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Newcombe v. United States

United States Court of Appeals, Eighth Circuit

August 9, 2019

Eugene Newcombe Plaintiff - Appellant
v.
United States of America Defendant-Appellee

          Submitted: June 12, 2019

          Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before LOKEN, KELLY, and ERICKSON, Circuit Judges.

          KELLY, CIRCUIT JUDGE.

         Eugene Newcombe brought a claim against the United States for negligent supervision and training, alleging he suffered emotional and physical distress after the Veterans Administration (VA) sent him a letter erroneously stating that his corneal ulcerations were not service-connected. The district court[1] dismissed Newcombe's claim for lack of subject-matter jurisdiction. Newcombe appeals, and we affirm.

         I

         Newcombe was honorably discharged from the Army in 1995. Upon leaving the Army, Newcombe petitioned the VA for disability benefits for several medical conditions, including corneal ulcerations. At that time, the VA determined that Newcombe's corneal ulcerations were not service-connected, and therefore he could not receive benefits related to that condition. In 2013, Newcombe again petitioned for benefits related to various medical conditions, including his corneal ulcerations. After initially reaffirming the denial of benefits for his corneal ulcerations, the VA sent Newcombe a letter in September 2014 informing him that it found his "photophobia with recurrent corneal ulceration" was service-connected, awarded him a 10 percent disability rating related to corneal ulcerations, and adjusted his benefits accordingly.

         Newcombe continued to petition the VA regarding other medical conditions and ultimately received a combined 100 percent disability rating, allowing him to receive maximum benefits. Then, on February 17, 2015, Newcombe received a letter from the VA informing him of its service-related determinations on a number of his claims. As to his corneal ulcerations, the letter stated, "Service connection for ulcer, corneal is denied since this condition neither occurred in nor was caused by service. Your service treatment records do not contain complaints, treatment, or diagnosis for this condition." Even with this denial, Newcombe's disability rating remained above 100 percent. The letter stated in bold text on the first page, "Your current benefit payment will continue unchanged."

         On May 7, 2015, the VA sent Newcombe another letter, stating that it had reviewed the February 2015 letter and found that its statement that Newcombe's corneal ulcerations were not service-connected was a "clear and unmistakable error" (CUE). See 38 C.F.R. § 20.1403(a) (defining a CUE). The VA apologized for the inconvenience and confusion and assured Newcombe that "the February decision did not rescind service-connection for your corneal ulcerations or in any way impact your overall combined evaluation."

         In September 2015, Newcombe met with Kim Graves, the Director of the VA Regional Office in Minnesota. Director Graves apologized to Newcombe for the confusion and informed him that an employee, identified as John Doe, made several errors in reviewing his file.

         After an unsuccessful attempt to bring administrative claims through the VA appeals process, Newcombe brought this lawsuit in district court, claiming that the VA, through Graves, was negligent in supervising and training employee John Doe and claiming damages for physical and emotional distress he suffered after receiving the February 2015 letter. The district court dismissed Newcombe's lawsuit for lack of subject-matter jurisdiction. Newcombe appeals.

         II

         "The existence of subject-matter jurisdiction is a question of law that this court reviews de novo." ABF Freight Sys., Inc. v. Int'l Bhd. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011). "The party seeking to invoke federal jurisdiction . . . carries the burden [of establishing jurisdiction], which may not be shifted to another party." Jones v. United States, 727 F.3d 844, 846 (8th Cir. 2013).

         District courts have subject-matter jurisdiction over claims brought under the Federal Tort Claims Act (FTCA). 28 U.S.C. § 1346(b)(1). The FTCA waives federal sovereign immunity for injuries "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, ...


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