United States District Court, E.D. Missouri, Eastern Division
ANASTASIA E. YOUNG, Plaintiff,
UNITED STATES OF AMERICA, Department of Veteran's Affairs, Defendant.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
case is before the Court on the unopposed motion by United
States of America ("Defendant") to dismiss for lack
of subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1)
(permitting such defense to be raised by motion). For the
following reasons, the motion will be granted.
E. Young ("Plaintiff) was honorably discharged in 1994
from military service. (Compl. at 1, ECF No. 1.) In April
2013, she was informed by the Regional Office of the
Department of Veteran's Affairs ("VA") that her
disability rating was to be reduced from 100 percent to 30
percent. (Id. \ 4.) She filed a Notice of
Disagreement, but the rating was reduced in July 2013 to 30
percent. (Id.¶¶5-6.) In August, she
appealed the reduction with the VA. (Id. 17-8.)
Plaintiffs 100 percent rating was reinstated in November
2015. (Id. ¶¶ 10, 19.) Plaintiff alleges
that in the interim she and her husband suffered economic
harm, including incurring medical bills and having their home
foreclosed upon. (Id. \ 11-18.) Although she was
awarded back benefits, the award did not fully compensate her
for the damage caused by erroneous reduction. (Id.
¶ 20.) She argues that this Court has jurisdiction
pursuant to the Federal Tort Claims Act ("FTCA"),
28 U.S.C. §§ 1346(b) and 2675(a), and prays that
she be awarded monetary damages in the amount of $3, 500,
000.00. (Id. at 4.)
filed her tort claim with the VA on August 25, 2016. (Def Ex.
1, ECF No. 4-1.) This claim was for the same amount and
included the same allegations as in this FTCA complaint.
(Id. at 2, 4-5.) Plaintiff was notified of the
denial of her claim by letter dated February 13, 2017. (Def.
Ex. 2, ECF No. 4-2.) The letter advised her that she could
request that the denial be reconsidered. (Id.) She
could mail, fax, or e-mail the request, but it had to be
received within six months of the date of mailing of the
denial letter. (Id.) If she requested
reconsideration, the VA had six months from the date of the
denial letter to make its decision and her right to file suit
would not accrue until that six-month period ended.
(Id.) Alternatively, she could file a FTCA complaint
without requesting reconsideration; such a complaint had to
be filed within six months after the date of the letter.
months and five days later, on August 25, 2017 she filed a
request for reconsideration with the VA. (Def. Ex. 3, ECF No.
4-3.) On November 30, 2017, she filed this action.
alleges, without contradiction, that a decision on Plaintiffs
request for reconsideration has not been made.
argues that the case should be dismissed because Plaintiffs
request for reconsideration of the VA's decision denying
her administrative tort claim (a) was untimely and (b) is
still pending before that agency.
ruling on a Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction, the Court "must distinguish
between a facial attack and a factual attack."
Branson Label, Inc. v. City of Branson, Mo., 793
F.3d 910, 914 (8th Cir. 2015). In the former, the
Court looks only at the pleadings and determines if Plaintiff
has alleged a basis for subject matter jurisdiction.
Id. In the latter, "the existence of subject
matter jurisdiction [is challenged] in fact, irrespective of
the pleadings and matters outside the pleadings ... are
considered." Id. at 914-15 (first alteration in
original) (interim quotations omitted). In a factual attack,
the nonmoving party does "not enjoy the benefit of the
allegations in its pleadings as being accepted as true."
Id. at 915. Accord Iowa League of Cities v.
EPA, 711 F.3d 844, 861 (8th Cir. 2013).
Additionally, "[p]resentment of an administrative claim
is jurisdictional and must be pleaded and proven by the FTCA
claimant." Bellecourt v. United States, 994
F.2d 427, 430 (8th Cir. 1993).
28 U.S.C. § 2675(a) reads that:
An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of
property ... 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, unless the
claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified
or registered mail. The failure of an agency to make final
disposition of a claim within six months after it is filed
shall, at the option of the claimant any time thereafter, be
deemed a final denial of the claim for purposes of this
was notified in writing on February 13, 2017 that her claim
was denied and that she could, within six months, request
reconsideration or file suit. She requested reconsideration
six months and five days later. Title 28 C.F.R. §
Prior to the commencement of suit and prior to the expiration
of the 6-month period provided in 28 U.S.C. 2401(b), a
claimant, his duly authorized agent, or legal representative,
may file a written request with the agency for
reconsideration of a final denial of a claim under paragraph
(a) of this section. Upon the timely filing of a request for
reconsideration the agency shall have 6 months from the date
of filing in which to make a final disposition of the claim
and the ...