Loumiet v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARLOS LOUMIET,
Plaintiff,
v. Civil Action No. 12-1130 (CKK)
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION
(November 28, 2017)
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),
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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 Ziglar v. 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
1 The United States has not filed a motion to reconsider the Court’s decision on the United States’
[63] Motion to Dismiss. Therefore, only the First Amendment claim for retaliatory prosecution
under Bivens against Individual Defendants is considered here.
2 The Court’s consideration has focused on the following documents:
• Individual Defs.’ Rule 54(b) Mot. to Reconsider in Light of Ziglar v. Abbasi and
Supporting Mem. of P&A, ECF No. 74 (“Ind. Defs.’ Mem.”);
• Carlos Loumiet’s Opp’n to Individual Defs.’ Rule 54(b) Mot. to Reconsider in Light of
Ziglar v. Abbasi, ECF No. 75 (“Opp’n Mem.”);
• Reply Mem. in Supp. of Individual Defs.’ Rule 54(b) Mot. to Reconsider in Light of Ziglar
v. Abbasi, ECF No. 76 (“Reply Mem.”);
• Carlos Loumiet’s Mot. for Leave to File Sur-Reply, ECF No. 78 (“Sur-Reply Mot.);
• Carlos Loumiet’s Sur-Reply in Opp’n to Individual Defs.’ Mot. for Recons., ECF No. 78-
1 (“Sur-Reply Mem.”);
• Individual Defs.’ Notice of Suppl. Auth., ECF No. 77 (“Notice Suppl. Auth.”);
• Carlos Loumiet’s Resp. to Individual Defs.’ Notice of Suppl. Auth., ECF No. 79 (“Resp.
to Notice Suppl. Auth.”);
• Individual Defs.’ Second Notice of Suppl. Auth., ECF No. 80 (“Second Notice Suppl.
Auth.”).
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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 I”),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 Plaintiff’s 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); Ctr. 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
3 The list of past rulings consists of Loumiet v. United States, 968 F. Supp. 2d 142 (D.D.C. 2013)
(“Loumiet I”); Loumiet v. United States, 65 F. Supp. 3d 19 (D.D.C. 2014) (“Loumiet II”); Loumiet
v. United States, 106 F. Supp. 3d 219 (D.D.C. 2015) (“Loumiet III”); Loumiet v. United States,
828 F.3d 935 (D.C. Cir. 2016) (“Loumiet IV”); and Loumiet v. United States, 255 F. Supp. 3d 75
(D.D.C. 2017) (“Loumiet V”). In addition, the D.C. Circuit previously ruled on Plaintiff’s
application for attorney fees under the Equal Access to Justice Act (“EAJA”) in connection with
his defense before the OCC. Loumiet v. Office of Comptroller of Currency, 650 F.3d 796, 798 (D.C.
Cir. 2011) (“Loumiet EAJA”).
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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 a judgment
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), 2017 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 a broad 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), 2017 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
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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 Abbasi made 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.S 537, 550 (2007); Ind. Defs.’
Mem. at 2 (arguing that “Abbasi demonstrates that special factors preclude recognition of a Bivens
4The Court has no reason to doubt that a four-justice majority opinion issued when the Supreme
Court had satisfied the six-justice quorum represents controlling precedent. See Reply Mem. at 1
n.1 (citing 28 U.S.C. § 1 (2015)); Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S.
455, 461 n.1 (2013) (applying 28 U.S.C. § 1 to four-justice portion of opinion in Basic Inc. v.
Levinson, 485 U.S. 224 (1988), which also met quorum of six justices).
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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 Abbasi’s 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 a new 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 Abbasi’s articulation of what may be a new standard
for finding a “new context” for a Bivens claim. Furthermore, they emphasize that Abbasi renders
this case a new context. For example,
5 Individual Defendants make no argument that Abbasi should affect this Court’s prior
determination regarding absolute prosecutorial immunity and qualified immunity. See, e.g.,
Loumiet V, 255 F. Supp. 3d at 95-96.
6 Individual Defendants point to various post-Abbasi cases in courts outside this circuit that
allegedly “have already begun to decline invitations to expand the Bivens remedy to new contexts.”
Reply Mem. at 2; see also Notice Suppl. Auth.; Second Notice Suppl. Auth. The Court finds that
these cases do not add meaningfully to the analysis in the parties’ briefs or the Court’s own analysis
in this opinion.
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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 inapposite. 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
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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 ruling
on Individual Defendants’ motion to dismiss.
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B. Abbasi Does Not Change the Outcome of This Court’s “Special Factors” Inquiry
Individual Defendants repeat arguments about special factors that they concede the Court
already has considered.
Three of the special factors that barred the plaintiffs’ Bivens claims in Abbasi are
the same special factors that the Individual Defendants argued in their motion to
dismiss—specifically, (1) Loumiet’s access to alternative statutory and judicial
remedies; (2) the harmful effect introduction of a Bivens remedy will have on the
performance of official duties; and (3) Congress has been establishing and
extensively regulating national banks for two hundred years, but has never seen fit
to establish a Bivens cause of action against federal bank regulators.
Ind. Defs.’ Mem. at 2. As adverted above in the introduction to this Part III, the Court shall defer
until the following subpart Individual Defendants’ first argument, about alternative remedies—
Wilkie clearly states that this deserves separate consideration, and Abbasi does not expressly state
otherwise.
Turning to Individual Defendants’ second argument, the Court is not convinced that Abbasi
requires a change in the Court’s analysis of any potential chilling effect in lawful enforcement
activity. Unlike the facts in Abbasi, this is not a case in which “high officers who face personal
liability for damages might refrain from taking urgent and lawful action in a time of crisis.”
Abbasi, 137 S. Ct. at 1863. Rather, Plaintiff’s prosecution was separate from, and subsequent to,
the OCC’s enforcement action against his bank client; the prosecution against Plaintiff does not
seem to have been “urgent,” driven by “crisis,” or, for that matter, necessary to the underlying
enforcement action against Plaintiff’s client. See, e.g., Loumiet I, 968 F. Supp. 2d at 145-47; Opp’n
Mem. at 22 (“The Individual Defendants brought their retaliatory prosecution more than four-and-
a-half-years after [Plaintiff’s client] Hamilton Bank failed.”). Indeed, the Court already made a
fact-specific determination that a Bivens claim will not deter lawful enforcement activity. See
Loumiet V, 255 F. Supp. 3d at 91 (considering the facts and finding that, “given the uniqueness of
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the allegations in this case, in this Court’s view, allowing Plaintiff to proceed with his First
Amendment Bivens claim is unlikely to have a chilling effect on the proper regulatory activities of
banking regulators like the Individual Defendants”). No further consideration of an alleged
chilling effect is necessary.
As for their third argument, Individual Defendants resurrect assertions about Congress’s
extensive regulation of the banking system, but, despite copious citations to Abbasi, fail to identify
why Abbasi dictates a different outcome. See Ind. Defs.’ Mem. at 2, 13-14, 19. This Court already
thoroughly considered whether a Bivens remedy should be implied in light of the statutory scheme
established by the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”)
and backstopped by review under the Administrative Procedure Act (“APA”). See Loumiet V, 255
F. Supp. 3d at 83-90. Individual Defendants contend that this Court “required [them] to
affirmatively prove that Congress expressly considered and rejected a damages remedy against
federal banking regulators.” Ind. Defs.’ Mem. at 2, 13. That is a distortion of the Court’s rationale
for concluding that the FIRREA and APA do not supplant a Bivens remedy here. Rather,
Individual Defendants could not show “how Plaintiff, under the particular factual circumstances
of this case, could have sought relief through the amalgam of FIRREA and the APA,” or in the
alternative, that “the absence of a remedy for Plaintiff under the circumstances of this case was
the intentional product of how Congress constructed the administrative review procedures under
FIRREA.” Loumiet V, 255 F. Supp. 3d at 89. At least one of these indicators is necessary for the
Court logically to conclude that Congress intended to forego an implied damages remedy.
In Abbasi, the Supreme Court noted that “the silence of Congress is relevant; and here that
silence is telling,” because none of the extensive congressional involvement in countering
terrorism since September 11—including in addressing confinement conditions—had resulted in
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a damages remedy. Abbasi, 137 S. Ct. at 1862-63. There is no parallel silence here, for the remedy
at issue concerns a subject—retaliatory prosecution—which Individual Defendants have not
shown that Congress even contemplated, much less expressly rejected, from the relevant statutory
scheme. “[Individual] Defendants have completely failed to furnish any legislative or other
evidence that Congress intentionally excluded claims similar to Plaintiff’s from FIRREA. Nor
does the statute itself indicate an intent to exclude such claims.” Loumiet V, 255 F. Supp. 3d at 89.
And as for “whether the absence of APA review for Plaintiff’s claim is the product of intentional
Congressional policymaking in constructing FIRREA,” “no evidence has been proffered, nor does
such intent seem likely.” Id.
At the end of their opening brief, Individual Defendants also make the argument that “the
existence of procedural safeguards against the retaliatory initiation of an OCC enforcement action
is a special factor that weighs against implying a Bivens remedy in this case.” Ind. Defs.’ Mem.
at 21-22. However, they do not explain why Abbasi dictates that the Court consider this argument,
aside from observing that “Abbasi reaffirms that the purpose of Bivens is to deter misconduct by
individual officers, not to challenge agency action or policy.” Id. at 21 (citation omitted). The
Court is aware of this purpose of a Bivens action and dealt with it before when addressing the
chilling effect argument. Even if it were proper to raise this special factor now, the Court does not
find Individual Defendants’ treatment persuasive.
Elsewhere in Abbasi, the Supreme Court elaborates on the scope of “special factors,” a
point which Individual Defendants cite only summarily in their rush to urge deference to Congress.
See Ind. Defs.’ Mem. at 19. “[T]he decision to recognize a damages remedy requires an assessment
of its impact on governmental operations systemwide,” which “include[s] the burdens on
Government employees who are sued personally, as well as the projected costs and consequences
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to the Government itself when the tort and monetary liability mechanisms of the legal system are
used to bring about the proper formulation and implementation of public policies.” Abbasi, 137
S. Ct. at 1858. Such an “assessment” could potentially sweep quite broadly. But Individua l
Defendants have not raised any specific “burdens” or “costs and consequences” that the Court is
not satisfied are otherwise addressed by the Court’s dispatch of the “chilling effect” argument on
the basis of the unique facts at issue. See Loumiet V, 255 F. Supp. 3d at 90-91. Moreover, on these
facts, the Court is satisfied that this is not a case targeting public policy change—as Abbasi echoes
precedent in prohibiting—but rather is properly focused on specific activities of individua l
officers. See Abbasi, 137 S. Ct. at 1860 (citing Correctional Services Corp. v. Malesko, 534 U.S.
61, 74 (2001); FDIC v. Meyer, 510 U.S. 471, 485 (1994)).
In summary, Individual Defendants do not make any arguments about Abbasi that cause
this Court to reevaluate its conclusion that the special factors inquiry does not preclude a Bivens
remedy.
C. Individual Defendants Have Not Proven That the Equal Access to Justice Act Is
an “Alternative Remedial Structure” Sufficient to Preclude a Bivens Claim
Next, the Court turns to the Individual Defendants’ argument about “[a]lternative avenues
for protecting the interest at stake,” insofar as they assert that “[t]he statutory and judicial remedies
available to Loumiet under the FIRREA, [Equal Access to Justice Act (“EAJA”)], and APA
provided ample opportunity for him to protect his interests and thus render a Bivens action
unnecessary.” Ind. Defs.’ Mem. at 18-19. At the outset, the Court observes a technical reason that
this argument is flawed, as Plaintiff notes. Opp’n Mem. at 8-9.
Individual Defendants arguably forewent their opportunity to pursue this argument in their
prior Motion to Dismiss. See Opp’n Mem. at 8; Individual Defs.’ Mot. to Dismiss and Statement
of P&A in Supp., ECF No. 62, at 12 (“[T]he defendants do not contend that the FIRREA afforded
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Loumiet an ‘alternative, existing process’ to pursue his constitutional claims. In other words, the
defendants are not invoking the first step of the Wilkie analysis.” (citing Wilkie, 551 U.S. at 550)).
And this Court already dealt with the issue. Loumiet V, 255 F. Supp. 3d at 84 (“[A] Bivens remedy
will generally not be available if a comprehensive statutory scheme already exists for a plaintiff to
seek redress of the alleged constitutional violation. Defendants concede that no such scheme exists
here.” (citing Reply Mem. of P&A in Supp. of the Defs.’ Mots. to Dismiss, ECF No. 66, at 6)).
The Court could have elaborated its citation of support:
Individual Defendants do not contend that judicial review of agency action under
the APA, standing alone, precludes a Bivens remedy. Rather, the defendants’
position is that the comprehensive remedial scheme of the FIRREA, coupled with
judicial review under the APA, is a special factor that counsels hesitation against
authorizing a Bivens remedy in this case.
Reply Mem. of P&A in Support of the Defs.’ Mots. to Dismiss, ECF No. 66, at 6. Together with
Individual Defendants’ aforementioned concession that FIRREA alone is not an “alternative,
existing process,” the concession here that APA is not either seals the deal. Defendants’ last-gasp
attempt to package FIRREA and APA together as a special factor does not suffice; the Court
addresses above why the combination of these two statutory schemes is not a special factor causing
the Court to hesitate from recognizing a Bivens remedy. See supra Part III.B. As such, the Court
is not persuaded by Individual Defendants’ argument that they did not waive this argument because
Abbasi allegedly “characterized access to alternative forms of relief as a ‘special factor.’” Reply
Mem. at 6.
Having come this far, it may not do justice to decide a motion to reconsider based only on
the argument (or lack thereof) in Individual Defendants’ prior briefing. From a more substantive
perspective, the Court observes one potential “alternative, existing process” that warrants further
consideration, namely Plaintiff’s recovery of attorney’s fees under the EAJA. The parties only
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skirted this argument when they briefed Individual Defendants’ [62] Motion to Dismiss. At the
time, they appeared to focus instead on Individual Defendants’ argument that FIRREA and the
APA qualified as alternatives. See, e.g., Individual Defs.’ Mot. to Dismiss and Statement of P&A
in Supp., ECF No. 62, at 11 (“Not only did Loumiet have access to these remedies [i.e., through
the FIRREA and the APA], but he successfully invoked them and recovered a substantial amount
of attorney’s fees as the prevailing party.”); Carlos Loumiet’s Opp’n to Individual Defs.’ Mot. to
Dismiss under Fed. R. Civ. P. 12(b)(6) and United States’ Mot. to Dismiss under Fed. R. Civ. P.
12(b)(6) & (b)(1), ECF No. 64, at 18 (“[I]t’s simply absurd to suggest that [future lawyers] will
view FIRREA’s procedures, its reference to the ADA [sic], or even the possibility of recovering
attorneys’ fees, as adequately protecting them, their careers, and their futures from the type of
mercenary retaliatory conduct undertaken by the Individual Defendants in this case.”).
Accordingly, recovery under the EAJA was not a focus of this Court’s decision in Loumiet V when
it found no alternative remedies.
Fueled by Abbasi, the parties now devote significant portions of their briefing, especially
in the reply and sur-reply, to the issue of whether attorney’s fees under the EAJA amount to an
alternative remedy sufficient to preclude a Bivens remedy. See Reply Mem. at 6-11 (“Having
prevailed in the enforcement proceeding and pocketed $675,000 in fees and defense costs, how
does Loumiet reasonably claim that ‘it is damages or nothing’ for him in this case?” (citing Opp’n
Mem. at 20)); Sur-Reply Mem. at 4-5 (deeming Individual Defendants’ EAJA argument a “red
herring that hopes to distract the Court from the truly dispositive fact that there is a complete
absence of congressional intent in any statutory scheme to which the Individual Defendants have
pointed” and furthermore arguing “Loumiet did not ‘pocket’ anything”); see also Ind. Defs.’ Mem.
at 17 (noting in the course of their “new context” argument that “the recovery of attorney’s fees
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under EAJA is a remedy that Congress has expressly provided for a civil enforcement proceeding
that was brought without substantial justification” (citing 5 U.S.C. § 504(a)(1) (2016)).
Even so, the Court would not feel compelled to overlook this omission and reconsider its
decision, absent a plausible argument for some movement in the controlling case law. But Abbasi
could be interpreted as lowering the threshold for finding an alternative remedy sufficient to
preclude a Bivens claim. See, e.g., Abbasi, 137 S. Ct. at 1858 (“[I]f there is an alternative remedial
structure present in a certain case, that alone may limit the power of the Judiciary to infer a new
Bivens cause of action.”). Individual Defendants parrot this line from Abbasi—italicizing “alone”
without noting that the emphasis is their own, Ind. Defs.’ Mem. at 18—but fail to provide any
corresponding explanation of the practical difference that this purported standard makes, if any, in
the pre-Abbasi approach to alternative processes for relief. On such a minimal showing, the Court
does not feel obligated to trace the Individual Defendants’ steps for them, but in the interest of a
complete analysis, the Court shall consider whether Abbasi in fact adjusted the threshold for
recognizing an alternative remedy, and even if not, whether this Court should consider the EAJA
to be an alternative in the first instance.
As the Supreme Court has limited the availability of Bivens remedies in recent decades,
the standard for recognizing an alternative to a Bivens claim has arguably evolved as well. Early
Supreme Court cases set a high bar for a showing of congressional intent that an alternative would
preclude Bivens. In Bivens itself, the Supreme Court rejected defendants’ argument that it should
defer to seemingly inadequate state tort law remedies and found “no explicit congressional
declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not
recover money damages from the agents, but must instead be remitted to another remedy, equally
effective in the view of Congress.” Bivens, 403 U.S. at 394-97. The Bivens Court thereby
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demonstrated a concern with both the adequacy of a purported alternative, and any clear indication
that Congress intended it, or any other remedy, to supplant damages against individual officers,
finding neither to be so in that case. See also Davis v. Passman, 442 U.S. 228, 248 (1979) (“[W]ere
Congress to create equally effective alternative remedies, the need for damages relief might be
obviated.” (citing Bivens, 403 U.S. at 397)).
Shortly thereafter in Carlson v. Green, the Supreme Court again decided that a candidate
alternative was not sufficient to preclude a Bivens remedy. There, a deceased prisoner’s estate
sought to recover against individual prison officials for alleged violation of his Eighth Amendment
and other constitutional rights. 446 U.S. 14, 16 (1980). The Court reasoned that a Bivens claim
could only be defeated by a purported alternative “when defendants show that Congress has
provided an alternative remedy which it explicitly declared to be a substitute for recovery directly
under the Constitution and viewed as equally effective.” Id. at 18-19 (citing Bivens, 403 U.S. at
397; Davis v. Passman, 442 U.S. at 245-47). The Court rejected the argument that the FTCA
should count as such an alternative, because no evidence could be mustered “to show that Congress
meant to pre-empt a Bivens remedy or to create an equally effective remedy for constitutiona l
violations”; on the contrary, legislative history to a pertinent FTCA amendment demonstrated
beyond doubt that Congress intended the two causes of action to coexist. Id. at 19-20. Here again,
the Supreme Court rejected a purported alternative for lack of congressional intent, this time
without assessing whether that alternative would otherwise have been adequate to remedy the
harm. Subsequent cases confirmed that the (in)adequacy of a purported alternative is not
dispositive. See Malesko, 534 U.S. at 68-69 (discussing, e.g., Schweiker v. Chilicky, 487 U.S. 412
(1988); Bush v. Lucas, 462 U.S. 367 (1983)).
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More recently, consistent with the general curbing of the Bivens remedy, the Supreme
Court has at least once declined to infer a Bivens remedy apparently without relying on either the
adequacy of any alternatives or Congress’s intent with respect to those alternatives. In
Correctional Services Corp. v. Malesko, a former federal inmate sought to recover damages for
injuries suffered while he was confined to a privately owned halfway house. 534 U.S. at 63-64.
The Court refused to recognize a Bivens remedy because a suit against the operator of the halfway
house fell outside the objective of the Bivens remedy, namely to deter constitutional torts by
individual officers, not their employers, federal or otherwise. Id. at 70-71. This grounds was
sufficient to preclude Bivens, see id. at 71 (“There is no reason for us to consider extending Bivens
beyond this core premise here.”), but the Court also observed the availability of alternative
remedies. “It was conceded at oral argument that alternative remedies are at least as great, and in
many respects greater, than anything that could be had under Bivens.” Id. at 72. Those remedies
included tort law, administrative processes, or a federal suit for injunction against future such
harms. Id. at 72-74. While Malesko did not rest on the available alternatives, the Court still found
it worthwhile to mention that there were some.
In Wilkie, however, we see that Malesko did not necessarily dispose of previous Bivens
considerations. Wilkie demonstrated that Congressional intent behind a given alternative was
again a focal point. The Supreme Court articulated perhaps its most definitive standard yet
governing the availability of an alternative remedy. A court must ask “whether any alternative,
existing process for protecting the [constitutionally recognized] interest amounts to a convincing
reason for the Judicial Branch to refrain from providing a new and freestanding remedy in
damages.” Wilkie, 551 U.S. at 550 (citing Bush, 462 U.S. at 378); see also Minneci v. Pollard,
565 U.S. 118, 122-23 (2012) (describing two-step inquiry from Wilkie as “standards [that] seek to
17
reflect and to reconcile the Court’s reasoning set forth in earlier cases”). The Wilkie Court
discussed a number of alternative methods of addressing plaintiff-respondent’s problems, some of
which he did not exhaust—e.g., tort law remedies for damages from trespass, administrative
remedies for challenging administrative claims, and most analogously to the EAJA in this case,
timely appeal of the district court’s denial of attorney’s fees sought under the Hyde Amendment
in a criminal case—without finding that any of these disqualified his efforts to obtain a Bivens
remedy. Wilkie, 551 U.S. at 553-54. Rather, considering the “patchwork” of remedies, “an
assemblage of state and federal, administrative and judicial benches applying regulations, statutes,
and common law rules,” the Supreme Court declined to infer that Congress meant to preclude a
Bivens remedy. Id. at 554 (finding it necessary to proceed to special factors inquiry). Accordingly,
Wilkie demonstrates that as of at least 2007 it remained important in the Supreme Court’s Bivens
jurisprudence to consider congressional intent with respect to purported alternatives. For this
reason, even a plethora of alternatives might not be sufficient to preclude a Bivens claim.
One might argue that the Supreme Court took a step in the restrictive direction, with respect
to alternative remedies, in Minneci, but that argument would be flawed too. There the Court
observed that a federal prisoner could pursue state law tort remedies against private employees
operating the prison, and accordingly, no Bivens action for an alleged Eighth Amendment violation
should be permitted. 565 U.S. at 120, 127. In dictum the Court appeared to recognize a low bar
for a finding of an alternative remedy sufficient to preclude Bivens. See id. at 127 (referring to
Malesko as “noting that the Court has implied Bivens action only where any alternative remedy
against individual officers was ‘nonexistent’ or where plaintiff ‘lacked any alternative remedy’ at
all” (quoting Malesko, 534 U.S. at 70)). Like Malesko, however, Minneci contained an alternative
that did not test this bottom limit, for the Court “believe[d] that in the circumstances present here
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state tort law authorizes adequate alternative damages actions—actions that provide both
significant deterrence and compensation.” Id. at 120 (citing Wilkie, 551 U.S. at 550).
As noted above in this subpart, certain language in Abbasi could be read to slightly lower
the threshold for a finding of an alternative remedy sufficient to preclude a Bivens claim. See
supra (discussing whether “an alternative remedial structure” “alone” suffices). But the facts of
Abbasi did not test the lower limit. Abbasi observed that a habeas petition, an injunction, “or some
other form of equitable relief” may have been available to plaintiff-respondents and concluded that
“when alternative methods of relief are available, a Bivens remedy usually is not.” Abbasi, 137 S.
Ct. at 1863, 1865 (emphasis added). Abbasi carefully avoided a pronouncement that alternative
remedies always will suffice; it also did not say—because that case was not before it—that a single
candidate alternative about which there is some debate over the sufficiency (as the Court shall
address below) will be enough to keep a court from inferring a Bivens remedy. In short, Abbasi
does not conclusively address the only question remaining: whether the single candidate
alternative remaining in this case, the EAJA, qualifies as an alternative remedy sufficient to keep
the Court from inferring a Bivens remedy.
The D.C. Circuit has yet to interpret Abbasi, and D.C. Circuit cases since Wilkie have not
had the opportunity to clarify that case’s standard for the minimum alternative remedy sufficient
to preclude Bivens. See, e.g., Meshal v. Higgenbotham, 804 F.3d 417, 425 (D.C. Cir. 2015)
(applying Wilkie steps and finding parties in agreement that plaintiff-appellant had no other
remedies, before moving on to special factors inquiry). Perhaps the closest the D.C. Circuit came
to directly addressing this issue was in Wilson v. Libby, which denied a Bivens claim after
recognizing that plaintiff-appellants allegedly harmed by the disclosure of covert employment with
the Central Intelligence Agency could seek some, albeit incomplete, relief under the Privacy Act.
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535 F.3d 697, 709 (D.C. Cir. 2008). But it is not clear that this would have been enough for the
court to preclude Bivens if not for the consideration of a congressional omission as a special factor.
The D.C. Circuit found that the Privacy Act is a comprehensive remedial scheme from which
Congress had “intentionally” excluded claims against certain of the Executive Branch officials
being sued in that case, and that accordingly the court would “not supplement the scheme with
Bivens remedies.” Id. at 706-10; see also Davis v. Billington, 681 F.3d 377, 383-84 (D.C. Cir.
2012) (finding a “comprehensive remedial scheme” in which “Congress’s choice to omit damages
remedies for claimants in [plaintiff-appellee’s] posture was a deliberate one”).
In this case, by contrast, Individual Defendants have not demonstrated that the EAJA—
alone or in combination with the FIRREA and APA—is such a “comprehensive remedial scheme”
by which Congress intends to supplant a damages remedy against the OCC officials. See Loumiet
V, 255 F. Supp. 3d at 89-90 (rejecting this argument with respect to the FIRREA and APA). Rather,
the most they offer is a thin comparison to a statutory scheme that is not at issue in this case. See
Reply Mem. at 11 (“The same congressional judgment [behind foregoing a Bivens remedy for
improper criminal prosecutions in favor of the Hyde Amendment] is reflected in the EAJA, which
operates similarly in the civil context to deter ‘substantially unjustified’ administrative
enforcement actions.”).
As the foregoing discussion illustrates, the parties have not identified, nor has this Court
found, controlling case law that provides a clear, consistent standard for evaluating whether
Plaintiff’s recovery under the EAJA should preclude a Bivens remedy. See, e.g., Minneci, 565
U.S. at 125 (noting that “the Court, in reaching its [Bivens] decisions, has not always similarly
emphasized the same aspects of the cases,” and proceeding with the Wilkie analysis). However,
the case law does illustrate that at least three considerations have been significant to the disposition
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of controlling Bivens cases: congressional intent (see, e.g., Supreme Court decisions in Bivens,
Carlson, and Wilkie, and D.C. Circuit decisions in Wilson and Davis v. Billington); deterrent effect
(see Malesko and Minneci); and adequacy of the remedy (see Bivens and Minneci). And these
considerations remain relevant in recent cases. See, e.g., Wilkie, 551 U.S. at 554 (illustrating the
continuing relevance of assessing whether “Congress expected the Judiciary to stay its Bivens
hand”); Minneci, 565 U.S. at 120-21 (citing both “significant deterrence and compensation” from
alternative remedies as reason for denying Bivens claim). Yet, none of these considerations
suggests that the Court should decline a Bivens remedy here.
First, the Court is not persuaded by Individual Defendants’ meager efforts to prove, by
analogy alone, that Congress intended the EAJA to preclude a Bivens remedy. Individua l
Defendants point to congressional intent underlying the Hyde Amendment in 1997, which created
a means by which prevailing criminal defendants could recover attorney’s fees and other litigation
costs under certain circumstances when “the position of the United States was vexatious, frivolous,
or in bad faith.” Reply Mem. at 10-11 (quoting Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519
(1997) (codified at 18 U.S.C. § 3006A note (2016) (Award of Attorney’s Fees and Litigation
Expenses to Defense))) (internal quotation marks omitted); see also id. (citing Statement of
Honorable Henry J. Hyde Before the House Rules Committee on an Amendment to H.R. 2267 to
Allow for the Recovery of Attorneys Fees and Litigation Costs in a Criminal Prosecution, 1997
WL 545756 (Sept. 5, 1997) (showing amendment sponsor’s satisfaction that this mechanism
would “deter unjustifiable governmental conduct” even without “impos[ing] personal liability on
prosecutors for negligence” or subjecting them to “the tort of malicious prosecution”)). Even if
Congressman Hyde’s intentions were properly said to reflect those of the whole Congress, a point
which Individual Defendants seem to assume without support, see Reply Mem. at 11, it is by no
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means certain that Congress had the same intent in fashioning the EAJA in 1980. Moreover, the
opportunity for the Wilkie plaintiff to pursue fees and costs under the Hyde Amendment following
his acquittal in a prior criminal case was among the alternatives that collectively were found not
to be sufficient to preclude Bivens. Wilkie, 551 U.S. at 545-46, 552-54. The facts of Wilkie are
particularly salient because the prior criminal case concerned the Wilkie plaintiff’s resistance to
certain activity of an agency official against whom he later sought the Bivens remedy in his civil
case. See id. at 545-46 (discussing charges of “knowingly and forcibly impeding and interfering
with a federal employee”). Yet, Individual Defendants say nothing about why recovery under the
EAJA alone—setting aside their FIRREA and APA arguments, which, as discussed above, the
Court dispatched in its prior ruling, see Loumiet V, 255 F. Supp. 3d at 89-90—should be sufficient
to preclude Bivens while the availability of the Hyde Amendment was not sufficient to do so in
Wilkie. See supra Part III.B (discussing FIRREA and APA).
Second, the EAJA arguably lacks the deterrent effect on individual officers that a Bivens
remedy would have. Recovery under the EAJA is awarded out of the pockets of the government,
not the individual officers. 5 U.S.C. § 504(d) (2016) (“Fees and other expenses awarded under
this subsection shall be paid by any agency over which the party prevails from any funds made
available to the agency by appropriation or otherwise.”). 7 Moreover, Abbasi reinforces that
deterrence is at the core of Bivens: “The purpose of Bivens is to deter the officer.” Abbasi, 137 S.
Ct. at 1860 (quoting Meyer, 510 U.S. at 485) (internal quotation marks omitted). Without damages
recovery against the OCC officers themselves, provided that Plaintiff can prove his claims, it is
7 Conceivably, the provision for payment through funds from appropriation “or otherwise” could
include indemnification by the individual officers held responsible, but Individual Defendants do
not pursue that argument.
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not clear that officers similarly positioned in the future would find the personal risks of pursuing
a retaliatory prosecution to caution adequately against it.
Lastly, Individual Defendants make much of the quantity of Plaintiff’s recovery under the
EAJA, effectively arguing that it adequately compensates his loss. E.g., Reply Mem. at 10. While
the Supreme Court has sometimes considered the adequacy of a given remedy, such as in Bivens
and Minneci, Individual Defendants have not pointed to, nor is the Court aware of, any case
considering whether attorney’s fees under the EAJA are adequate. The closest case is Wilkie,
where the availability of attorney’s fees in the parallel criminal context was found to be part of an
inadequate “patchwork” of remedies. Wilkie, 551 U.S. at 554. In evaluating a motion to dismiss,
and without the benefit of discovery, the Court is not in a position to assess whether the award of
$675,000 in attorney’s fees under the EAJA adequately compensates Plaintiff’s damages, alleged
to be $4 million. 8 See Compl. ¶ 148; Coal. for Underground Expansion, 333 F.3d at 198 (noting
that only “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” may be
considered on motion to dismiss for lack of subject-matter jurisdiction); cf. Koubriti v. Convertino,
No. 07-13678, 2008 WL 5111862, at *7 (E.D. Mich. Dec. 3, 2008), aff’d in part, rev’d in part on
other grounds, 593 F.3d 459 (6th Cir. 2010) (finding in criminal case that opportunity to recover
attorney’s fees under Hyde Amendment is not “alternative process mandating restraint” from
recognizing a Bivens remedy “[b]ecause recovery of attorney fees is such a minimal part of the
damages resulting from the criminal prosecution that occurred here”). It is also true that the
Supreme Court has on occasion found that the inadequacy of a given alternative to address fully a
8 In their briefing, Individual Defendants often cite the $675,000 award; at one point Plaintiff
quotes Individual Defendants’ use of this figure without objecting to it. See, e.g., Sur-Reply Mem.
at 4 (quoting Reply Mem. at 8).
23
plaintiff’s injury is not, of itself, a reason to permit a Bivens remedy. See Malesko, 534 U.S. at 68-
69 (discussing, e.g., Schweiker, 487 U.S. 412; Bush, 462 U.S. 367). But the Supreme Court has
not gone so far as to say that an allegedly inadequate alternative that Congress does not clearly
intend to supplant a Bivens remedy and that does not act as an adequate deterrent to the activity of
individual officers is nevertheless a remedy sufficient to preclude Bivens.
***
Individual Defendants have failed to persuade the Court that Abbasi dictates reevaluating
this Court’s subject-matter jurisdiction over Plaintiff’s Bivens claim against Individua l
Defendants. Discovery will make clear whether Plaintiff can support this claim. Until then, that
claim must be allowed to go forward.
IV. CONCLUSION
For all of the foregoing reasons, the Court DENIES the Individual Defendants’ [74]
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.
An appropriate Order accompanies this Memorandum Opinion.
Dated: November 28, 2017
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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