Carlos Loumiet v. United States
2016 U.S. App. LEXIS 12760
| D.C. Cir. | 2016Background
- Carlos Loumiet, an attorney who worked on an audit of Hamilton Bank, alleges the OCC initiated a baseless, retaliatory administrative enforcement proceeding against him that damaged his practice and reputation.
- The OCC brought an administrative enforcement action under 12 U.S.C. § 1818; after a three-week administrative trial the ALJ recommended dismissal and the Comptroller dismissed the action in 2009. This Court later found the prosecution not "substantially justified."
- Loumiet filed administrative FTCA claims in 2011 (denied) and then sued in district court (July 9, 2012) asserting FTCA tort claims against the United States and Bivens claims against OCC officials for First and Fifth Amendment retaliatory prosecution.
- The district court dismissed most FTCA claims under the FTCA discretionary-function exception and dismissed Bivens claims as time-barred. Loumiet appealed.
- The D.C. Circuit considered (1) whether the discretionary-function exception bars FTCA tort claims that allege the challenged discretion exceeded constitutional authority and (2) whether the continuing-violations doctrine tolls accrual of Loumiet’s Bivens claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA discretionary-function exception bars tort claims based on allegedly unconstitutional exercises of discretion | Loumiet: exception does not apply when government acts beyond constitutional authority; constitutional limits vitiate discretion | U.S.: exception bars discretionary enforcement conduct even if unconstitutional; FTCA does not waive liability for constitutional torts against the sovereign | The exception does not categorically bar FTCA claims alleging constitutional violations; unconstitutional actions can fall outside the exception |
| Standard for applying constitutional-limit exception: must violation be "clearly established"? | Loumiet: constitutional violation suffices to negate discretionary immunity | U.S.: analogous to qualified immunity—only clearly established constitutional violations should defeat discretionary immunity | Court declines to adopt a novel, clear-established requirement; leaves open whether a narrower standard may apply on remand |
| Accrual date of Bivens claims alleging retaliatory prosecution | Loumiet: claims accrued at final dismissal of OCC action because prosecution caused continuing harm | U.S.: claims accrued earlier and are time-barred; plaintiff forfeited continuing-violations argument | Court: continuing-violations doctrine applies; claims accrued at final disposition (July 27, 2009) and were timely filed in 2012 |
| Whether dismissal should be reversed and case remanded | N/A | N/A | Court reverses dismissal and remands for further proceedings (to decide remaining defenses and whether allegations plausibly show constitutional excess of authority) |
Key Cases Cited
- Berkovitz v. United States, 486 U.S. 531 (discretionary-function two-step framework)
- Gaubert v. United States, 499 U.S. 315 (discretionary-function purpose and policy-protection rationale)
- Varig Airlines v. United States, 467 U.S. 797 (context on policy-based immunity)
- FDIC v. Meyer, 510 U.S. 471 (sovereign not liable under FTCA for constitutional torts)
- Whelan v. Abell, 953 F.2d 663 (a lawsuit can cause continuing harm; continuing-violations doctrine)
- Page v. United States, 729 F.2d 818 (continuing-tort accrual for cumulative injury)
- Nurse v. United States, 226 F.3d 996 (constitutional violations fall outside discretionary-function exception)
- Raz v. United States, 343 F.3d 945 (discretionary exception inapplicable when conduct alleges First/Fourth Amendment violations)
- Limone v. United States, 579 F.3d 79 (unconstitutional conduct not within discretionary-function sweep)
- Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187 (officials lack discretion to violate binding legal limits)