CHRISTINE M. ARGUELLO, District Judge.
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
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:
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 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 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:
FECA PM 3-0500(3)(a) (emphases added).
Chapter 2-0810-9(b) provides that the claims examiner "
FECA PM 2-0810-9(b)(1)-(6) (emphasis added).
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 the second opinion examination request, Plaintiff attended the 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 intentional infliction of emotional distress 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.) With respect to subject matter jurisdiction, Defendant argued that it was immune to Plaintiff's suit because the OWCP's decision to schedule Plaintiff for a second opinion examination was a "discretionary act," and as such, Defendant's conduct fit within an exception to the FTCA, which waives sovereign immunity over certain tort claims. (Id. at 7-10.) The Court referred Defendant's Motion to Dismiss to Magistrate Judge Varholak. (Doc. # 13.)
On April 24, 2019, Magistrate Judge Varholak issued his Recommendation that the Court should dismiss Plaintiff's Complaint for lack of subject matter jurisdiction. (Doc. # 27.) On May 24, 2019, Plaintiff objected to the Recommendation and argued that the discretionary function exception did not apply because, when Defendant ordered the second opinion examination, it violated mandatory regulations set forth in the FECA Manual, which purportedly provides only six situations for when a second opinion examination should be referred. (Doc. # 30 at 1-8, 10, 15-17.) After briefing was complete, on August 6, 2019, the Court issued its Order overruling Plaintiff's objections and adopting the Recommendation. (Doc. # 50.)
Reviewing the Recommendation under a de novo standard, the Court agreed with Magistrate Judge Varholak that the OWCP's act of scheduling Plaintiff for a second opinion examination was discretionary pursuant to the FECA Manual. (Id. at 10-13.) Applying the Supreme Court's two-step test, the Court determined that (1) Defendant's act was "truly discretionary" because the plain language of the FECA Manual permits the OWCP with discretion to order a second opinion examination (id. at 10-13); and (2) Defendant's exercise of discretion in ordering a second opinion examination served the public policy of "regulating FECA claims and preventing criminal fraud against the Government." (Id. at 13-15); Berkovitz v. United States, 486 U.S. 531 (1988). Because the discretionary function exception applied, the Court concluded that the FTCA did not waive Defendant's immunity over Plaintiff's claim, and as a result, sovereign immunity barred Plaintiff's claim. (Id. at 15.) Therefore, the Court dismissed Plaintiff's Complaint without prejudice and entered judgment in favor of Defendant. (Id.; Doc. # 51.)
On September 3, 2019, Plaintiff filed the instant Motion (Doc. # 52) and contends that the Court erred in holding that when a second opinion examination may be ordered is not limited to the enumerated list of situations contained in the FECA Manual, Chapter 2-0810(9)(b). (Id. at 3-4.) Furthermore, Plaintiff asserts that if the Court refuses to reconsider its judgment, manifest injustice would result. (Doc. # 57 at 2.) Defendant filed its Response and argues that reconsideration is improper because Plaintiff's Motion sets forth arguments that Plaintiff has already made in his objections to the Recommendation and that the Court has already addressed these issues in its Order adopting the Recommendation. (Doc. # 56 at 3.) For the following reasons, Plaintiff's arguments are insufficient to necessitate reconsideration, and as such, Plaintiff's Motion for Reconsideration is denied.
The Federal Rules of Civil Procedure do not explicitly authorize a motion for reconsideration for final judgments or interlocutory orders. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991); Mantooth v. Bavaria Inn Rest., Inc., 360 F.Supp.3d 1164, 1169 (D. Colo. 2019). However, regarding a final judgment, the Rules allow a litigant who was subject to an adverse judgment to file a motion to change the judgment pursuant to Rule 59(e) or a motion seeking relief from the judgment pursuant to Rule 60(b). Van Skiver, 952 F.2d at 1243.
There are three major grounds justifying reconsideration of an order under Rule 59(e): "(1) an intervening change in the controlling law, (2) new evidence [that was] previously unavailable, [or] (3) the need to correct clear error or prevent manifest injustice." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Moreover, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law, but such motions are "inappropriate vehicles to reargue an issue previously addressed by the court when the motion merely advances new arguments, or supporting facts which were available at the time of the original motion." Id. at 1012 (citing Van Skiver, 952 F.2d at 1243).
To that end, "[a]bsent extraordinary circumstances . . . the basis for the second motion must not have been available at the time the first motion was filed." Servants of the Paraclete, 204 F.3d at 1012. A motion for reconsideration is not appropriate to revisit issues already addressed. Van Skiver, 952 F.2d at 1243. "Rather, as a practical matter, to succeed in a motion to reconsider, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." Mantooth, 360 F. Supp. 3d at 1169 (citing Nat'l Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115 F.Supp.2d 1250, 1256 (D. Colo. 2000)) (internal quotations omitted). "Even under this lower standard, `[a] motion to reconsider should be denied unless it clearly demonstrates manifest error of law or fact or presents newly discovered evidence." Id. (citing Sanchez v. Hartley, No. 13-cv-1945-WJM-CBS, 2014 WL 4852251, at *2 (D. Colo. Sept. 30, 2014)).
Plaintiff's Motion is aimed at the third justification for warranting reconsideration—that the Court must correct clear error or prevent manifest injustice. (Doc. ## 52 at 4; 57 at 2.) The Court notes that Plaintiff tethers his argument that failure to reconsider would result in manifest injustice to his contention that there are alleged "clear errors" underlying the analysis of the Court's Order. (Doc. # 57 at 2-9.) As such, the Court addresses only whether Plaintiff has demonstrated that the Court committed any clear errors in its analysis. For the following reasons, Plaintiff failed to demonstrate that reconsideration is warranted.
As a preliminary matter, Plaintiff's Motion for Reconsideration is improper because it is simply a rehash of arguments that Plaintiff previously asserted in his Response in Opposition to Defendant's Motion to Dismiss (Doc. # 18) and his Objection to the Recommendation (Doc. # 30). In his Motion, he argues that it is "self-evident" that the Court erred in not determining that there are only seven
Plaintiff's contentions are old, previously rejected arguments with a new gloss. The basis of his Motion for Reconsideration is predicated solely upon the fact that Chapter 3-0500(2)(a) contains the phrase "[a] complete discussion of when a [claims examiner] should refer a case for a second opinion examination is found in PM 2-0810-9. . . ." ("complete discussion" phrase). (Id. at 3-5.) Yet, Plaintiff's interpretation of the "complete discussion" phrase guided his response to Defendant's Motion to Dismiss (Doc. # 18 at 10-15) and his Objection to the Recommendation (Doc. # 30 at 1-4). The Court has already rejected Plaintiff's interpretation, which provides that the use of "complete discussion" to describe the situations in which a claims examiner should refer a second opinion examination forecloses any other "circumstance . . . "for which OWCP may [is permitted to] schedule a second opinion examination (SECOP)." (Doc. # 50 at 11-12 (quoting Doc. # 30 at 2) (alterations in original).)
Indeed, in the Court's Order adopting the Recommendation, it interpreted the FECA Manual to provide situations in which a claims examiner
Furthermore, the new gloss to Plaintiff's argument does not convince this Court that it erred in its decision. Plaintiff's contention that the "omitted phrase" in Chapter 3-0500(3) is a reference to situations set forth only in Chapter 2-0810-9(b) demonstrates that he fails to consider that the meanings of "may" and "should" are not synonymous. Failure to recognize this distinction is fatal to Plaintiff's argument because any situation in which a claims examiner "may" order a second opinion examination, "such as where the AP's report does not meet the needs of the OWCP," cannot be a reference only to those situations listed in Chapter 2-0810-9(b), where a claims examiner "should" refer a second opinion examination. Plaintiff's proffered interpretation (Doc. # 52 at 3-4) would render Chapter 3-0500(3) and the first sentence of Chapter 3-0500(3)(a) meaningless. Accordingly, the Court is unpersuaded that it erred.
Because Plaintiff failed to demonstrate that the Court erred in its decision, manifest injustice will not result. In the absence of any evidence of extraordinary circumstances warranting reconsideration, the Court declines to revisit issues that it has already thoughtfully considered and decided. Accordingly, Plaintiff's Motion for Reconsideration is denied.
Based on the foregoing reasons, the Court ORDERS that Plaintiff's Motion to Reconsider (Doc. # 52) is DENIED.
