948 F.3d 376
D.C. Cir.2020Background
- The OCC investigated Hamilton Bank (1999–2001). Loumiet, an outside lawyer, produced two reports finding insufficient evidence of fraud; the OCC nonetheless placed the bank into receivership and the executives were later criminally charged and convicted.
- In 2006 the OCC brought a FIRREA administrative enforcement action against Loumiet under statutes permitting civil penalties for institution-affiliated parties alleged to have caused loss; an ALJ recommended dismissal, the Comptroller rejected the ALJ’s conclusion but dismissed on the alternative ground that Loumiet caused no harm.
- Loumiet obtained EAJA fees on appeal (award of ~$675,000) after the D.C. Circuit held the OCC’s position was not substantially justified.
- Loumiet then sued the United States and four OCC officials, alleging First Amendment retaliation (a Bivens claim) by inducing the FIRREA enforcement action; the district court allowed the First Amendment Bivens claims to proceed and denied qualified immunity.
- On interlocutory appeal, the D.C. Circuit applied Abbasi’s two-step Bivens framework and held (1) this presents a new Bivens context and (2) special factors—most importantly FIRREA’s comprehensive administrative-remedy scheme (and EAJA and channeled judicial review)—counsel hesitation such that the First Amendment does not create an implied damages action; the court reversed and remanded with instructions to dismiss Loumiet’s First Amendment claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the First Amendment creates an implied (Bivens) damages remedy for retaliatory administrative enforcement under FIRREA | First Amendment itself implies a damages remedy for retaliatory enforcement; prior decisions assume First Amendment Bivens claims | Bivens should not be extended; courts should refrain from creating new damages remedies, especially where Congress provided an alternative scheme | No—First Amendment does not create an implied damages action; reversed and claims dismissed |
| Whether qualified immunity shields the OCC officials | Right to be free from retaliatory prosecution was clearly established (so officials not entitled to immunity) | Officials entitled to qualified immunity if no clearly established right | Not reached on merits because there is no Bivens cause of action; dismissal of the underlying claim resolves immunity issue |
| Whether FIRREA’s remedial scheme (and related statutes) is a special factor counseling hesitation under Abbasi | FIRREA’s protections and EAJA are inadequate to deter or remedy retaliation fully | FIRREA provides comprehensive procedural protections, EAJA fee remedy, and channeled judicial review—these are alternative remedies that counsel against Bivens | Held for defendants: FIRREA + EAJA + exclusive/channeled review are special factors counseling hesitation that preclude a Bivens remedy |
| Whether this case presents a "new context" for Bivens purposes | Loumiet argued prior assumptions about First Amendment Bivens support recognition here | Defendants: differs materially from Bivens/Davis/Carlson (different right, defendants, statutory mandate) | Held: Yes — the case is meaningfully different and therefore a new Bivens context |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (created an implied damages action for Fourth Amendment search-and-seizure)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (announced the modern two-step framework for Bivens expansions and cautioned against extending Bivens)
- Bush v. Lucas, 462 U.S. 367 (1983) (declined Bivens extension where an elaborate statutory remedial scheme for federal employees existed)
- Schweiker v. Chilicky, 487 U.S. 412 (1988) (declined Bivens extension in the context of Social Security benefits because of the comprehensive administrative regime)
- Davis v. Passman, 442 U.S. 228 (1979) (recognized a Bivens-like remedy under the Fifth Amendment for sex discrimination by a Member of Congress)
- Carlson v. Green, 446 U.S. 14 (1980) (recognized an Eighth Amendment Bivens remedy for inadequate medical care in federal prison)
- Wilkie v. Robbins, 551 U.S. 537 (2007) (addressed the interplay between Bivens claims and alternative remedial schemes)
- Loumiet v. OCC, 650 F.3d 796 (D.C. Cir. 2011) (prior D.C. Cir. decision awarding EAJA fees to Loumiet)
- Liff v. Office of Inspector Gen. for U.S. Dep’t of Labor, 881 F.3d 912 (D.C. Cir. 2018) (applied the special-factors analysis to bar Bivens liability where statutory/regulatory schemes offered a remedy)