Loumiet v. United States of America
968 F. Supp. 2d 142
D.D.C.2013Background
- Loumiet sues the United States under FTCA and four OCC officials under Bivens; adds state-law tort claims.
- OCC enforcement action against Loumiet arose from Hamilton Bank investigations beginning in 2001, with OCC filing charges in 2006 and dismissal recommendations in 2008; OCC ultimately dismissed in 2009.
- Loumiet claimed retaliatory conduct by OCC officials, including racist comments and press disclosures, in response to his prior criticisms of the OCC.
- Plaintiff sought attorney’s fees under EAJA and later filed administrative and federal suits alleging constitutional harms and various torts.
- Defendants moved to dismiss on statute-of-limitations, Westfall Act, and discretionary-function grounds; the court considered accrual, continuing-tort theory, and separability of prosecutorial conduct from prosecutorial decision.
- Court granted in part and denied in part: Bivens claims time-barred; most FTCA claims against individuals barred by Westfall Act; some FTCA claims survive to the extent based on statements to the press.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff's Bivens claims against the Individual Defendants are time-barred. | Loumiet contends accrual occurred later, delaying bar by statute. | Defendants argue accrual occurred before 2009; action filed in 2012 is time-barred. | Bivens claims time-barred; accrual before 2009. |
| Whether Plaintiff's state-law tort claims against the Individual Defendants are barred by the Westfall Act. | Westfall Act allows state-law claims against federal employees only when not certified as within scope. | Director certified scope of employment; claims barred. | State-law tort claims barred under Westfall Act. |
| Which FTCA claims survive or are barred, and under what theories (statute, continuing-tort, discretionary-function). | Continuing-tort theory tolls/extends accrual for FTCA claims; some claims not time-barred. | FTCA two-year limit; most claims accrue pre-2009; discretionary-function exception applies to some claims. | Continuing-tort doctrine applies to some FTCA claims; discretionary-function exception bars certain FTCA claims; others may proceed if not encompassed by exception. |
Key Cases Cited
- Mata v. Anderson, 635 F.3d 1250 (10th Cir. 2011) (accrual of First Amendment retaliatory-prosecution claims when injury occurs)
- Hartman v. Moore, 547 U.S. 250 (Sup. Ct. 2006) (probable cause element in retaliatory-prosecution Bivens actions)
- Wallace v. Kato, 549 U.S. 384 (Sup. Ct. 2007) (federal accrual rule for §1983 actions)
- Gaubert, 499 U.S. 315 (Sup. Ct. 1991) (discretionary-function exception requires judgment or choice)
- Berkovitz v. United States, 486 U.S. 531 (Sup. Ct. 1988) (prescribed course of action precludes discretionary-function shield)
- Whelan v. Abell, 953 F.2d 663 (D.C. Cir. 1992) (lawsuit as continuing harm under continuing-tort doctrine)
- Page v. United States, 729 F.2d 818 (D.C. Cir. 1984) (continuing-tort doctrine applies to cumulative-harm scenarios)
- Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1996) (prosecutorial discretion generally immune under discretionary-function exception)