Kittner v. Gates, Civil Action No. 09–1245 (GK).

• Decision Date: 11 May 2011
• Docket Number: Civil Action No. 09–1245 (GK).
• Citation: 783 F.Supp.2d 170
• Court: U.S. District Court — District of Columbia
• Parties: Stacey A. KITTNER, Plaintiff,v.Robert M. GATES, et al., Defendants.

783 F.Supp.2d 170

Stacey A. KITTNER, Plaintiff,

v.Robert M. GATES, et al., Defendants.

Civil Action No. 09–1245 (GK).

United States District Court, District of Columbia.

May 11, 2011.

Cathy A. Harris, Kator, Parks & Weiser, PLLC, Washington, DC, for Plaintiff.Marina Utgoff Braswell, U.S. Attorneys Office for the District of Columbia, Washington, DC, for Defendants.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiff Stacey A. Kittner brings this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), against Defendant Robert M. Gates in his official capacity as Secretary of Defense. Kittner also alleges violations of her Fifth Amendment rights under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against several Department of Defense employees sued in their individual capacities. The individually sued Defendants include Deborah Monroe, Deputy Chief, Directorate for Analysis, Office of Counter–Proliferation Technology (“CPT”), Defense Intelligence Agency (“DIA”); Col. William Russel Strosnider, Chief, Operating Base National Capitol Region (“OBNCR”), DIA; Capt. William S. Gieckel, Acting Chief, OBNCR; Scott Darren LaCoss, Chief of Controlled Operations, OBNCR; Brad Ahlskog, Division Chief, CPT; and Claudia Caslow, Korean Team Chief, CPT.

This matter is presently before the Court on Plaintiff's Motion for Reconsideration (May 26, 2010) (“Plaintiff's Mot.”) [Dkt. No. 32] of the Court's April 28, 2010 Order [Dkt. No. 27] granting Defendants' Motion to Dismiss Plaintiff's Bivens claim against the individually sued Defendants. Upon consideration of the Motion, Opposition, Reply, and the entire record herein, and for the reasons set forth below, Plaintiff's Motion for Reconsideration is denied.

I. Standard of Review ¹

Plaintiff properly brings her Motion for Reconsideration under Federal Rules of Civil Procedure 59(e) and 60(b). As the moving party, Plaintiff has the burden of demonstrating that relief under either of these Rules is warranted. Messina v. Krakower, 439 F.3d 755, 758–59 (D.C.Cir.2006); Murray v. District of Columbia, 52 F.3d 353, 355 (D.C.Cir.1995).

It is well-established that a motion for reconsideration is committed to the sound discretion of the court. Murray, 52 F.3d at 355. The granting of such a motion is, however, an unusual measure, occurring in extraordinary circumstances. Firestone v. Firestone 76 F.3d 1205, 1208 (D.C.Cir.1996) (per curiam); Anderson v. District of Columbia, 72 F.3d 166, 167–68 (D.C.Cir.1995) (per curiam).

The court will entertain a motion for reconsideration only “where sufficient grounds for disturbing the finality of the judgment” are shown. Smalls v. United States, 471 F.3d 186, 191 (D.C.Cir.2006) (citations omitted). In particular, such a motion “ ‘need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’ ” Messina, 439 F.3d at 758 (quoting Firestone, 76 F.3d at 1208).

II. Analysis

Plaintiff urges the Court to reconsider and vacate its April 28, 2010 Order on the grounds that new evidence obtained from the Government demonstrates that the Court's dismissal of Plaintiff's Bivens claim against the individually sued Defendants will result in manifest injustice. Plaintiff's Mot. 2. Plaintiff argues that various new documents produced by the Government on April 13, 2010, after completion of briefing of Defendants' Motion to Dismiss, demonstrate that “the individual Defendants, acting under the color of law, exceeded the scope of their employment by intentionally and improperly engaging in unlawful and conspiratorial acts such as making false allegations, and perpetuating allegations they knew to be false, in an effort to prevent Plaintiff ... from doing her job.” Id. at 7.

As recounted by Plaintiff, the new evidence strongly implicates the individually sued Defendants in discriminatory and retaliatory actions aimed at limiting Plaintiff's employment opportunities. Nonetheless, under applicable case law, Plaintiff's new evidence does not entitle her to a renewed Bivens claim against these parties.²

In order to support a motion for reconsideration under Rule 60(b), Plaintiff's new evidence must meet four requirements: (1) it “must have been in existence at the time of trial” [in this case at the time of the Court's April 28, 2010 Order]; (2) it “must be such that if [sic] was not and could not by the exercise of due diligence have been discovered in time to present it in the original proceeding;” (3) it must not be “merely cumulative or impeaching;” and (4) it “must be admissible and credible, and of such a material and controlling nature as will probably change the outcome.” Canady v. Erbe Elektromedizin GmbH, 99 F.Supp.2d 37, 44 (D.D.C.2000) (citations omitted).

As it is undisputed that the new evidence was in existence during the relevant time period, and that Plaintiff could not have otherwise obtained it by due diligence in time to include it in briefing on Defendants' Motion to Dismiss, Plaintiff's proffered evidence satisfies the first two Canady requirements. However, the new evidence fails to satisfy the remaining two prongs of Canady's four-part test. As the Government correctly argues, Plaintiff's new evidence is merely cumulative and corroborative of the factual allegations this Court dismissed in its April 28, 2010 Order and that it assumed to be true for purposes of rendering that decision. See April 28, 2010 Memorandum Opinion, 708 F.Supp.2d 47, 48 n. 2 (“April 28, 2010 Mem. Op.”) [Dkt. No. 28]. In light of these circumstances, Plaintiff's new evidence cannot change the outcome of the Court's April 28, 2010 Order dismissing her Bivens claim against the individually sued Defendants.

Consequently, because the new evidence fails to meet the last two requirements of Canady, the Court denies Plaintiff's Motion for Reconsideration on the basis of her new evidence.

Plaintiff's remaining arguments in support of her Motion for Reconsideration fall into two categories: (1) arguments relating to Title VII preemption of Plaintiff's Bivens claim; and (2) arguments relating to Plaintiff's need to take discovery from Defendants in their individual capacity.

A. Title VII Preemption

1. Plaintiff Failed to Present Her Preemption Argument When Opposing Defendants' Motion to Dismiss

Plaintiff argues for the first time that Title VII preemption is inapplicable where, as here, evidence demonstrates that the individually sued Defendants acted unlawfully and outside the scope of their employment. Plaintiff's Mot. 12. As Plaintiff concedes, however, her preemption theory is premised, in part, on allegations contained in her Amended Complaint against the individually sued Defendants. Id. Consequently, her argument could have been, but was not, included in her briefing on Defendants' Motion to Dismiss. A motion for reconsideration may not, however, be used to raise arguments or defenses that could have been advanced during the original proceeding. Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C.Cir.1993). Because Plaintiff had the opportunity to, but did not, raise this preemption argument in briefing on the Motion to Dismiss, she has waived it and cannot raise it at this time.³

On this basis alone, Plaintiff's Title VII preemption theory is insufficient to sustain her Motion for Reconsideration.

2. Title VII Preempts Plaintiff's Bivens Claim

Plaintiff has also failed to present any case law substantiating her argument that Title VII does not foreclose a Bivens claim brought against federal employees acting unlawfully and outside the scope of their employment. Moreover, applicable case law does establish several principles that do foreclose Plaintiff's new theory as a basis for reviving her Bivens action.

First, in Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), the Supreme Court held that Title VII “provides the exclusive judicial remedy for claims of discrimination in federal employment.” In light of this precedent, our Court of Appeals “has repeatedly held that federal employees may not bring suit under the Constitution for employment discrimination that is actionable under Title VII.” Ethnic Emps. of Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C.Cir.1985). As a general rule, then, “where a plaintiff alleges facts that are actionable under Title VII and for which Title VII provides a remedy, Title VII preempts virtually all other federal causes of action....” Rochon v. FBI, 691 F.Supp. 1548, 1555 (D.D.C.1988). Consequently, even assuming that Plaintiff is correct that Defendants' actions exceeded the scope of their employment, Title VII preemption would still be applicable as long as Plaintiff's constitutional claims are ones that are actionable under Title VII and for which Title VII provides a remedy.

As the Court previously held in this case, the claims underlying Plaintiff's Bivens action against the individually sued Defendants represent “the very same claims that form the basis of plaintiff's Title VII claims .... [and] for which Title VII provides the exclusive remedy.” April 28, 2010 Mem. Op., 708 F.Supp.2d at 54 (internal quotations and citation omitted). This conclusion is not altered by Plaintiff's “new evidence” and new theory, which arises from the same factual predicate as her Title VII claims. ⁴ As a result, Brown makes clear that Plaintiff's Bivens action remains presumptively preempted by Title VII, regardless of whether the individually sued Defendants did in fact exceed the scope of their employment. ⁵

Second, even if Title VII did not preempt Plaintiff's Bivens claim, the Civil Service Reform Act (“CSRA”) would preclude a Bivens remedy in this case. As the Court held in its April 28, 2010 Memorandum...