United States District Court, D. Minnesota
Nelson for Plaintiff 
Voss, Assistant United States Attorney, for Defendant.
REPORT AND RECOMMENDATION
FRANKLIN L. NOEL UNITED STATES MAGISTRATE JUDGE.
MATTER came before the undersigned United States
Magistrate Judge on September 22, 2017, on Defendant's
motion to dismiss (ECF No. 26). This matter was referred to
the undersigned for Report and Recommendation pursuant to 29
U.S.C. § 636 and Local Rule 72.1. See Order,
ECF No. 11. For the reasons set forth below, the Court
recommends that Defendant's motion to dismiss be
FINDINGS OF FACT
Eugene Newcombe (“Newcombe”) served in the army
for twenty years and suffered numerous medical conditions as
a result. ECF No. 24 ¶ 12-14. After receiving an
honorable discharge, Newcombe petitioned the VA for benefits
related to his service-connected disabilities. Id.
¶ 15-17. The VA first determined that Newcombe's
corneal ulceration was not a service-connected disability.
Id. ¶ 17. However, after further review, the VA
determined that his recurrent corneal ulceration was a
service-connected disability which was directly related to
his military service. Id. ¶ 23. Newcombe
continued to petition the VA for disability benefits related
to his other conditions. Id. ¶ 28. On February
10, 2015, VA employee John Doe received Newcombe's
petition for disability benefits related to his other medical
conditions. Id. ¶ 29. In evaluating
Newcombe's petition, John Doe failed to review
Newcombe's record. Id. ¶ 31. As a result,
on February 17, 2015, John Doe generated a letter informing
Newcombe that service-connection was denied for his corneal
ulceration, and a finding was made that his condition did not
occur in, nor was caused by, his military service.
Id. ¶ 30, Ex. E. The letter, however, stated in
bold that Newcombe's benefits would continue unchanged.
Id. Upon receipt of the February 2015 Letter,
Newcomb suffered physical and emotional distress. ECF No 24,
7, 2015, the VA informed Newcombe that the February 2015
determination- determining that his corneal ulceration was
not a service-connected condition-was a clear and
unmistakable error (“CUE”). Id. ¶
39, Ex. F. In doing so, the VA explained that a CUE was an
error that was “undebatable, so that it can be said
that reasonable minds could only conclude that the previous
decision was fatally flawed at the time it was made.”
Doe, who generated the letter, was employed by the VA at
their Regional Office in Minnesota. Id. ¶ 25.
Director Kim Graves was responsible for the training and
supervision of John Doe. Id. at ¶ 4-5. On
September 9, 2015, Newcombe met with Director Graves to
discuss the February 2015 Letter and the VA's subsequent
CUE determination. Id. at ¶ 40. Director Graves
informed Newcombe that the letter was generated in error by a
single employee who had made several successive errors on
Newcombe's file. Id. Director Graves also
notified the Under Secretary of Veterans Benefits
Administration, Allison A. Hickey, of the error and informed
the Under Secretary that the employee had been counseled and
his work was being reviewed. Id. ¶ 41, Ex. G.
15, 2016, Newcomb filed an administrative tort claim with the
Office of Chief Counsel for the VA. Id. ¶ 8.
Newcombe alleged denial of his procedural due process rights
based on the VA's determination that his conditions were
not service-connected. Id., Ex. A. On July 26, 2016,
the VA informed Newcombe the United States Court of Appeals
for Veterans Claims had sole jurisdiction to review his
benefits decision claim, filed under the Federal Torts Claims
Act (“FTCA”). Id. ¶ 9, Ex. B. The
VA gave Newcombe two options: to either file a request for
reconsideration within six months with the VA's Office of
General Counsel, or, if he was dissatisfied with the VA's
denial of his claim under the FTCA, to seek judicial relief
in Federal District Court. Id. On August 3, 2016,
the VA acknowledged receipt of Newcombe's request for
reconsideration. Id. On March 8, 2017, the VA denied
Newcombe's claim on reconsideration. Id.
now brings one count of negligent supervision and training
against the United States. Id. ¶ 10-13.
Newcombe asserts that this Court has jurisdiction, and the
government has consented to be sued, under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680.
Id. ¶ 3. The United States (the
“Government”) moves dismiss Newcombe's claim
for lack of jurisdiction. ECF No. 26.
STANDARD OF LAW
matter jurisdiction . . . is a threshold requirement which
must be assured in every federal case.” Turner v.
Armontrout, 922 F.2d 492, 293 (8th Cir. 1991). The
burden of establishing subject matter jurisdiction rests with
the party seeking to invoke federal jurisdiction. V S
Ltd. P'Ship v. Dep't of Hous. and Urban Dev.,
238 F.3d 1109, 1112 (8th Cir. 2000). “If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
Fed.R.Civ.P. 12(h)(3); see also Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006) (“[W]hen a federal
court concludes that it lacks subject-matter jurisdiction,
the court must dismiss the complaint in its entirety.”)
When the Government's attack is limited to
plaintiff's complaint, it is a facial challenge and
“the court restricts itself to the face of the
pleadings, and the non-moving party receives the same
protections as it would defending against a motion brought
under Rule 12(b)(6).” Jones v. United States,
727 F.3d 844, 846 (8th Cir. 2013) (quoting Osborn v.
United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)).
CONCLUSION OF LAW
FTCA gives federal courts exclusive jurisdiction over civil
claims against the United States resulting in injury, or loss
of personal property, caused by the negligence or wrongful
conduct of an employee of the Government, acting within their
scope of employment, where a private person would have been
liable in the place where the injury occurred. 28 U.S.C.
§ 1346(b)(1). This grant of ...