has repeatedly held, plaintiffs simply "cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular agency action that causes it harm." Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (quoting Lujan v. Wildlife Federation, 497 U.S. 871, 891, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)) (emphasis in original).
In the leading case interpreting the statute prior to its amendment in Pub.L. No. 100-687, Johnson v. Robison, 415 U.S. at 369-73, 94 S.Ct. 1160, the Supreme Court recognized Congress' two-fold purpose in enacting what is now section 511. That purpose is, first, to ensure that veterans' benefit claims will not burden the courts and VA with expensive and time-consuming litigation and, second, to ensure that the technical and complex determinations and applications of VA policy regarding such claims will be adequately and uniformly made. The legislative history of the statute demonstrates that "Congress intends to exclude from judicial review all determinations with respect to noncontractual benefits provided for veterans and their dependents and survivors." H.R.Rep. No. 1166, 91st Cong., 2d Sess. 11, reprinted in 1970 U.S.C.C.A.N. 3723, 3731.
The statute barred district-court consideration of individual claims for veterans' benefits, e.g., Tietjen v. United States Veterans Admin., 884 F.2d 514 (9th Cir.1989); Rosen v. Walters, 719 F.2d 1422 (9th Cir. 1983); Demarest v. United States, 718 F.2d 964 (9th Cir.1983); de Rodulfa v. United States, 461 F.2d 1240 (D.C.Cir. 1972); Milliken v. Gleason, 332 F.2d 122 (1st Cir.1964). However, prior to passage of the VJRA, a few judicially created exceptions
The VJRA, enacted on November 18, 1988, provided a limited waiver of sovereign immunity for lawsuits seeking review of VA benefit decisions. Subject to certain stated limitations, the VJRA vests exclusive jurisdiction in the Veterans Court to review such decisions. See 38 U.S.C. ch. 72.
In Sugrue v. Derwinski, 26 F.3d 8, 11 (2d Cir.1994), cert. denied, 515 U.S. 1102, 115 S.Ct. 2245, 132 L.Ed.2d 254 (1995), the Second Circuit stated that courts do not acquire jurisdiction over challenges to VA benefit determinations merely because the challenges are "cloaked in constitutional terms." The court went on to state that neither the Privacy Act, nor the Freedom of Information Act, may be used as "a rhetorical cover to attack VA benefits determinations." Id.
A constitutional challenge to veterans benefit legislation has been permitted in a district court under the VJRA. Disabled Am. Veterans v. United States Dep't of Veterans Affairs, 962 F.2d 136, 140 (2d Cir.1992) (preclusion-of-review statute does not deprive district courts of jurisdiction to hear facial challenges to legislation affecting veterans' benefits).
Moreover, to the extent that plaintiffs seek monetary relief for alleged violations of constitutional rights, the Federal courts have consistently refused to countenance damage actions against the Government based on constitutional grounds.
Finally allegations of libel, constitutional violations and determinations of veterans benefits fall out of the scope of the FTCA, and are not actionable against the United States.
Plaintiff Juan Vélez-Padilla is the "only friend" of veteran David Rosario. See Complaint, Docket No. 1, prayer for relief at page 17. In plaintiffs' response to the United States' motion for summary judgment, Docket No. 160, at page 10, they stated: "Juan Vélez Padilla has never waived his claims. Moreover, Juan Vélez Padilla has cause of action under Puerto Rico law for wrongful death because he was a close relative of David Rosario Rosado, hence, having action for damages."
On November 18, 2008, Juan Vélez Padilla filed administrative claim number six (6) claiming $66,600,000.00 in damages for assisting and grooming the veteran for 99 days prior to his demise on August 5, 2008. See Docket No. 157-4, page 2 of the Summary of Claims. The Court has reviewed the Complaint and Juan Vélez-Padilla did not include a specific allegation for his claim. The Complaint just states in the prayer for relief:
Under the FTCA the United States shall be liable if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. §§ 1346(b) and 2674.
The controlling case in the Commonwealth of Puerto Rico is Viuda de Delgado v. Boston Ins. Co., 101 D.P.R. 598, 602 (1973), 1 P.R. Offic. Trans. 823 holding that only heirs of a deceased person has an action for damages.
Plaintiffs have failed to properly pled in its opposition to summary judgment whether indeed plaintiff Vélez has standing to seek damages. The simple conclusory allegation that Juan Vélez Padilla was a close relative of David Rosario Rosado is a vague and unsupported allegation, subject to dismissal under the plausibility standard as set forth in Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Moreover, from the allegations of Daniel Rosario-González in Civil Case 08-1837(CCC), it appears that the heirs of veteran David Rosario-Rosado are Wilfredo, Iván, Edwin and Daniel, all with the last surname Rosario.
In view of the foregoing, the claim of Juan Vélez Padilla is hereby dismissed with prejudice, for failure to show that indeed Mr. Vélez Padilla met the threshold of being a heir pursuant to the Puerto Rico law.
The Court is cognizant that the instant case was consolidated with Civil No. 12-1201 and Civil No. 12-1208. See Order of July 12, 2012, Docket No. 404. These cases stem from the same set of facts, that is, the passing of veteran David Rosario Rosado. Plaintiff Daniel Rosario is requesting the same remedies in all the consolidated actions, including an excessive amount of damages. Based on the instant Opinion and Order, the Court hereby denies the remedies sought by plaintiff Daniel Rosario in the consolidated actions, Civil No. 12-1201 and Civil No. 12-1208, as being moot and already ruled upon in the instant case.
Plaintiffs allege in most if not in all of their pleadings several constitutional violations, as well as civil rights violations. None of the alleged violations are supported in the record nor are they described with specificity in order to place the Court in a position to make a determination. Naked and bared general conclusory allegations as to violations of constitutional and/or civil rights are insufficient to warrant a remedy. See Bell Atlantic Corporation, et al. v. Twombly, et al., 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (May 21, 2007). In Twombly, 550 U.S. at 555 and 570, 127 S.Ct. 1955, the Court held:
In any event, these constitutional and civil rights allegations are not actionable against the United States except as provided in the Federal Tort Claims Act.
The Court notes that, in the instant case, the plaintiffs are requesting the entry of a declaratory judgment and the award in excess of $4,000,000,000,000.00 in damages plus costs and interest, and the reasonable amount of not less than $4,000,000,000,000.00 in compensatory damages. See Complaint, Docket No. 1, page 18. The Court simply lacks the power
The Court further notes that plaintiff Daniel Rosario is also seeking an excessive amount of damages under the other consolidated cases, to wit, Civil No. 12-1201 and Civil No. 12-1208. In Civil No. 12-1201, plaintiff is seeking $500,000.00 for damages, plus costs and interest, and $500,000.00 for compensatory damages. See Complaint, Docket No. 2, Civil No. 12-1201. In Civil No. 12-1208, plaintiff Daniel Rosario is seeking $55,000,000,000,000.00 for damages, plus costs and interest, as well as $55,000,000,000,000.00 for compensatory damages. See Complaint, Docket No. 2, Civil No. 12-1208. But see also, a motion requesting the entry of a declaratory judgment, Docket No. 3, Civil No. 12-1208, wherein plaintiff Daniel Rosario seeks damages in the amount of $55,000,000,000,000.00 plus costs and interest, and $55,000,000,000,000.00 for compensatory damages.
For the reasons set forth above, the Government's Motion for Summary Judgment, Docket No. 155, is GRANTED, and this case is dismissed with prejudice. For the reasons set forth in this Opinion and Order, the consolidated cases, Civil No. 12-1201 and Civil No. 12-1208 are hereby dismissed with prejudice. The Clerk will close all pending motions based on the entry of this Opinion and Order. Judgment is to be entered accordingly, closing the following cases: Civil No. 09-2200, Civil No. 12-1201, and Civil No. 12-1208.
IT IS SO ORDERED.
In short, it is plain that a no-limitations rule for deemed denials harms all four groups Congress intended to benefit: courts will have to deal with repetitive filings over an indefinite period of time; FTCA claimants who receive formal denials are subjected to a more narrow window within which to file suit than deemed deniers; the Justice Department, perhaps years later, will have to relitigate suits that have been litigated and dismissed; and agencies will have to locate witnesses whose memories will surely have faded and documents that may have been destroyed. It would be wrong, therefore, to suggest that the borrowing principle should not be applied to the deemed-denial problem because Congress's silence somehow promotes a legislative policy objective. Id. at page 444.
This section amends the provisions of section 2401, the limitations section, to conform the section to the amendments added by the bill. The amendments have the effect of simplifying the language of section 2401 to require that a claimant must file a claim in writing to the appropriate Federal agency within 2 years after the claim accrues, and to further require the filing of a court action within 6 months of notice by certified or registered mail of a final decision of the claim by the agency to which it was presented.
But it is quite a different matter to conclude from the statement in the section-by-section analysis of § 2401(b) that Congress did not intend to impose a limitations period when an FTCA claimant deems her claim denied by providing an agency written notice of the deemed-denial decision or when a second suit is filed after a claim is deemed denied by filing suit. When Congress amended the FTCA in 1966, it was not acting in a vacuum. Rather, as courts have recognized, the Congress legislates against a background of well settled common-law principles, one of which is the principle of repose, which drives the practice of borrowing statutes of limitations and which must be incorporated into the FTCA unless Congress instructs otherwise. Thus, it would be extraordinary indeed to conclude that the 1966 Congress intended not to impose a limitations period on deemed denials, yet failed to utter a single word in support of that conclusion. That Congress could not have intended a no-limitations rule for deemed deniers is reinforced further still because, in addition to the legislative history suggesting a six-month limitations period applies to deemed denials, other clearly expressed policies underlying the 1966 amendments to the FTCA suggest that Congress must have intended the six-month limitations period in § 2401(b) to apply once an FTCA claimant takes action to deem her claim denied." Ugo Colello, Op. Cit. pages 438-441.
