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Loumiet v. United States

United States District Court, District of Columbia

June 13, 2017



          COLLEEN KOLLAR-KOTELLY United States District Judge

         Plaintiff Carlos Loumiet filed suit against the United States Government for the actions of its agency, the Office of the Comptroller of the Currency (“OCC”), under the Federal Tort Claims Act (“FTCA”), and against Defendants Michael Rardin, Lee Straus, Gerard Sexton, and Ronald Schneck (collectively, the “Individual Defendants”), alleging claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as well as various state-law tort claims. In a series of rulings, the Court previously dismissed all of Plaintiff's claims at the motion to dismiss stage. Plaintiff appealed to the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), which remanded for this Court to consider two issues: first, as to Plaintiff's F T C A claims, “whether [Plaintiff's] complaint plausibly alleges that the OCC's conduct exceeded the scope of its constitutional authority so as to vitiate discretionary-function immunity;” and second, as to Plaintiff's Bivens claims, “the remaining defenses raised but not yet decided in the district court.” Loumiet v. United States, 828 F.3d 935, 946, 949 (D.C. Cir. 2016) (“Loumiet IV”). Following remand, the Court ordered the parties to brief these and any other pertinent legal issues. Sept. 29, 2016 Order, ECF No. 61.

         Pending before the Court are the Individual Defendants' [62] Motion to Dismiss and the United States' [63] Motion to Dismiss. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART AND DENIES IN PART the Individual Defendants' [62] Motion to Dismiss, and GRANTS IN PART AND DENIES IN PART the United States' [63] Motion to Dismiss. Plaintiff's First Amendment Bivens claim for retaliatory prosecution shall proceed against Defendants Rardin, Schneck, and Sexton. Plaintiff's Fifth Amendment Bivens claim, and all claims against Defendant Straus are DISMISSED WITHOUT PREJUDICE. Pursuant to the Westfall Act, the state-law tort claims against the Individual Defendants are CONVERTED to FTCA claims against the United States. Plaintiff's FTCA claims against the United States may proceed, except that the abuse of process (Count III) and malicious prosecution (Count IV) claims are DISMISSED WITHOUT PREJUDICE, leaving only the claims for intentional infliction of emotional distress (Count I), invasion of privacy (Count II), negligent supervision (Count V), and civil conspiracy (Count VIII).

         I. BACKGROUND

         The Court previously detailed the factual background of this matter in its prior rulings, familiarity with which is assumed.[2] See Loumiet v. United States, 968 F.Supp.2d 142, 145 (D.D.C. 2013) (Loumiet I). To the extent particular factual allegations are relevant to the Court's analysis of the pending motions, they are detailed below.


         A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction

         To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), Plaintiff bears the burden of establishing that the Court has subject-matter jurisdiction over its claims. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007); Ctr. for Arms Control & Non-Proliferation v. Redd, No. CIV.A. 05-682 (RMC), 2005 WL 3447891, at *3 (D.D.C. Dec. 15, 2005). In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1350 (3d ed. 2017) (noting the “wide array of cases from the four corners of the federal judicial system involving the district court's broad discretion to consider relevant and competent evidence on a motion to dismiss for lack of subject matter jurisdiction to resolve factual issues”). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), ” the factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (internal quotation marks omitted).

         B. Motion to Dismiss for Failure to State a Claim

         Defendants also move to dismiss the Complaint for “failure to state a claim upon which relief can be granted” pursuant to Federal Rule of Civil Procedure 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, ” or “documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. District of Columbia Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted). The court may also consider documents in the public record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).


         The Court's analysis below proceeds as follows. First, the Court finds it appropriate to recognize a First Amendment Bivens claim for retaliatory prosecution under the particular factual circumstances of this case. Second, the Court finds that Plaintiff has plausibly alleged such a First Amendment Bivens claim against Defendants Rardin, Schneck, and Sexton, and that they are not entitled to absolute prosecutorial or qualified immunity at this procedural juncture. Nonetheless, the Court finds that Defendant Straus is entitled to absolute prosecutorial immunity, and that any non-immunized conduct fails to state a First Amendment retaliatory prosecution Bivens claim against him. Third, the Court concludes that Plaintiff's Fifth Amendment Bivens claim must be dismissed for failure to state a claim. Fourth, the Court converts the state-law tort claims against the Individual Defendants to FTCA claims against the United Stated. In sum, this means that the only claims surviving with respect to the Individual Defendants are Plaintiff's First Amendment Bivens claims against Defendants Rardin, Schneck, and Sexton.

         Turning to the FTCA claims against the United States, the Court finds first, that discretionary-function immunity is vitiated under the circumstances of this case because Plaintiff has plausibly alleged that the tortious conduct at issue violated a clearly established First Amendment right against retaliatory prosecution; second, that Plaintiff's malicious prosecution and abuse of process claims must be dismissed because the OCC employees at issue in this case are not “investigative or law enforcement officers” as defined by the FTCA; and third, that Plaintiff's invasion of privacy claim may proceed. Accordingly, Plaintiff's surviving FTCA claims are for intentional infliction of emotional distress (Count I), invasion of privacy (Count II), negligent supervision (Count V), and civil conspiracy (Count VIII).

         A. The Court Recognizes a First Amendment Bivens Claim in this Action

         In Bivens, the Supreme Court of the United States created an implied cause of action for money damages stemming from an alleged Fourth Amendment violation at the hands of federal officials. 403 U.S. at 397. “Since Bivens, the Supreme Court has proceeded cautiously in implying additional federal causes of action for money damages.” Meshal v. Higgenbotham, 804 F.3d 417, 421 (D.C. Cir. 2015). The Bivens issues in this case must be assessed in two stages, and because the Fifth Amendment claim shall be dismissed for failure to state a claim, this analysis is limited to Plaintiff's claim of retaliatory prosecution in violation of his First Amendment right to free speech.

         As an initial matter, the parties disagree on whether by permitting Plaintiff's Bivens claim to proceed, the Court would in effect recognize a cause of action unprecedented in Bivens case law. In other words, whether this case presents a “new context.” If so, the Court would be required to ask and answer two follow-up questions. First, whether “Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.” Carlson v. Green, 446 U.S. 14, 18-19 (1980); Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (“In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.”). Put differently, a Bivens remedy will generally not be available if a comprehensive statutory scheme already exists for a plaintiff to seek redress of the alleged constitutional violation. Defendants concede that no such scheme exists here. See Reply Mem. at 6.

         As a result, the Court must turn to assess whether there are “any special factors counselling hesitation before authorizing a new kind of federal litigation.” Wilkie, 551 U.S. at 550 (quoting Bush v. Lucas, 462 U.S. 367, 378 (1983)). One such special factor “that precludes creation of a Bivens remedy is the existence of a comprehensive remedial scheme.” Wilson v. Libby, 535 F.3d 697, 705 (D.C. Cir. 2008). Unlike the first question- which asks whether there is a specific, equally effective alternative remedy to the implied cause-of-action-this “special factor” analysis is intended to isolate situations in which “the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration . . . .” Schweiker v. Chilicky, 487 U.S. 412, 423 (1988). As a result, the “comprehensive remedial scheme” need not provide “complete relief” for the specific violation at issue; rather, “the doctrine relates to the question of who should decide whether such a remedy should be provided.” Wilson, 535 F.3d at 705 (internal quotation marks omitted). Consequently, it is “the comprehensiveness of the statutory scheme involved, not the ‘adequacy' of specific remedies extended thereunder, that counsels judicial abstention.” Spagnola v. Mathis, 859 F.2d 223, 227 (D.C. Cir. 1988). In sum, the doctrine reflects “an appropriate judicial deference to indications that congressional inaction has not been inadvertent.” Chilicky, 487 U.S. at 423.

         Both the D.C. Circuit and Supreme Court, at least impliedly, have recognized the existence of a Bivens implied cause-of-action for retaliatory prosecution in violation of the First Amendment guarantee of freedom of speech. Hartman v. Moore, 547 U.S. 250, 256 (2006) (“the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out”); Moore v. Valder, 65 F.3d 189, 196 (D.C. Cir. 1995) (“Moore's retaliatory prosecution claim, however, does allege the violation of clearly established law.”); Haynesworth v. Miller, 820 F.2d 1245, 1255 (D.C. Cir. 1987) (“[w]e agree that the retaliatory prosecution constitutes an actionable First Amendment wrong”). Defendants, however, assert that this case presents a “new context” because “[n]o court has ever extended Bivens to the conduct of government officials engaged in oversight of the safety and soundness of the national banking system.” Ind. Defs.' Mem at 7. The D.C. Circuit in Meshal noted the difficulty in distinguishing various Bivens actions on the basis of context: “viewed at a sufficiently high level of generality, any claim can be analogized to some other claim for which a Bivens action is afforded, just as at a sufficiently high level of particularity, every case has points of distinction.” 804 F.3d at 424 (internal quotation marks omitted). Ultimately, Meshal defined “context” by reference to its common usage in law: the word “reflects[s] a potentially recurring scenario that has similar legal and factual components.” Id. (emphasis added) (internal quotation marks omitted).

         Although Defendants seek to distinguish the prosecutorial action in this case on the basis that it was directed by a Federal agency overseeing the banking industry, they have failed to explain why that distinction is at all relevant to the case law recognizing claims against Federal agents for retaliatory prosecution. For instance, there is no indication in the record that Plaintiff's prosecution was motivated out of a particular concern for the safety of the banking system. In fact, the allegations of the Complaint portray a prosecution that was levied against an individual with relatively little involvement in the perpetuation or concealment of the illicit activity subject to the OCC's regulatory action, and was instead, according to the allegations, primarily motivated by Plaintiff's complaints regarding certain alleged racial comments made by OCC staff, and the aggressive nature of the OCC's investigation into Hamilton Bank. See infra at 26-27. Moreover, upon administrative review, the D.C. Circuit found that the record did not support a finding that Plaintiff's prosecution was justified. See Loumiet EAJA, 650 F.3d at 800. Accordingly, while the fact that the retaliatory prosecution was brought by a banking regulator is a point of distinction, the salient legal and factual matters are similar to those at issue in the controlling Supreme Court and D.C. Circuit cases regarding retaliatory prosecution. As in Hartman and Moore, the allegations here suggest that employees of a Federal entity (there, the United States Postal Service), in reprisal for speech critical of the Federal entity, directed a meritless investigation and prosecution (there, the trial court determined that there was a “complete lack of direct evidence” for the alleged crime, while here, the presiding Administrative Law Judge (“ALJ”), the Comptroller, and the D.C. Circuit found that the enforcement action was unwarranted, see Loumiet EAJA, 650 F.3d at 799-800).

         In sum, the conduct at issue, although allegedly perpetuated by banking regulators, plainly fits the mold of the controlling authorities wherein a Bivens cause of action has been recognized for retaliatory prosecution at the behest of Federal officials. No doubt, the banking regulatory arena is complex and of immense importance to the American economy, but it can hardly be said that any Federal agency does not administer an important facet of the American economy or society. And while the D.C. Circuit has on several occasions refused to afford a Bivens remedy in certain sensitive policy areas, the decisions pressed by Defendants are limited to the national security and intelligence context. See Reply Mem. at 3; see, e.g., Klay v. Panetta, 758 F.3d 369 (D.C. Cir. 2014). Certainly, it is conceivable that a factual context related to the banking industry could present circumstances that distinguish it from other cases in which a Bivens remedy for retaliatory prosecution has been recognized. The essential point here, however, is that Defendants have not shown how their status as banking regulators is relevant to the question of whether a Bivens remedy should be recognized under the particular factual circumstances of this case, wherein any banking law or regulatory issues seem, accepting the allegations as true, completely peripheral to the challenged conduct (i.e., the bringing of the enforcement action).

         Even assuming that this case presents a “new context, ” however, the special factor analysis does not preclude a Bivens remedy for Plaintiff's retaliatory prosecution claim. Defendants contend that the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”), pursuant to which the OCC took enforcement action against Plaintiff, is a “comprehensive remedial scheme” that counsels against finding an implied cause-of-action under the factual circumstances of this case. As an initial matter, however, there is no clear indication that Plaintiff was properly the subject of a FIRREA enforcement action. As relevant here, that statutory scheme applies to an “institution-affiliated party” (“IAP”), which is defined to include: “[A]ny independent contractor (including any attorney, appraiser, or accountant) who knowingly or recklessly participates in . . . any unsafe or unsound practice, which caused or is likely to cause more than a minimal financial loss to, or a significant adverse effect on, the insured depository institution.” 12 U.S.C. § 1813(u)(4). The D.C. Circuit, in reviewing the denial of Plaintiff's request for attorney fees in connection with the enforcement action, concluded that the administrative record was devoid of evidence linking Plaintiff's allegedly illicit actions (drafting two investigative reports) with a “significant adverse effect on the Bank.” Loumiet EAJA, 650 F.3d at 799. This accorded with the decision of the Comptroller dismissing the action against Plaintiff, which found that the “administrative record lacked sufficient evidence that the two reports prepared by [Plaintiff] caused, or were likely to cause, harm to the Bank that satisfies the ‘effect' requirement.” Id. at 800. As such, the D.C. Circuit concluded that the record did not demonstrate that the OCC's “litigating position was justified, let alone ‘substantially' so.” Id. Consequently, this case is brought in a posture wherein both the D.C. Circuit and the Comptroller determined that Plaintiff did not qualify under the statutory test that determines whether a party like Plaintiff is subject to FIRREA.

         Beyond this, the case at bar is readily distinguishable from the controlling authorities that have declined to establish a Bivens remedy due to the existence of a comprehensive remedial scheme. In each such case, there was a statutory scheme that provided relief for similarly-situated plaintiffs, but happened not to provide relief for the litigant, either due to the particular factual circumstances, or the nature of the relief sought. Given the existence of the complex ameliorative scheme, however, the reasonable inference to draw in these cases was that Congress weighed competing policy goals and fashioned a system of remedies that reflected its policy-based determinations. Consequently, while the remedial scheme may have not afforded complete relief to the particular plaintiff at bar, judicial deference to Congressional law-making called for hesitation before creating a remedy through judicial fiat under circumstances where the evidence showed that Congress had intentionally declined to do so.

         In Bush v. Lucas, the Supreme Court addressed a putative First Amendment claim by a Federal employee who had allegedly been terminated for making critical public remarks regarding his agency. 462 U.S. at 369. Following a review of the pertinent regulatory landscape, the Court determined that “Federal civil servants are now protected by an elaborate, comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures-administrative and judicial- by which improper action may be redressed.” Id. at 385. Although recognizing that the current system would not provide “complete relief” to the petitioner, the Court declined to recognize a Bivens remedy under the circumstances given the existence of an “an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations . . . .” Id. at 388. This system and other factors, in the Court's view, evidenced that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service.” Id. at 389. Similarly, in Chilicky, petitioners sought money damages under Bivens stemming from the denial of their Social Security benefits. 487 U.S. at 419. The Supreme Court declined to recognize a Bivens remedy under the circumstances, holding that “[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.” Id. at 423. In the Court's view, the Social Security system evidenced such a design, and “while respondents ha[d] not been given a remedy in damages for emotional distress or for other hardships suffered because of delays in their receipt of Social Security benefits[, ] . . . Congress . . . ha[d] not failed to provide meaningful safeguards or remedies for the rights of persons situated as respondents were.” Id. at 425. Based on these precedents, the D.C. Circuit in Wilson declined to recognize a Bivens remedy against the Vice President and others for injuries allegedly suffered by the revelation of plaintiff's employment with the Central Intelligence Agency. 535 F.3d at 702. The D.C. Circuit determined that the disclosure of personal information by Federal officials, the crux of the complaint, was governed by the Privacy Act, and the Act was a “comprehensive scheme” that precluded a Bivens remedy. Although the Act did not provide a cause of action against the three defendants, because it excluded the Offices of the President and Vice President, that exclusion was not inadvertent and thus did not weigh in favor of granting Bivens relief; rather, the legislative history of the Act showed that the exclusion was intentional. Id. at 708. See also Davis v. Billington, 681 F.3d 377, 383 (D.C. Cir. 2012) (defining “comprehensive remedial scheme” as “when Congress has put in place a comprehensive system to administer public rights, has not inadvertently omitted damages remedies for certain claimants, and has not plainly expressed an intention that the courts preserve Bivens remedies” (quoting Spagnola, 859 F.2d at 228) (internal quotation marks omitted)).

         FIRREA was enacted in response to the savings-and-loan crisis of the 1980s to “enhance the regulatory enforcement powers of the depository institution regulatory agencies to protect against fraud, waste, and insider abuse.” CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 741 (D.C. Cir. 1995). FIRREA applies both to banks and, as relevant here, institution-affiliated parties. If the OCC determines that an IAP has engaged in actionable misconduct, it may institute a “cease-and-desist” proceeding, and if it does so, must provide the IAP with a notice of charges and an administrative hearing. 12 U.S.C. § 1818(b). The OCC may also seek civil monetary penalties, which are likewise subject to an administrative hearing. 12 U.S.C. § 1818(i)(2)(H). The hearing must be conducted before an ALJ in accordance with the Administrative Procedure Act (“APA”), and the IAP may choose to be represented by counsel, and may present evidence and cross-examine witnesses. 12 U.S.C. § 1818(h)(1); 12 C.F.R. §§ 19.35, 19.36. In short, the hearing is “a full adversarial proceeding.” Ind. Defs.' Mem. at 9. Following the hearing, the ALJ issues a written recommendation for the Comptroller, who reviews the decision, the administrative record, and any objections by the IAP, and issues a final written decision. 12 U.S.C. § 1818(h)(1); 12 C.F.R. §§ 19.38-19.40. The IAP may then seek review of the final decision before a United States Court of Appeals. 12 U.S.C. § 1818(h)(2).

         Succinctly stated, Defendants' position is that “the comprehensive remedial scheme of the FIRREA, coupled with judicial review under the APA, is a special factor that counsels hesitation against authorizing a Bivens remedy in this case.” Reply Mem. at 6. In support, Defendants press Sinclair, a decision by the United States Court of Appeals for the Eighth Circuit (“Eighth Circuit”), as dispositive of FIRREA's status as a “comprehensive remedial scheme” that precludes the recognition of a Bivens claim under the particular factual circumstances of this case. In Sinclair, the proprietor of Sinclair National Bank (“SNB”) brought a putative Bivens claim against OCC employees for a series of adverse regulatory actions, which plaintiff claimed were retaliatory and motivated by racial animus. These culminated in the OCC declaring the bank insolvent and appointing the Federal Deposit Insurance Corporation (“FDIC”) as a receiver, which promptly sold the assets of SNB to another bank. Sinclair v. Hawke, 314 F.3d 934, 938 (8th Cir. 2003). The Eight Circuit declined to recognize a Bivens remedy for this allegedly retaliatory regulatory action against SNB, finding that Congress had “been establishing and extensively regulating national banks for over two hundred years.” Id. at 940. In their view, FIRREA was simply a further expansion of the already immense regulatory powers afforded to Federal bank regulators such as the OCC and FDIC, and all of the “adverse regulatory actions at issue fell within the OCC's express statutory powers to regulate national banks . . . .” Id. at 942. Importantly, regulatory action was subject to judicial review via the APA, and to the “extent these APA remedies are limited, the long history of congressional regulation of national banks confirms that the limitations are not inadvertent. Rather, Congress has repeatedly adjusted, and at times overhauled, these statutory remedies in a continuing effort to resolve . . . a difficult and delicate problem of reconciling conflicting interests . . . .” Id. As such, the Eighth Circuit concluded that it was “for Congress to decide whether the public interest in a sound national banking system would be furthered by a cause of action requiring bank regulators to pay damages personally unless they can convince a jury that their conduct in aggressively regulating a national bank was not the product of an unconstitutional motive.” Id.

         The analogy between this case and Sinclair, while appealing, is ultimately specious. As an initial matter, the D.C. Circuit in Munsell expressed skepticism with precisely the sort of analysis pressed by Sinclair; namely, that APA review precludes a Bivens remedy. In that case, the D.C. Circuit assessed a claim that Federal Food Safety and Inspection Service “officials used USDA enforcement powers to retaliate against [plaintiff] for statements he made concerning USDA's handling of an E. coli outbreak in 2002.” Munsell v. Dep't of Agric., 509 F.3d 572, 589 (D.C. Cir. 2007). In so doing, the court reviewed another decision by the Eight Circuit, Nebraska Beef, which, in reliance on the holding in Sinclair, concluded that when “Congress has created a comprehensive regulatory regime, the existence of a right to judicial review under the APA is sufficient to preclude a Bivens action.” Nebraska Beef, Ltd. v. Greening, 398 F.3d 1080, 1084 (8th Cir. 2005) (citing Sinclair, 314 F.3d at 940). The D.C. Circuit noted that the decision in “Nebraska Beef leaves some weighty issues unanswered[, ]” and that it was “unaware of any Supreme Court decision holding that APA review alone is sufficient to eliminate the need for a Bivens ...

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