Opinion
Civil Action No. 18-cv-02378-CMA-STV
04-24-2019
WARREN WEXLER, Plaintiff, v. UNITED STATES, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
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. I. BACKGROUND
The facts are drawn from the allegations in Plaintiff's Complaint [#1] and the incorporated Notice of Claim [#1-2] attached to the Complaint. The facts alleged must be taken as true when considering the Motion. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).
The 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.
Plaintiff 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 1]
Between 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]
This fact does not affect the ultimate outcome of this Recommendation, but is included to provide further context.
On 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].
II. STANDARD OF REVIEW
Federal 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. 1973).
Under 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).
"To 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).
"A 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 (10th Cir.1992)).
III. ANALYSIS
Defendant 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 the OWCP's discretionary function, the Court concludes that it lacks subject matter jurisdiction over Plaintiff's claim. The Court therefore declines to address Defendant's remaining arguments.
A. The FTCA and the discretionary function exception
"[S]overeign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1984). "Sovereign immunity is jurisdictional in nature." Id. Thus, unless the government waives its immunity by consenting to be sued, courts lack subject matter jurisdiction to adjudicate claims against it. See United States v. Mitchell, 445 U.S. 535, 538 (1980). The waiver of sovereign immunity cannot be implied, but rather must be unequivocally expressed. Id. at 219.
The FTCA waives the federal government's immunity from tort liability "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred," such as when a government employee causes a personal injury. 28 U.S.C. § 1346(b)(1). But, the United States has not waived its immunity for injuries caused by a government employee's performance of discretionary acts. Id. § 2680(a); Elder v. United States, 312 F.3d 1172, 1176 (10th Cir. 2002).
The discretionary function exception applies when the plaintiff's claims against the government relate to "the exercise or performance or failure to exercise or perform a discretionary function or duty," "whether or not the discretion involved [was] abused." Elder, 312 F.3d at 1176 (second quoting 28 U.S.C. § 2680(a)). In determining whether the discretionary function applies to a government action, courts apply a two-part test from Berkovitz v. United States, 486 U.S. 531 (1988): (1) "a court must consider whether the action is a matter of choice for the acting employee," and if it is, (2) the court "must then consider whether the type of action at issue is susceptible to policy analysis." Sydnes v. United States, 523 F.3d 1179, 1183 (10th Cir. 2008) (quotations omitted).
B. The first Berkovitz step
Regarding the first Berkovitz step, courts consider whether the challenged conduct involved an element of judgment or choice, which would trigger the discretionary function exception. When the prescribed course of action is both specific and mandatory, the discretionary function exception does not apply. Aragon v. United States, 146 F.3d 819, 823 (10th Cir. 1998). For example, if the conduct involves a federal statute, regulation, or policy that specifically prescribes the employee's course of action, the discretionary function exception does not apply because the employee would have no choice but to follow the directive. Elder, 312 F.3d at 1176. "It is Plaintiff['s] burden to identify what mandatory statutes, regulations or directives have allegedly been violated with specificity." Hammonds v. United States, Civ. No. 16-1230 GBW/KRS, 2018 WL 1399183, at *5 (D.N.M. Mar. 19, 2018) (citing Daigle v. Shell Oil Co., 972 F.2d 1527, 1539-40 (10th Cir. 1992)); see also Hardscrabble Ranch, L.L.C. v. United States, 840 F.3d 1216, 1220 (10th Cir. 2016) ("Because the discretionary function exception is jurisdictional, the burden is on [the plaintiff] to prove that it does not apply.").
Plaintiff has identified four portions of the FECA Procedure Manual that he believes are mandatory regulations that the OWCP violated when ordering the second opinion evaluation. First, Plaintiff maintains that the OWCP violated Paragraph 9 of Chapter 2-0810. [#18 at 10-13] See FECA Procedure Manual, Chapter 2-0810(9), available at https://www.dol.gov/owcp/dfec/procedure-manual.htm (last visited April 24, 2019). That paragraph provides the framework for second opinion evaluations and details six situations in which a claims examiner "should refer a claim to a second opinion specialist." FECA Procedure Manual, Chapter 2-0810 (9)(b). According to Plaintiff, these are the only six situations in which the OWCP may refer a claimant for a second opinion evaluation. [#18 at 10-13, 28]
Plaintiff's reliance on Paragraph 9 of Chapter 2-0810 fails. The fact that a claims examiner should refer a claim to a second opinion specialist in six specific situations does not preclude the claims examiner from seeking a second opinion in other cases. By way of analogy, the fact that a parent should take a toddler to the doctor if the toddler has a fever exceeding 102 degrees for more than a day, does not preclude the parent from taking a toddler to the doctor if the toddler has a 104 degrees temperature that has lasted only six hours. Indeed, Chapter 9 provides that "[t]he decision to refer a case for a second opinion examination rests with the [claims examiner]," indicating that the claims examiner exercises her judgment or choice in the second opinion referral decision. FECA Procedure Manual, Chapter 2-0810(9)(a). This language supports the conclusion that the OWCP claims examiner is performing a discretionary function when she refers a claimant for a second opinion.
Second, Plaintiff relies upon Paragraph 7 of Chapter 2-0810. [#18 at 13-14] That paragraph provides that "[i]n all cases of serious injury or disease requiring hospital treatment or prolonged care, the [claims examiner] should request detailed narrative reports from the AP at periodic intervals." FECA Procedure Manual, Chapter 2-0810(7). The paragraph further provides that the "AP will be a primary source of contact for medical updates" and that, "[a]t regular intervals, the AP should provide medical updates addressing the claimant's current condition and medical status." Id., Chapter 2-0810(7)(a). Finally, the paragraph states that a "request for medical information from the AP may be the most efficient and expeditious means to obtain a medical status update and address unresolved medical issues" and if such reports are lacking sufficient details, the claims examiner "can write back to the [AP] . . . and request a supplemental report." Id., Chapter 2-0810(7)(b).
While Paragraph 7 provides that the AP should be the primary source of medical updates, nothing in that paragraph circumscribes the claims examiner's discretion in seeking a second opinion examination. Indeed, Paragraph 7 provides that a request for medical information "may be the most efficient and expeditious means to obtain a medical status update," and that the claims examiner "can write back to the [AP] . . . and request a supplemental report." Id. (emphasis added). The use of the permissive words "may" and "can" undermines any suggestion that the claims examiner here was required to obtain further information from Plaintiff's AP prior to seeking a second opinion.
Third, Plaintiff relies upon Paragraph 3 of Chapter 3-0500. [#18 at 14-15] That paragraph provides that the AP "is the primary source of medical evidence in most cases" but that, "[i]n certain circumstances, such as where the AP's report does not meet the needs of the OWCP, OWCP may schedule a second opinion examination." FECA Procedure Manual, Chapter 3-0500(3). Paragraph 3 then refers to Paragraph 9 of Section 2-0810 for a "complete discussion of when a [claims examiner] should refer a case for a second opinion examination." Id., Chapter 3-0500(3)(a).
Once again, this paragraph provides discretion to the OWCP. It says that "[i]n certain circumstances," the OWCP "may schedule a second opinion examination." Id., Chapter 3-0500(3) (emphasis added). While Paragraph 3 provides an example of one circumstance in which the OWCP may schedule a second examination, there is no indication that this example was meant to be the only circumstance in which a second examination could be requested. Moreover, Paragraph 3 refers to Paragraph 9 of Section 2-0810 which, as discussed above, does not curtail the OWCP's discretion in scheduling a second examination.
Finally, Plaintiff draws the Court's attention to Paragraph 4 of Chapter 2-0810. [#18 at 15-16] Paragraph 4 provides that a referee must be appointed where the medical reports from the AP and the second opinion physician "are of equal but opposing value." FECA Procedure Manual, Chapter 2-0810(4)(a). While Paragraph 4 may limit the OWCP's discretion in the unique circumstance where the reports of the AP and the second opinion physician are of equal but opposing value, it does not limit the OWCP's discretion in ordering the second opinion evaluation. Accordingly, the Court concludes that the OWCP's ordering of a second opinion evaluation was not specifically prescribed by a federal statute, regulation, or policy.
Had the second opinion physician concluded that Plaintiff was not disabled, and had the OWCP simply adopted that conclusion over an equally reasonable conclusion by Plaintiff's AP that Plaintiff was disabled, Plaintiff may have an argument that the OWCP violated a non-discretionary provision of the FECA Procedure Manual. But here, it appears that the second opinion physician concluded that Plaintiff was disabled. [#10 at 5] In any event, Plaintiff's Complaint does not challenge the disability decision.
The Court's conclusion is bolstered by other aspects of the regulatory scheme. First, 20 C.F.R. § 10.320 provides that the "OWCP sometimes needs a second opinion from a medical specialist" and requires the employee to submit to such an examination. This regulation does not define the circumstances in which the OWCP may order the second opinion evaluation, but instead indicates that the OWCP may do so "as often and at such times and places as OWCP considers reasonably necessary." Second, FECA expressly grants the DOL the authority to investigate claims and provides that the Secretary of Labor can "complet[e] such investigation as he considers necessary." 5 U.S.C. § 8124(a)(2). "The phrase 'as he considers necessary' demonstrates that the Secretary of Labor is authorized to rely on her judgment to make decisions regarding how to conduct an investigation." Mumme v. United States, No. 00-CV-103-B, 2001 WL 80084, at *3 (D. Me. Jan. 29, 2001). The Court thus concludes that the OWCP's ordering of a second opinion evaluation was a discretionary decision and the first Berkovitz step is satisfied. See id. at *4.
C. The second Berkovitz step
The Court next considers whether the discretionary actions being challenged were intended to be protected by the discretionary function exception. Berkovitz, 486 U.S. at 536. Under the second step, "the discretionary function insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment." Id. at 537. The Supreme Court examined this prong of the Berkovitz test in United States v. Gaubert, 499 U.S. 315 (1991), explaining:
When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion. For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime. The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.Id. at 324-25.
The United States Court of Appeals for the Tenth Circuit has noted that a broad interpretation of the second Berkovitz step could lead to the conclusion that almost any government decision or non-decision involves choice and at least a hint of policy concerns. Duke v. Dep't of Agric., 131 F.3d 1407, 1411 (10th Cir. 1997). The Duke Court found that this broad approach would "eviscerate the second step of the analysis" and "would allow the exception to swallow the FTCA's sweeping waiver of sovereign immunity." Id. (quotation and citation omitted). Instead, the Court held, "[w]e must ask if the decision or nondecision implicates the exercise of a policy judgment of a social, economic or political nature." Id. "Because the discretionary function exception is jurisdictional," the burden of establishing this second step rests with Plaintiff. Hardscrabble Ranch, 840 F.3d at 1220; see also Scarborough v. United States, No. 15-cv-00242-KLM, 2017 WL 1243014, at *8 (D. Colo. Mar. 17, 2017).
Here, Plaintiff has failed to even address the second Berkovitz step. [#18] Given that the burden rests with Plaintiff, this fact alone could allow the Court to conclude that the second Berkovitz step has been satisfied. Additionally, however, the Court notes that the OWCP's decision to order a second opinion evaluation "served two separate public policies: regulating FECA claims and preventing criminal fraud against the Government." Mumme, 2001 WL 80084, at *4 (quoting Ward v. United States, 738 F. Supp. 129, 133 (D. Del. 1990)). Accordingly, the Court concludes that the second Berkovitz step has been satisfied. Mumme, 2001 WL 80084, at *4; Ward, 738 F. Supp. at 133. Because both Berkovitz steps have been satisfied, the Court concludes that Plaintiff's claims are barred by sovereign immunity and the Court lacks jurisdiction to hear those claims. Accordingly, the Court respectfully RECOMMENDS that Defendant's Motion be GRANTED and that Plaintiff's Complaint be DISMISSED WITHOUT PREJUDICE. See Strozier v. Potter, 71 F. App'x 802, 803-04 (10th Cir. 2003) (dismissal for lack of subject matter jurisdiction should be without prejudice).
IV. CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendant's Motion to Dismiss [#10] be GRANTED. DATED: April 24, 2019
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the Magistrate Judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review Magistrate Judge's recommendation de novo despite lack of an objection does not preclude application of "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of Magistrate Judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the Magistrate Judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review). --------
BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge