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Newcombe v. United States

United States District Court, D. Minnesota

December 15, 2017

Eugene Newcombe, Plaintiff,
United States of America, Defendant.

          Evan Nelson for Plaintiff [1]

          Ana Voss, Assistant United States Attorney, for Defendant.



         THIS 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 GRANTED.


         Plaintiff 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, ¶ 35.

         On May 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.” Id.

         John 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.

         On July 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.

         Newcombe 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.


         “Subject 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)).


         The 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 ...

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