Loumiet v. United States of America
2014 U.S. Dist. LEXIS 116194
| D.D.C. | 2014Background
- Carlos Loumiet challenged enforcement proceedings the OCC brought against him under FIRREA; an ALJ recommended dismissal and the Comptroller later dismissed the claims.
- Loumiet sued the United States under the FTCA for malicious prosecution, abuse of process, IIED, invasion of privacy, negligent supervision, and conspiracy; he sued individual OCC officials under Bivens and state torts.
- The court previously dismissed Loumiet’s Bivens claims as untimely and dismissed FTCA malicious prosecution and abuse of process claims under the discretionary-function exception, but retained certain FTCA tort claims to the extent they were premised on OCC statements to the press.
- The United States moved for reconsideration, arguing the press‑statement‑based FTCA claims are barred by the FTCA defamation exception (28 U.S.C. § 2680(h)); Loumiet moved for reconsideration and for entry of final judgment on the dismissed Bivens claims.
- The court denied Loumiet’s reconsideration request, largely rejected his continuing‑tort argument for Bivens timeliness because it was not previously raised, applied the discretionary‑function exception to alleged retaliatory prosecution, and held that claims "arising out of" defamatory press statements are barred by § 2680(h).
- The court dismissed Loumiet’s IIED, negligent supervision, and conspiracy FTCA claims in full, but preserved an invasion‑of‑privacy claim to the extent it alleges public disclosure of private facts (not defamation); the court declined to enter a Rule 54(b) final judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Bivens claims (continuing‑tort) | Loumiet: continuing‑tort tolling makes Bivens timely | U.S.: timeliness challenge sustained; plaintiff failed to raise continuing‑tort for Bivens earlier | Court: refused to reconsider; continuing‑tort argument waived because not raised earlier; Bivens claims remain untimely/dismissed |
| Discretionary‑function exception for alleged retaliatory prosecution | Loumiet: constitutional violation (retaliatory prosecution) removes DFE protection | U.S.: prosecutorial decisions are discretionary and covered by DFE | Court: DFE applies even to constitutionally defective actions closely tied to prosecution; claims based on prosecution dismissed |
| FTCA defamation exception re statements to press | Loumiet: some press statements may be non‑defamatory; thus remaining tort claims survive | U.S.: claims premised on press statements "arise out of" defamation and are barred by § 2680(h) | Court: most press‑statement claims allege false dissemination (defamation) and are barred; IIED, negligent supervision, conspiracy dismissed; invasion of privacy survives only as public‑disclosure‑of‑private‑facts claim |
| Request for Rule 54(b) final judgment on Individual Defendants | Loumiet: enter final judgment to permit appeal of dismissed Bivens claims | U.S.: opposed (preserve case management) | Court: denied Rule 54(b); factual/legal overlap makes piecemeal appeal inappropriate |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (Bivens action recognizes potential damages remedy for certain constitutional violations)
- Loumiet v. Office of the Comptroller of the Currency, 650 F.3d 796 (D.C. Cir. 2011) (background appellate decision on OCC enforcement matter)
- Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983) (discretionary‑function exception bars FTCA claims closely intertwined with prosecution)
- Shuler v. United States, 531 F.3d 930 (D.C. Cir. 2008) (DFE immunizes government abuses of discretion)
- Whelan v. Abell, 953 F.2d 663 (D.C. Cir. 1992) (continuing‑tort doctrine explained)
- Page v. United States, 729 F.2d 818 (D.C. Cir. 1984) (continuing‑tort authority cited by Whelan)
- Tabman v. F.B.I., 718 F.Supp.2d 98 (D.D.C. 2010) (investigative conduct inextricably tied to prosecutorial discretion falls under the DFE)