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Stacey A. Kittner v. Robert M. Gates


May 11, 2011


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff Stacey A. Kittner brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), against Defendant Robert M. Gates in his official capacity as Secretary of Defense. Kittner also alleges violations of her Fifth Amendment rights under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), against several Department of Defense employees sued in their individual capacities. The individually sued Defendants include Deborah Monroe, Deputy Chief, Directorate for Analysis, Office of Counter-Proliferation Technology ("CPT"), Defense Intelligence Agency ("DIA"); Col. William Russel Strosnider, Chief, Operating Base National Capitol Region ("OBNCR"), DIA; Capt. William S. Gieckel, Acting Chief, OBNCR; Scott Darren LaCoss, Chief of Controlled Operations, OBNCR; Brad Ahlskog, Division Chief, CPT; and Claudia Caslow, Korean Team Chief, CPT.

This matter is presently before the Court on Plaintiff's Motion for Reconsideration (May 26, 2010) ("Plaintiff's Mot.") [Dkt. No. 32] of the Court's April 28, 2010 Order [Dkt. No. 27] granting Defendants' Motion to Dismiss Plaintiff's Bivens claim against the individually sued Defendants. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Plaintiff's Motion for Reconsideration is denied.

I. Standard of Review*fn1

Plaintiff properly brings her Motion for Reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b). As the moving party, Plaintiff has the burden of demonstrating that relief under either of these Rules is warranted. Messina v. Krakower, 439 F.3d 755, 758-59 (D.C. Cir. 2006); Murray v. District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995).

It is well-established that a motion for reconsideration is committed to the sound discretion of the court. Murray, 52 F.3d at 355. The granting of such a motion is, however, an unusual measure, occurring in extraordinary circumstances. Firestone v. Firestone 76 F.3d 1205, 1208 (D.C. Cir. 1996)(per curiam); Anderson v. District of Columbia, 72 F.3d 166, 167-68 (D.C. Cir. 1995) (per curiam).

The court will entertain a motion for reconsideration only "where sufficient grounds for disturbing the finality of the judgment" are shown. Smalls v. United States, 471 F.3d 186, 191 (D.C. Cir. 2006) (citations omitted). In particular, such a motion "'need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Messina, 439 F.3d at 758 (quoting Firestone, 76 F.3d at 1208).

II. Analysis

Plaintiff urges the Court to reconsider and vacate its April 28, 2010 Order on the grounds that new evidence obtained from the Government demonstrates that the Court's dismissal of Plaintiff's Bivens claim against the individually sued Defendants will result in manifest injustice. Plaintiff's Mot. 2. Plaintiff argues that various new documents produced by the Government on April 13, 2010, after completion of briefing of Defendants' Motion to Dismiss, demonstrate that "the individual Defendants, acting under the color of law, exceeded the scope of their employment by intentionally and improperly engaging in unlawful and conspiratorial acts such as making false allegations, and perpetuating allegations they knew to be false, in an effort to prevent Plaintiff . . . from doing her job." Id. at 7.

As recounted by Plaintiff, the new evidence strongly implicates the individually sued Defendants in discriminatory and retaliatory actions aimed at limiting Plaintiff's employment opportunities. Nonetheless, under applicable case law, Plaintiff's new evidence does not entitle her to a renewed Bivens claim against these parties.*fn2

In order to support a motion for reconsideration under Rule 60(b), Plaintiff's new evidence must meet four requirements: (1) it "must have been in existence at the time of trial" [in this case at the time of the Court's April 28, 2010 Order]; (2) it "must be such that if [sic] was not and could not by the exercise of due diligence have been discovered in time to present it in the original proceeding;" (3) it must not be "merely cumulative or impeaching;" and (4) it "must be admissible and credible, and of such a material and controlling nature as will probably change the outcome." Canady v. Erbe Elektromedizin GmbH, 99 F. Supp. 2d 37, 44 (D.D.C. 2000) (citations omitted).

As it is undisputed that the new evidence was in existence during the relevant time period, and that Plaintiff could not have otherwise obtained it by due diligence in time to include it in briefing on Defendants' Motion to Dismiss, Plaintiff's proffered evidence satisfies the first two Canady requirements. However, the new evidence fails to satisfy the remaining two prongs of Canady's four-part test. As the Government correctly argues, Plaintiff's new evidence is merely cumulative and corroborative of the factual allegations this Court dismissed in its April 28, 2010 Order and that it assumed to be true for purposes of rendering that decision. See April 28, 2010 Memorandum Opinion 2 n.2 ("April 28, 2010 Mem. Op.")[Dkt. No. 28]. In light of these circumstances, Plaintiff's new evidence cannot change the outcome of the Court's April 28, 2010 Order dismissing her Bivens claim against the individually sued Defendants.

Consequently, because the new evidence fails to meet the last two requirements of Canady, the Court denies Plaintiff's Motion for Reconsideration on the basis of her new evidence.

Plaintiff's remaining arguments in support of her Motion for Reconsideration fall into two categories: (1) arguments relating to Title VII preemption of Plaintiff's Bivens claim; and (2) arguments relating to Plaintiff's need to take discovery from Defendants in their individual capacity.

A. Title VII Preemption

1. Plaintiff Failed to Present Her Preemption Argument When Opposing Defendants' Motion to Dismiss

Plaintiff argues for the first time that Title VII preemption is inapplicable where, as here, evidence demonstrates that the individually sued Defendants acted unlawfully and outside the scope of their employment. Plaintiff's Mot. 12. As Plaintiff concedes, however, her preemption theory is premised, in part, on allegations contained in her Amended Complaint against the individually sued Defendants. Id. Consequently, her argument could have been, but was not, included in her briefing on Defendants' Motion to Dismiss. A motion for reconsideration may not, however, be used to raise arguments or defenses that could have been advanced during the original proceeding. Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993). Because Plaintiff had the opportunity to, but did not, raise this preemption argument in briefing on the Motion to Dismiss, she has waived it and cannot raise it at this time.*fn3

On this basis alone, Plaintiff's Title VII preemption theory is insufficient to sustain her Motion for Reconsideration.

2. Title VII Preempts Plaintiff's Bivens Claim

Plaintiff has also failed to present any case law substantiating her argument that Title VII does not foreclose a Bivens claim brought against federal employees acting unlawfully and outside the scope of their employment. Moreover, applicable case law does establish several principles that do foreclose Plaintiff's new theory as a basis for reviving her Bivens action.

First, in Brown v. General Services Administration, 425 U.S. 820, 835, 96 S. Ct. 1961 (1976), the Supreme Court held that Title VII "provides the exclusive judicial remedy for claims of discrimination in federal employment." In light of this precedent, our Court of Appeals "has repeatedly held that federal employees may not bring suit under the Constitution for employment discrimination that is actionable under Title VII." Ethnic Emps. of Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985). As a general rule, then, "where a plaintiff alleges facts that are actionable under Title VII and for which Title VII provides a remedy, Title VII preempts virtually all other federal causes of action . . . ." Rochon v. FBI, 691 F. Supp. 1548, 1555 (D.D.C. 1988). Consequently, even assuming that Plaintiff is correct that Defendants' actions exceededed the scope of their employment, Title VII preemption would still be applicable as long as Plaintiff's constitutional claims are ones that are actionable under Title VII and for which Title VII provides a remedy.

As the Court previously held in this case, the claims underlying Plaintiff's Bivens action against the individually sued Defendants represent "the very same claims that form the basis of plaintiff's Title VII claims . . . . [and] for which Title VII provides the exclusive remedy." April 28, 2010 Mem. Op. 16 (internal quotations and citation omitted). This conclusion is not altered by Plaintiff's "new evidence" and new theory, which arises from the same factual predicate as her Title VII claims.*fn4 As a result, Brown makes clear that Plaintiff's Bivens action remains presumptively preempted by Title VII, regardless of whether the individually sued Defendants did in fact exceed the scope of their employment.*fn5

Second, even if Title VII did not preempt Plaintiff's Bivens claim, the Civil Service Reform Act ("CSRA") would preclude a Bivens remedy in this case. As the Court held in its April 28, 2010 Memorandum Opinion, the CSRA is a special factor counseling against the recognition of Plaintiff's Bivens action. April 28, 2010 Mem. Op. 20.

The Supreme Court has made very clear that where an "elaborate remedial system," has been established by Congress it represents a special factor counseling hesitation and, in such cases, the judiciary should decline to exercise its discretion in creating damages remedies against federal officials in their individual capacity. Bush v. Lucas, 462 U.S. 367, 388-90, 103 S. Ct. 2404 (1983). In United States v. Fausto, 484 U.S. 439, 455, 108 S. Ct. 668 (1988), the Supreme Court squarely held that the CSRA represents precisely such a comprehensive system for "reviewing personnel actions taken against federal employees."

Based upon these precedents, our Court of Appeals has concluded that "'special factors' preclude the creation of a Bivens remedy for civil service employees . . . who advance constitutional challenges to federal personnel actions [covered by the CSRA]," even when the CSRA affords "'no remedy whatsoever'" to plaintiff. Spagnola v. Mathis, 859 F.2d 223, 228, 230 (D.C. Cir. 1988) (en banc)(citations omitted).

Attempting to avoid these holdings, Plaintiff argues that her Bivens claim should go forward as she is "an excepted civil servant . . . not covered by the protections offered . . . under the CSRA." Plaintiff's Mot. 11. Although she seeks to distinguish the circumstances of her case from Fausto and Spagnola, Plaintiff's Reply 6-9, those cases involve situations substantially similar to Plaintiff's*fn6 and directly rebut her claim that the preclusive effect of the CSRA is inapplicable.

As noted in Spagnola, the Supreme Court has made clear that "it is the comprehensiveness of the statutory scheme involved, not the 'adequacy' of specific remedies extended thereunder, that counsels judicial abstention [under Bivens special factor analysis]." 859 F.2d at 227 (citing to Schweiker v. Chilicky, 487 U.S. 412, 422, 108 S. Ct. 2460 (1988)). In accordance with this principle, the relevant inquiry for determining whether the CSRA precludes a federal employee's constitutional claims is whether the action being challenged is cognizable under the CSRA as a "personnel action." Id. at 229. Where this is the case, "a case-by-case examination of the particular administrative remedies available to a given plaintiff [is] unnecessary." Id. at 228.

As detailed in the Court's April 28, 2010 Memorandum Opinion, Plaintiff's constitutional claims against the individual Defendants, which challenge their "decisions to transfer [her] to an allegedly inferior position and to restrict her responsibilities," qualify as "personnel actions" covered by the CSRA. April 28, 2010 Mem. Op. 20. Consequently, because the CSRA applies to Plaintiff's challenged actions, she is precluded from seeking judicial relief under Bivens even though she is an excepted civil servant for whom the CSRA affords no remedy. Fausto, 484 U.S. at 455 (holding that CSRA's "deliberate exclusion of employees in respondent's service category from the provisions establishing administrative and judicial review for personnel action" prevented respondent from seeking review in federal court); Id. at 448-49 (holding that the absence of certain types of relief in the CSRA for excepted civil servants "is not an uninformative consequence of the limited scope of the statute, but rather [the] manifestation of a considered congressional judgment that [excepted civil servants] should not have statutory entitlement to review for [certain] adverse action[s] . . . .").

For the foregoing reasons, the Court denies Plaintiff's Motion for Reconsideration based upon her claims relating to Title VII preemption of her Bivens action.

B. Plaintiff Is Not Entitled to Discovery from Defendants in Their Individual Capacity

With regard to her discovery-related claim, Plaintiff argues that dismissal of the individually sued Defendants should be reconsidered on the grounds that her opportunity to take discovery from them would be circumscribed by their removal from the case. Plaintiff's Mot. 9-10. In response, the Government has represented that Plaintiff "is fully entitled to depose each individually sued defendant and to serve the agency with discovery requests that seek information about what each individually sued defendant did, or did not do, with respect to plaintiff and the claims asserted in this case." Gov't Opp'n 7-8.

In light of the Government's representations that it will allow Plaintiff to take full discovery from Defendants, even though they are sued in their official capacity, as well as Plaintiff's failure to demonstrate any prejudice from such discovery, the Court denies Plaintiff's Motion for Reconsideration on the basis of this claim.*fn7


For the reasons set forth above, the Court denies Plaintiff's Motion for Reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b). An Order will accompany this Memorandum Opinion.

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