Peruta v. Gibson et al

MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim

D. Conn.July 5, 2017

ORAL ARGUMENT IS NOT REQUESTED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT EDWARD A. PERUTA, Plaintiff, v. No. 16-cv-2112 UNITED STATES, JULY 5, 2017 Defendant. MOTION TO DISMISS The United States1 moves to dismiss plaintiff Edward Peruta’s complaint pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. In support of this motion, the United States relies on the attached memorandum of law. For the reasons described, the United States respectfully requests that its motion to dismiss be granted. Respectfully submitted, DIERDRE M. DALY United States Attorney /s/ Natalie N. Elicker Natalie N. Elicker, ct28458 Assistant United States Attorney 157 Church Street New Haven, CT 06510 Telephone: (203) 821-3700 Fax: (203) 773-5373 Email: Natalie.Elicker@usdoj.gov 1 Peruta filed suit on December 22, 2016, against various individual defendants in their official capacities. Compl. 1. On June 6, 2017, the Court granted (ECF #10) the United States’ unopposed motion to substitute (ECF #7) and the United States was substituted as the proper party defendant for the named individuals. Case 3:16-cv-02112-VLB Document 14 Filed 07/05/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT EDWARD A. PERUTA, Plaintiff, v. No. 16-cv-2112 UNITED STATES, JULY 5, 2017 Defendant. MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS In accordance with D. Conn. L. Civ. R. 7(a), the United States submits this memorandum of law in support of its motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6). Count 3 (due process) should be dismissed because the United States cannot be sued for an alleged constitutional violation. Peruta’s remaining claims,2 Counts 1 (negligence), 4 (negligent infliction of emotional distress), and 5 (intentional infliction of emotional distress), sound in tort law and arise out of the alleged failure of federal employees to administer a federal benefits program consistent with federal law; these claims are barred as untimely, by sovereign immunity, and by the terms of the Federal Tort Claims Act (“FTCA”). 2 Count 2 - Vicarious liability, respondeat superior, ostensible agency and/or agency. Count 2 alleges that the individually-named defendants were acting on behalf of the United States, and further appears to allege that the United States is therefore responsible for their conduct. Compl. ¶ 211. Because the United States has been substituted as the proper name defendant, this count is moot. Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 1 of 20 2 STATUTORY BACKGROUND AND STANDARD OF REVIEW I. Statutory and regulatory background This is an action brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80. Complaint ¶ 1 (ECF #1). The FTCA authorizes suits against the government to recover damages for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, 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)(1). “To fulfill its mission of providing health care to Veterans, [the Veterans Health Administration] purchases medical services from community health care providers under the Non-VA Medical Care Program,” a program previously known as “fee care” or “fee basis care.” R. Petzel, Under Secretary for Health, Veterans Health Administration Directive No. 1601, Jan. 23, 20133; see also 38 U.S.C. § 1703; 38 C.F.R. § 17.52-17.56. Prior to 2010, veterans who were eligible for all medical care to be provided on a “fee basis status” received a special ID card. Veterans Health Administration Manual, M-1 - Operations, Part I - Medical Administration Activities, Chapter 18 - Outpatient Care-Fee (Dep’t of Veterans 3 Available at https://www.va.gov/vhapublications/ViewPublication.asp?pub_ID=2859. Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 2 of 20 3 Affairs, July 20, 1995), at Section IV - Establishing Fee-Basis Status, 18.22 - ID Card Fee-Basis Status, at 18-14 (Feb. 20, 1991). II. Standard of Review “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The court must “[c]onstrue all ambiguities and draw[] all inferences in [the plaintiff]’s favor,” and “may refer to evidence outside the pleadings.” Id. “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id. (citing Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996)). “When an action is brought against the United States government, compliance with the conditions under which the government has agreed to waive sovereign immunity is necessary for subject matter jurisdiction to exist. Accordingly, the statute of limitations may operate in suits against the United States . . . [to] deprive a court of subject matter jurisdiction over an action that is not timely filed.” Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiff, and decide whether it is plausible that the plaintiff has a valid claim for relief. Fairchild v. Quinnipiac Univ., 16 F. Supp. 3d 89, 93 (D. Conn. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 3 of 20 4 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996)). BACKGROUND III. Facts Peruta filed suit on December 22, 2016, against various individual defendants in their official capacities. Compl. 1. On June 6, 2017, the Court granted (ECF #10) the United States’ unopposed motion to substitute (ECF #7) and the United States was substituted as the proper party defendant for the named individuals.4 Peruta’s complaint is brought “pursuant to the Federal Tort Claims Act, the Fourteenth Amendment to the United States Constitution, and common law tort claims.” Compl. ¶ 1. Through the suit, Peruta seeks “to redress the unlawful denial” of his “entitlement to fee basis medical care without notice or opportunity for hearing and in the absence of a medical justification.” Compl. ¶ 1. Peruta claims jurisdiction under 28 U.S.C. § 1346(b)(1) (U.S. as defendant), 28 U.S.C. § 2401(b) (FTCA), 28 U.S.C. § 2671, et seq. (FTCA), and 28 U.S.C. § 1367 (supplemental jurisdiction over state law claims). Peruta alleges a long history of contacts with the Veterans Affairs (“VA”) health care system. Compl. ¶¶ 18-166. Peruta first qualified for a fee basis card for all medical conditions in 1990. Compl. ¶ 103. It appears that Peruta used the 4 See Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001) (“[A]ny action that charges such an official with wrongdoing while operating in his or her official capacity as a United States agent operates as a claim against the United States.”). Service of process was never performed on the United States; this defense is hereby waived. Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 4 of 20 5 fee basis card uninterrupted until October 2009. Compl. ¶ 18-166. On October 15, 2009, Peruta was denied eligibility for a fee basis card. Compl. ¶¶ 168 & 174. He alternately alleges that his fee basis status “lapsed” due to lack of notice by the VA. Compl. ¶ 176. Peruta appealed the October 15, 2009 decision through the appropriate administrative channels. See Compl. ¶ 189. Peruta alleges the VA lost his appeal papers and did not process the appeal until after Peruta alerted VA by telephone. See Compl. ¶¶ 189-190. On April 4, 2014, the Board of Veterans’ Appeals (“BVA”) ordered restoration of Peruta’s entitlement to a fee basis card after finding the October 15, 2009 denial of eligibility was “improper.” Compl. ¶ 168; Edward Peruta, No. 11-21 722, at 5 (Board of Veterans’ Appeals, Apr. 4, 2014) (attached as Exhibit A).5 The BVA additionally ruled that Peruta “is eligible for and entitled to a fee basis medical identification card for any and all medical treatment for which he would normally be qualified as a Veteran.” Compl. ¶ 168; In the Appeal of Edward Peruta, No. 11-21 722, at 5. Peruta appears to allege that between 2009 and 2014, he was unable to utilize fee basis medical care and instead received health care services either 5 “In reviewing a motion to dismiss under Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint. Where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document integral to the complaint. Therefore, where a plaintiff does not attach to the complaint or incorporate by reference a document on which it relies and which is integral to the complaint, a defendant may introduce that document as part of a motion attacking the pleadings.” Spears v. Liberty Life Assur. Co. of Boston, 885 F. Supp. 2d 546, 552 (D. Conn. 2012) (internal quotation marks and citations omitted) (emphasis added). Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 5 of 20 6 from the VA directly, or from private providers whom he paid with the assistance of medical insurance. See Compl. ¶ 172. In June 2015, the Secretary of Veterans Affairs approved equitable relief for Peruta, after a meeting between Peruta’s counsel and Department of Veterans Affairs staff in Washington, D.C. Compl. ¶ 178; Memorandum for the Under Secretary for Health (Secretary of Veterans Affairs, July 22, 2015) (“Subject: Equitable Relief for Mr. Edward A. Peruta”) (attached as Exhibit B). Peruta does not allege any money damages in his Complaint. The equitable relief ordered in June 2015 reimbursed Peruta and his insurer for the out-of-pocket expenses he incurred 2009-2014. Memorandum for the Under Secretary for Health, at 1 (Secretary of Veterans Affairs, July 22, 2015). IV. Causes of Action Peruta does not challenge any aspect of the BVA’s 2014 decision reinstating his fee basis status, nor any aspect of the Secretary’s 2015 decision granting him equitable relief. His chief complaint appears to be that he was removed from fee basis status in 2009 “without notice, opportunity for hearing, or medical basis.” Compl. ¶¶ 172, 217 & 219. This determination was reversed by the BVA’s 2014 decision. Peruta’s complaint includes four remaining counts: Count 1 - Negligence against the United States. Peruta alleges that the United States had a duty to hire “competent” staff who could provide the “level of care” that “met all applicable legal requirements.” Compl. ¶¶ 194 & 196. His Count 1 does not list any particular “applicable legal requirements,” but appears to refer to the acts that lead to the alleged wrongful termination from fee basis status. Compl. ¶¶ 172. Peruta alleges that VA breached its duty by hiring and Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 6 of 20 7 retaining incompetent employees. Compl. ¶¶ 205 & 205. Peruta alleges that the defendant’s breach of its duty caused him to wrongly lose fee basis status. See Compl. ¶¶ 202-03. Without citation to any statute or case, Peruta additionally alleges that his allegations would constitute a claim under Connecticut state law. Compl. ¶ 207. He appears to seek compensatory damages. Compl. ¶ 213. Count 3 - Violation of due process. Peruta alleges that the VA denied him an opportunity for notice and a hearing before his fee basis status was terminated in October 2009. Compl. ¶¶ 217 & 219. He further alleges that the denial of “due process” was in violation of the Fourteenth Amendment to the United States Constitution. Compl. ¶ 219. Peruta alleges that the “denial of due process in violation of the Fourteenth Amendment to the United States Constitution caused the damages to the Veteran described under Counts 1, 2, 4, and 5.” Compl. ¶ 219. Count 4 - Intentional infliction of emotional distress. Peruta alleges that the United States “knew or should have known that emotional distress was the likely result of their” conduct “in unlawfully terminating his fee basis status then losing [Peruta’s] BVA appeal and seeking to delay [Peruta’s] relief.” Compl. ¶ 221. He seeks compensatory and punitive damages. Compl. ¶ 224. Count 5 - Negligent infliction of emotional distress. Peruta alleges that the United States “created an unreasonable risk of causing” him “emotional distress by unlawfully terminating his fee basis status then losing [Peruta’s] BVA appeal and seeking to delay [Peruta’s] relief.” Compl. ¶ 226. He seeks compensatory and punitive damages. Compl. ¶ 230. Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 7 of 20 8 ARGUMENT V. This Court lacks subject matter jurisdiction A. Sovereign immunity bars the due process claims “Under traditional principles of sovereign immunity, the United States is immune from suit except to the extent the government has waived its immunity.” Coulthurst v. United States, 214 F.3d 106, 108 (2d Cir. 2000); Sicignano v. United States, 127 F. Supp. 2d 325, 328 (D. Conn. 2001). A waiver of sovereign immunity “must be unequivocally expressed in the statutory text . . . and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996). Peruta’s claims based on due process, which he characterizes as arising under the Fourteenth Amendment to the United States Constitution, fail.6 As an initial matter, by its terms the Fourteenth Amendment’s due process clause applies to the states, not to the federal government. This motion assumes that Peruta and his counsel meant to invoke the Fifth Amendment’s guarantee of due process, which does apply to the United States, in limited contexts. See Davis v. Passman, 442 U.S. 228, 234 (1979) (“this Court has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws.”) (punctuation omitted). In any event, the United States has not waived sovereign immunity for damages suits based on claims that federal employees violated the Constitution. Rather, such claims lie-in limited circumstances-against federal employees acting in their individual capacities. See Ziglar v. Abbasi, No. 15-1358, 2017 WL 6 According to Peruta’s own allegation, each of the Counts is based on the Fourteenth Amendment. See Compl. ¶ 219. For this reason alone, if the “due process” Count fails, so should each of the other Counts. Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 8 of 20 9 2621317, at *9-14 (U.S. June 19, 2017) (detailing history and limited scope of Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)). Peruta’s claims are against the employees in their official capacities, and thus the United States, which is protected by sovereign immunity. Even if Peruta had sued the VA employees in their individual capacities, he would fare no better. The Second Circuit has already refused to recognize the “due process” cause of action that Peruta attempts to plead. In Sugrue v. Derwinski, 26 F.3d 8 (2d Cir. 1994), the plaintiff brought a federal action seeking damages after obtaining only partial success in his administrative process before the VA challenging his disability rating. Id. at 10. The court analyzed the claim in light of Bivens and its progeny and found: Sugrue's action against the VA Employees is based solely upon their acts or omissions concerning the assigning of a disability rating, and hence a benefit level, to Sugrue. Congress has enacted a comprehensive remedial structure to address disputes regarding disability ratings and benefits claims by veterans. Id. at 12. Here, as in Sugrue, a veteran such as Peruta who claims fee basis status from the VA must utilize an administrative process carefully crafted by Congress and the VA. Congress declined, however, to enact the remedy that Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 9 of 20 10 Peruta asks this Court to create against the United States and/or the VA’s employees. Thus, to the extent Peruta raises claims based on the United States Constitution and/or its amendments, the defendant United States has sovereign immunity. See Kentucky v. Graham, 473 U.S. 159, 167 (1985). Peruta’s constitutional claims must be dismissed for lack of subject matter jurisdiction. B. The FTCA does not create subject matter jurisdiction for Peruta’s three tort claims The “United States, as sovereign, is immune from suit save as it consents to be sued . . . , and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (citation and internal quotation marks omitted). “The doctrine of sovereign immunity is jurisdictional in nature, see FDIC v. Meyer, 510 U.S. 471, 475 (1994), and therefore to prevail, the plaintiff bears the burden of establishing that her claims fall within an applicable waiver.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The United States has waived sovereign immunity under the Federal Tort Claims Act (“FTCA”) only for Claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 10 of 20 11 accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b); F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994). The FTCA, 28 U.S.C. § 2674, further provides that “The United States shall be liable, respecting the” FTCA “in the same manner and to the same extent as a private individual under like circumstances.” See United States v. Olson, 546 U.S. 43, 44 (2005). Accordingly, subject matter jurisdiction exists only if a private person under similar circumstances would be liable to Peruta under Connecticut law for the alleged conduct. Although it is somewhat opaque,7 Peruta’s Count 1 appears to allege a claim for negligent hiring or supervision. Compl. ¶¶ 197-982, 205. Peruta appears to argue that the United States breached its duty by hiring employees who did not properly administer its benefits program. See, e.g., Compl. ¶ 202. These allegations do not state a cognizable claim under the FTCA and/or Connecticut law. “The FTCA does not create new causes of action, but only waives immunity under circumstances that would create liability ‘in the same manner and to the same extent as a private individual under like circumstances.’ 28 U.S.C. § 2674.” 7 Peruta alleges that the United States “had a duty . . . to exercise that standard and degree of care and skill required of health care providers, consistent with the expertise that the Defendant presented to the community at large.” Compl. ¶ 194. But, Peruta has not attached a “good faith certificate” to his pleading, as is required for a medical malpractice claim in Connecticut. See, e.g., Freeman v. United States, 166 F. Supp. 3d 215, 220-21 (D. Conn. 2016) (noting good faith certificate requirement). Thus, despite Peruta invocation of the defendant’s employees as “health care providers,” they have not been sued as such and no special standard of care applies. Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 11 of 20 12 Dorking Genetics v. United States, 76 F.3d 1261, 1266 (2d Cir. 1996). “[T]he test established by the Tort Claims Act for determining the United States’ liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred.” Id. (citing Rayonier Inc. v. United States, 352 U.S. 315, 319 (1957)). “[T]he Supreme Court has made clear that the relevant inquiry is the liability of a ‘private person’ under State law, not that of a ‘state or municipal entity.’ . . . Accordingly, the liability of municipalities or municipal actors performing governmental functions cannot serve as a private analogue.” McGowan v. United States, 825 F.3d 118, 126 (2d Cir. 2016) (quoting United States v. Olson, 546 U.S. 43, 45-46 (2005)). As an initial matter, Peruta’s allegations that the VA employees were not properly trained in the VA’s own regulations do not satisfy the FTCA’s requirements. “The FTCA's ‘law of the place’ requirement is not satisfied by direct violations of the Federal Constitution or of federal statutes or regulations standing alone.” Dorking Genetics, 76 F.3d at 1266 (citing Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988); see also McGowan v. United States, 825 F.3d 118, 127 (2d Cir. 2016) (discussing Chen). In Chen, the Second Circuit held that “violation of the government's duties under federal procurement regulations is action of the type that private persons could not engage in and hence could not be liable for under local law.” Chen, 854 F.2d at 626 (internal punctuation and citation omitted); see also McGowan v. United States, 825 F.3d at 127. Accordingly, Peruta’s allegations that the VA employees failed to follow federal statutes and the VA’s regulations regarding the provision of fee basis care cannot support a claim under the FTCA. See, e.g., Compl. ¶ 196 (the United States had a Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 12 of 20 13 “duty to hire competent operations, administrators, employees, agents, and staff in order to meet its standard of quality of care of its patients”) (emphasis added), ¶ 198 (referencing “its [the United States’] standard of quality of care”), ¶ 200 (Peruta’s fee basis status “was protected,” presumably by federal statutes or regulations, “from any decision to terminate”). Instead, the Court must look to Connecticut law to determine whether Peruta has stated a cognizable claim against the United States. Under Connecticut law, Peruta’s claim fails the “private analogue inquiry” as stated in the Supreme Court’s Olson ruling, and applied by the Second Circuit in McGowan. Connecticut does not recognize a cause of action in tort for private actors who fail to competently administer a benefits program, and accordingly, there can be no negligent hiring/supervision claim for a failure to shield a member of the public from the same. Neither does Connecticut law recognize a freestanding duty to abide by private regulations-nor a negligent hiring/supervision claim for failure to shield a member of the public from the same. See McGowan, 825 F.3d at 127. It is hard to imagine how state law could recognize a duty of a private person to competently administer a federal benefits program, the regulation of which is reserved exclusively to the federal government. See Dorking Genetics, 76 F.3d at 1266; Prentice v. United States, 980 F. Supp. 2d 748, 751 (N.D. Tex. 2013) (holding that by statute, 38 U.S.C. § 511, the Secretary of Veterans Affairs has responsibility for decisions to grant or deny requests for fee-basis care, “and district courts are not part of that process”), abrogated on other grounds by Passmore v. Baylor Health Care Sys., 823 F.3d 292 (5th Cir. 2016). “The FTCA Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 13 of 20 14 does not extend to conduct governed exclusively by federal law.” Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir.1988) (internal punctuation omitted) (quoting Feres v. United States, 340 U.S. 135, 146 (1950)) (finding withdrawal of a person's citizenship to have no private analog); C.P. Chem. Co. v. United States, 810 F.2d 34, 37 (2d Cir.1987) (“[A]s to certain governmental functions, the United States cannot be held liable, for no private analog exists.”); see also Dorking Genetics, 76 F.3d at 1266. At base, Counts 1, 4, and 5 allege that the United States should be held liable because its employees allegedly failed to administer Peruta’s benefits program appropriately. Peruta cannot escape the application of 28 U.S.C. § 1346(b) and 28 U.S.C. § 2674 by couching his complaint in terms of negligent hiring, supervision, and retention, emotional distress claims, or other similar theories. However Peruta attempts to characterize this claim, it is not sufficient to create subject matter jurisdiction under the FTCA. The FTCA/tort claims must be dismissed for lack of subject matter jurisdiction.8 C. Time barred Finally, the Court lacks subject matter jurisdiction because Peruta’s tort claims fall outside the statute of limitations. FTCA § 2401(b) provides: 8 The United States explicitly reserves the opportunity to additionally argue that the FTCA’s discretionary function exception, 28 U.S.C. § 2680(a), precludes jurisdiction over Peruta’s claims. The exception does not appear to be triggered by Peruta’s complaint as reviewed by defense counsel; but despite diligent review, the legal theories for Peruta’s claims remain somewhat opaque. Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 14 of 20 15 A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b). The word “or” is read to mean “and.” Willis v. United States, 719 F.2d 608, 613 (2d Cir. 1983). Therefore, “[a] claim would have to be filed with the agency concerned within two years after it accrues and any tort action must be brought within 6 months after final denial of the administrative claim.” Id. at 612. Peruta alleges wrongful conduct by federal officials reaching as far back as 2002. Compl. ¶¶ 89-135. It appears Peruta became aware of this conduct in the course of preparing his requests for relief and reinstatement to fee basis status. Compl. ¶ 177. He does not provide the date on which he became aware of the conduct, as evidenced in the VA’s internal e-mails. Id. Peruta alleges the VA employees’ conduct culminated in his wrongful termination from fee basis status in October 2009. See Compl. ¶ 174. The only pertinent wrongful conduct Peruta alleges after October 2009 is the loss of his appeal papers, which delayed the processing of his successful appeal. Compl. ¶¶ 189-90. The statute of limitations in both Connecticut and Washington, D.C. for tort actions is three years. Conn. Gen. Stat. § 52- 577; D.C. Code § 12-301(8). Peruta alleges a harm that occurred, at the latest, in “the spring of 2010,” when he Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 15 of 20 16 became aware that his fee basis status ended. Compl. ¶ 204. This injury is when the statute of limitations began to run. Because Peruta’s claims therefore are barred by the three-year state statutes of limitations applicable to common law tort actions, this Court lacks subject matter jurisdiction. Peruta’s claims must be dismissed pursuant to Rule 12(b)(1). See Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991) (“[T]he statute of limitations may operate in suits against the United States . . . [to] deprive a court of subject matter jurisdiction over an action that is not timely filed.”).9 VI. The tort counts fails to state a claim upon which relief can be granted Peruta’s Counts 1, 4, and 5 fail to state a claim upon which relief can be granted because they do not allege facts that, if true, demonstrate that it is plausible that the plaintiff has a valid claim for relief. A. Count 1, negligent hiring/supervision To assert a negligent hiring claim under Connecticut law, a plaintiff must “[p]lead and prove that she was injured by the defendant's own negligence in failing to select as its employee a person who was fit and competent to perform the job in question and that her injuries resulted from the employee's unfit or incompetent performance of his work.” Roberts v. Circuit-Wise, Inc., 142 F.Supp.2d 211, 214 n.1 (D. Conn. 2001). Similarly, Connecticut law requires that a plaintiff bringing a negligent supervision claim “[p]lead and prove that he suffered 9 Additionally, Peruta did not satisfy 28 U.S.C. § 2401(b)’s timing requirements. This action was not brought within six months after the date his administrative relief denial letter was mailed, August 27, 2015. Plaintiff contests whether this letter was, in fact, mailed on August 27, 2015. Compl. ¶¶ 187-88. Accordingly, this issue is not appropriate to resolve on a motion to dismiss. Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 16 of 20 17 an injury due to the defendant's failure to supervise an employee whom the defendant had a duty to supervise. A defendant does not owe a duty of care to protect a plaintiff from another employee's tortious acts unless the defendant knew or reasonably should have known of the employee's propensity to engage in that type of tortious conduct.” Abate v. Circuit-Wise, Inc., 130 F.Supp.2d 341, 344 (D. Conn. 2001). “It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of said employee's propensity for the type of behavior causing the plaintiff's harm.” Favale v. Roman Catholic Diocese of Bridgeport, 233 F.R.D. 243, 246 (D. Conn. 2005) (internal punctuation and citations omitted). Simply stated, Peruta has not pleaded facts supporting that the United States had notice of any employee’s propensity to administer the benefits program incorrectly. Peruta has quoted extensively from e-mails that were exchanged in 2002. Compl. ¶¶ 89-135. He described conduct that occurred in 2002-2009. Compl. ¶¶ 137-63. Tellingly, in a section entitled “2009-2010 Fee Basis Termination,” he does not allege any facts about the process or motives immediately before his fee basis status ended. Compl. ¶¶ 164-66. Instead, he alleges very generally that the “VA knowingly and intentionally failed to schedule” a necessary appointment. Compl. ¶ 174. But the VA acts only through its employees. Peruta does not allege any facts regarding the particular person that failed to schedule his appointment or notify him of the pending lapse, to support a claim that the United States should have been aware of that person’s likelihood of doing their job improperly. Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 17 of 20 18 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a plaintiff to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). If a plaintiff fails to meet these standards, Rule 12(b)(6) authorizes a court to dismiss for failure to state a claim upon which relief can be granted. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 (2007). B. Counts 4 and 5, emotional distress claims Peruta’s claims regarding emotional distress likewise fail. To state a claim for negligent infliction of emotional distress, plaintiff must plead that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm.” Montinieri v. Southern New England Tel. Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978); Shanks v. Walker, 116 F. Supp. 2d 311, 315 (D. Conn. 2000). Peruta does not allege that any unreasonable conduct of any United States employee effectuated the fee basis status termination. Despite Peruta’s allegations to the contrary, it is not foreseeable to the United States that a person will experience emotional distress when there is a change to that person’s medical benefits-especially when, as here, it is not a complete loss of medical benefits but, instead, only a change in the provider of those benefits. The standard here, as for any tort case, is an objective one based on a “reasonable person.” The United States has no duty to foresee or anticipate Peruta’s idiosyncratic reaction to its action terminating benefits. Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 18 of 20 19 Under Connecticut law, a plaintiff alleging intentional infliction of emotional distress must show that: (1) the defendant intended to inflict emotional distress or knew or should have known that it would result; (2) the defendant's conduct was extreme and outrageous; (3) the conduct caused the plaintiff's distress; and, (4) the plaintiff's resulting emotional distress was severe. Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337, 1342 (1986), superseded by statute on other grounds as recognized in Chadha v. Charlotte Hungerford Hosp., 272 Conn. 776, 865 A.2d 1163 (2005); see also Jordan v. U.S. Dept. of Treasury, 334 Fed. Appx. 372, 374 (2d Cir. 2009) (citing Petyan). Peruta’s claim fails because he has not alleged facts sufficient to satisfy either the first or the second element: there are no allegations about the state of mind of the actors relevant to the 2009 denial, let alone allegations showing an intent to inflict emotional distress; and none of the alleged conduct by the defendant’s employees can be construed as “extreme and outrageous.” Just as for Count 1, Counts 4 and 5 should be dismissed pursuant to Fed. R. Civ. P. 8(a)(2) and 12(b)(6). Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 19 of 20 20 CONCLUSION WHEREFORE, the defendant the United States requests that the Court dismiss Plaintiff’s claims in their entirety. Respectfully submitted, DIERDRE M. DALY United States Attorney /s/ Natalie N. Elicker Natalie N. Elicker, ct28458 Assistant United States Attorney 157 Church Street New Haven, CT 06510 Telephone: (203) 821-3700 Fax: (203) 773-5373 Email: Natalie.Elicker@usdoj.gov Case 3:16-cv-02112-VLB Document 14-1 Filed 07/05/17 Page 20 of 20 EXHIBIT 1 Case 3:16-cv-02112-VLB Document 14-2 Filed 07/05/17 Page 1 of 1 EXHIBIT A Case 3:16-cv-02112-VLB Document 14-3 Filed 07/05/17 Page 1 of 6 BOARD OF VETERANS' APPEALS DEPARTMENT OF VETERANS AFFAffiS WASHINGTON, DC 20420. IN THE APPEAL OF EDWARD A. PERUTA C 25 526 463 DOCKET NO. 11-21 722 ) ) ) DATE 4APR2014 On appeal from the Department of Veterans Affairs Medical Center in VA Connecticut Health Care System THE ISSUE Whether the Octo_ber 15, 2009, denial of eligibility for a fee basis medical . . identification card·was proper.· REPRESENTATION Veteran represented by: Rachel M. Baird, attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEYFOR THE BOARD Laura E: Collins, Associate Counsel Case 3:16-cv-02112-VLB Document 14-3 Filed 07/05/17 Page 2 of 6 IN THE APPEAL OF EDWARD A. PERUTA INTRODUCTION C 25 526 463 The Veteran had active service from August 1966 to August 1969, including service in the Republic of Vietnam, for which he earned a Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on ·appeal from a decision of the Department of Veterans Affairs (VA) Connecticut Health Care System (HCS). On October 15, 2009, the HCS discontinued the Veteran's fee basis outpatient identification card. In July 2012, the Veteran testified before the undersigned Veterans Law Judge sitting at the Central Office in Washington, D.C. A transcript is of record. FINDINGS OF FACT 1. The Board has jurisdiction to review the October 15, 2009, decision by. HCS. 2. The Veteran was originally granted fee basis outpatient treatment due to "other extenuating circumstances for hardship;" namely increased agitation, anxiety, and anger when visiting VA facilities. 3. A psychiatrist has reported and the record shows that since the original grant of fee basis eligibility, VA has not been capable of providing the care or service required due to these extenuating circumstances. 4. The October 15, 2009, denial· of eligibility for a fee basis medical identification card was improper. CONCLUSION OF LAW The criteria for restoration of a fee basis medical identification card are met, effective October 15, 2009. 38 U.S.C.A. §§ l 154(a), 1703, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 17.52 (2013). -2- Case 3:16-cv-02112-VLB Document 14-3 Filed 07/05/17 Page 3 of 6 IN THE APPEAL OF EDWARD A. PERUTA C 25 526 463 REASONS AND BASES FOR FINDINGS AND CONCLUSION When VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or because they are not capable of furnishing care or services required, VA may contract with non-VA facilities to provide the appropriate care. 38 U.S.C.A. § 1703 (West 2002); 38 C.F.R. § 17.52 (2009). In Meakin v. West, 11 Vet. App. 183 (1998), the United States Court of Appeals for Veterans Claims (Court) determined that the Board had jurisdiction to review a determination by a VA Medical Center that denied eligibility for fee basis outpatient treatment for service-connected disabilities. The Court noted that in determining whether a claimant would be eligible for fee basis outpatient medical care~ a claimant must be a veteran seeking treatment for a service-connected disability, and VA facilities must be either (1) geographically inaccessible or (2) riot capable of providing the care or services that the claimant requires. The Court stated that with regard to the latter factor, the determination of whether a VA facility is capable of furnishing specific care or services does not involve a medical . determination, nor does 'it involve the question of the "need for and appropriateness of specific types of medical care and treatment," as contemplated by 38 C.F.R. § 20 .10 l. Meakin, 11 Vet. App. at 187. Thus, as a general matter, the Board may review a claim for eligibility for a fee basis medical identification card that would authorize payment for medical services for outpatient treatment outside the VA healthcare system. Service connection is currently in effect for: posttraumatic stress disorder (PTSD) rated 100 percent disabling; coronary artery disease rated 30 percent disabling; residuals of rotator cuff injury to the right shoulder rated 10 percent disabling; tinnitus rated 10 percent disabling; and hearing loss of the left ear rated noncompensably disabling. As he is seeking fee-basis service for all of his service· connected disabilities and his PTSD disability is rated 100 percent disabling, he meets the criteria for receiving fee basis medical services. 38 C.F .R. § 17.52(a). The fact that HCS facilities are geographically accessible is uncontested. - 3 - Case 3:16-cv-02112-VLB Document 14-3 Filed 07/05/17 Page 4 of 6 .. IN THE APPEAL OF EDWARD A. PERUTA C 25 526 463 Consequently, the Board must determine whether the HCS is capable of providing the medical treatment the Veteran needs. 38 C.F.R. § 17.52(a). The Veteran was originally granted fee basis psychiatric care based on an October 1986 referral. That referral states that the services are justified by "other extenuating circumstances for hardship" and specifies, "Veteran is 100 percent service-connected for PTSD. He becomes [highly] agitated, [ with increased] anxiety, and [increased] anger when at the VA Hospital." The Veteran was originally granted fee basis care for all other service-connected disabilities based on a December 1990 referral. That referral is also based on extenuating circumstances for hardship, listing three reasons: "in-house patient management situation (behavioral)," "patient becomes extremely tense coming into VA hospital," and "cannot deal with coming in to hospital." The physician signing the referral recommended and approved "any and all medical not just PTSD." (Emphasis in original.) The Veteran remained eligible for and used the fee basis medical identification card until he was notified in June 2010 that it had "expired'' on October 15, 2009. He contends that the extenuating circumstances for which the fee basis card were granted are unchanged, and a medical opinion from psychologist Dr. Johnson · supports this contention. Dr. Johnson was a psychologist at the West Haven VA Medical Center (part of the HCS) for 17 years, but did not have any knowledge of or interactions with the Veteran during that time. He later treated the Veteran as a private psychologist from September 2004 to April 2005. Based on a thorough psychological evaluation conducted in June 2012, a review of the Veteran's medical records, his own treatment of the Veteran, and his background, Dr. Johnson opined that the Veteran has lost any semblance of trust in the VA, based largely on a traumatic combat experience in Vietnam and then expanded over the years as he conflicted with VA personnel. There is no way, ever, that he will accept services at VA facilities and doing so will create tremendous stress for him. If there was ever a Veteran I -4- Case 3:16-cv-02112-VLB Document 14-3 Filed 07/05/17 Page 5 of 6 . . ,, IN THE APPEAL OF EDWARD A. PERUTA C 25 526 463 have met who requires fee basis, it is this one. Denying him fee basis will be detrimeQ.tal to his health. (Emphasis added.) Dr. Johnson recommended that the Veteran be given fee basis status for "any and all medical conditions that he would normally be qualified for as a Veteran." Dr. Johnson's report is consistent with the evidence of record, which shows a long history of a hostile relationship between the Veteran and VA and documents the Veteran's mistrust of VA. There is no evidence that these extenuating circumstances have changed since October 1986 or December 1990. There is no evidence of record in conflict with Dr. Johnson's.report or the Veteran's lay evidence in this regard. The claims file reflects that no solution has been found to the lack of trust issue. As such, the Board finds that since the original grants of fee basis treatment in October 1986 and December 1990, VA has not been capable of providing the care or service required. Accordingly, the October 15, 2009, denial of eligibility for a fee basis medical identification card was improper. Therefore, the Veteran is eligible for and entitled-to a fee basis medical identification card for any and all medical treatment for which he would normally be qualified as a Veteran. ORDER Restoration of entitlement to a fee basis medical identification card is granted. MICHAEL E. KILCO Veterans Law Judge, Board of Veterans' Appeals Case 3:16-cv-02112-VLB Document 14-3 Filed 07/05/17 Page 6 of 6 EXHIBIT B Case 3:16-cv-02112-VLB Document 14-4 Filed 07/05/17 Page 1 of 5 THE SECRETARY OF VETERANS AFFAIRS WASHINGTON July 22, 2015 MEMORANDUM FOR THE UNDER SECRETARY FOR HEAL TH SUBJECT: Equitable Relief for Mr. Edward A. Peruta Pursuant to Section 503(a) of Title 38 U.S.C., equitable relief is granted in the amount of $56,167.43; of which , $36,028.67 will be paid directly to United Healthcare and $20,138.76 will be paid to the Veteran , Mr. Edward Peruta. Robert A. McDonald Case 3:16-cv-02112-VLB Document 14-4 Filed 07/05/17 Page 2 of 5 Department of Veterans Affairs Memorandum Date: JUL 2 f 2015 From Subj: To: Thru: Under Secretary for Health (10) Request for Equitable Relief Pursuant to Title 38 (U.S.C.) 503(a) for Mr. Edward A. Peruta Secretary (00) General Counsel (02) 1. Pursuant to Section 503(a) of Title 38, U.S.C, the VA Connecticut Health Care System (the "System") is requesting equitable relief based on the uncontested administrative error on the part of the System which by decision October 15, 2009, found this Vietnam Veteran to be ineligible for renewal of his fee-basis card for his 100% service-connected PTSD condition (which had been issued originally in October of 1986). The Veteran's fee basis card was extended to cover his other service-connected conditions in December of 1990. The System notified him in June of 2010 that his fee basis card (which he had been using up until that time) had expired on October 15, 2009. On August 24, 2010, the Veteran filed a formal appeal to the Board of Veteran's Appeals (the "Board") to have his card reinstated. 2. In its decision dated April 4, 2014 (see attached), the Board of Veterans' Appeals found, based on the undisputed evidence, that the Veteran met the statutory and regulatory eligibility criteria to receive his health care from outside the VA system. Specifically, the Board found that the prior October 1986 and December 1990 individual authorizations for fee-basis care and services were based on a VA provider referral documenting extenuating circumstances and hardship based on in- house behavior management issues and clinical finding that the patient became agitated and extremely tense when coming into a VA hospital. In making its findings, the Board relied on the evidence of record, which established that the original VA provider's referral (for non-VA medical care) recommended that the Veteran should receive any and all needed care from non-VA providers. The Board concluded: There is no evidence that these extenuating circumstances have changed since October 1986 or December 1990. There is no evidence of record in conflict with [the Veteran's medical expert testimony] or the Veteran's lay evidence in this regard. The claims file reflects that no solution has been found to the lack of trust issue. Case 3:16-cv-02112-VLB Document 14-4 Filed 07/05/17 Page 3 of 5 Page 2. Subj: Request for Equitable Relief Pursuant to Title 38 (U.S.C.) 503(a) As such, the Board finds that since the original grants of fee basis treatment in October 1986 and December 1990, VA has not been capable of providing the care or services required. Accordingly, the October 15, 2009 denial of eligibility for a fee basis medical identification card was improper. Therefore, the Veteran is eligible and entitled to a fee basis medical identification card for any and all medical treatment for which he would be normally be qualified as a Veteran. (Order at page 5). The Board therefore ordered the restoration of the Veteran's fee basis medical identification card. The Veteran is out-of-pocket for medical expenses and other losses he incurred personally between the time his fee-card was deemed to have expired and its restoration. Reimbursement of those expenses can only be provided through the equitable relief process. Based on the Board's findings, VHA believes there is sufficient justification to support equitable relief in this case and recommends reimbursement of non-VA medical care provided to Mr. Edward Peruta as outlined below: 1) United Healthcare be reimbursed $36,028.67 for costs incurred during the period of October 15, 2009, through April 14, 2014, the date on which the Veteran's fee basis card was reinstated and activated; 2) The Veteran be reimbursed $3,638.76 immediately for all documented out-of- pocket non-VA medical care expenses incurred during the specified time frame as outlined above; 3) The Veteran be reimbursed $16,500.00 for attorney fees; and 4) The Veteran be reimbursed the cost of future (VHA-approved) documented claims (of loss) submitted by the Veteran for a period of no more than two years, provided they likewise fall under the scope of the Board's order and are each limited to a maximum reimbursement amount of $10,000 (which is the maximum authorization dollar amount permitted for an individual authorization). While the documented expenses included in this package should constitute the totality of the Veteran's losses between October 15, 2009 through April 14, 2014, the possibility exists that Case 3:16-cv-02112-VLB Document 14-4 Filed 07/05/17 Page 4 of 5 Page 3. Subj: Request for Equitable Relief Pursuant to Title 38 (U.S.C.) 503(a) the Veteran could submit additional claims at a later time. This recommendation , while atypical , is needed to permit VA to immediately provide the monetary relief due the Veteran without penalizing him for failure to include any valid losses he may later identify which are covered by the Board's order. David J. Shulkin , M.D. ~ isapprove Robert A. McDonald Case 3:16-cv-02112-VLB Document 14-4 Filed 07/05/17 Page 5 of 5