Wexler v. United States

          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. ...