Loumiet v. United States

255 F.Supp.3d 75

Carlos LOUMIET, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

Civil Action No. 12-1130 (CKK).

United States District Court, District of Columbia.

Signed June 13, 2017

Andres Rivero, Pro Hac Vice, Jorge Alejandro Mestre, Charles Whorton, Pro Hac Vice, Kadian Blanson, Pro Hac Vice, Rivero Mestre LLP, Coral Gables, FL, for Plaintiff.

Reginald Maurice Skinner, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, United States District Judge

Plaintiff Carlos Loumiet filed suit against the United States Government for the actions of its agency, the Office of the Comptroller of the Currency ("OCC"), under the Federal Tort Claims Act ("FTCA"), and against Defendants Michael Rardin, Lee Straus, Gerard Sexton, and Ronald Schneck (collectively, the "Individual Defendants"), alleging claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), as well as various state-law tort claims. In a series of rulings, the Court previously dismissed all of Plaintiff's claims at the motion to dismiss stage. Plaintiff appealed to the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit"), which remanded for this Court to consider two issues: first , as to Plaintiff's FTCA claims, "whether [Plaintiff's] complaint plausibly alleges that the OCC's conduct exceeded the scope of its constitutional authority so as to vitiate discretionary-function immunity;" and second , as to Plaintiff's Bivens claims, "the remaining defenses raised but not yet decided in the district court." Loumiet v. United States , 828 F.3d 935, 946, 949 (D.C. Cir. 2016) (" Loumiet IV "). Following remand, the Court ordered the parties to brief these and any other pertinent legal issues. Sept. 29, 2016 Order, ECF No. 61.

Pending before the Court are the Individual Defendants' [62] Motion to Dismiss and the United States' [63] Motion to Dismiss. Upon consideration of the pleadings,¹ the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART AND DENIES IN PART the Individual Defendants' [62] Motion to Dismiss, and GRANTS IN PART AND DENIES IN PART the United States' [63] Motion to Dismiss. Plaintiff's First Amendment Bivens claim for retaliatory prosecution shall proceed against Defendants Rardin, Schneck, and Sexton. Plaintiff's Fifth Amendment Bivens claim, and all claims against Defendant Straus are DISMISSED WITHOUT PREJUDICE. Pursuant to the Westfall Act, the state-law tort claims against the Individual Defendants are CONVERTED to FTCA claims against the United States. Plaintiff's FTCA claims against the United States may proceed, except that the abuse of process (Count III) and malicious prosecution (Count IV) claims are DISMISSED WITHOUT PREJUDICE, leaving only the claims for intentional infliction of emotional distress (Count I), invasion of privacy (Count II), negligent supervision (Count V), and civil conspiracy (Count VIII).

I. BACKGROUND

The Court previously detailed the factual background of this matter in its prior rulings, familiarity with which is assumed.²

See Loumiet v. United States , 968 F.Supp.2d 142, 145 (D.D.C. 2013) ( Loumiet I ). To the extent particular factual allegations are relevant to the Court's analysis of the pending motions, they are detailed below.

II. LEGAL STANDARD

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

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), Plaintiff bears 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 disputed facts." Coal. for Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1350 (3d ed. 2017) (noting the "wide array of cases from the four corners of the federal judicial system involving the district court's broad discretion to consider relevant and competent evidence on a motion to dismiss for lack of subject matter jurisdiction to resolve factual issues"). "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 Dismiss for Failure to State a Claim

Defendants also move to dismiss the Complaint for "failure to state a claim upon which relief can be granted" pursuant to Federal Rule of Civil Procedure 12(b)(6). "[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. In deciding a Rule 12(b)(6) motion, a court may consider "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint," or "documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss." Ward v. District of Columbia Dep't of Youth Rehab. Servs. , 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted). The court may also consider documents in the public record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao , 508 F.3d 1052, 1059 (D.C. Cir. 2007).

III. DISCUSSION

The Court's analysis below proceeds as follows. First , the Court finds it appropriate to recognize a First Amendment Bivens claim for retaliatory prosecution under the particular factual circumstances of this case. Second , the Court finds that Plaintiff has plausibly alleged such a First Amendment Bivens claim against Defendants Rardin, Schneck, and Sexton, and that they are not entitled to absolute prosecutorial or qualified immunity at this procedural juncture. Nonetheless, the Court finds that Defendant Straus is entitled to absolute prosecutorial immunity, and that any non-immunized conduct fails to state a First Amendment retaliatory prosecution Bivens claim against him. Third , the Court concludes that Plaintiff's Fifth Amendment Bivens claim must be dismissed for failure to state a claim. Fourth , the Court converts the state-law tort claims against the Individual Defendants to FTCA claims against the United Stated. In sum, this means that the only claims surviving with respect to the Individual Defendants are Plaintiff's First Amendment Bivens claims against Defendants Rardin, Schneck, and Sexton.

Turning to the FTCA claims against the United States, the Court finds first , that discretionary-function immunity is vitiated under the circumstances of this case because Plaintiff has plausibly alleged that the tortious conduct at issue violated a clearly established First Amendment right against retaliatory prosecution; second , that Plaintiff's malicious prosecution and abuse of process claims must be dismissed because the OCC employees at issue in this case are not "investigative or law enforcement officers" as defined by the FTCA; and third , that Plaintiff's invasion of privacy claim may proceed. Accordingly, Plaintiff's surviving FTCA claims are for intentional infliction of emotional distress (Count I), invasion of privacy (Count II), negligent supervision (Count V), and civil conspiracy (Count VIII).

A. The Court Recognizes a First Amendment Bivens Claim in this Action

In Bivens , the Supreme Court of the United States created an implied cause of action for money damages stemming from an alleged Fourth Amendment violation at the hands of federal officials. 403 U.S. at 397, 91 S.Ct. 1999. "Since Bivens , the Supreme Court has proceeded cautiously in implying additional federal causes of action for money damages." Meshal v. Higgenbotham , 804 F.3d 417, 421 (D.C. Cir. 2015). The Bivens issues in this case must be assessed in two stages, and because the Fifth Amendment claim shall be dismissed for failure to state a claim, this analysis is limited to Plaintiff's claim of retaliatory prosecution in violation of his First Amendment right to free speech.

As an initial matter, the parties disagree on whether by permitting Plaintiff's Bivens claim to proceed, the Court would in effect recognize a cause of action unprecedented in Bivens case law. In other words, whether this case presents a "new context." If so, the Court would be required to ask and answer two follow-up questions. First, whether "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." Carlson v. Green , 446 U.S. 14, 18–19, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) ; Wilkie v. Robbins , 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) ("In the first...