Loumiet v. United States of America, Civil Action No. 2012-1130

Background

Carlos Loumiet sued OCC officials (Rardin, Schneck, Sexton) and the United States alleging retaliatory prosecution (First Amendment Bivens claim) and various FTCA tort claims; prior rulings allowed some claims to proceed.
After Loumiet V (255 F. Supp. 3d 75), Individual Defendants moved under Rule 54(b) to reconsider in light of Ziglar v. Abbasi.
Individual Defendants sought dismissal of the Bivens retaliatory-prosecution claim, arguing Abbasi changes the Bivens framework (new-context rule, heightened deference to Congress, and that alternative remedies preclude Bivens).
The Court treated the motion as asking it to revisit subject-matter jurisdiction over the Bivens claim and to reconsider prior Wilkie/Abbasi analysis (special factors and alternative remedies).
The Court denied reconsideration: it assumed this is a „new context" but found Abbasi did not alter its prior special-factors or alternative-remedy analysis, and that EAJA (attorney-fee recovery) and FIRREA/APA do not conclusively preclude a Bivens remedy on these facts.
Result: Bivens claim for retaliatory prosecution proceeds against Rardin, Schneck, and Sexton; FTCA claims proceed against the United States.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Abbasi requires reconsideration of court's refusal to dismiss Bivens retaliatory-prosecution claim	Loumiet: Abbasi does not change outcome; discovery should decide merits	Individual Defs: Abbasi limits Bivens, requires dismissal because this is a new context	Denied — court assumes new context but concludes Abbasi does not change prior outcome
Whether Abbasi raises a new presumption against extending Bivens beyond the three Supreme Court cases	Loumiet: any new presumption doesn't alter special-factors inquiry already applied	Individual Defs: Abbasi makes expansion a disfavored activity and restricts reliance on circuit precedent	Denied — court not persuaded Abbasi creates independent presumption beyond special-factors/alternative-remedy analysis
Whether special factors (including chilling effect, congressional regulation of banking) preclude Bivens here	Loumiet: special factors do not preclude Bivens given facts and lack of congressional intent to preclude damages	Individual Defs: recognition of Bivens would chill regulators and conflicts with Congress’s extensive bank-regulation framework	Denied — court finds no meaningful chilling risk and no evidence Congress intended to displace Bivens for these claims
Whether EAJA (attorney-fee recovery) or FIRREA/APA provide an alternative remedial structure that precludes Bivens	Loumiet: EAJA/FIRREA/APA are not adequate or intended by Congress to supplant Bivens; EAJA fees do not deter individual officers	Individual Defs: EAJA recovery (and FIRREA/APA) are available remedies that make Bivens unnecessary	Denied — court finds EAJA alone (and combined with FIRREA/APA) insufficiently shown to preclude Bivens; EAJA lacks officer-level deterrence and congressional-intent proof is inadequate

Key Cases Cited

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (establishing implied damages remedy for certain Fourth Amendment violations)
Davis v. Passman, 442 U.S. 228 (recognizing implied remedy under the Constitution in employment context)
Carlson v. Green, 446 U.S. 14 (declining to bar Bivens where Congress did not provide an explicit substitute remedy)
Wilkie v. Robbins, 551 U.S. 537 (two-step framework: alternative existing process and special factors counseling hesitation)
Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (limits Bivens where suit is not against individual officers’ core purpose)
FDIC v. Meyer, 510 U.S. 471 (limits on Bivens and scope of implied remedies)
Minneci v. Pollard, 565 U.S. 118 (alternative remedies may preclude Bivens when they provide significant deterrence and compensation)
Ziglar v. Abbasi, 137 S. Ct. 1843 (reaffirming caution in extending Bivens; discusses "new context", special factors, and alternative remedies)