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,

(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,

(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,

.

In light of the Supreme Court’s recent decision in Ziglar v. Abbasi,

(2017),

1 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,

(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.”).

2 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,

(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,

(D.C. Cir. 2007); Ctr. for Arms Control & Non-Proliferation v. Redd, No. CIV.A. 05-

682 (RMC),

, 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,

(D.D.C. 2013) (“Loumiet I”); Loumiet v. United States,

(D.D.C. 2014) (“Loumiet II”); Loumiet v. United States,

(D.D.C. 2015) (“Loumiet III”); Loumiet v. United States,

(D.C. Cir. 2016) (“Loumiet IV”); and Loumiet v. United States,

(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,

(D.C. Cir. 2011) (“Loumiet EAJA”).

3 disputed facts.” Coal. for Underground Expansion v. Mineta,

(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.,

(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,

; Coulibaly v. Tillerson, Civil Action

No. 14-189,

, at *5 (D.D.C. Oct. 5, 2017) (Contreras, J.); United States v.

Dynamic Visions, Inc., Civil Action No. 11-695 (CKK),

(D.D.C. Apr. 24,

2017) (Kollar-Kotelly, J.); Singh v. George Washington Univ.,

(D.D.C.

2005) (Lamberth, J.) (quoting Cobell v. Norton,

(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),

(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

4 since the submission of the issue to the Court,” id. (citing Singh,

), 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,

(quoting Estate of Gaither ex rel. Gaither v.

District of Columbia,

, 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

(2015)); Amgen Inc. v. Connecticut Ret. Plans & Trust Funds,

, 461 n.1 (2013) (applying

to four-justice portion of opinion in Basic Inc. v. Levinson,

(1988), which also met quorum of six justices).

5 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,

(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,

. 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.

6 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,

(“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.”);

[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.

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,

(“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

7 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,

.

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.

8 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,

. 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,

; 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,

(considering the facts and finding that, “given the uniqueness of

9 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,

. 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,

. 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

10 a damages remedy. Abbasi,

. 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,

.

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.”

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

11 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,

. 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,

. 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,

(citing Correctional Services Corp. v. Malesko,

(2001); FDIC v. Meyer,

(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

12 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,

(“[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

13 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

14 under EAJA is a remedy that Congress has expressly provided for a civil enforcement proceeding

that was brought without substantial justification” (citing

(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,

(“[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,

. The Bivens Court thereby

15 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,

(1979) (“[W]ere

Congress to create equally effective alternative remedies, the need for damages relief might be

obviated.” (citing Bivens,

)).

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.

(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.”

at 18-19 (citing Bivens,

; Davis v. Passman,

). 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,

(discussing, e.g., Schweiker v. Chilicky,

(1988); Bush v. Lucas,

(1983)).

16 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.

.

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.

. This grounds was

sufficient to preclude Bivens, see

(“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.”

. Those remedies

included tort law, administrative processes, or a federal suit for injunction against future such

harms.

. 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,

); see also Minneci v. Pollard,

(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.

. In dictum the Court appeared to recognize a low bar

for a finding of an alternative remedy sufficient to preclude Bivens. See

(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,

)). 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

18 state tort law authorizes adequate alternative damages actions—actions that provide both

significant deterrence and compensation.”

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,

(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,

(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.

19

(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.”

; see also Davis v. Billington,

(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,

(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,

(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

20 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,

-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

,

, 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,

(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

21 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,

-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.

(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,

(quoting Meyer,

) (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.

22 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,

(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,

, at *7 (E.D. Mich. Dec. 3, 2008), aff’d in part, rev’d in part on

other grounds,

(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,

-

69 (discussing, e.g., Schweiker,

; Bush,

). 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

24