Kittner v. Gates ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
STACEY A. KITTNER, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1245 (GK)
)
ROBERT M. GATES, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
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 Review1
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).
1
The factual background and procedural history of this case
were fully detailed in this Court’s April 28, 2010 decision,
Kittner v. Gates, 708 F. Supp. 2d 47 (D.D.C. 2010). For purposes of
this opinion, familiarity with these facts is assumed.
-2-
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.
-3-
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.2
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
2
The new evidence includes, for example, documentation
suggesting that the individually sued Defendants took actions to
transfer Plaintiff from her previous position at OBNCR and to
restrict employment opportunities available to Plaintiff both
before and after her transfer, in retaliation for her decision to
report Maj K., her former supervisor, for sexual harassment.
Plaintiff’s Mot. 4-7; Plaintiff’s Reply Memorandum to Defendants’
Opposition to Plaintiff’s Motion for Reconsideration, 3-6 (July 1,
2010) (“Plaintiff’s Reply”) [Dkt No. 40].
-4-
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.
-5-
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.3
3
In her Reply brief, Plaintiff denies that she is presenting
a new Bivens theory, but rather claims she is simply further
supporting her previously-advanced theory, contained in paragraphs
189-191 of her Amended Complaint, “that the individual Defendants
are liable to her under Bivens by negatively altering her
employment status and impugning her reputation.” Plaintiff’s Reply
10. Contrary to Plaintiff’s characterization, however, there are no
allegations in these paragraphs of the Amended Complaint that
Defendants acted outside the scope of their employment, nor can it
be inferred that the claims contained in these paragraphs, alleging
that Plaintiff’s employment status and reputation were negatively
affected by Defendants’ actions, constitute allegations that
Defendants necessarily exceeded the scope of their employment by
(continued...)
-6-
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
3
(...continued)
engaging in these activities.
-7-
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.4 As a
4
In her Motion for Reconsideration, Plaintiff again raises
her alternative argument, originally presented during briefing on
the Motion to Dismiss, that her Bivens claim is separate and
distinct from her Title VII claims and is, therefore, not
preempted. Plaintiff’s Mot. 13-15. Although conceding that her
Title VII and non-Title VII claims arise from a “common nucleus of
operative facts,” Plaintiff argues that, based upon new evidence,
her Bivens claim should go forward as it “implicate[s] rights not
protected by Title VII and harms not remedied by Title VII.” Id. at
13-14. While it is true that Title VII does not preempt
constitutional claims for which it provides no protection, Ethnic
Emps. of Library of Congress, 751 F.2d at 1415-16, Plaintiff fails
to demonstrate that her new evidence implicates constitutional
rights that are distinct from her Title VII employment
discrimination claims. See id. (dismissing those constitutional
claims restating allegations of discrimination or retaliation
cognizable under Title VII, while permitting alleged constitutional
violations not cognizable under Title VII to go forward); Rochon,
691 F. Supp. at 1556 (dismissing, as preempted by Title VII, Bivens
claims that were based upon plaintiff’s “right to be free from
discriminatory treatment with respect to the terms and conditions
of his employment”). Instead, much of Plaintiff’s argument amounts
(continued...)
-8-
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.5
4
(...continued)
to little more than a re-litigation of the issue, which is
impermissible on a “‘motion to reconsider [as] [it] is simply not
an opportunity to reargue facts and theories upon which [the] court
has already ruled.’” Aliotta v. Blair, 623 F. Supp. 2d 73, 75
(D.D.C. 2009) (quoting State of New York v. United States, 880 F.
Supp. 37, 38 (D.D.C. 1995)), aff’d, 614 F.3d 556 (D.C. Cir. 2010).
The only new material fact or theory presented by Plaintiff is
her allegation that the individual Defendants violated two criminal
statutes, 18 U.S.C. § 1001, which prohibit false or fraudulent
statements in “any matter within the jurisdiction” of the federal
government, and 18 U.S.C. § 372, which prohibits conspiracies to
impede or injure a federal officer). Plaintiff’s Mot. 8, 14.
However, as the Government correctly notes, this allegation cannot
support Plaintiff’s position that her Bivens action is separate and
distinct from her Title VII claims. Defendants’ Opposition to
Plaintiff’s Motion for Reconsideration, 5-7 (June 21, 2010) (Gov’t
Opp’n) [Dkt. No 37]. First, because the factual predicate for this
new allegation was contained in her Amended Complaint, Plaintiff
should have raised this claim during briefing on Defendants’ Motion
to Dismiss and cannot now present it here. Second, even if this
allegation was properly raised in a motion for reconsideration,
Plaintiff has provided no authority establishing that a Bivens
claim can be based upon violations of federal criminal statutes,
such as these, for which there is no private cause of action. See
Peavey v. Holder 657 F. Supp. 2d 180, 190 (D.D.C. 2009) (holding
that there is no private cause of action under 18 U.S.C. § 1001),
aff’d, 2010 WL 3155823 (D.C. Cir. Aug. 9, 2010); Potts v. Howard
Univ. Hosp., 598 F. Supp. 2d 36, 39 n.3 (D.D.C. 2009)(holding that
there is no private cause of action under 18 U.S.C. § 372).
5
While a Bivens claim that is actionable under Title VII is
preempted by the statute, our Court of Appeals has recognized that
nothing in Title VII’s legislative history “even remotely suggests
that Congress intended to prevent federal employees from suing
their employers for constitutional violations against which Title
VII provides no protection at all.” Ethnic Emps. of Library of
(continued...)
-9-
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
5
(...continued)
Congress, 751 F.2d at 1415. Consequently, where federal employees
bring Bivens claims against their employers that are not covered by
Title VII, “Congress did not intend for Title VII to displace those
claims . . . .” Id. at 1416. See Rochon, 691 F. Supp. at 1555(“Brown stands for the proposition that Title VII preempts other
remedies for discrimination in federal employment only when the
federal employee is challenging action directly and singularly
related to discrimination in the terms and conditions of his or her
employment.”) (emphasis in original).
-10-
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’s6 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
6
In Fausto, the Supreme Court held that a federal employee
who, like Plaintiff, was a part of the excepted civil service, was
precluded from bringing a judicial action challenging a personnel
decision covered by the CSRA even though that employee was
personally ineligible to seek CSRA review. 484 U.S. at 455.
Similarly, in Spagnola, our Court of Appeals directly addressed
whether the CSRA precluded Bivens claims brought by federal
employees, who were barred from taking advantage of the CSRA’s
“elaborate administrative protections” and whose remedies under the
CSRA were therefore “not so complete.” 859 F.2d at 225-26. The
court ultimately held that the CSRA remained preclusive in such
circumstances. Id. at 226-29.
-11-
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
-12-
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
-13-
claim.7
III. CONCLUSION
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.
/s/
May 11, 2011 Gladys Kessler
United States District Judge
Copies via ECF to all counsel of record
7
In fact, it is clear that Plaintiff would not be prejudiced
by the discovery plan offered by the Government. The Court has
already ruled that Plaintiff’s Bivens claim is barred.
Consequently, she has no basis for seeking this type of discovery
and there are no further grounds suggested by Plaintiff for taking
discovery of Defendants in their individual capacity.
-14-