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Wexler v. United States

United States District Court, D. Colorado

November 4, 2019




         This matter is before the Court on Plaintiff Warren Wexler's Rule 59(e) Motion to Alter or Amend the Court's Judgment (Doc. # 52). Plaintiff requests the Court to reconsider its Order Adopting Magistrate Judge Varholak's Recommendation to Grant Defendant United States' Motion to Dismiss (Doc. # 50). On September 23, 2019, Defendant responded. (Doc. # 56.) In addition to filing his Reply to the Response on October 3, 2019 (Doc. # 57), Plaintiff filed several supplements[1] (Doc. ## 53, 54, 55, 58) to the Motion. Having reviewed the underlying briefing, pertinent record, and applicable law, for the following reasons, the Court denies Plaintiff's Motion.

         I. BACKGROUND

         The Court's Order Adopting Magistrate Judge Varholak's Recommendation to Grant Defendant's Motion to Dismiss (Doc. # 50) and the Recommendation (Doc. # 27) provide a thorough recitation of the applicable legal standards and factual and procedural background of this dispute and are incorporated herein by reference. Accordingly, the legal standards and facts will be presented only to the extent necessary to address the instant Motion.


         “[S]overeign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1984). As such, “[s]overeign immunity precludes federal court jurisdiction.” Garling v. United States Envtl. Prot. Agency, 849 F.3d 1289, 1294 (10th Cir. 2017). Indeed, “[i]t is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). The “United States can be sued only to the extent that it has waived its immunity.” Garling, 849 F.3d at 1294 (quoting United States v. Orleans, 425 U.S. 807, 814 (1976)).

         The Federal Torts Claim Act “is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.” Orleans, 425 U.S. at 814; 28 U.S.C. § 1346(b)(1). However, 28 U.S.C. § 2680 provides exceptions to this waiver. Garling, 849 F.3d at 1294. “When an exception applies, sovereign immunity remains, and federal courts lack jurisdiction.” Id.

         Relevant for resolving the instant Motion, the discretionary function exception set forth in 28 U.S.C. § 2680(a) provides:

Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

The “discretionary function exception ‘marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.'” Garling, 849 F.3d at 1295 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 808 (1984)).

         Courts apply a two-step test to determine whether the discretionary function exception applies to a government action. Berkovitz v. United States, 486 U.S. 531 (1988). First, a court must determine whether the act was discretionary, that is, whether the act was “a matter of choice” or “judgment” for the acting employee.” Sydnes v. United States, 523 F.3d 1179, 1183 (10th Cir. 2008) (quotations omitted); Garling, 849 F.3d at 1295 (citing Garcia v. Air Force, 533 F.3d 1170, 1176 (10th Cir. 2008)). “Conduct is not discretionary if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive.” Garcia, 533 F.3d at 1176. If the conduct is discretionary, the court moves to the second step of the Berkovitz test and considers whether the conduct required the “exercise of judgment based on considerations of public policy.” Garling, 849 F.3d at 1295; Berkovitz, 486 U.S. at 536-37.

         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, 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 claims examiner may direct or schedule a second opinion examination of an injured employee. FECA PM 3-0500, 2-0810(9). Specifically, Chapter 3-0500, Paragraph 3 provides:

3. Second Opinion Examinations. The attending physician (AP) is the primary source of medical evidence in most cases, and the AP is expected to provide a rationalized medical opinion based on a complete medical and factual background in order to resolve any pending issues in a case. In certain circumstances, such as where the AP's report does not meet the ...

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