Zummer v. Sallet

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MICHAEL ZUMMER CIVIL ACTION

VERSUS No.: 17-7563

JEFFREY SALLET, ET. AL. SECTION: “J” (2)

ORDER & REASONS

Before the court is a Motion for Reconsideration (Rec. Doc. 86) filed by

Plaintiff, Michael Zummer, regarding this Court’s order and reasons issued on

September 5, 2019 (Rec. Doc. 83). This Court has reviewed the memoranda of the

parties, the record, and the applicable law, and concludes that Plaintiff’s Motion for

Reconsideration (Rec. Doc. 86) should be DENIED, insofar as all of Plaintiff’s

previously dismissed claims remain dismissed but granted insofar as the Court has

reconsidered its rationale and Plaintiff’s Count Two claims against defendants

Hardy, Jupina, and Rees in their individual capacities are hereby dismissed under

Rule 12(b)(6) as opposed to 12(b)(1).

FACTS AND PROCEDURAL BACKGROUND

The Court assumes the reader’s familiarity with this case and provides only a

brief account of the relevant facts and procedural history. The litigation arises from

Plaintiff’s decision to send two letters to Honorable Judge Kurt Englehardt, then a

federal district judge in the Eastern District of Louisiana, alleging impropriety and

malfeasance by the DOJ in the prosecution of Harry Morel Jr. Plaintiff possessed the

information contained in the letters because he was the agent tasked with

investigating Morel, as well as being generally aware of goings on in the DOJ due to

his status as an FBI agent. Subsequently, the FBI revoked Plaintiff’s security

clearance and suspended him without pay. The FBI also refused to allow Plaintiff to

publish his letters to the public.

Plaintiff then brought this suit in the Eastern District of Louisiana on August

7, 2017. Plaintiff’s suit contained two Counts based on two decisions, (1) the

revocation of his security clearance and subsequent suspension, and (2) the refusal to

allow him to publish the letters to the public. Plaintiff named as defendants every

FBI official he believed responsible for the first decision, and every FBI official he

believed responsible for the second. All officials were sued in their individual and

official capacity.

In the September 5th Order and Reasons, the Court dismissed Plaintiff’s Count

One claims in their entirety, as well as Plaintiff’s Count Two Claims against

defendants in their individual capacity, for lack of subject-matter jurisdiction. Thus,

the only remaining claim was Plaintiff’s Count Two claim against defendants in their

official capacity. In his Motion for Reconsideration, Plaintiff seeks reinstatement of

all previously dismissed claims.

LEGAL STANDARD

The Federal Rules of Civil Procedure do not expressly allow motions for

reconsideration of an order. Bass v. U.S. Dep’t of Agric., 211 F.3d 959, 962 (5th Cir.

2000). The Fifth Circuit treats a motion for reconsideration challenging a prior

judgment as either a motion “to alter or amend” under Federal Rule of Civil Procedure

59(e) or a motion for “relief from judgment” under Federal Rule of Civil Procedure

60(b). Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.

1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1076

(5th Cir. 1994).

The difference in treatment is based on timing. If the motion is filed within

twenty-eight days of the judgment, then it falls under Rule 59(e). FED. R. CIV. P. 59(e);

Lavespere, 910 F.2d at 173. However, if the motion is filed more than twenty-eight

days after the judgment, but not more than one year after the entry of judgment, it

is governed by Rule 60(b). FED. R. CIV. P. 60(c); Lavespere, 910 F.2d at 173. In the

present case, Plaintiff’s Motion for Reconsideration (Rec. Docs. 86) were filed within

twenty-eight days of the issuance of the Court’s order (Rec. Docs. 83). As a result,

Plaintiff’s Motions for Reconsideration are treated as motions to alter or amend under

Rule 59(e).

Altering or amending a judgment under Rule 59(e) is an “extraordinary

remedy” used “sparingly” by the courts. Templet v. Hydrochem, Inc., 367 F.3d 473,

479 (5th Cir. 2004). A motion to alter or amend calls into question the correctness of

a judgment and is permitted only in narrow situations, “primarily to correct manifest

errors of law or fact or to present newly discovered evidence.” Id.; see also Schiller v.

Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003). Manifest error is defined

as “[e]vident to the senses, especially to the sight, obvious to the understanding,

evident to the mind, not obscure or hidden, and is synonymous with open, clear,

visible, unmistakable, indubitable, indisputable, evidence, and self-evidence.” In Re

Energy Partners, Ltd., 2009 WL 2970393, at *6 (Bankr. S.D. Tex. Sept. 15, 2009)

(citations omitted); see also Pechon v. La. Dep't of Health & Hosp., 2009 WL 2046766,

at *4 (E.D. La. July 14, 2009) (manifest error is one that “‘is plain and indisputable,

and that amounts to a complete disregard of the controlling law’”) (citations omitted).

The Fifth Circuit has noted that “such a motion is not the proper vehicle for

rehashing evidence, legal theories, or arguments that could have been offered or

raised before entry of judgment.” Templet, 367 F.3d at 478-79. Nor should it be used

to “re-litigate prior matters that ... simply have been resolved to the movant’s

dissatisfaction.” Voisin v. Tetra Techs., Inc., No. 08-1302, 2010 WL 3943522, at *2

(E.D. La. Oct. 6, 2010). Thus, to prevail on a motion under Rule 59(e), the movant

must clearly establish at least one of three factors: (1) an intervening change in the

controlling law, (2) the availability of new evidence not previously available, or (3) a

manifest error in law or fact. Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (to

win a Rule 59(e) motion, the movant “must clearly establish either a manifest error

of law or fact or must present newly discovered evidence”); Schiller, 342 F.3d at 567.

DISCUSSION

A. THE NEW EVIDENCE DOES NOT WARRANT RECONSIDERATION OF THE COURT’S

DISMISSAL OF PLAINTIFF’S COUNT ONE CLAIMS

The Court’s original dismissal of Plaintiff’s Count One claims was based on two

separate rationales. First, the Court lacked subject-matter jurisdiction because the

Court’s jurisdiction over federal employment disputes was preempted by the Civil

Service Reform Act (“CSRA”). Elgin v. Dep’t of the Treasury, 567 U.S. 1, 5 (2012)

Second, the Court is barred from considering any claim that requires an inquiry into

the merits of an executive agency’s security clearance decision. Dep’t of the Navy v.

Egan, 484 U.S. 518; see also Perez v. FBI, 71 F.3d 513 (5th. Cir. 1995).

Turning to the first rationale for dismissal, the CSRA provides a judicial review

for federal employment disputes wherein the aggrieved employee submits a claim to

the Merit Systems Protection Board (“MSPB”), with an appeal right to the Federal

Circuit in Washington D.C. The Supreme Court has held that the CSRA review

scheme is the exclusive means for federal employees with claims rooted in

employment disputes to have those claims redressed. Elgin, 567 U.S. 1, 5 (2012).

Furthermore, the Fifth Circuit has held that the CSRA bars district court jurisdiction

of federal employee claims arising out of federal employment disputes even if that

employee does not have access to the CSRA review scheme. Gonzalez v. Manjarrez,

558 Fed. Appx. 350, (5th Cir. 2014). Although it is unclear from the record whether

Plaintiff himself is entitled to CSRA review of his employment dispute, the answer to

that question is ultimately irrelevant. Under Gonzalez, this court lacks subject

matter jurisdiction over Plaintiff’s Count One claim because he is a federal employee

bringing a claim based in an employment dispute.

Plaintiff seeks reconsideration of the Court’s dismissal of his Count One claims

because of “newly discovered evidence.” Templet, 367 F.3d, 473. Here, the newly

discovered evidence is an Office of the Inspector General (“OIG”) report dated June

2018. The report details “troubling errors and omissions” in Plaintiff’s security

clearance revocation, and recommends the FBI reexamine its security clearance

decision in this case (Rec. Doc. 86-3). Plaintiff argues the report provides evidence of

a flawed procedure and incompetent administrative functioning within the FBI’s

security revocation process.

Plaintiff maintains the evidence is relevant for reconsideration under the

Court’s alternative reason for dismissing Count One — that the Court is barred from

hearing claims requiring it to inquire into underlying merits of security clearance

decisions. Perez, 71 F.3d 513. Namely, Plaintiff urges the Court to assert its

jurisdiction to hear this claim because the claim is about the competency of the

officials who made the security revocation decision, not the merits of the decision

itself.

While sympathetic to Plaintiff’s plight and passing no judgment on whether

Plaintiff was the victim of an unfair security clearance revocation, nothing in the

Plaintiff’s newly produced evidence gives the Court reason to doubt its dismissal of

Count One because of CSRA preemption. Plaintiff’s memorandum in support of his

Motion for Reconsideration makes no reference to CSRA preemption and gives no

reason why the OIG report affects that basis for dismissal.

Even to the extent the new evidence bears on the Court’s holding that it lacks

subject matter jurisdiction to hear Plaintiff’s claim because of the security clearance

revocation subject matter, the Court is not persuaded the OIG report warrants

reconsideration of its holding. In the OIG report itself at footnote fifty-three, the

report notes “[courts] have declined to review actions closely intertwined with

clearance suspensions, such as…. indefinite suspension from work due to a security

clearance suspension.” (Rec. Doc. 86-3). This deference applies even when the claim

is that the suspension is pretextual, with no legitimate basis whatsoever. Perez, 71

F.3d 513. A report by an executive branch agency, the OIG, discussing how another

executive agency, the FBI, handles its security clearance revocations does not

convince this Court that it should abandon a well-established judicial deference to

the executive branch on the issue of security clearance revocations.

B. THE COURT WAS MANIFESTLY ERRONEOUS IN DISMISSING PLAINTIFF’S COUNT

TWO CLAIMS AGAINST INDIVIDUAL CAPACITY DEFENDANTS FOR LACK OF

SUBJECT MATTER JURISDICTION

The Court was clearly erroneous in dismissing Plaintiff’s Count Two claims

against defendants Hardy, Jupina, and Rees in their individual capacities for lack of

subject-matter jurisdiction. Plaintiff is correct when he asserts that the actions of

these three defendants, refusing to publish Plaintiff’s letter to the public after pre-

publication review is not “an adverse employment action” nor does it “require an

inquiry into the merits of the FBI’s security revocation.” (Rec. Doc. 86). Thus, the

Court was incorrect to include Plaintiff’s claims against these three defendants in its

dismissal for lack of subject matter jurisdiction.

The Court will therefore address the merits of Plaintiff’s Count Two claims

against defendants in their individual capacity by expanding on its comment in

footnote number five of its Order and Reasons (Rec. Doc. 83). Because the Court lacks

subject-matter jurisdiction there is no need to address in-depth the similarly straight-

forward issue of whether the Court should extend a Bivens remedy to the present

case. It is sufficient to say that even if this Court had jurisdiction over such a claim,

the required intrusion into national security determinations would counsel

substantial hesitation in extending Bivens to a new context under Ziglar v. Abbasi,

137 S. Ct. 1843, (2017).

C. A BIVENS REMEDY SHOULD NOT BE EXTENDED TO PLAINTIFF’S COUNT TWO

CLAIM AGAINST DEFENDANTS IN THEIR INDIVIDUAL CAPACITY

“Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege

any set of facts in support of his claim which would entitle him to relief.” Taylor v.

Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.

Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To survive a Rule 12(b)(6)

motion to dismiss, the plaintiff must plead enough facts to “state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the

plaintiff pleads facts that allow the court to “draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. A court must accept all well-

pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff.

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Baker v. Putnal,

75 F.3d 190, 196 (5th Cir. 1996). The court is not, however, bound to accept as true

legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. “[C]onclusory

allegations or legal conclusions masquerading as factual conclusions will not suffice

to prevent a motion to dismiss.” Taylor, 296 F.3d at 378.

The existence of a Bivens remedy “is antecedent” to all other claims on the

merits when a United States official is being sued in their individual capacity

Hernandez v. Mesa, 137 S. Ct. 2003, 2006; see also Brunson v. Nichols, 875 F.3d 275,

(5th.Cir. 2017). Here, the Court concludes no Bivens remedy exists for Plaintiff.

In Bivens, the Supreme Court implied a damages remedy against federal

agents in their personal capacity for violating the Fourth Amendment’s unreasonable

search and seizure clause. Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388, (1971). Bivens claims were subsequently extended to

gender discrimination under the Fifth Amendment, Davis v. Passman, 442 U.S. 228

(1979), and prisoner mistreatment under the cruel and unusual punishment clause

of the Eighth Amendment. Carlson v. Green, 446 U.S. 14, (1980).

The current Supreme Court stance is expansion of Bivens claims is “disfavored

judicial activity.” Abbasi, 137 S. Ct. at 1857. Indeed, for the past 30 years the

Supreme Court has “consistently refused” to extend Bivens further than the three

aforementioned cases. Correctional Services Corp. v. Malesko, 534 U.S. 61, 68 (2001).

In Abbasi, the Supreme Court laid out a two part test a court must go through

when determining whether to grant a Bivens claim. First, it must be determined if

the claim for Bivens relief arises in a new context. Butts v. Martin, 877 F.3d 571 (5th.

Cir. 2017); see also Ashcroft v. Iqbal, 56 U.S. at 675 (2009). If so, the court must decide

whether there exist “special factors counseling hesitation in the absence of

affirmative action by Congress,” Abbasi, 137 at 1849, or there exists an “alternative,

existing process for protecting the interest.” Wilkie v. Robbins, 551 U.S. 537, 550

(2007); see also Butts 877 F.3d 571. In Butts, 877 F.3d 571, the Fifth Circuit explicitly

instructed the district court to apply the two-part test on remand.

Accordingly, the Court may now apply the same test to determine whether

Plaintiff has a valid Bivens remedy in the present case.

A claim for relief provides a new Bivens context if it differs “in a meaningful

way from previous Bivens cases,” including arising under a different constitutional

right than the three previously recognized claims. Because Plaintiff's claim arises

under the First Amendment, and not the Fifth, Fourth, or Eighth, the Court is

presented with a new Bivens context. See Reichle v. Howard, 132 S. Ct. 2088, 2093 n.

4 (2012) (“We have never held that Bivens extends to First Amendment claims.”).

Because the first prong of the Butts test was answered in the affirmative, the

Court then proceeds to step two to determine if there exists either 1) any factors to

counsel hesitation, or 2) an alternative form of process for protecting Plaintiff’s

interest. A special factor need only “cause a court to hesitate” to make the court shy

away from a new Bivins remedy. Abbasi, 137 S. Ct. at 1858; see also Butler v. Porter,

No. 17-230 2019 WL 6920355 (W.D. La. Jan. 2, 2019). Here, the judicial deference

owed to the executive branch on issues of national security classification and the large

burden that recognizing Bivens claims in this context would place on the judiciary

and executive agency officials are factors that counsel hesitation. Furthermore, the

existence of declaratory and injunctive remedies to protect Plaintiff’s interest

persuades the Court that extending a Bivens remedy to Plaintiff’s present claim is

inappropriate.

First, the Court addresses the executive branch’s primacy in matters of

national security policy as a special factor counseling discretion. “[S]eparation of

powers principles are or should be central to the analysis” of extending Bivens

remedies. Abbasi, 137 S. Ct. at 1857.

Judicial deference to the executive branch in the realm of national security is

a well-established separation of powers principle. See Dep’t of Navy v. Egan, 484 U.S.

518 (1988) (“the grant of a security clearance to a particular employee, a sensitive

and inherently discretionary judgement call, is committed by law to the appropriate

agency of the Executive branch”); Perez, 71 F.3d 513 (forbidding an inquiry into a

security clearance decision because of the “impermissible intrusion by the Judicial

Branch into the authority of the Executive Branch over matters of national security”).

Second, the Supreme Court in Abbasi instructed courts to consider “whether it

is necessarily a judicial function to establish whole categories of cases in which

federal officers must defend against personal liability claims in the complex sphere

of litigation, with all of its burdens.” 137 S. Ct. at 1858. This includes not only the

burdens on individual officers, but also “projected costs and consequences to the

Government itself.” Id. Here, the burden would be substantial if every decision by an

executive agency to redact and classify information subjected an officer to a personal

suit for damages. Such suits would slow down decision making at agencies tasked

with addressing national security concerns and making judgment calls in real time.

A survey of district court decisions in the wake of Butts shows a consistent

hesitation in this Circuit to extend Bivens remedies to First Amendment claims. See

Butler, 2019 WL 6920355; Begay v. Leap, No. 17-2639, 2019 WL 1318410 (N.D. Texas,

March 22, 2019); White v. Underwood, No. 18-701 WL 2717154 (N.D. Texas June 28,

2019). Although the aforementioned cases arise out of prisoner’s First Amendment

retaliation claims, there are similarities to the present case the Court finds

persuasive. For example, in Begay, the court discusses separation-of-powers—

“Congress has delegated the authority to ensure the safety and order of the federal

prisons to the Executive Branch,” and therefore the court reasoned that extending a

Bivens remedy to prisoners in the First Amendment context would infringe on the

executive branch. WL 1318410 *4. In Butler, the court discusses how the extension

of a Bivens remedy would “increase the costs of defending such claims,” and also

“unduly limit officers” in the performance of their discretionary duties. WL 6920355

*4.

The factors counseling hesitation raised by fellow district courts are

appreciably more relevant in the present case. Here, not only has Congress delegated

the authority to classify and redact certain information to the executive branch, but

the executive branch has a constitutional right to do so for national security purposes.

See Egan, 484 U.S. 518. Additionally, federal officers at security agencies need to be

free from the threat of Bivens lawsuits so as not to be unduly limited in performing

their duties.

Finally, persuasive circuit court precedent informs the Court’s decision not to

extend a Bivins remedy to Plaintiff’s claim that his First Amendment rights were

violated when he was denied his request to publish his letter to the public. See

Bistrian v. Levi, 912 F. 3d 79 95-96 (3d Cir. 2018) (holding that Abbasi bars Bivens

claims for First Amendment retaliation claims despite First Amendment Bivins

claims being recognized in the Third Circuit pre-Abbasi); see also Vega v. United

States, 881 F.3d 1146 (9th. Cir. 2018) (refusing to extend a Bivens remedy to a First

Amendment access to courts claims post-Abbasi, despite generally recognizing First

Amendment Bivens claims pre-Abbasi). Of particular note is the refusal of numerous

courts to extend Bivens to prisoner’s First Amendment claims, despite the explicit

recognition in Abbasi of a Bivens remedy for prisoner’s Eighth Amendment claims.

137 S. Ct. at 1858. Plaintiff’s present claim does not possess even that close nexus to

a recognized Bivens claim. Thus, for the foregoing reasons, the Court finds there exist

special factors that counsel hesitation in extending a Bivens remedy for a First

Amendment violation consisting of improperly redacted or classified information.

In the alternative, a Bivens remedy is not available to Plaintiff because there

exists an “alternative, existing process” to vindicate his interest. Plaintiff’s interest

is having his letter released to the public. An “alternative remedial structure can take

many forms, including administrative, statutory, equitable, and state law remedies.”

Vega, 881 F.3d 1154. In Abbasi, the Court stated that a habeas remedy was an

adequate alternative to protect the plaintiff’s interest as opposed to a suit for money

damages. 137 S. Ct. at 1863.

Plaintiff in the present case has access to equitable remedies in the form of

declaratory and injunctive relief should he ultimately succeed on his Count Two claim

against defendants in their official capacities. A remedy that results in the

publication of Plaintiffs letter is adequate to protect his interests, and thus Plaintiff

does not require a Bivens remedy to do so.

CONCLUSION

For the foregoing reasons, Plaintiff's Motion for Reconsideration (Rec. Doc.

86), is hereby DENIED with regards to reinstatement of any of Plaintiff's previously

dismissed claims.

IT IS ORDERED that the Court’s prior dismissal of Plaintiff's Count Two

claim against defendants Hardy, Jupina, and Rees in their individual capacities is

AMENDED, insofar as Plaintiffs claims are hereby dismissed pursuant to Rule

12(b)(6) instead of 12(b)(1).

IT IS FURTHER ORDERED Plaintiffs Count Two claim against defendants

Hardy, Jupina, and Rees in their individual capacities be dismissed with prejudice,

as the Court finds Plaintiff's claims cannot be cured with amendment.

New Orleans, Louisiana this 18th day of October, 2019.

LK Soka

Ma MK fou

CARL J. ites

UNITED $TATES DISTRICT JUDGE

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