United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
Carlos Loumiet brought this suit against the United States
Government for certain actions of its agency, the Office of
the Comptroller of the Currency ("OCC"), and
against Defendants Michael Rardin, Lee Straus, Gerard Sexton,
and Ronald Schneck (together, the "Individual
Defendants"), alleging a variety of torts under federal
and state law. After a series of rulings by this Court and
the U.S. Court of Appeals for the District of Columbia
Circuit ("D.C. Circuit"), on remand this Court
granted-in-part and denied-in-part the United States' and
Individual Defendants' latest motions to dismiss.
Loumiet v. United States, 255 F.Supp.3d 75 (D.D.C.
2017) ("Loumiet V). The Court allowed the
following claims to proceed: a First Amendment claim for
retaliatory prosecution under Bivens v. Six Unknown Named
Agents of Fed. Bureau of'Narcotics, 403 U.S. 388
(1971), against Defendants Rardin, Schneck, and Sexton, and
claims under the Federal Tort Claims Act ("FTCA")
for intentional infliction of emotional distress (Count I),
invasion of privacy (Count II), negligent supervision (Count
V), and civil conspiracy (Count VIII), against the United
States. Loumiet V, 255 F.Supp.3d at 81.
light of the Supreme Court's recent decision in
Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), Individual
Defendants now urge this Court to revisit its decision on
their  motion to dismiss.See Individual Defs.'
Rule 54(b) Mot. to Reconsider in Light of Ziglarv.
Abbasi and Supporting Mem. of P&A, ECF No. 74, at
1-2 ("Ind. Defs.' Mem."). While their specific
request is somewhat ambiguous, Individual Defendants
essentially ask the Court not to recognize subject-matter
jurisdiction over Plaintiff's First Amendment
Bivens claim, and in turn to reverse its decision to
deny their motion with respect to Defendants Rardin, Schneck,
and Sexton. See Loumiet V, 255 F.Supp.3d at 82-83
(discussing standard for surviving Rule 12(b)(1) motion and
recognizing First Amendment Bivens claim); Ind.
Defs.' Mem. at 1-2 ("[T]his Court should ... decline
to recognize a Bivens remedy in this case.").
consideration of the briefing and notices of supplemental
authority,  the relevant legal authorities, and the
record as a whole, the Court DENIES the
Individual Defendants'  Rule 54(b) Motion to
Reconsider in Light of Ziglar v. Abbasi and
Supporting Memorandum of Points and Authorities ("Motion
to Reconsider"). Plaintiff's First Amendment
Bivens claim for retaliatory prosecution shall
proceed against Defendants Rardin, Schneck, and Sexton.
Plaintiff s FTCA claims for intentional infliction of
emotional distress (Count I), invasion of privacy (Count II),
negligent supervision (Count V), and civil conspiracy (Count
VIII) shall proceed against the United States.
prior proceedings, the Court has extensively discussed the
factual background, e.g., Loumiet v. United States,
968 F.Supp.2d 142, 145-47 (D.D.C. 2013)
("Loumiet 7"),  and shall deal here only
with those details necessary to evaluate Individual
Defendants'  Motion to Reconsider.
Motion to Dismiss for Lack of Subject-Matter
order to hear Plaintiffs Bivens claim, the Court
must be satisfied that it has subject-matter jurisdiction. At
the motion to dismiss stage, Plaintiff bore the burden of
establishing that the Court has subject-matter jurisdiction
over its claims. Moms Against Mercury v. FDA, 483
F.3d 824, 828 (D.C. Cir. 2007); Or. for Arms Control
& Non-Proliferation v. Redd, No. CIV.A. 05-682
(RMC), 2005 WL 3447891, at *3 (D.D.C. Dec. 15, 2005). In
determining whether there is jurisdiction, the Court may
"consider the complaint supplemented by undisputed facts
evidenced in the record, or the complaint supplemented by
undisputed facts plus the court's resolution of disputed
facts." Coal, for Underground Expansion v.
Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal
quotation marks omitted). "Although a court must accept
as true all factual allegations contained in the complaint
when reviewing a motion to dismiss pursuant to Rule 12(b)(1),
" the factual allegations in the complaint "will
bear closer scrutiny in resolving a 12(b)(1) motion than in
resolving a 12(b)(6) motion for failure to state a
claim." Wright v. Foreign Serv. Grievance Bd,
503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal quotation
Motion to Reconsider
a motion for reconsideration, the burden shifts. Under
Federal Rule of Civil Procedure Rule 54(b), "any order .
. . that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties ... may be
revised at any time before the entry of ajudgment
adjudicating all the claims and all the parties' rights
and liabilities." Fed.R.Civ.P. 54(b). As it has before,
the Court again shares the view in this district that a Rule
54(b) motion may be granted "as justice requires."
E.g., Loumiet II, 65 F.Supp.3d at 24; Coulibaly
v. Tillerson, Civil Action No. 14-189, 2017 WL 4466580,
at *5 (D.D.C. Oct. 5, 2017) (Contreras, J.); United
States v. Dynamic Visions, Inc., Civil Action No. 11-695
(CKK), 2OI7 WL 1476102, at *2 (D.D.C. Apr. 24, 2017)
(Kollar-Kotelly, J.); Singh v. George Washington
Univ., 383 F.Supp.2d 99, 101 (D.D.C. 2005) (Lamberth,
J.) (quoting Cobell v. Norton, 224 F.R.D. 266, 272
(D.D.C. 2004) (Lamberth, J.)). While this is abroad standard,
Individual Defendants carry the burden of proving "that
some harm, legal or at least tangible, would flow from a
denial of reconsideration, " and accordingly persuading
the Court that in order to vindicate justice it must
reconsider its decision. Dynamic Visions, Inc.,
Civil Action No. 11-695 (CKK), 2OI7 WL 1476102, at *2
(quoting Cobell, 355 F.Supp.2d at 540) (internal
quotation marks omitted). Among the ways that a movant may
attempt to do so is by proposing that "a controlling or
significant change in the law or facts has occurred since the
submission of the issue to the Court, " id.
(citing Singh, 383 F.Supp.2d at 101), as Individual
Defendants have done here. Ind. Defs.' Mem. at 1-2, 6-7.
But "motions for reconsideration . . . cannot be used as
an opportunity to reargue facts and theories upon which a
court has already ruled, nor as a vehicle for presenting
theories or arguments that could have been advanced
earlier." Loumiet II, 65 F.Supp.3d at 24
(quoting Estate of Gaither ex rel. Gaither v. District of
Columbia, 771 F.Supp.2d 5, 10 & n.4 (D.D.C. 2011))
(internal quotation marks omitted).
Abbasirmde a "controlling or significant
change" to an aspect of the Bivens inquiry
shall the Court need to reevaluate its decision to deny in
pertinent part Individual Defendants'  motion to
dismiss. The Court shall first address Individual
Defendants' arguments that Abbasi renders this a
"new context" for a Bivens claim and that
Abbasi further discourages courts from finding a new
context. See Ind. Defs.' Mem. at 1-2. Next the
Court shall evaluate whether Abbasi adjusted the two
Wilkie v. Robbins inquiries into "any special
factors counselling hesitation, " and-although
Individual Defendants do not discuss it quite this way-any
"alternative, existing process" that should
displace Bivens. See Wilkie v. Robbins, 551 U.S537,
550 (2007); Ind. Defs.' Mem at 2 (arguing that
'Abbasi demonstrates that special factors
preclude recognition of a Bivens remedy in this
case, " and naming among such alleged factors,
"Loumiet's access to alternative statutory and
with the approach in Wilkie, the Court shall
evaluate any alternative, existing process separately from
the special factors analysis; the Court finds that
Abbasfs slightly different structure of discussing any
alternative, existing process in the course of the special
factors analysis makes no practical difference in this case.
See Wilkie, 551 U.S. at 550-61 ("assessing the
significance of any alternative remedies at step one"
before proceeding to "Bivens step two
[involving] weighing reasons for and against the creation of
anew cause of action"); Abbasi, 137 S.Ct. at
1857-58, 1860-63 (discussing the "special factors"
consideration before examining, "[i]n a related way,
" whether "there is an alternative remedial
structure" (citing Wilkie, 551 U.S. at 550)).
the Court endeavors to give complete consideration to the
Individual Defendants' motion, and the parties'
extensive briefing and supplemental notices, the Court
addresses here only those aspects to which justice requires
attention in the wake of Abbasi.
Abbasi Does Not Affect This Court's "New
Defendants make much of Abbasfs articulation of what
may be a new standard for finding a "new context"
for aBivens claim. Furthermore, they emphasize that
Abbasi renders this case a new context. For
example, After Abbasi, it is crystal clear that
permitting a constitutional tort action in this case extends
the Bivens remedy into a new context.
Abbasi establishes that the familiar context of
Bivens is now limited to the three cases-Bivens,
Davis, and Carlson-in which the Supreme
Court itself (not the Courts of Appeals) has approved of
an implied damages remedy under the Constitution.
Abbasi, 2017 WL 2621317, at *9 ("These three
cases-Bivens, Davis, and Carlson-represent
the only instances in which the Court has approved of an
implied damages remedy under the Constitution itself.");
Id. [sic] at *15 ("The proper test for
determining whether a case presents a new Bivens
context is as follows. If the case is different in a
meaningful way from previous Bivens cases
decided by this Court, then the context is
new.") (emphasis added). Thus, after Abbasi, it
is no longer appropriate to look to circuit precedent in
determining whether a case presents a familiar or new
Bivens context. Id.
Defs.' Mem. at 8. Even if the Supreme Court's
language does establish a new standard for identifying a new
Bivens context-a point that the D.C. Circuit has not
yet addressed and which this Court need not decide-that point
would not compel this Court to reevaluate its decision to
recognize this Bivens claim. Because the Court
decided the new context inquiry in the alternative, any
adjustment that Abbasi may have made to the relevant
standard is in apposite. See Loumiet V, 255
F.Supp.3d at 85 ("Even assuming that this case presents
a 'new context, ' however, the special factor
analysis does not preclude a Bivens remedy for
Plaintiff's retaliatory prosecution claim.");
Opp'n Mem. at 3 (citing id.).
Defendants also insist that Abbasi raises the bar
for finding that a Bivens remedy may be extended to
a particular new context. Notably, Abbasi emphasizes
that expanding the Bivens remedy is "now a
disfavored judicial activity, " given Congress's
primary role in deciding whether establishing a private right
of action is the best means to enforce a constitutional
guarantee. As a result, the determination that a plaintiff
seeks to extend the Bivens remedy to a new context
weighs heavily against permitting the claim to proceed, given
the strong policy against expanding Bivens to any
Defs.' Mem. at 2. Individual Defendants appear to make
some kind of argument that Abbasi adds a further
presumption against finding a Bivens remedy, a
presumption that is suggested to exceed the Supreme
Court's already clear trend against such findings, and
that is somehow independent of the "special
factors" and "alternative, existing process"
inquiries that the Supreme Court distilled in
Wilkie. The Court is not persuaded that
Abbasi should be read this way. As if in agreement,
later in their brief Individual Defendants seem to back away
from this argument because they never explain what this Court
is supposed to do with such an added presumption aside from
doing what it already did: assume arguendo a new
context, and give serious attention to any special factors
and any alternative, existing processes (or vice
versa, in the Wilkie articulation) that should
prevent extension of Bivens here.
the Court finds unpersuasive Individual Defendants'
argument to the effect that, after Abbasi, a
district court may no longer rely on circuit court precedent
recognizing a Bivens cause of action in a context
that has not expressly been recognized (or expressly
rejected) by the Supreme Court. See Ind. Defs.'
Mem. at 10 ('Abbasi unequivocally declares that
whether a case presents a new Bivens context is
determined only by reference to the three decisions
in which the Supreme Court has approved the remedy.").
Rather, the Supreme Court observes simply that the
"three cases-Bivens, Davis, and
Carlson-represent the only instances in which the
Court has approved of an implied damages remedy under the
Constitution itself." Abbasi, 137 S.Ct. at
1855. While this Court is of the view that Abbasi
should not require relitigating the "new context"
question for every Bivens action recognized by
circuits but not (yet) by the Supreme Court, that issue need
not be decided here due to the Court's assumption that
this is, in fact, a new context.
the Court shall proceed to consider whether any adjustments
that Abbasi may have made to the subsequent two
Bivens/Wilkie steps dictate a change in the