Loumiet v. United States of America
255 F. Supp. 3d 75
D.D.C.2017Background
- Loumiet sues the United States under FTCA and Bivens and also asserts state-law tort claims arising from OCC actions concerning Hamilton Bank.
- The D.C. Circuit remanded to address whether the FTCA claims plausibly allege that the OCC exceeded its authority to defeat discretionary-function immunity and to resolve remaining Bivens defenses.
- The Court grants in part and denies in part the motions: First Amendment Bivens claim against Rardin, Schneck, and Sexton proceeds; Fifth Amendment Bivens claim and all claims against Straus are dismissed without prejudice.
- The Westfall Act converts the state-law tort claims against the Individual Defendants into FTCA claims against the United States; FTCA claims may proceed except for abuse-of-process and malicious-prosecution claims, which are dismissed without prejudice.
- The Court finds FIRREA is not a comprehensive remedial scheme that would bar a Bivens claim; the First Amendment Bivens claim is recognized; invasion-of-privacy claim can proceed; and the continuing-tort theory tolling supports enabling the invasion-of-privacy FTCA claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA claims bypass discretionary-function immunity. | Loumiet contends defendants acted beyond authority, vitiating immunity. | Defendants argue discretionary-function immunity remains intact. | Discretionary-function immunity is not applicable to bar the FTCA claims here. |
| Whether a First Amendment Bivens claim for retaliatory prosecution exists and who is liable. | Loumiet asserts retaliatory prosecution violated First Amendment rights by OCC officials. | Defendants dispute viability or scope of such Bivens claim. | First Amendment Bivens claim recognized against Rardin, Schneck, and Sexton; Straus entitled to absolute immunity. |
| Whether Fifth Amendment Bivens claim is viable. | Loumiet seeks Fifth Amendment due process remedy for retaliatory prosecution. | Fifth Amendment claim not clearly established or appropriately framed. | Fifth Amendment Bivens claim dismissed. |
| Whether state-law tort claims are precluded or can proceed as FTCA claims. | State-law tort claims should proceed as FTCA claims against United States. | Westfall Act converts state-law claims; some claims barred by law. | Conversion to FTCA claims granted; but abuse-of-process and malicious-prosecution claims dismissed; remaining Counts I, II, V, VIII proceed. |
| Whether FIRREA is a comprehensive remedial scheme precluding Bivens relief. | FIRREA not a complete substitute for Bivens relief in this context. | FIRREA provides a comprehensive remedy that could preclude Bivens. | FIRREA is not a comprehensive remedial scheme as to these particular facts. |
Key Cases Cited
- Hartman v. Moore, 547 U.S. 250 (U.S. 2006) (First Amendment retaliatory-prosecution doctrine established; framework for Bivens analysis.)
- Bush v. Lucas, 462 U.S. 367 (U.S. 1983) (Comprehensive remedial schemes limit Bivens remedies.)
- Chilicky, 487 U.S. 412 (U.S. 1988) (No Bivens remedy where Congress provided adequate remedial schemes.)
- Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008) (Comprehensive remedial scheme analysis—context matters.)
- Munsell v. Dep’t of Agric., 509 F.3d 572 (D.C. Cir. 2007) (APA review alone not necessarily sufficient to preclude Bivens.)
- Sinclair v. Hawke, 314 F.3d 934 (8th Cir. 2003) ( FIRREA as comprehensive scheme; preclusion analysis debated.)
- Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080 (8th Cir. 2005) (APA review limitations as part of remedial scheme analysis.)
- Perry v. Sindermann, 408 U.S. 593 (U.S. 1972) (First Amendment protections against retaliation.)
- Crawford v. Elbert, ? (1998) ((included in text as foundational for First Amendment retaliation principles))