Wexler v. United States

• Decision Date: 04 November 2019
• Docket Number: Civil Action No. 18-cv-02378-CMA-STV
• Parties: WARREN WEXLER, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Colorado

WARREN WEXLER, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Civil Action No. 18-cv-02378-CMA-STV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

November 4, 2019

Judge Christine M. Arguello

ORDER DENYING PLAINTIFF'S RULE 59(E) MOTION TO ALTER OR AMEND THE COURT'S JUDGMENT

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 supplements¹ (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.

A. APPLICABLE LEGAL STANDARDS

"[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 considerswhether 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 F. App'x 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 maydirect 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 needs of the OWCP, OWCP may schedule a second opinion examination (SECOP).

a. Determining the Need for Examination. The decision to refer a case for a second opinion examination rests with the CE, though such an exam may be recommended by a Field Nurse (FN) or District Medical Advisor (DMA), or requested by the employing agency. A complete discussion of when a CE should refer a second opinion examination is found in PM 2-0810-9 and 2-810-10.

Also, OWCP may send a case file for second opinion review where actual examination is not needed, or when the employee is deceased.

FECA PM 3-0500(3)(a) (emphases added).

Chapter 2-0810-9(b) provides that the claims examiner "should refer a claim to a second opinion specialist in the following circumstances:"

(1) The CE has gathered all the medical information and evidence from the AP and does not have enough evidence about a diagnosis or an adequately reasoned opinion about causal relationship to accept the case, but does have sufficient evidence to suggest that the claimant might be entitled to benefits.

(2) The AP's examinations and reports in occupational disease cases do not provide the specific evidence that the OWCP requires for adjudication. The primary examples include hearing loss and asbestosis claims requiring examination in compliance with the specifications outlined in FECA PM 3-0600, or an emotional injury case where a compensable factor of employment is identified.

(3) Temporary total disability (TTD) has gone on longer than usual in a case, and the AP is not an appropriate specialist or has notsatisfactorily explained the reason for the continued disability or why the disability is causally related to the original work injury.

(4) The CE has reason to believe that a claimant is no longer disabled due to the accepted work injury, or no longer has objective residuals of the accepted injury, but the AP maintains that the claimant has residuals or disability from the work injury and does not submit sufficient medical rationale to support that opinion.

(5) The AP cannot or will not send an acceptable permanent impairment evaluation based on the AMA Guides. If the AP has submitted an examination report which outlines medical findings and calculates a percentage of impairment based on the appropriate version of the AMA Guides, the CE should submit the AP's report to the DMA for the schedule award calculation and forego referring the claimant to a second opinion specialist for the same purpose.

(6) Following a consult or a referral with the DMA, the DMA indicates that the file does not contain sufficient medical evidence to make a decision on the medical issue or provide a rating of impairment. In such cases, the DMA may recommend referring the case to a second opinion specialist.

FECA PM 2-0810-9(b)(1)-(6) (emphasis added).

B. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff applied for FECA benefits in 1991, and upon the Office of Worker's Compensation's ("OWCP") approval of his application, OWCP began paying Plaintiff's wage-loss benefits for this total disability. (Doc. # 10 at 4.) In July 2015, pursuant to 5 U.S.C. § 8123(a), 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.) Although Plaintiff objected in writing to thesecond opinion examination...