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Loumiet v. United States

United States District Court, District of Columbia

November 28, 2017

CARLOS LOUMIET, Plaintiff,
v.
UNITED STATES OF AMERICA, etal, Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         In 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 [62] motion to dismiss.[1]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.").

         Upon consideration of the briefing and notices of supplemental authority, [2] the relevant legal authorities, and the record as a whole, the Court DENIES the Individual Defendants' [74] 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.

         I. BACKGROUND

         In 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"), [3] and shall deal here only with those details necessary to evaluate Individual Defendants' [74] Motion to Reconsider.

         II. LEGAL STANDARD

         A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction

         In 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 marks omitted).

         B. Motion to Reconsider

         Now on 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).

         III. DISCUSSION

         Only if 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' [62] motion to dismiss.[4] 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 judicial remedies").[5]

         Consistent 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)).

         While 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.[6]

         A. Abbasi Does Not Affect This Court's "New Context" Assumption

         Individual 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.

         Ind. 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.).

         Individual 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 new context.

         Ind. 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.

         Moreover, 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.

         Consequently, 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 Court's ...


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