United States District Court, D. Colorado
ORDER DENYING PLAINTIFF'S RULE 59(E) MOTION TO
ALTER OR AMEND THE COURT'S JUDGMENT
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
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 (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.
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.
APPLICABLE LEGAL STANDARDS
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)).
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
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)).
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.
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.
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 ...