292 F. Supp. 3d 222
D.C. Cir.2017Background
- Plaintiff Carlos Loumiet, an attorney, sued the United States (OCC) and four OCC officials alleging retaliatory prosecution and multiple torts after OCC enforcement actions against his client.
- The Court previously allowed a First Amendment Bivens claim for retaliatory prosecution against three Individual Defendants (Rardin, Schneck, Sexton) and several FTCA claims against the United States to proceed (Loumiet V).
- Individual Defendants moved under Rule 54(b) to reconsider that decision in light of the Supreme Court’s decision in Ziglar v. Abbasi, arguing Abbasi forecloses recognizing a Bivens remedy in this new context.
- Defendants also argued alternative remedies (FIRREA, APA, and recovery of attorney’s fees under the EAJA) and special factors counsel against extending Bivens.
- The Court reviewed Abbasi and related precedent, evaluated whether Abbasi changed the standards for (1) determining a “new context,” (2) the special-factors inquiry, and (3) whether EAJA or other remedies are adequate alternatives.
- The Court denied reconsideration: it assumed arguendo this is a new Bivens context but concluded Abbasi did not alter the prior special-factors analysis and EAJA (plus FIRREA/APA) does not preclude the Bivens claim; discovery will test the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Abbasi requires treating this as a non-Bivens (new) context | Loumiet argued prior analysis stands; even if context is "new," special factors don't bar Bivens | Abbasi limits Bivens to the three Supreme Court-recognized contexts and raises presumption against extensions | Court assumed new context for analysis but found Abbasi does not compel denying the Bivens claim |
| Whether Abbasi changed the "special factors" inquiry so Bivens must be denied | Loumiet: special factors (chilling, statutory scheme) do not preclude Bivens here given facts | Defs: Abbasi emphasizes deference to Congress, chilling of officials, and extensive statutory banking regulation preclude Bivens | Court: Abbasi did not alter result; factual record and uniqueness here make chilling/systemic-impact concerns insufficient to bar Bivens |
| Whether alternative remedies (FIRREA/APA/EAJA) displace Bivens | Loumiet: FIRREA/APA do not provide an exclusive remedial scheme; EAJA fees do not substitute for damages against officers | Defs: FIRREA+APA and EAJA (attorney’s fees award) are alternative remedial structures that should preclude Bivens | Court: FIRREA and APA do not show Congress intended to preclude Bivens; EAJA is not a clear substitute because fees are paid by government, may lack deterrent effect, and adequacy/intent are unresolved |
| Whether reconsideration under Rule 54(b) is warranted | Loumiet: no changed outcome from Abbasi; motion is reargument | Defs: Abbasi is a significant change in law justifying reconsideration and dismissal | Court: Denied reconsideration — Defs did not show harm or controlling change that would alter prior ruling |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (recognition of implied damages remedy for Fourth Amendment violations)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (clarified modern framework for assessing extensions of Bivens; emphasized special factors and alternative remedies)
- Wilkie v. Robbins, 551 U.S. 537 (2007) (two-step inquiry: alternative existing process and special factors counseling hesitation)
- Carlson v. Green, 446 U.S. 14 (1980) (FTCA did not displace a Bivens remedy where Congress did not intend to preclude it)
- Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001) (limits Bivens where suit targets an entity/employer rather than individual officers)
- Minneci v. Pollard, 565 U.S. 118 (2012) (availability of state-law alternatives can preclude Bivens where those remedies are adequate)
- FDIC v. Meyer, 510 U.S. 471 (1994) (Bivens does not extend to suits against federal agencies)
- Davis v. Passman, 442 U.S. 228 (1979) (recognized a Bivens-like remedy under the Fifth Amendment for employment discrimination when no adequate alternative remedy existed)