United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
T. Varholak, United States Magistrate Judge
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.
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.
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
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. [#10 at 5]
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].
STANDARD OF REVIEW
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.
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).
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).
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
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 ...