UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) PAUL GUERTIN, ) ) Plaintiff, ) ) Civil Action No. 24-1 (RBW) v. ) ) ROBIN LEIPFERT, ) ) Defendant. ) )
MEMORANDUM OPINION AND ORDER
The plaintiff, Paul Guertin, brings this civil action pursuant to Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging violations of the Fourth Amendment by the
defendant, Robin Leipfert, in her capacity as a Special Agent with the Office of Inspector
General for the United States Department of State (“State Department”). See Plaintiff’s First
Amended Complaint (“Am. Compl.”) ¶ 1, 3, ECF No. 13. Specifically, the plaintiff pursues
Bivens claims against the defendant on the grounds that she allegedly “perjur[ed] herself in
search-warrant affidavits in order to assail him with fraudulent allegations of criminal conduct”
that led to his indictment by a grand jury. Id. ¶¶ 1, 81. Currently pending before the Court is the
Defendant’s Motion to Dismiss Amended Complaint (“Def.’s Mot.”), ECF No. 15. Upon
consideration of the parties’ submissions 1 and in accordance with the oral rulings issued by the
1 The Court considered the following filings in rendering its decision: (1) the Memorandum in Support of Defendant’s Motion to Dismiss Amended Complaint (“Def.’s Mem.”), ECF No. 15-1; (2) the Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss Amended Complaint (“Pl.’s Opp’n”), ECF No. 16; (3) the Memorandum in Support of Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss Amended Complaint (“Pl.’s Mem.”), ECF No. 16-1; and (4) the Reply in Support of Defendant’s Motion to Dismiss Amended Complaint (“Def.’s Reply”), ECF No. 19. Court at the motion hearing held on March 17, 2025, the Court concludes that it must grant the
defendant’s motion to dismiss.
The Supreme Court has observed that “expanding the Bivens remedy is now a
‘disfavored’ judicial activity.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 675 (2009)). “This is in accord with the Court’s observation that it has
‘consistently refused to extend Bivens to any new context or new category of defendants.’” Id.
(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). And, “[t]he Supreme Court has
set forth a two-step inquiry that governs whether an extension of Bivens is appropriate.” Page v.
Comey, 628 F. Supp. 3d 103, 129 (D.D.C. 2022). First, courts must “inquire whether the request
involves a claim that arises in a ‘new context’ or involves a ‘new category of defendants.’”
Hernández v. Mesa, 589 U.S. 93, 102 (2020) (quoting Malesko, 534 U.S. at 68). The
“understanding of a ‘new context’ is broad[,]” id., “[and] a context [is] ‘new’ if it is ‘different in
a meaningful way from previous Bivens cases decided by t[he Supreme] Court[,]’” id. (quoting
Abbasi, 582 U.S. at 139). “Second, if the claim arises in a new context, the Bivens claim must
be rejected if there are ‘special factors indicating that the Judiciary is at least arguably less
equipped than Congress to weigh the costs and benefits of allowing a damages action to
proceed.’” Page, 628 F. Supp. 3d at 130 (quoting Egbert v. Boule, 596 U.S. 482, 492 (2022)).
Importantly, “[i]f there is even a single ‘reason to pause before applying Bivens in a new
context,’ a court may not recognize a Bivens remedy.” Egbert, 596 U.S. at 492 (quoting
Hernández, 589 U.S. at 102).
Here, the plaintiff seeks to have the Bivens remedy expanded to a new context. The
plaintiff, at the time the defendant began investigating him, was employed as “a [State
Department] Consular Officer in Shanghai[, China,] . . . [responsible for] conducting visa
2 interviews and adjudicating more than [forty-thousand] non-immigrant visas (sometimes over
one hundred per day), among other tasks.” Am. Compl. ¶ 8. Based upon a tip from the Federal
Bureau of Investigation related to the plaintiff’s alleged irregular gambling activity, see id. ¶ 25,
the defendant sought and obtained a search warrant “to obtain from Google all emails, chat
conversations, and account information associated with [the plaintiff]’s Gmail account[,]” id.
¶ 31. The defendant then sought and obtained another search warrant “to obtain from Microsoft
all emails, chat conversations, and account information associated with [the plaintiff]’s Hotmail
account[.]” Id. ¶ 36. The plaintiff was subsequently indicted by a grand jury, see id. ¶ 76,
although for violations different than those he was under investigation for at the time the
defendant obtained the search warrants, see id. ¶¶ 32, 37. After he was indicted, the plaintiff
“moved to suppress the evidence that [the defendant] obtained as a result of her [ ]
search[es] . . . [and] for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978)[,]” id.
¶ 83, but another member of this Court denied the motion, concluding that the defendant was
legally authorized to conduct the searches pursuant to the warrants she had obtained, see id.;
Def.’s Mem. at 1–2. Ultimately, the indictment was dismissed by another member of this Court
because the government did not adequately allege that the plaintiff committed the conduct
covered by the statutes he was charged with violating. See United States v. Guertin, 581 F.
Supp. 3d 90, 100–01 (D.D.C. 2022). The Court of Appeals affirmed the dismissal of the
indictment, but notably declined to address the question of whether the district judge properly
denied the plaintiff’s motion to suppress. See United States v. Guertin, 67 F.4th 445, 453–54
(D.C. Cir. 2023).
For the following two reasons, the Court concludes that the plaintiff seeks to have the
Bivens remedy extended to a new context. First, regardless of whether the search warrant
3 applications contained “misrepresentations” by the defendant, she nonetheless sought and
obtained search warrants before engaging in the searches—a factual distinction from what
occurred in Bivens and its permissible application recognized by other courts. See Page, 628 F.
Supp. 3d at 130 (quoting Attkisson v. Holder, 925 F.3d 606, 621 (4th Cir. 2019) (“[A] claim
based on unlawful electronic surveillance presents wildly different facts and a vastly different
statutory framework from a warrantless search and arrest[.]”); see also Annappareddy v. Pascale,
996 F.3d 120, 135 (4th Cir. 2021) (“What Bivens involved was the Fourth Amendment right to
be free of unreasonable warrantless searches and seizures; this case, by contrast, involves
searches and a seizure conducted with a warrant.”). Moreover, the plaintiff acknowledges that
his work as a Consular Officer in China—a foreign adversary of the United States—“played a
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) PAUL GUERTIN, ) ) Plaintiff, ) ) Civil Action No. 24-1 (RBW) v. ) ) ROBIN LEIPFERT, ) ) Defendant. ) )
MEMORANDUM OPINION AND ORDER
The plaintiff, Paul Guertin, brings this civil action pursuant to Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971), alleging violations of the Fourth Amendment by the
defendant, Robin Leipfert, in her capacity as a Special Agent with the Office of Inspector
General for the United States Department of State (“State Department”). See Plaintiff’s First
Amended Complaint (“Am. Compl.”) ¶ 1, 3, ECF No. 13. Specifically, the plaintiff pursues
Bivens claims against the defendant on the grounds that she allegedly “perjur[ed] herself in
search-warrant affidavits in order to assail him with fraudulent allegations of criminal conduct”
that led to his indictment by a grand jury. Id. ¶¶ 1, 81. Currently pending before the Court is the
Defendant’s Motion to Dismiss Amended Complaint (“Def.’s Mot.”), ECF No. 15. Upon
consideration of the parties’ submissions 1 and in accordance with the oral rulings issued by the
1 The Court considered the following filings in rendering its decision: (1) the Memorandum in Support of Defendant’s Motion to Dismiss Amended Complaint (“Def.’s Mem.”), ECF No. 15-1; (2) the Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss Amended Complaint (“Pl.’s Opp’n”), ECF No. 16; (3) the Memorandum in Support of Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss Amended Complaint (“Pl.’s Mem.”), ECF No. 16-1; and (4) the Reply in Support of Defendant’s Motion to Dismiss Amended Complaint (“Def.’s Reply”), ECF No. 19. Court at the motion hearing held on March 17, 2025, the Court concludes that it must grant the
defendant’s motion to dismiss.
The Supreme Court has observed that “expanding the Bivens remedy is now a
‘disfavored’ judicial activity.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 675 (2009)). “This is in accord with the Court’s observation that it has
‘consistently refused to extend Bivens to any new context or new category of defendants.’” Id.
(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). And, “[t]he Supreme Court has
set forth a two-step inquiry that governs whether an extension of Bivens is appropriate.” Page v.
Comey, 628 F. Supp. 3d 103, 129 (D.D.C. 2022). First, courts must “inquire whether the request
involves a claim that arises in a ‘new context’ or involves a ‘new category of defendants.’”
Hernández v. Mesa, 589 U.S. 93, 102 (2020) (quoting Malesko, 534 U.S. at 68). The
“understanding of a ‘new context’ is broad[,]” id., “[and] a context [is] ‘new’ if it is ‘different in
a meaningful way from previous Bivens cases decided by t[he Supreme] Court[,]’” id. (quoting
Abbasi, 582 U.S. at 139). “Second, if the claim arises in a new context, the Bivens claim must
be rejected if there are ‘special factors indicating that the Judiciary is at least arguably less
equipped than Congress to weigh the costs and benefits of allowing a damages action to
proceed.’” Page, 628 F. Supp. 3d at 130 (quoting Egbert v. Boule, 596 U.S. 482, 492 (2022)).
Importantly, “[i]f there is even a single ‘reason to pause before applying Bivens in a new
context,’ a court may not recognize a Bivens remedy.” Egbert, 596 U.S. at 492 (quoting
Hernández, 589 U.S. at 102).
Here, the plaintiff seeks to have the Bivens remedy expanded to a new context. The
plaintiff, at the time the defendant began investigating him, was employed as “a [State
Department] Consular Officer in Shanghai[, China,] . . . [responsible for] conducting visa
2 interviews and adjudicating more than [forty-thousand] non-immigrant visas (sometimes over
one hundred per day), among other tasks.” Am. Compl. ¶ 8. Based upon a tip from the Federal
Bureau of Investigation related to the plaintiff’s alleged irregular gambling activity, see id. ¶ 25,
the defendant sought and obtained a search warrant “to obtain from Google all emails, chat
conversations, and account information associated with [the plaintiff]’s Gmail account[,]” id.
¶ 31. The defendant then sought and obtained another search warrant “to obtain from Microsoft
all emails, chat conversations, and account information associated with [the plaintiff]’s Hotmail
account[.]” Id. ¶ 36. The plaintiff was subsequently indicted by a grand jury, see id. ¶ 76,
although for violations different than those he was under investigation for at the time the
defendant obtained the search warrants, see id. ¶¶ 32, 37. After he was indicted, the plaintiff
“moved to suppress the evidence that [the defendant] obtained as a result of her [ ]
search[es] . . . [and] for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978)[,]” id.
¶ 83, but another member of this Court denied the motion, concluding that the defendant was
legally authorized to conduct the searches pursuant to the warrants she had obtained, see id.;
Def.’s Mem. at 1–2. Ultimately, the indictment was dismissed by another member of this Court
because the government did not adequately allege that the plaintiff committed the conduct
covered by the statutes he was charged with violating. See United States v. Guertin, 581 F.
Supp. 3d 90, 100–01 (D.D.C. 2022). The Court of Appeals affirmed the dismissal of the
indictment, but notably declined to address the question of whether the district judge properly
denied the plaintiff’s motion to suppress. See United States v. Guertin, 67 F.4th 445, 453–54
(D.C. Cir. 2023).
For the following two reasons, the Court concludes that the plaintiff seeks to have the
Bivens remedy extended to a new context. First, regardless of whether the search warrant
3 applications contained “misrepresentations” by the defendant, she nonetheless sought and
obtained search warrants before engaging in the searches—a factual distinction from what
occurred in Bivens and its permissible application recognized by other courts. See Page, 628 F.
Supp. 3d at 130 (quoting Attkisson v. Holder, 925 F.3d 606, 621 (4th Cir. 2019) (“[A] claim
based on unlawful electronic surveillance presents wildly different facts and a vastly different
statutory framework from a warrantless search and arrest[.]”); see also Annappareddy v. Pascale,
996 F.3d 120, 135 (4th Cir. 2021) (“What Bivens involved was the Fourth Amendment right to
be free of unreasonable warrantless searches and seizures; this case, by contrast, involves
searches and a seizure conducted with a warrant.”). Moreover, the plaintiff acknowledges that
his work as a Consular Officer in China—a foreign adversary of the United States—“played a
crucial role in the execution of American foreign policy[,]” Am. Compl. ¶ 16, and, therefore,
applying Bivens in this case would “unquestionably ha[ve] national security implications,”
Hernández, 589 U.S. at 108; see Abbasi, 582 U.S. at 142 (quoting Christopher v. Harbury, 536
U.S. 403, 417 (2002)) (“Judicial inquiry into the national-security realm raises ‘concerns for the
separation of powers in trenching on matters committed to the other branches.’”). Thus,
“[b]ecause ‘[n]ational-security policy is the prerogative of the Congress and President,’”
Buchanan v. Barr, 71 F.4th 1003, 1009 (D.C. Cir. 2023) (second alteration in original) (quoting
Abbasi, 582 U.S. at 142), “a Bivens cause of action may not lie where . . . national security is at
issue[,]” id. (quoting Egbert, 596 U.S. at 494) (alteration in original). Therefore, for these two
reasons, the Court must conclude that the plaintiff is seeking to extend Bivens to a new context.
Furthermore, there are special factors that counsel against extending Bivens in this case,
primarily because “Congress already has provided, or has authorized the Executive to provide,
‘an alternative remedial structure[,]’” Egbert, 596 U.S. at 493 (quoting Abbasi, 582 U.S. at 137),
4 for the plaintiff to pursue. “Congress indeed has created a distinct and limited set of remedies to
compensate individuals who suffer as a result of wrongful governmental conduct in the course of
criminal prosecutions.” Annappareddy, 996 F.3d at 137; see Deaver v. Seymour, 822
F.2d 66, 68 (D.C. Cir. 1987) (“[A]ny harm [the plaintiff] might suffer as the result of a criminal
indictment was not irreparable because there existed an adequate remedy at law, since [the
plaintiff] could move to dismiss the charges under Federal Rule of Criminal Procedure
12(b)(1)[.]”). In this case, the plaintiff acknowledges that he moved to dismiss the indictment
against him, and indeed, he was successful in so doing. See Am. Compl. ¶ 84.
And additionally, the plaintiff has another potential remedy available to him that he is
actively pursuing—claims alleging several intentional torts under the Federal Torts Claims Act
(“FTCA”). See 28 U.S.C. § 2680(h) (authorizing certain intentional tort claims for “acts or
omissions of investigative or law enforcement officers of the United States Government”); see
also Plaintiff’s First Amended Complaint at 1, ECF No. 24, Guertin v. United States of America,
No. 24-cv-1755 (RBW). Although the Supreme Court in the past has held that “defendants
[must] show that Congress has provided [an] alternative remedy . . . [and has] explicitly declared
[it] to be a substitute for recovery[,]” Carlson v. Green, 446 U.S. 14, 18 (1980), the Supreme
Court has recently clarified that courts must now “defer to ‘congressional inaction’ if ‘the design
of a [g]overnment program suggests that Congress has provided what it considers adequate
remedial mechanisms[,]’” Egbert, 596 U.S. at 501 (quoting Schweiker v. Chilicky, 487
U.S. 412, 423 (1988)) (emphasis added); see Abbasi, 582 U.S. at 145 (“[W]hen alternative
methods of relief are available, a Bivens remedy usually is not.”). And while the FTCA may not
be a complete remedy for the constitutional violations the plaintiff alleges, see Harper v.
Williford, 96 F.3d 1526, 1528 (D.C. Cir. 1996) (“[C]onstitutional claims are not cognizable
5 under the FTCA”); see also 28 U.S.C. § 2679(b)(2)(A), its availability as an “alternative means
for relief[ under state tort law,]” Abbasi, 582 U.S. at 137 (citing Malesko, 534 U.S. at 73–74),
counsels that the Court should pause before extending Bivens to a new context, Malesko, 534
U.S. at 72 (“[W]e [are not] confronted with a situation in which claimants in [the plaintiff’s]
shoes lack effective remedies.”); Hernández, 589 U.S. at 111 n.9 (“[T]he provision [in the FTCA
precluding constitutional claims, i.e., the ‘Westfall Act,’] simply left Bivens where it found it. It
is not a license to create a new Bivens remedy in a context we have never before addressed[.]”);
Black Lives Matter D.C. v. Barr, No. 20-cv-1469 (DLF), 2024 WL 3300158, at *8 (D.D.C. July
4, 2024) (“[T]he Westfall Act does not leave anyone forum-less. It substitutes one way of
handling constitutionally inflected tort claims (state tort law) for another (the FTCA).”).
Accordingly, the Court having “even a single sound reason to defer to Congress[,]” Nestlé USA,
Inc. v. Doe, 593 U.S. 628, 635 (2021), in determining whether the remedies the plaintiff has
pursued are adequate alternative means of relief—i.e., the FTCA, the motion to dismiss the
indictment, the motion to suppress evidence under the Federal Rules of Criminal Procedure,
among others—it must “refrain from creating [ ] a remedy[,]” Egbert, 596 U.S. at 491, pursuant
to Bivens.
Accordingly, it is hereby
ORDERED that the Defendant’s Motion to Dismiss Amended Complaint, ECF No. 15,
is GRANTED. It is further
ORDERED that the plaintiff’s Amended Complaint, ECF No. 13, is DISMISSED. It is
further
ORDERED that this case is CLOSED.
6 SO ORDERED this 20th day of March, 2025.
REGGIE B. WALTON United States District Judge