Wexler v. United States

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Scott T. Varholak, United States Magistrate Judge

         Magistrate Judge Scott T. Varholak This matter comes before the Court on Defendant's Motion to Dismiss (the “Motion”) [#10], which has been referred to this Court [#13]. This Court has carefully considered the Motion and related briefing, the case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the instant Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED.

         I. BACKGROUND^[1]

         The Federal Employees' Compensation Act (“FECA”) establishes a comprehensive and exclusive workers' compensation scheme for federal employees. FECA provides that “the United States shall pay compensation . . . for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty.” 5 U.S.C. § 8102(a). The Secretary of Labor has the authority to administer and decide all questions arising under FECA, and to prescribe rules and regulations necessary for the administration and enforcement of the statute. Id. §§ 8145, 8149. The Secretary of Labor has delegated this responsibility to the Director of the Office of Workers' Compensation Programs (“OWCP”). 20 C.F.R. § 10.1.

         Plaintiff has been receiving FECA benefits since the early 1990s. [#10 at 4; #18 at 20; see generally #1-2] In July 2015, the Denver District Office (“DDO”) of the OWCP sent Plaintiff a letter informing him that it had scheduled a second opinion evaluation for August 17, 2015. [#1-2 at 1] The OWCP seeks second opinion evaluations to determine whether an individual qualifies for FECA benefits. See generally 20 C.F.R. 10.320. The DDO determined that it needed a second opinion evaluation because the most recent medical report from Plaintiff's attending physician (“AP”) was more than three years old and a current medical report is due every three years. [#1-2 at 1, 17] The DDO did not send Plaintiff a request to have his AP submit a current medical report before scheduling the second opinion examination and notifying Plaintiff. [Id. at 1]

         Between the time Plaintiff received the letter and the scheduled second opinion evaluation, Plaintiff sent approximately twelve letters to the DDO, and one to the Department of Labor (“DOL”), requesting that they cancel the second opinion evaluation. [Id. at 1-2] Plaintiff explained that he had been in therapy with his AP for 150 hours over the course of the previous four years and requested that the DDO simply obtain a report from Plaintiff's AP. [Id. at 7] In the letters, Plaintiff repeatedly expressed a sense of urgency and threatened to sue for intentional infliction of emotional distress if the DDO did not cancel the evaluation. [Id. at 12-14] The DDO refused to cancel the evaluation and the DOL did not take any action. [Id. at 2] Though not alleged in the Complaint, it appears that Plaintiff ultimately attended the second opinion evaluation and the physician found that Plaintiff was still affected by the condition qualifying him for FECA benefits, and was still disabled for work.^[2] [#10 at 5]

         On September 17, 2018, Plaintiff initiated the instant lawsuit, proceeding pro se. [#1] Plaintiff seeks damages from the United States pursuant to the Federal Tort Claims Act (“FTCA”) for alleged intentional infliction of emotional distress (“IIED”) resulting from the OWCP's decision to refer Plaintiff for the second opinion evaluation. [Id. at 3-4] Defendant has moved to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting that this Court lacks subject matter jurisdiction over the claim and that Plaintiff fails to state a claim upon which relief can be granted. [#10] Plaintiff has responded to the Motion [#18] and Defendant has replied [#24].

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 909, 909 (10th Cir. 1973).

         Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992)).

         III. ANALYSIS

         Defendant first argues that the Court lacks subject matter jurisdiction because: (1) the decision whether to require a second opinion examination is discretionary, and the FTCA does not waive sovereign immunity for torts based on discretionary functions [#10 at 8-10], and (2) Plaintiff alleges a violation of federal law, and the FTCA does not waive sovereign immunity for challenges to the application of federal law [id. at 10-12]. Second, Defendant argues that the Complaint fails to plausibly allege a claim for relief because: (1) Plaintiff's claim is time-barred [id. at 13-14], and (2) Plaintiff does not allege facts that support an IIED claim [id. at 14-15]. Because the Court concludes that the OWCP's decision to order a second opinion evaluation was the result of ...