Storms et al v. Department of Veterans Affairs

Filing 111

MEMORANDUM AND ORDER denying 106 & 107 Plaintiffs' Motion for Reconsideration in case 1:13-cv-00811-MKB-RER. For the reasons discussed in the attached Memorandum and Order, the Court declines to reconsider 94 the March 16, 2015 Memorandum and Order. The Court also denies Plaintiffs' motion to certify an interlocutory appeal. Ordered by Judge Margo K. Brodie on 11/20/2015. Associated Cases: 1:13-cv-00811-MKB-RER, 1:14-cv-02359-MKB-RER (Rolle, Drew)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------DERRICK STORMS, ADRIAN BATLLE, A1
PROCUREMENT, LLC, A1 PROCUREMENT
JVH, A1 PROCUREMENT – TRANSPORTATION
LEASING CORP. LLC, and A1 PROCUREMENT,
JVG,
Plaintiffs,

MEMORANDUM & ORDER
13-CV-811 (MKB)

v.
UNITED STATES OF AMERICA, DEPARTMENT
OF VETERANS AFFAIRS, ERIC K. SHINSEKI,
SCOTT W. GOULD, JOHN R. GINGRICH,
DAVID H. ECKENRODE, THOMAS J. LENEY,
JAN R. FRYE, WILLIAM A. COX, GREGORY
VOGT, ERNEST MONTELEONE, DELIA
ADAMS, JOHN FEDKENHEUER, DENNIS
FOLEY, JUSTINA HAMBERG, JAYSAN
HWANG, ANDREA M. GARDNER-INCE,
SUPERVISORS OF THE 8127 DEBARMENT
COMMITTEE, SUPERVISORS OF THE CENTER
FOR VETERANS ENTERPRISE, and JOHN/JANE
DOES 1–100,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiffs Derrick Storms, Adrian Batlle, A1 Procurement, LLC, A1 Procurement JVH,
A1 Procurement-Transportation Leasing Corp., LLC and A1 Procurement, JVG commenced this
action against Defendants the United States of America, Department of Veterans Affairs (“VA”),
Eric K. Shinseki, Scott W. Gould, John R. Gingrich, David H. Eckenrode, Thomas J. Leney, Jan
R. Frye, William A. Cox, Gregory Vogt, Ernest Monteleone, Delia Adams, John Fedkenheuer,
Dennis Foley, Justina Hamberg, Jayson Hwang, Andrea M. Gardner-Ince, Supervisors of the
8127 Debarment Committee, Supervisors of the Center for Veterans Enterprise and unknown

employees of the VA, “John and Jane Does 1–100,” asserting claims pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (“Bivens”), the
Racketeer Influenced and Corrupt Organizations Act (“RICO”), the Federal Tort Claims Act
(“FTCA”), the Declaratory Judgment Act and the Administrative Procedures Act (“APA”).
(Second Am. Compl. (“SAC”) ¶¶ 142–186, Docket Entry No. 47.) Defendants moved to dismiss
Plaintiffs’ claims, and, by Memorandum and Order dated March 16, 2015 (the “March 16, 2015
Decision”), the Court granted Defendants’ motion to dismiss the Second Amended Complaint
and granted Plaintiffs leave to file a third amended complaint. 1 Storms v. United States, No. 13CV-811, 2015 WL 1196592, at *11–12 (E.D.N.Y. Mar. 16, 2015). Plaintiffs now move for
reconsideration of the March 16, 2015 Decision and, specifically, the dismissal of Plaintiffs’
Bivens claims. (Pls. Notice of Mot. for Recons. (“Pls. Mot.”), Docket Entry No. 106; Pls. Mem.
in Supp. of Pls. Mot. (“Pls. Mem.”), Docket Entry No.107.) In the alternative, Plaintiffs ask the
Court to certify an interlocutory appeal. (Pls. Mot. 1.) For the reasons set forth below, the Court
declines to reconsider the March 16, 2015 Decision as to Plaintiffs’ Bivens claims and to certify
an interlocutory appeal.
I.

Background
The Court assumes familiarity with the underlying facts as set forth in the March 16,

2015 Decision. See Storms, 2015 WL 1196592, at *1–4. Only the facts necessary to decide
Plaintiffs’ motion for reconsideration are set forth below. 2

1

The Court permitted Defendants to amend the Second Amended Complaint as to
certain claims under RICO, the Declaratory Judgment Act, and the Administrative Procedures
Act. Storms v. United States, No. 13-CV-811, 2015 WL 1196592, at *26–28 (E.D.N.Y. Mar. 16,
2015).
2

The facts included here are taken from the Second Amended Complaint (“SAC”).

2

a.

A1 Procurement’s inclusion and subsequent removal from vendor database

On or about April 7, 2010, the Center for Veterans Enterprise’s (“CVE”), an office of the
VA, granted A1 Procurement, LLC’s (“A1”) application for inclusion in the VA’s Vendor
Information Pages (“VIP”) database. 3 (SAC ¶ 37.) In granting the application, the CVE
determined that A1 was owned and controlled by Storms, a service-disabled veteran, A1’s Chief
Executive Officer (“CEO”) and a 51% majority owner of A1, and that A1 was a “qualified
Service-Disabled Veteran-Owned Small Business” (“SDVOSB”). (Id.)
Over a year later, on April 25, 2011, Storms criticized Defendant Eckenrode, a CVE
employee, for failing to remove unverified contractors from the VIP database as required by
statute, and a “personal feud ensued.” (SAC ¶¶ 38–39.) Thereafter, Eckenrode became Deputy
Director of the CVE. (SAC ¶ 40.)
On August 9, 2011, Eckenrode removed A1 from the VIP database (the “CVE Removal
Decision”). (SAC ¶ 41.) According to Plaintiffs, this was an “abuse” of Eckenrode’s position,
as there was no “good cause” for the CVE Removal Decision. (Id.) The basis for the CVE
Removal Decision was Storms’ simultaneous appointments as CEO of A1, President of
Homeless Veterans of America, Inc. and managing partner of Storms and Associates, P.A., a law
firm. (SAC ¶ 42.) The CVE “unscrupulously” decided that, in light of Storms’ other
responsibilities to other organizations, the CVE could not determine whether Storms controlled
A1. (SAC ¶ 46.) Plaintiffs contend that the CVE Removal Decision was made without “any
clear evidence of disqualification of eligibility in the VIP database” and was instead intentionally
made in retaliation for the feud between Storms and Eckenrode in violation of Plaintiffs’ Fifth
3

The VIP database includes all SDVOSBs and Veteran Owned Small Businesses
(“VOSBs”) that are verified to be at least 51% “owned and controlled” by a veteran or servicedisabled veteran. (SAC ¶ 37.)

3

Amendment substantive due process rights. (SAC ¶¶ 48–49.)
b.

A1’s request for reconsideration of the CVE Removal Decision

On August 23, 2011, A1 requested reconsideration of the CVE Removal Decision (the
“Reconsideration Request”). (SAC ¶ 52.) Plaintiffs contend that when A1 contacted the CVE
about the Reconsideration Request, the CVE “intentionally misrepresented that it had not
received” the Reconsideration Request in order to “intentionally inflict severe emotional
distress” on Plaintiffs Storms and Batlle. (SAC ¶ 58.) Storms had previously notified United
States Senator Marco Rubio of the Reconsideration Request, and, after the CVE denied receiving
it, Storms contacted Senator Rubio again, telling him about the CVE’s “unethical and bad faith
conduct.” (SAC ¶¶ 53, 60–61.) Senator Rubio’s office contacted the CVE, and the CVE
subsequently “changed its position and stated that it had timely received [the Reconsideration
Request]” and would make a decision no later than October 28, 2011. (SAC ¶¶ 60–61.)
Plaintiffs allege that the CVE failed to render a decision by October 28, 2011, which violated
Plaintiffs’ procedural due process rights by denying A1 “a meaningful process to review and
respond to” the CVE Removal Decision. (SAC ¶¶ 62–63.) Over two years later, after being
ordered to respond by this Court, (SAC ¶ 63 (citing Minute Entry dated Aug. 9, 2013)), the CVE
denied the Reconsideration Request (the “Reconsideration Decision”), (SAC ¶¶ 131–32).
c.

Debarment

A1 contacted Senator Rubio’s office to complain about the CVE’s delay in acting on the
Reconsideration Request, and thereafter, the VA unlawfully issued proposed debarment notices
to Storms, Batlle and A1. (SAC ¶ 69.) According to the notices, the VA was initiating
debarment proceedings against them for “allegedly misrepresenting A1’s SDVOSB status” in
connection with a bid for a government contract. (Id.) Storms contacted Defendant Cox, a VA

4

employee and a contact person for the VA’s 8127 Debarment Committee (the “Committee”),
which was considering debarment of Storms, Batlle and A1. (SAC ¶ 71.) When Cox informed
Storms that the Committee was considering “additional information not provided in the
[d]ebarment [n]otices,” Storms told Cox that they had a “legal right to review and respond to any
additional allegations not provided in the [d]ebarment [n]otices,” and that failure to provide
additional allegations violated their procedural due process rights. (Id.) Defendants refused to
allow Storms, Batlle and A1 to review the additional allegations. (SAC ¶ 72.)
On May 2, 2012, Defendant Frye issued notices of debarment to Storms, Batlle and A1,
“debarring each for five (5) years from government-wide contracting with any federal agency,”
(the “Debarment”). (SAC ¶ 74.) Plaintiffs allege that the notices they received about the
Debarment included grounds not previously included in the original notice of the Debarment.
(SAC ¶ 77.) Plaintiffs also allege that Defendants “intentionally and unlawfully publicly
humiliated” Storms, Batlle and A1 by posting their names on the Committee’s website. (SAC
¶¶ 75–76.) Plaintiffs contend that by debarring them from all federal agencies “on unlawful,
unjustifiable and impermissible grounds,” Defendants exceeded their jurisdiction and authority.
(SAC ¶¶ 84, 89.) On February 19, 2013, the VA vacated the Debarment. 4
d.

Bus Contract

Plaintiffs allege that after the Debarment, Defendant Vogt refused to pay Plaintiffs as
required under a preexisting contract for a lease of Plaintiffs’ bus (the “Bus Contract”). (SAC
¶¶ 26–27, 123.) Defendant Foley, the VA’s legal counsel, instructed Vogt and Defendant

4

Plaintiffs allege that Defendants inflicted further “severe” emotional distress by stating
in a submission to the Court that the VA was “presently considering whether to recommence
debarment proceedings, and is refraining from ruling on the reconsideration pending that
decision and any future debarment proceedings against Plaintiffs.” (SAC ¶ 83.)

5

Monteleone not to pay Plaintiffs until Foley approved it. (SAC ¶ 125.) On August 9, 2013, the
Court instructed Defendants to pay Plaintiffs for using the para-transit bus, but Plaintiffs contend
that Defendants have refused to pay because Plaintiffs have not submitted invoices directly to the
VA. 5 (SAC ¶ 126.)
II. Discussion
a.

Standards of review
i.

Reconsideration

The standard for granting a motion for reconsideration is strict, and “[r]econsideration
will generally be denied unless the moving party can point to controlling decisions or data that
the court overlooked — matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Cedar Petrochemicals, Inc. v. Dongbu Hannong Chem. Co.,
Ltd., --- F. App’x ---, ---, 2015 WL 5999215, at *3 (2d Cir. Oct. 15, 2015) (quoting Shrader v.
CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)); Bank of Am. Nat. Ass’n v. AIG Fin. Prods.
Corp., 509 F. App’x 24, 27 (2d Cir. 2013) (“The standard for granting such a motion is
strict . . . .” (quoting Shrader, 70 F.3d at 257)), as amended (Apr. 5, 2013); see also Local Civ.
R. 6.3 (The moving party must “set[] forth concisely the matters or controlling decisions which
counsel believes the Court has overlooked.”); Smith v. N.Y.C. Dep’t of Educ., 524 F. App’x 730,
734 (2d Cir. 2013) (“To warrant reconsideration, a party must ‘point to controlling decisions or
data that the court overlooked — matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court.’” (quoting Shrader, 70 F.3d at 257)).

5

At oral argument on Defendants’ motion to dismiss, Storms, as counsel for Plaintiffs,
asserted that, although the VA had since made payments pursuant to the Bus Contract, Plaintiffs
had not been paid for all damages arising out of the Bus Contract claim, including attorney’s fees
and accrued interest. (Sept. 23, 2014 Hr’g Tr. 6:10–20); Storms, 2015 WL 1196592, at *4 n.5.

6

It is thus “well-settled” that a motion for reconsideration is “not a vehicle for relitigating
old issues, presenting the case under new theories, securing a rehearing on the merits, or
otherwise taking a ‘second bite at the apple.’” Analytical Surveys, Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir.
1998)), as amended, (July 13, 2012). A motion for reconsideration is “neither an occasion for
repeating old arguments previously rejected nor an opportunity for making new arguments that
could have previously been made.” Simon v. Smith & Nephew, Inc., 18 F. Supp. 3d 423, 425
(S.D.N.Y. 2014) (citation and internal quotation marks omitted). In order to prevail on a motion
for reconsideration, “the moving party must demonstrate that the Court overlooked controlling
decisions or factual matters that were put before the Court on the underlying motion.”
Lichtenberg v. Besicorp Grp. Inc., 28 F. App’x 73, 75 (2d Cir. 2002) (citations and internal
quotation marks omitted); see also Henderson v. City of New York, No. 05-CV-2588, 2011 WL
5513228, at *1 (E.D.N.Y. Nov. 10, 2011) (“In order to have been overlooked, the decisions or
data in question must have been put before [the court] on the underlying motion . . . and which,
had they been considered, might have reasonably altered the result before the court.” (alterations
in original) (citations and internal quotation marks omitted)); cf. Stoner v. Young Concert Artists,
Inc., No. 11-CV-7279, 2013 WL 2425137, at *1 (S.D.N.Y. May 20, 2013) (“A motion for
reconsideration is an extraordinary remedy, and this Court will not reconsider issues already
examined simply because a party is dissatisfied with the outcome of his case. To do otherwise
would be a waste of judicial resources.” (alteration, citations and internal quotation marks
omitted)).
ii.

Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

7

Procedure, a court must “accept all factual allegations in the complaint as true and draw
inferences from those allegations in the light most favorable to the plaintiff.” Tsirelman v.
Daines, 794 F.3d 310, 313 (2d Cir. 2015) (quoting Jaghory v. N.Y. State Dep’t of Educ., 131
F.3d 326, 329 (2d Cir. 1997)); see also Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011)
(quoting Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 320 (2d Cir. 2009)). A complaint
must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Matson, 631 F.3d at 63 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)); see also Pension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v.
Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717–18 (2d Cir. 2013). Although all allegations
contained in the complaint are assumed true, this principle is “inapplicable to legal conclusions”
or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements.” Iqbal, 556 U.S. at 678.
b.

Plaintiffs are not entitled to reconsideration
i.

Bus Contract Claim

In the March 16, 2015 Decision, the Court dismissed Plaintiffs’ Bivens claims that were
based on the VA’s nonpayment under the Bus Contract (the “Bus Contract Claim”), 6 finding

6

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme
Court “recognized for the first time an implied private action for damages against federal officers
alleged to have violated a citizen’s constitutional rights.” See Ashcroft v. Iqbal, 556 U.S. 662,
675 (2009) (citation omitted). While Bivens created a private cause of action, “the Supreme
Court has narrowed the reach of that principle, explaining that the recognition of such a cause of
action ‘is not an automatic entitlement,’ but must instead ‘represent a judgment about the best
way to implement a constitutional guarantee.’” Atterbury v. U.S. Marshals Serv., --- F.3d ---, ---,
2015 WL 6684236, at *3 (2d Cir. Nov. 3, 2015) (quoting Wilkie v. Robbins, 551 U.S. 537, 550

8

that, consistent with the Second Circuit’s decision in M.E.S. v. Snell, 712 F.3d 666 (2d Cir.
2013), a Bivens claim was not viable in light of the fact that the “comprehensive remedial
scheme afforded to Plaintiffs under the [Contract Disputes Act (“CDA”)]” was an “‘alternative,
existing process for protecting’ Plaintiffs’ interest in the Bus Contract.” Storms, 2015 WL
1196592, at *12 (quoting Snell, 712 F.3d at 671). In support of their motion for reconsideration,
Plaintiffs argue that the Court (1) improperly raised new arguments sua sponte, (2) misapplied
the Second Circuit’s holding in Snell and (3) failed to apply the correct legal standard to
Plaintiffs’ allegations regarding the Bus Contract Claim. (Pls. Mem. 5–10.) As discussed below,
although asserted as separate arguments, Plaintiffs merely make the same or new arguments
about the central issue resolved in the Court’s March 16, 2015 Decision: whether Plaintiffs’
Bivens claim based on the Bus Contract was precluded by the “alternative, existing process”
established by the CDA. Storms, 2015 WL 1196592, at *11–12. As discussed below, because
Plaintiffs’ arguments do not present any facts or controlling law that the Court overlooked,
reconsideration is not warranted.

(2007)). Accordingly, courts faced with purported Bivens claim must apply a two-part test to
determine whether to extend Bivens into a new context: “First, a court must determine ‘whether
any alternative, existing process for protecting the interest amounts to a convincing reason for
the Judicial Branch to refrain from providing a new and freestanding remedy in damages.’” Id.
at ---, 2015 WL 6684236, at *3 (quoting Wilkie, 551 U.S. at 550). “Second, even in the absence
of such an alternative process, a court ‘must make the kind of remedial determination that is
appropriate for a common-law tribunal, paying particular heed, however, to any special factors
counselling hesitation before authorizing a new kind of federal litigation.’” Id. at ---, 2015 WL
6684236, at *3 (quoting Wilkie, 551 U.S. at 550). “The Bivens remedy is an extraordinary thing
that should rarely if ever be applied in new contexts,” Arar v. Ashcroft, 585 F.3d 559, 571 (2d.
Cir. 2009) (citations and internal quotation marks omitted), and “[t]his two-part test has only
rarely yielded a new Bivens remedy; indeed, the Supreme Court has extended Bivens to contexts
other than unreasonable searches and seizures only twice, most recently thirty-five years ago in
Carlson v. Green, 446 U.S. 14 (1980),” Atterbury, --- F.3d at ---, 2015 WL 6684236, at *3.

9

1.

The Court did not raise arguments sua sponte in dismissing
Plaintiffs’ Bivens claim based on the Bus Contract

In the March 16, 2015 Decision, the Court recognized that, to decide whether Plaintiffs
stated a Bivens claim and whether the extension of Bivens remedies to the context presented by
Plaintiffs’ case was appropriate, the Court was required to: (1) “assess ‘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 damages
remedy,” and (2) “make the kind of remedial determination that is appropriate for a common-law
tribunal, paying particular heed . . . to any special factors counseling hesitation . . . .” Storms,
2015 WL 1196592, at *7 (first two alterations in original) (internal quotation marks omitted)
(quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)); (see Defs. Mem. in Supp. of Mot. to
Dismiss (“Defs. MTD Mem.”) 12 (citing Wilkie, 551 U.S. at 577), Docket Entry No. 65.)
Seeking reconsideration, Plaintiffs argue that the March 16, 2015 Decision improperly
raised legal arguments sua sponte in refusing to extend Bivens to Plaintiffs’ Bus Contract claim
and dismissing that claim as barred by the CDA. (Pls. Mem. 5–6.) In support of their argument,
Plaintiffs point to footnote sixteen in the Court’s March 16, 2015 Decision. (Id.) Plaintiffs
assert that while Defendants argued that Plaintiffs’ Bus Contract claim failed the second prong of
the Bivens test — whether there are “special factors” counseling hesitation in creating a Bivens
remedy — the Court sua sponte raised a new argument in holding that the Bus Contract claim
failed at the first prong — whether the CDA was an alternative existing process precluding a
Bivens claim based on the Bus Contract. 7 (Pls. Mem. 5 (citing Storms, 2015 WL 1196592, at
7

Footnote sixteen of the March 16, 2015 Decision stated:
Although Defendants appear to argue that Plaintiffs’ Bus Contract
claim should be dismissed under the second prong of the Bivens
test — whether there are “special factors” counseling hesitation in

10

*12 n.16).) According to Plaintiffs, through this ruling, “[t]he Court dismissed Plaintiffs’ Bivens
claims relating to the Bus Contract based on a legal argument not raised by the Defendants or the
Court.” (Id.) As discussed below, Plaintiffs misconstrue the record, and their argument does not
provide a basis to grant their motion for reconsideration of the Court’s March 16, 2015 Decision.
In support of their motion to dismiss, Defendants argued that Plaintiffs could not bring a
Bivens claim for the Bus Contract in light of the CDA’s alternative, existing process for
addressing the Bus Contract claim. (Defs. MTD Mem. 13–14.) Defendants characterized this
argument as one related to the “special factors” that “counsel hesitation” in extending Bivens.
(Defs. MTD Mem. 13 (“Among the ‘special factors’ that ‘counsel hesitation’ is the existence of a
comprehensive statutory remedial scheme concerning the subject matter of the action.”).)
Despite that characterization, Defendants argued in their motion papers that “to the extent [the
Bus Contract claim] is based on Plaintiffs’ allegation that they have not been paid amounts due
under the Bus Contract, Plaintiffs’ Bivens claim is barred by the comprehensive remedial scheme
of the CDA and should be dismissed pursuant to [Rule] 12(b)(1) or [Rule]12(b)(6) [of the
Federal Rules of Civil Procedure].” (Id. at 14 (“The CDA governs Plaintiffs’ rights to recover
for any amounts owed them under the Bus Contract.”).)
Opposing Defendants’ motion, Plaintiffs directly addressed Defendants’ comprehensive
remedial scheme argument, stating, “Defendants’ obsession to recharacterize [sic] the
Debarment’s termination of the [B]us [C]ontract into a government contract dispute is a tactic
designed to have this Court believe that the [CDA] precludes Bivens.” (Pls. Mem. in Opp’n to
creating a Bivens remedy — the Court dismisses Plaintiffs’ Bus
Claim as precluded by the CDA under the first prong of the Bivens
test. This approach is consistent with the Second Circuit’s
approach in Snell.
Storms, 2015 WL 1196592, at *12 n.16 (internal citations omitted).

11

Defs. Mot. to Dismiss (“Pls. MTD Opp’n”) 21, Docket Entry No. 66.) According to Plaintiffs,
because the “essence” of the claims were Defendants’ “constitutional violations,” the CDA did
not preclude their Bivens claims. (Id. at 25–26.) Indeed, Plaintiffs explicitly argued that “the
CDA does not preclude Bivens from addressing the Debarment’s termination of the [B]us
[C]ontract.” (Id. at 26.)
Given the parties’ differing positions, whether the CDA precluded Plaintiffs’ Bivens
claims based on the Bus Contract was a central issue addressed at the oral argument of
Defendants’ motion to dismiss, and the parties vigorously argued about the preclusion or nonpreclusion of Plaintiffs’ Bivens claim based on the CDA. (See generally Sept. 23, 2014 Hr’g Tr.
22:4–33:16; id at 8:18–21 (“[Defendants:] [A] Bivens remedy is not appropriate because of the
CDA, a comprehensive remedial scheme enacted by Congress as to the bus contract and because
of the APA.”); id. at 22:4–5 (“[Plaintiffs:] [T]he Contract Dispute Act, does not preclude
Bivens . . . .”).)
Although Plaintiffs now argue that the question of whether the CDA provided a
comprehensive remedial scheme precluding Bivens was raised sua sponte in the Court’s March
16, 2015 Decision, a simple review of the parties’ briefs and arguments belies that assertion. At
each stage of litigating the motion to dismiss, all parties addressed whether the CDA was a
pre-existing comprehensive remedial scheme precluding Bivens. (Defs. MTD Mem. 11–16; Pls.
MTD Opp’n 21–26; Sept. 23, 2014 Hr’g Tr. 22:4–33:16.) Plaintiffs had ample notice of
Defendants’ arguments and responded vigorously to those arguments, and their instant claim that
the Court somehow improperly raised these arguments sua sponte is simply meritless. The Court
ultimately rejected Plaintiffs’ arguments and held that the CDA precluded any Bivens claim
based on the Bus Contract. Storms, 2015 WL 1196592, at *12. Plaintiffs’ desire to re-argue that

12

issue is not a proper basis for granting reconsideration. See Analytical Surveys, Inc., 684 F.3d at
52 (“Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories,
securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple’ . . . .”
(alteration in original) (quoting Sequa Corp., 156 F.3d at 144)). Because Plaintiffs do not
otherwise point to any controlling law or facts overlooked by the Court, the Court will not grant
reconsideration based on this argument. 8
2.

The Court did not overlook controlling law in determining that
the Bus Contract claim was governed by the CDA

Plaintiffs attempt to re-litigate the merits of their Bivens claim as to the Bus Contract
claim by asserting that the Court overlooked controlling authority in finding that the CDA
precluded their Bivens claim. Specifically, Plaintiffs assert that the Second Circuit’s decision in
8

Even accepting Plaintiffs’ assertion that the Court sua sponte raised the first prong of
the two-part test after the parties only argued as to the second prong, Plaintiffs can point to no
controlling law suggesting this was improper. Under controlling law, given the narrow
applicability of Bivens, the Court was required to evaluate the first prong of the two-part test to
determine whether the CDA was a pre-existing remedial scheme that precluded extending Bivens
to Plaintiffs’ claims. Atterbury, --- F.3d at ---, 2015 WL 6684236, at *3 (“[A] court must
determine ‘whether any alternative, existing process for protecting the interest amounts to a
convincing reason for the Judicial Branch to refrain from providing a new and freestanding
remedy in damages.’” (emphasis added) (quoting Wilkie, 551 U.S. at 550)); M.E.S., Inc. v. Snell,
712 F.3d 666, 671–72 (2d Cir. 2013) (“[I]f the conduct at issue already is ‘governed by
comprehensive procedural and substantive provisions [of law] giving meaningful remedies
against the United States,’ then it is ‘inappropriate’ for courts ‘to supplement that regulatory
scheme with a new judicial remedy.’” (quoting Bush v. Lucas, 462 U.S. 367, 368 (1983))).
Furthermore, while the Court assessed the parties’ arguments regarding the CDA’s remedial
scheme and concluded that Plaintiffs’ Bus Contract Claim failed at the first prong of the Bivens
test, Storms, 2015 WL 1196592, at *12 n.16, the CDA’s remedial scheme is relevant to both
prongs of the two-part Bivens test, see Atterbury, --- F.3d at ---, 2015 WL 6684236, at *4
(concluding that although the CDA’s remedial scheme would not categorically bar a Bivens
claim where a third-party, and not the plaintiff, could bring a CDA claim, “the existence of the
CDA’s remedial scheme” still constituted “a special factor counseling hesitation at the second
step of the Wilkie test”); Snell, 712 F.3d at 676 (“[I]n enacting the [CDA], Congress created a
comprehensive scheme for securing relief from the United States for any disputes pertaining to
federal contracts. The existence of that statutory scheme precludes [the plaintiff] from pursuing
Bivens claims . . . .”). This is not a basis to reconsider the Court’s March 16, 2015 Decision.

13

Snell makes the CDA inapplicable to the Bus Contract claim, and therefore the Court improperly
dismissed the claim, since the termination of the Bus Contract was unrelated to the performance
of the Bus Contract. (Pls. Mem. 7–8.)
In the March 16, 2015 Decision, the Court explained that, as an issue of first impression,
the Second Circuit in Snell addressed whether the availability of relief under the CDA precludes
Bivens claims. Storms, 2015 WL 1196592, at *9 & n.10 (citing Snell, 712 F.3d at 668). In Snell,
the Second Circuit concluded that claims relating to the performance of government contracts are
governed by the CDA’s comprehensive remedial scheme, rather than by a newly-created Bivens
action. Id. at *9 (citing Snell, 712 F.3d at 672–73). As stated in the March 16, 2015 Decision, to
determine “whether [the] Bus Contract claim is governed by the comprehensive scheme of the
CDA, and thus, inappropriate for a Bivens remedy as proclaimed by the Second Circuit in Snell,
the Court considers the ‘source of the rights’ on which Plaintiffs base their claim and ‘the type of
relief sought (or appropriate).’” Storms, 2015 WL 1196592, at *10 (quoting Up State Fed.
Credit Union v. Walker, 198 F.3d 372, 375 (2d Cir. 1999)); see also Atterbury v. U.S. Marshals
Serv., --- F.3d ---, ---, 2015 WL 6684236, at *5 (2d Cir. Nov. 3, 2015) (applying the “source of
rights” and “type of relief sought” test to determine whether APA claim was “in essence a
contract claim”). Ultimately, the Court held that based on “the source of the Plaintiffs’ right to
payment — the Bus Contract — and the remedy sought — monetary damages for non-payment
under the Bus Contract — . . . both [were] contractual,” and the claim was governed by the
CDA. Storms, 2015 WL 1196592, at *12.
Seeking reconsideration of the March 16, 2015 Decision, Plaintiffs point to footnote three
in Snell, where the Second Circuit rejected the argument that, based on Navab-Safavi v.
Broadcasting Bd. of Governors, 650 F. Supp. 2d 40 (D.D.C. 2009), the CDA did not apply to the

14

claims in Snell. See Snell, 712 F.3d at 675 n.3 (citing Navab-Safavi, 650 F. Supp. 2d at 68–69)).
In rejecting the plaintiff’s argument based on Navab-Safavi, the Second Circuit explained that
the Navab-Safavi court found the CDA inapplicable to a contract termination claim because the
contract was terminated because of one party’s alleged participation in a protest music video and
was “not even arguably related to performance of the [contract].” Id. (citing Navab-Safavi, 650
F. Supp. 2d at 68–69). The Second Circuit refused to address the plaintiff’s arguments based on
Navab-Safavi because, unlike Navab-Safavi, the claims at issue in Snell “relate[d] directly and
exclusively to the performance of [the plaintiff’s] government contracts.” Id.
Citing footnote three from Snell, Plaintiffs assert that the real holding of Snell is that “the
CDA applies only to contract terminations tied ‘directly and exclusively to the performance’ of a
contract” and that the Court overlooked Snell’s true holding. (Pls. Mem. 6 (quoting Snell, 712
F.3d at 675 n.3).) In seeking to re-litigate a central question resolved in the March 16, 2015
Decision — whether Plaintiffs’ Bus Contract-related Bivens claims were contract claims
precluded by the CDA’s alternative, existing process — Plaintiffs merely point to Second Circuit
precedent previously considered by the Court, which is not a basis for the Court to reconsider its
March 16, 2015 Decision.
The footnote in Snell that Plaintiffs rely on, contrary to Plaintiffs’ claim, is not the “true
holding” of Snell and is not controlling law that the Court overlooked. In the footnote, the
Second Circuit distinguishes Navab-Safavi. In doing so, the Second Circuit explained that
because the claims in Snell “relate[d] directly and exclusively to the performance of its
government contracts,” analogy to Navab-Safavi’s claims that were not even arguably related to
contract performance was inapposite. See Snell, 712 F.3d at 675 n.3. Moreover, Plaintiffs raised
this precise argument about Navab-Safavi in their opposition to Defendants’ motion to dismiss,

15

citing the same footnote from Snell to argue that their claims were different than the claims in
Snell and not precluded by the CDA’s remedial scheme. (Pls. MTD Opp’n 25–26 (citing Snell,
712 F.3d at 675 n.3).) On a motion for reconsideration, Plaintiffs can neither re-litigate old
arguments rejected by the Court, nor raise new arguments. See Premium Sports Inc., No. 10CV-3753, 2012 WL 2878085, at *1 (S.D.N.Y. July 11, 2012) (Reconsideration does not “present
an occasion for repeating old arguments previously rejected or an opportunity for making new
arguments that could have previously been made.” (citations, alteration and internal quotation
marks omitted)). The Court will not reconsider its March 16, 2015 Decision on this basis.
3.

The Court did not overlook controlling law as to the legal
standard governing the motion to dismiss the Bus Contract
claim

Plaintiffs also argue that in finding that the CDA applied to the Bus Contract claim, the
Court applied the wrong legal standard on the motion to dismiss by failing to accept the
Complaint’s allegations as true. (Pls. Mem.7–10.) According to Plaintiffs, instead of accepting
the allegations that the Bus Contract was terminated because of the Debarment, the Court
improperly concluded that the Bus Contract was terminated for contract performance and
therefore governed by the CDA. (Pls. Mem. 9–10.) These arguments provide no grounds for
reconsideration.
In its March 16, 2015 Decision, the Court recounted Plaintiffs allegations that “after the
Debarment, [Defendants] ‘expanded the conspiracy [against Plaintiffs] by instructing Defendant
Vogt and Defendant Monteleone to keep Plaintiffs’ para-transit bus . . . and refuse to pay the
Plaintiffs for the bus in order to intentionally violate Plaintiffs’ Fifth Amendment constitutional
rights and to intentionally inflict emotional distress on the Plaintiffs.’” Storms, 2015 WL
1196592, at *10 (second and third alterations in original) (quoting SAC ¶ 123). Accepting these
allegations, the Court applied the controlling law in this Circuit and considered “the ‘source of
16

the rights’ on which Plaintiffs base[d] [the Bus Contract] claim and ‘the type of relief sought (or
appropriate).’” Id. at *10 (first citing Snell, 712 F.3d at 675 and then Up State Fed. Credit Union
v. Walker, 198 F.3d 372, 375 (2d Cir. 1999)). The Court concluded that while Plaintiffs styled
the Bus Contract claim as a procedural due process violation based on the Debarment, Plaintiffs
were complaining that Defendants failed to pay them pursuant to the Bus Contract and were
seeking monetary damages under the Bus Contract. Id. at *11–12. Applying the Second
Circuit’s approach in Snell, the Court determined that the “source of rights” for, and remedies
sought from, the Bus Contract claim, revealed that the claim was contractual and therefore
governed by the CDA. Id. at *12. Accordingly, the Court declined to extend Bivens to the Bus
Contract claim. Id.
Plaintiffs fail to identify any controlling law that the Court overlooked in reaching its
decision to dismiss Plaintiffs’ Bivens claim related to the Bus Contract. Although Plaintiffs
assert that the Court misapplied the standard on a 12(b)(6) motion, that argument misreads the
March 16, 2015 Decision and misconstrues the 12(b)(6) standard, which requires the Court to
accept factual allegations in the complaint, but not legal conclusions. See Iqbal, 556 U.S. at 678;
Balintulo v. Ford Motor Co., 796 F.3d 160, 165 (2d Cir. 2015). Plaintiffs simply raise
disagreements with the Court’s analysis and conclusion as to the source of the rights underlying
their Bus Contract claim, and with the Court’s acceptance of their factual allegations but not their
legal conclusions, neither of which is a proper basis for reconsideration. 9 See S.A.R.L. Galerie

9

Indeed, Plaintiffs seem to argue that if a party alleges that the “source of rights” is not
contractual in nature, a court must necessarily find that the CDA is inapplicable and does not
preclude Bivens. However, a claim’s source of rights is a legal determination to be made by the
Court accepting the factual assertions in the complaint. See Up State Fed. Credit Union, 198
F.3d at 376.

17

Enrico Navarra v. Marlborough Gallery, Inc., No. 10-CV-7547, 2013 WL 5677045, at *3
(S.D.N.Y. Oct. 18, 2013) (“[Plaintiffs’] motion for reconsideration is not one in which [they]
may reargue those issues already considered when [they] do[] not like the way the original
motion was resolved.” (citation and internal quotation marks omitted)); E.E.O.C. v. Bloomberg
L.P., 751 F. Supp. 2d 628, 651 (S.D.N.Y. 2010) (“[A] mere disagreement with the Court’s legal
determination is not a valid basis for reconsideration.”), decision clarified on reconsideration,
(Dec. 2, 2010).
ii.

Claims for the Debarment and the Reconsideration Decision

Plaintiffs also seek to have the Court reconsider the dismissal of their Bivens claims that
were based on the Debarment and the Reconsideration Decision. 10 (Pls. Mem. 10–20.) Plaintiffs
argue that the Court’s determination that a Bivens claim was not available given Plaintiffs’
ability to raise these claims under the Administrative Procedures Act (“APA”) was incorrect
because APA review is not available for the Debarment or the Reconsideration Decision, and, as
such, the Court must grant reconsideration. (Id.) As discussed below, Plaintiffs merely disagree
with the Court’s conclusion, which is not a basis for reconsideration of the March 16, 2015
Decision.
Plaintiffs’ current argument that the Debarment and the Reconsideration Decision cannot
be reviewed under the APA is the opposite of Plaintiffs’ allegations in both the Complaint and
the SAC, seeking APA review. In their original Complaint, Plaintiffs sought APA review and
reversal of the Debarment and the CVE Removal Decision. (Compl. ¶ 38.) Plaintiffs also
sought a temporary restraining order and injunction pursuant to the APA. (Compl. ¶¶ 39–44.)
Plaintiffs sought the same relief pursuant to APA review in both their Amended Complaint and
10

Plaintiffs’ do not seek reconsideration of the Court’s dismissal of their Bivens claims
based on the CVE Removal Decision.

18

the SAC, and argued for APA review in seeking their preliminary injunction. (Am. Compl.
¶¶ 129–135, Docket Entry No. 18; SAC ¶¶ 173–180; see Sept. 19, 2013 Hr’g Tr. 50:12–14.) At
no point in opposing Defendants’ motion to dismiss their Bivens claims in the SAC did Plaintiffs
argue that APA review was unavailable. Instead, Plaintiffs acknowledged, expressly and
impliedly, that these decisions were subject to APA review, but strenuously argued that APA
review was inadequate because, under the APA, Plaintiffs could not receive damages for the
agency’s unlawful decisions. See Storms, 2015 WL 1196592, at *13, *15 (“Rather than
challenge the applicability of the APA to their claims, Plaintiffs argue that the relief available
under the APA is insufficient because it does not provide ‘retrospective compensation’ and they
should be afforded Bivens relief.”). The Court rejected Plaintiffs’ argument, finding that the
APA constitute[d] an alternative, existing process for the adjudication of these claims,” which
precluded any Bivens remedy. Storms, 2015 WL 1196592, at *14–15 (“The Court agrees with
the courts that have considered this issue and finds that there is no Bivens remedy for a claim that
is within the ambit of the APA, as the APA constitutes an alternative, existing process for
relief.”).
Having failed to prevail on their arguments in opposition to Defendants’ motion to
dismiss, Plaintiffs now seek to present a new and different argument in their reconsideration
motion — asserting that there is no APA review and, therefore, they are entitled to proceed with
a Bivens claim. Reconsideration is not an opportunity to raise new arguments not previously
raised. See Belfiore v. Procter & Gamble Co., --- F. Supp. 3d ---, ---, 2015 WL 6448696, at *2
(E.D.N.Y. Oct. 22, 2015) (“In a motion for reconsideration, a party may not introduce new facts
or raise new arguments that could have been previously presented to the court.”); Simon, 18 F.
Supp. 3d at 425 (“[A] motion [for reconsideration] is neither an occasion for repeating old

19

arguments previously rejected nor an opportunity for making new arguments that could have
previously been made.” (citation and internal quotation marks omitted)). Plaintiffs are not
presenting any facts or controlling law raised and overlooked by the Court in deciding that APA
review precludes any Bivens remedy for the Debarment and the Reconsideration Decision.
Instead, Plaintiffs are advancing a new and contrary argument to their prior arguments as to why
they are entitled to recourse under Bivens. Plaintiffs had an adequate opportunity to raise these
arguments in opposing Defendants’ motion, and may not raise these arguments for the first time
in support of their motion for reconsideration. See Simon, 18 F. Supp. 3d at 425 (A motion for
reconsideration is “neither an occasion for repeating old arguments previously rejected nor an
opportunity for making new arguments that could have previously been made.” (citation and
internal quotation marks omitted)). The Court denies Plaintiffs’ motion for reconsideration of
the Court’s March 16, 2015 Decision as to the denial of their Bivens claims for the Debarment
and the Reconsideration Decision.
c.

Plaintiffs are not entitled to an interlocutory appeal

Plaintiffs alternatively seek certification of an interlocutory appeal if the Court denies
their motion for reconsideration. (Pls. Mem. 22–24.) While Plaintiffs fail to specify the relevant
legal issue to be certified, it appears that Plaintiffs seek certification of the denial of their Bivens
claims based on the availability of review under the CDA and APA. (Pls. Mem. 22–24.)
According to Plaintiffs, these questions should be certified because they satisfy the three
statutory factors required for an interlocutory appeal. (Pls. Mem. 23–24 (citing 28 U.S.C.
§ 1292(b).) As discussed below, Plaintiffs fail to establish any of the statutory prerequisites for
certification of an interlocutory appeal and the application is therefore denied.
Pursuant to 28 U.S.C. § 1292(b), a district court may certify an interlocutory appeal of an

20

order if the court determines that (1) “such order involves a controlling question of law” (2) “as
to which there is substantial ground for difference of opinion” and (3) “that an immediate appeal
from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C.
§ 1292(b).
The controlling question of law “must refer to a ‘pure’ question of law that the reviewing
court could decide quickly and cleanly without having to study the record.” Capitol Records,
LLC v. Vimeo, LLC, 972 F. Supp. 2d 537, 551 (S.D.N.Y. 2013) (quoting Consub Delaware LLC
v. Schahin Engenharia Limitada, 476 F. Supp. 2d 305, 309 (S.D.N.Y. 2007)). Where reversal of
the district court’s order “would terminate the action,” it involves a “controlling” question of
law. Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in
Amministrazione Straordinaria, 921 F.2d 21, 24 (2d Cir. 1990). Short of a reversal necessitating
dismissal, at a minimum, the resolution of the issue should “materially affect the litigation’s
outcome.” Capitol Records, 972 F. Supp. 2d at 551 (internal quotation marks omitted) (quoting
In re Enron Corp., No. 06-CV-7828, 2007 WL 2780394, at *1 (S.D.N.Y. Sept. 24, 2007)). The
issue “‘need not affect a wide range of pending cases’ as long as it is controlling in the instant
litigation.” Jackson v. Caribbean Cruise Line, Inc., 88 F. Supp. 3d 129, 141 (E.D.N.Y. 2015)
(quoting Klinghoffer, 921 F.2d at 24).
“[A] substantial ground [for a difference of opinion] may exist when ‘(1) there is
conflicting authority on the issue, or (2) the issue is particularly difficult and of first impression
for the Second Circuit.’” Baumgarten v. Cty. of Suffolk, No. 07-CV-0539, 2010 WL 4177283,
at *1 (E.D.N.Y. Oct. 15, 2010) (quoting In re Lloyd’s Am. Trust Funds Litig., No. 96-CV-1262,
1997 WL 458739, at *5 (S.D.N.Y. Aug. 12, 1997)). “The mere presence of a disputed issue that
is a question of first impression, standing alone, is insufficient to demonstrate a substantial

21

ground for difference of opinion.” Capitol Records, 972 F. Supp. 2d at 551 (quoting In re Flor,
79 F.3d 281, 284 (2d Cir. 1996)).
Lastly, a party may show that an interlocutory appeal would “materially advance” the
litigation by “demonstrating that the ‘appeal promises to advance the time for trial or shorten the
time required for trial.’” Baumgarten, 2010 WL 4177283, at *1 (quoting Transp. Workers Union
of Am., Local 100, AFL CIO v. N.Y.C. Transit Auth., 358 F. Supp. 2d 347, 350 (S.D.N.Y. 2005)).
This factor carries particular weight, and it is “closely connected to the first factor.” Capitol
Records, 972 F. Supp. 2d at 551 (citation and internal quotation marks omitted). Ultimately, the
party seeking interlocutory appeal has the burden to establish all three section 1292(b) factors.
See In re Facebook, Inc. IPO Sec. and Derivative Litig., 986 F. Supp. 2d 428, 475 (S.D.N.Y.
2013) (“The proponents of an interlocutory appeal have the burden of showing that all three of
the substantive criteria are met.”); In re Poseidon Pool & Spa Recreational, Inc., 443 B.R. 271,
275 (E.D.N.Y. 2010) (“[A]ll three requirements set forth in section 1292(b) must be met for a
Court to grant leave to appeal.”).
“Interlocutory appeals are presumptively disfavored.” Garber v. Office of the Comm’r of
Baseball, --- F. Supp. 3d ---, ---, 2014 WL 4716068, at *1 (S.D.N.Y. Sept. 22, 2014) (citations
omitted); see Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996) (noting that
“[i]t is a basic tenet of federal law to delay appellate review until a final judgment has been
entered” and that 28 U.S.C. § 1292(b) “is a rare exception to the final judgment rule that
generally prohibits piecemeal appeals”); In re Facebook, Inc., IPO Sec. & Derivative Litig., 986
F. Supp. 2d 524, 530 (S.D.N.Y. 2014) (“[M]ovants cannot invoke the appellate process as a
vehicle to provide early review [even] of difficult rulings in hard cases.” (alteration in original)
(citation and internal quotation marks omitted)). Mindful that interlocutory appeals are

22

disfavored, courts “must . . . ‘exercise great care in making a § 1292(b) certification,’”
Facebook, 986 F. Supp. 2d at 475, and “[c]ertification . . . requires ‘exceptional circumstances
justifying a departure from the basic policy of postponing appellate review until after the entry of
a final judgment.’” Jackson, 88 F. Supp. 3d at 141 (quoting Gramercy Advisors, LLC v. Coe,
No. 13-CV-9069, 2014 WL 5847442, at *4 (S.D.N.Y. Nov. 12, 2014)); see Linde v. Arab Bank,
PLC, 97 F. Supp. 3d 287, ---, 2015 WL 1565479, at *15 (E.D.N.Y. Apr. 8, 2015) (“Interlocutory
appeal is not a vehicle to provide early review of difficult rulings in hard cases.” (citations and
internal quotation marks omitted)).
Here, Plaintiffs have failed to establish that the three section 1292(b) factors support
certification of an interlocutory appeal. Whether (1) the CDA covers the Bus Contract claim and
(2) APA review precludes the Debarment and the Reconsideration Decision are questions of law
capable of resolution with minimal factual development. However, even accepting Plaintiffs’
contention that the CDA does not apply and APA review is unavailable, these are not controlling
questions of law in this case. Even if the Second Circuit were to conclude that APA review is
unavailable for the Debarment and Reconsideration Decision or that the CDA does not apply to
the Bus Contract claim, such a decision would not dispose of or streamline this litigation. 11
Thus, allowing an interlocutory appeal would merely result in burdensome piecemeal litigation
since Plaintiffs’ RICO and Declaratory Judgment Act claims are still being pursued.
Plaintiffs have also failed to establish that there is a substantial ground for a difference of
opinion as to the inapplicability of the CDA and the availability of APA review. Plaintiffs assert
11

Indeed, in dismissing their Second Amended Complaint, the Court granted Plaintiffs
leave to file a third amended complaint as to their RICO and Declaratory Judgment Act claims
and their APA claims regarding the Reconsideration Decision. Storms, 2015 WL 1196592, at
*28.

23

the same arguments made in support of their their motion for reconsideration — that the CDA
does not apply to the Bus Contract claim because it was related to the Debarment and that the
Debarment and the Reconsideration Decision were discretionary agency actions not subject to
APA review. (Pls. Mem. 10–20, 23–24.) However, Plaintiffs point to no case law reaching
these conclusions. Indeed, as to their APA review arguments, courts have reached the opposite
conclusion. See CS-360, LLC v. U.S. Dep’t of Veteran Affairs, 846 F. Supp. 2d 171, 192–95
(D.D.C. 2012) (conducting APA review of denial of SDVOSB status and inclusion in VIP
database but remanding for additional information as to the agency’s reconsideration and denial
decision); Burke v. U.S. E.P.A., 127 F. Supp. 2d 235, 238 (D.D.C. 2001) (noting that debarment
“is a discretionary measure” and conducting APA review). Lastly, given how closely related the
first and third prongs are, the same concerns regarding burdensome piecemeal litigation counsel
against certification because interlocutory review would not materially advance the litigation.
See Capitol Records, 972 F. Supp. 2d at 551.
Accordingly, at this juncture, Plaintiffs have failed to show that there is a substantial
ground for a difference of opinion warranting an interlocutory appeal. See Hart v. Rick’s
Cabaret Int’l, Inc., 73 F. Supp. 3d 382, 396 (S.D.N.Y. 2014) (“[D]efendants fail to demonstrate
that there are substantial grounds for a difference of opinion. Defendants offer no cases — or
reasons — that a reasonable person would view the performance fees paid by customers (largely
paid in untraceable cash) as anything other than gratuities belonging to the dancer.”).
Because Plaintiffs have failed to establish the three prerequisites under 28 U.S.C.
§ 1292(b), the Court declines to certify an interlocutory appeal.

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III. Conclusion
For the foregoing reasons, the Court declines to reconsider the March 16, 2015 Decision.
The Court also denies Plaintiffs’ motion to certify an interlocutory appeal as Plaintiffs have not
satisfied the statutory requirements.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: November 20, 2015
Brooklyn, New York

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