United States District Court, D. Colorado
ORDER ADOPTING THE RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE SCOTT T. VARHOLAK
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE.
This
matter is before the Court on review of the Recommendation by
United States Magistrate Judge Scott T. Varholak (Doc. # 27),
wherein he recommends that this Court grant Defendant United
States' Motion to Dismiss (Doc. # 10). On May 24, 2019,
Plaintiff Warren Wexler filed his Objection to the
Recommendation (Doc. # 30). On June 7, 2019, Defendant files
its Response to the Objection (Doc. # 32). In addition to
filing his Reply to the Response on June 10, 2019 (Doc. #
33), Plaintiff filed several supplements[1] to his Objection
(Doc. ## 31, 36, 38, 40-43). For the following reasons,
Plaintiff's objections are overruled, and the Court
adopts the Recommendation.
I.
BACKGROUND
A.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Magistrate
Judge Varholak provided a thorough recitation of the factual
and procedural background in this case. The Recommendation is
incorporated herein by reference, see 28 U.S.C.
§ 636(b)(1)(B); Fed.R.Civ.P. 72(b), and the facts will
be repeated only to the extent necessary to address
Plaintiff's Objection.
The
Federal Employees' Compensation Act (“FECA”)
“defines the United States' exclusive liability for
claims by federal employees for work-related injuries.”
Wideman v. Watson, 617 Fed.Appx. 891, 894 (10th Cir.
2015) (citing 5 U.S.C. §§ 8102(a), 8116(c));
Farley v. United States, 162 F.3d 613, 615 (10th
Cir. 1998)). It provides that “the United States will
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), 20 C.F.R. § 10.1. The Secretary of Labor may
also prescribe rules and regulations necessary for the
administration and enforcement of the Act. 5 U.S.C. §
8149. The authority provided by 5 U.S.C. §§ 8145
and 8149 has been delegated by the Secretary to the Director
of the Office of Worker's Compensation
(“OWCP”). 20 C.F.R. § 10.2. The OWCP's
discretion in determining how to administer FECA has been
described as “virtually limitless.” See
Markham v. United States, 434 F.3d 1185, 1188 (9th Cir.
2006).
A
subdivision of OWCP, the Division of Federal Employees'
Compensation (“DFEC”), drafted the FECA Procedure
Manual (“FECA Manual”) to “govern[] claims
under [] FECA and address[] its relationship to the
program's other written directives.” FECA PM
0-100(3), 0-0200(1). The FECA Manual “establishes
policies, guidelines and procedures for determining whether
an injured employee is eligible for compensation.”
Woodruff v. U.S. Dep't of Labor, 954 F.2d 634,
641 (11th Cir. 1992). Pertinent to the instant action, the
FECA Manual also governs the parameters for when a FECA claim
examiner may direct or schedule a second opinion examination
of an injured employee. FECA PM 3-0500, 2-810(9).
Plaintiff
applied for FECA benefits in 1991, and upon the OWCP's
approval of his application, OWCP began paying Plaintiff
wage-loss benefits for his total disability. (Doc. # 10 at
4.) In July 2015, pursuant to 5 U.S.C. § 8123(a),
[2] the
Denver District Office (“DDO”) of the OWCP sent
Plaintiff a letter providing that a second opinion
examination of him was scheduled for August 17, 2015. (Doc. #
1-2 at 1; Doc. # 10-1 at 3, ¶ 16, ) According to the
DDO, a second opinion examination was necessary “to
ensure prompt handling of” Plaintiff's claim
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. (Doc. # 10-1 at 58; Doc. # 1-2 at 1, 17.)
After
Plaintiff received the DDO letter, he sent approximately
twelve letters to the DDO and one to the Department of Labor
(“DOL”), within which he requested both entities
to cancel the second opinion examination and threatened to
sue the entities for intentional infliction of emotional
distress (“IIED”) if cancellation did not occur.
(Id. at 1- 2, 7, 12-14.) The DDO declined to cancel
the second opinion examination. (Id. at 2.) Both
parties represent that Plaintiff attended the second opinion
examination on August 17, 2015. (Doc. # 10 at 5; Doc. # 1-2
at 21.)
On
September 17, 2018, Plaintiff filed suit against Defendant
and asserted an IIED claim arising out of the OWCP's
decision to schedule Plaintiff for a second opinion
examination. (Doc. # 1, Doc. # 1-2 at 12-15, 21-22).
Defendant moved to dismiss Plaintiff's Complaint for lack
of subject matter jurisdiction under Rule 12(b)(1) and for
failure to state a claim pursuant to Rule 12(b)(6). (Doc. #
10.) Plaintiff responded to the Motion to Dismiss on December
31, 2018 (Doc. # 18), and he supplemented his response on
July 29, 2019 (Doc. # 49). Defendant filed its Reply to the
Response on February 25, 2019. (Doc. # 24.)
B.
THE MAGISTRATE JUDGE'S RECOMMENDATION
Magistrate
Judge Varholak issued his Recommendation that the Court
should dismiss Plaintiff's Complaint for lack of subject
matter jurisdiction on April 24, 2019.[3](Doc. # 27.) The
Magistrate Judge determined that sovereign immunity barred
Plaintiff's claims because such claims arose from a
government employee's performance of discretionary acts.
(Id. at 12.) While the Federal Torts Claim Act
(“FTCA”) provides that the United States has
waived its sovereign immunity over certain tort claims, the
Magistrate Judge correctly observed that there are exceptions
to this waiver, including one for the performance or failure
to perform discretionary acts. (Id. at 5-6).
To
determine whether this exception insulated Defendant from
liability, the Magistrate Judge conducted the two-step
inquiry from Berkovitz v. United States, 486 U.S.
531 (1988). He concluded that, first, Defendant's act of
scheduling a second opinion examination of Plaintiff was a
discretionary act (Id. at 7-11), and second, that
Defendant's discretionary act served public policies.
(Id. at 12.) Because both Berkovitz steps
were satisfied, the Magistrate Judge recommends dismissal of
Plaintiff's claims without prejudice. (Id.)
On May
24, 2019, Plaintiff filed his objections to the
Recommendation. (Doc. # 30.) Plaintiff contends that
Magistrate Judge Varholak erred in determining that
Defendant's act of directing the second opinion
examination was discretionary. (Id. at 2.) Plaintiff
argues that when Defendant ordered the second opinion
examination, it violated mandatory regulations set forth in
the FECA Manual. (Doc. # 30 at 1-8.) As such, Plaintiff
asserts that the discretionary function exception does not
apply (Id. at 10, 15-17), which dictates the
conclusion that the Defendant has waived sovereign immunity
under the FTCA. For the following reasons, the Court adopts
the Recommendation and overrules Plaintiff's objections.
II.
LEGAL STANDARDS
A.
REVIEW OF A RECOMMENDATION
When a
magistrate judge issues a recommendation on a dispositive
matter, Rule 72(b)(3) requires that the district judge
“determine de novo any part of the magistrate
judge's [recommended] disposition that has been properly
objected to.” An objection is properly made if it is
both timely and specific. United States v. One Parcel of
Real Property Known As 2121 East 30th Street,
73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its
review, “[t]he district judge may accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3).
B.
PRO SE PLAINTIFF
Plaintiff
is proceeding pro se. The Court, therefore, reviews
his pleading “liberally and hold[s] [it] to a less
stringent standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243
(10th Cir. 2007) (citations omitted). However, a pro
se litigant's “conclusory allegations without
supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v.
Bellmon,935 F.2d 1106, 1110 (10th Cir. 1991). A court
may not assume that a plaintiff can prove facts that have not
been alleged, or that a defendant has violated laws in ways
that a plaintiff has not alleged. Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. ...