Carlos Loumiet v. United States , 828 F.3d 935 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 24, 2016 Decided July 12, 2016
No. 15-5208
CARLOS LOUMIET, ESQUIRE,
APPELLANT
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01130)
Carlos Loumiet, pro se, argued the cause and filed the
briefs for appellant.
Steve Frank, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Mark B. Stern, Attorney.
Before: ROGERS and PILLARD, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
2
PILLARD, Circuit Judge: Appellant Carlos Loumiet’s
participation in a bank audit got him into trouble with the
Office of the Comptroller of the Currency (OCC), a bureau
within the Department of Treasury. Loumiet claims the
OCC’s enforcement action against him was trumped-up and
retaliatory. On this appeal from the district court’s dismissal
of the case on the pleadings, we address only the timeliness of
his claims, and whether the Constitution places any limit on
the governmental policymaking discretion immunized by the
discretionary-function exception to the Federal Tort Claims
Act (FTCA or the Act).
After prosecuting Loumiet for nearly three years,
culminating in a three-week trial, the OCC dismissed its
enforcement action against him—an action which this court
has since described as not “substantially justified.” Loumiet
v. Office of Comptroller of Currency, 650 F.3d 796, 797-98
(D.C. Cir. 2011). Loumiet then brought suit against the
United States and four OCC employees, claiming that their
enforcement action and related conduct were both tortious and
unconstitutional. The district court dismissed Loumiet’s tort
claims against the United States under the FTCA’s
discretionary-function exception and dismissed his
constitutional Bivens claims against the individual defendants
as time-barred.
We conclude, in line with the majority of our sister
circuits to have considered the question, that the
discretionary-function exception does not categorically bar
FTCA tort claims where the challenged exercise of discretion
allegedly exceeded the government’s constitutional authority
to act. Nor are Loumiet’s Bivens claims time-barred, because
the continuing-violations doctrine applies to extend the
applicable statute of limitations where, as here, a plaintiff
alleges continuing conduct causing cumulative harm.
3
Accordingly, we reverse the district court’s dismissal order
and remand for further proceedings.
I
We review the district court’s dismissal of Loumiet’s
claims de novo, accepting as true the factual allegations in the
complaint. See Jerome Stevens Pharm., Inc. v. FDA, 402
F.3d 1249, 1250 (D.C. Cir. 2005).
In the early 2000s, Loumiet was on a team of attorneys
Hamilton Bank hired to prepare an audit report during a
securities-fraud investigation of the bank by the OCC. The
final audit report was unable to reach a conclusion as to
whether the bank’s executives had engaged in intentional
wrongdoing. The OCC contested certain of the report’s
findings, but, after further investigation, Loumiet and his team
declined to change their conclusions.
Around that time, Loumiet sent the Treasury Inspector
General a series of letters in which he expressed concern that,
while on site at Hamilton Bank during the OCC’s
investigation, OCC employees had made racist remarks
regarding the bank’s Hispanic employees. The bank filed suit
against the OCC in 2002, alleging civil rights violations
arising out of the investigation. Shortly thereafter, the OCC
closed Hamilton Bank for operating in an unsafe manner—a
closure Loumiet alleges was unjustified and incurred
considerable unnecessary cost for the bank’s receiver, the
Federal Deposit Insurance Corporation.
On November 6, 2006, the Comptroller initiated an
administrative enforcement proceeding against Loumiet under
the Financial Institutions Reform, Recovery, and Enforcement
Act, alleging that he was an “institution-affiliated party” who
knowingly or recklessly breached his fiduciary duty to
4
Hamilton Bank when preparing the audit and caused a
“significant adverse effect” on the bank. 12 U.S.C.
§ 1813(u)(4). During the course of the enforcement action
against him, Loumiet alleges, OCC personnel made
unsubstantiated charges and false statements to the press. On
June 18, 2008, after a three-week administrative trial, the
presiding Administrative Law Judge recommended dismissal
of the OCC’s claims in their entirety, and on July 27, 2009,
the Comptroller dismissed the action. Later, this court
concluded the OCC’s enforcement action was not
“substantially justified” and awarded Loumiet attorney’s fees.
Loumiet, 650 F.3d at 797.
According to Loumiet’s complaint in the action now
before us, the OCC’s frivolous enforcement proceeding
caused significant damage: his banking-law practice
evaporated, his income fell significantly, he dropped several
partnership levels at his firm, and he suffered severe
emotional distress. Seeking compensation for those harms, in
2011 Loumiet filed an administrative unlawful-retaliation
claim, which the OCC denied in January 2012. Loumiet filed
this suit in federal district court on July 9, 2012. He brought
common-law tort claims under the FTCA against the
government for intentional infliction of emotional distress,
invasion of privacy, abuse of process, malicious prosecution,
negligent supervision, and civil conspiracy.1 He sued the
individual government officials under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
1
Loumiet also asserted many of these same common-law tort
claims under the FTCA against the individual defendants, which the
district court dismissed pursuant to the Westfall Act, 28 U.S.C.
§ 2679(d)(1). See Loumiet v. United States (Loumiet I), 968 F.
Supp. 2d 142, 153 (D.D.C. 2013). Loumiet has not appealed that
ruling.
5
(1971), claiming retaliatory prosecution in violation of the
First and Fifth Amendments. Loumiet alleged that the
officials were “driven by a desire to retaliate” against him in
bringing a baseless prosecution that interfered with his “right
to communicate with his client free of Government
intimidation and punishment.” Compl. ¶¶ 138, 141.
The district court granted the defendants’ motion to
dismiss as to most of Loumiet’s claims. See Loumiet v.
United States (Loumiet I), 968 F. Supp. 2d 142, 144-45
(D.D.C. 2013). First, the court concluded that many of
Loumiet’s FTCA claims were “inextricably tied” to the
OCC’s decision to prosecute, so must be dismissed pursuant
to the FTCA’s discretionary-function exception, 28 U.S.C.
§ 2680(a). See Loumiet I, 968 F. Supp. 2d at 156-58. A
prosecutorial decision is a quintessential discretionary
function even if, in the circumstances of a particular case, the
prosecution proceeded unreasonably in light of the paucity of
its evidence. Id. at 156-57. In the court’s view, none of the
authorities Loumiet cited “specifically prescribe[d] a course
of action for an employee to follow” so as to bar application
of the discretionary-function exception here. Id. at 157
(quoting Berkovitz v. United States, 486 U.S. 531, 536
(1988)).
Before dismissing Loumiet’s FTCA claims on that
ground, however, the court explained that those claims, which
he filed with the agency on July 20, 2011, were not barred by
the FTCA’s two-year statute of limitations. Id. at 153-55.
The malicious-prosecution claim did not accrue until July 27,
2009, when the OCC dismissed the enforcement action, id. at
153, and the continuing-violations doctrine delayed accrual of
his other FTCA claims until the same date because the
enforcement action constituted a continuing harm until its
6
final disposition, id. at 154-55 (citing Whelan v. Abell, 953
F.2d 663, 674 (D.C. Cir. 1992)).
Notwithstanding its application of the continuing-
violations doctrine to Loumiet’s FTCA claims and its
characterization of the Bivens and FTCA claims as
intertwined, the court held that Loumiet had forfeited that
doctrine’s applicability to his Bivens claims. Id. at 152 n.3.
The claims were barred by the applicable three-year statute of
limitations, the court concluded, because the claims accrued
when Loumiet knew or had reason to know that the
enforcement action was retaliatory and was unsupported by
probable cause, which was either when the OCC first filed the
action or, at the latest, when the ALJ ruled in his favor four
years before Loumiet filed his complaint. Id. at 150-51.
On Loumiet’s motion for reconsideration, the district
court addressed for the first time his allegations that the
OCC’s decision to prosecute him was unconstitutionally
retaliatory and so beyond the governmental policymaking
authority protected by the FTCA’s discretionary-function
exception. Loumiet v. United States (Loumiet II), 65 F. Supp.
3d 19, 25-26 (D.D.C. 2014). “[E]ven ‘constitutionally
defective’ actions,” the court held, “are in fact protected by
the discretionary function exception.” Id. at 25. The court
eventually dismissed Loumiet’s remaining claims on grounds
not pressed before this court. Loumiet timely appealed.
II
We begin with the government’s contention that the
conduct Loumiet alleges to be tortious under the FTCA
involved performance of a “discretionary function” and is
therefore immune from liability under the Act. The FTCA
provides a limited waiver of the federal government’s
sovereign immunity from damages liability for torts
7
committed by federal employees acting within the scope of
their employment. See 28 U.S.C. §§ 1346(b), 2674. The Act
expressly retains immunity from some tort liability through a
number of statutory exceptions. See id. § 2680. If one of
those exceptions applies, the court lacks subject-matter
jurisdiction to hear the plaintiff’s claims. See Simmons v.
Himmelreich, 136 S. Ct. 1843, 1846 (2016).
At issue here is the discretionary-function exception,
which provides that the Act’s waiver of sovereign immunity
“shall not apply to”:
Any claim . . . based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal
agency or an employee of the Government, whether
or not the discretion involved be abused.
28 U.S.C. § 2680(a). “[T]he purpose of the exception is to
‘prevent judicial second-guessing of legislative and
administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.’”
United States v. Gaubert, 499 U.S. 315, 323 (1991) (quoting
United States v. Varig Airlines, 467 U.S. 797, 814 (1984)).
Congress enacted the FTCA to remedy and deter tortious
conduct by federal personnel, but sought in the FTCA’s
discretionary-function exception to prevent such claims from
impairing the government’s legitimate exercises of policy
discretion. See Red Lake Band of Chippewa Indians v. United
States, 800 F.2d 1187, 1195-96 (D.C. Cir. 1986); Gray v. Bell,
712 F.2d 490, 506 (D.C. Cir. 1983). A factfinder’s post-hoc
determination in a lawsuit that governmental conduct fell
short of standards of reasonable care, for example, should not
be permitted to gainsay the contrary determination of officials
vested with discretion to decide “how best to accommodate”
8
conflicting policy goals “and the reality of finite agency
resources.” Berkovitz, 486 U.S. at 537 (internal quotation
marks omitted). Duly authorized government personnel, not
judges or juries, decide what counts as reasonable public
policy.
To determine whether governmental conduct falls within
the discretionary-function exception, we look at the “nature of
the conduct, rather than the status of the actor,” Gaubert, 499
U.S. at 322 (quoting Varig Airlines, 467 U.S. at 813), and ask
two questions:
First, we consider whether the challenged conduct
“involves an element of judgment or choice.” Berkovitz, 486
U.S. at 536. If an exercise of discretion is involved, then,
consistent with the last clause of the exception, “the
discretionary function exception immunizes even government
abuses of discretion.” Shuler v. United States, 531 F.3d 930,
935 (D.C. Cir. 2008); see 28 U.S.C. § 2680(a) (excluding
from the reach of the FTCA government exercises of
discretion “whether or not the discretion involved be
abused”). But the element of discretion is necessarily absent
where “a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow.”
Berkovitz, 486 U.S. at 536. The exception thus does not apply
to a claim that an agency failed to “perform its clear duty” or
to “act in accord with a specific mandatory directive.” Id. at
545.
Second, if the conduct does involve some element of
judgment or choice, we must ask whether the “judgment is of
the kind that the discretionary function exception was
designed to shield,” Gaubert, 499 U.S. at 322-23 (quoting
Berkovitz, 486 U.S. at 536), that is, whether the actions or
decisions “were within the range of choice accorded by
9
federal policy and law and were the results of policy
determinations,” Berkovitz, 486 U.S. at 538. Even a
discretionary act within the scope of a federal official’s
employment is not within the exception if it “cannot be said to
be based on the purposes that the regulatory regime seeks to
accomplish.” Gaubert, 499 U.S. at 325 n.7. The exception
thus “insulates the Government from liability if the action
challenged in the case involves the permissible exercise of
policy judgment,” Berkovitz, 486 U.S. at 537, but “[a]n
employee of the government acting beyond his authority is
not exercising the sort of discretion the discretionary function
exception was enacted to protect,” Red Lake, 800 F.2d at
1196.
This court has long held that the decision “whether to
prosecute” is typically a “quintessentially discretionary”
function that involves judgment and requires balancing policy
goals and finite agency resources, thus meriting protection
under the discretionary-function exception. Moore v. Valder,
65 F.3d 189, 197 (D.C. Cir. 1995); see Gray, 712 F.2d at 514.
In determining whether the exception applies, we have treated
the decision to initiate an administrative proceeding as we do
a decision to pursue a criminal prosecution. See Sloan v. U.S.
Dep’t of Hous. & Urban Dev., 236 F.3d 756, 760 (D.C. Cir.
2001). A decision by the OCC to bring an action pursuant to
its broad statutory enforcement authority, 12 U.S.C.
§ 1818(b), (i), therefore ordinarily would appear to qualify for
the discretionary-function exception, even if a factfinder
considering a tort claim arising out of the enforcement
decision might conclude that the prosecution was
unreasonable or otherwise amounted to an abuse of the
OCC’s enforcement discretion.
But our inquiry into the viability of Loumiet’s FTCA
claims does not end there. This case raises the additional,
10
thorny question—novel in our circuit—whether the FTCA’s
discretionary-function exception shields the United States
from common-law tort liability under the Act even when the
otherwise discretionary conduct the plaintiff challenges
exceeds constitutional limits on the government’s authority to
act. Loumiet alleges FTCA tort claims, including claims of
intentional infliction of emotional distress and malicious
prosecution, based on conduct generally subject to the
agency’s enforcement discretion. But he also alleges that the
OCC’s retaliatory enforcement action violated his First and
Fifth Amendment rights and thus was not an exercise of the
sort of discretion the exception shields. See Compl. ¶ 111,
App. Tab 2 at 64 (“Because the defendants’ behavior failed to
comply with the internal rules and procedures of the OCC
itself, and also grossly offended the First and Fifth
Amendments to our Constitution, the ‘discretionary activity’
exclusion under the FTCA does not apply.”).
The government responds that the challenged prosecution
was, at bottom, discretionary, and that Loumiet’s
constitutional allegations do not affect the applicability of the
discretionary-function exception to bar the FTCA claims.
Because the FTCA does not waive sovereign immunity for
constitutional torts, the government objects, there can be no
unconstitutional-discretion limitation on the exception. In any
event, it contends, Loumiet alleges no violation of any clearly
established constitutional directive—the only type of
constitutional violation that, in the government’s view, might
render the discretionary-function exception inapplicable.
We hold that the FTCA’s discretionary-function
exception does not provide a blanket immunity against
tortious conduct that a plaintiff plausibly alleges also flouts a
constitutional prescription. At least seven circuits, including
the First, Second, Third, Fourth, Fifth, Eighth, and Ninth,
11
have either held or stated in dictum that the discretionary-
function exception does not shield government officials from
FTCA liability when they exceed the scope of their
constitutional authority. In Nurse v. United States, for
example, the Ninth Circuit held that “[i]n general,
governmental conduct cannot be discretionary if it violates a
legal mandate,” including a constitutional mandate. 226 F.3d
996, 1002 (9th Cir. 2000). The discretionary-function
exception was inapplicable, that court explained, because the
plaintiff had alleged tort claims based on “discriminatory,
unconstitutional policies which the[] [defendants] had no
discretion to create.” Id. Likewise, the Eighth Circuit in Raz
v. United States held that the FBI’s “alleged surveillance
activities f[e]ll outside the FTCA’s discretionary-function
exception” where the plaintiff had “alleged they were
conducted in violation of his First and Fourth Amendment
rights.” 343 F.3d 945, 948 (8th Cir. 2003); see also, e.g.,
Limone v. United States, 579 F.3d 79, 102 (1st Cir. 2009)
(holding that challenged “conduct was unconstitutional and,
therefore, not within the sweep of the discretionary function
exception”); Medina v. United States, 259 F.3d 220, 225 (4th
Cir. 2001) (In “determin[ing] the bounds of the discretionary
function exception . . . we begin with the principle that federal
officials do not possess discretion to violate constitutional
rights or federal statutes.” (internal quotation marks,
alterations, and citations omitted)); U.S. Fid. & Guar. Co. v.
United States, 837 F.2d 116, 120 (3d Cir. 1988) (“[C]onduct
cannot be discretionary if it violates the Constitution, a
statute, or an applicable regulation. Federal officials do not
possess discretion to violate constitutional rights or federal
statutes.”); Sutton v. United States, 819 F.2d 1289, 1293 (5th
Cir. 1987) (“[A]ction does not fall within the discretionary
function exception of § 2680(a) when governmental agents
12
exceed the scope of their authority as designated by statute or
the Constitution.”);2 Myers & Myers Inc. v. USPS, 527 F.2d
1252, 1261 (2d Cir. 1975) (“It is, of course, a tautology that a
federal official cannot have discretion to behave
unconstitutionally or outside the scope of his delegated
authority.”).3
To this court’s knowledge, only the Seventh Circuit has
held otherwise. Kiiskila v. United States, 466 F.2d 626, 627-
28 (7th Cir. 1972). That court applied the discretionary-
function exception to immunize the government from FTCA
liability arising from the decision of a military-base
commander to exclude the plaintiff, a civilian manager at the
base’s credit union, from entering the base because she
carried antiwar literature and planned an off-site antiwar
2
A panel of the Fifth Circuit later relied on Sutton to hold the
discretionary-function exception inapplicable to conduct a plaintiff
had alleged to violate the Fourth and Fifth Amendments. See
Castro v. United States, 560 F.3d 381, 389-90 (5th Cir. 2009)
(subsequent history omitted). The en banc Fifth Circuit summarily
vacated the Castro panel decision, but in so doing did not address
the interplay between constitutional allegations and the
discretionary-function exception. See Castro v. United States, 608
F.3d 266, 268-69 (5th Cir. 2010) (en banc). Instead, it adopted the
prior district court opinion, id., which also was silent on the import
of the plaintiff’s constitutional allegations, see Castro v. United
States, No. CIV.A. C-06-61, 2007 WL 471095, at *7-*9 (S.D. Tex.
Feb. 9, 2007) (subsequent history omitted). Notwithstanding
Sutton, the Fifth Circuit has since observed that the circuit has “not
yet determined whether a constitutional violation, as opposed to a
statutory, regulatory, or policy violation, precludes the application
of the discretionary function exception.” Spotts v. United States,
613 F.3d 559, 569 (5th Cir. 2010) (citing Castro, 608 F.3d 266).
3
The government’s briefing not only failed to distinguish this great
weight of authority, but did not even acknowledge it.
13
rally—an exclusion the court had already determined violated
the First Amendment. Id.; see Kiiskila v. Nichols, 433 F.2d
745, 746-51 (7th Cir. 1970) (en banc). The bank manager
sought damages under the FTCA, but the court of appeals
sustained dismissal of that claim as deriving from an FTCA-
excepted governmental “exercise of discretion, albeit
constitutionally repugnant.” Kiiskila, 466 F.2d at 627-28.
This circuit has yet to decide whether the FTCA’s
discretionary-function exception generally immunizes
allegedly unconstitutional abuses of discretion by the
government. In deciding that it does not, we follow the clear
weight of circuit authority. By the same token that the
government has no policymaking discretion to violate “a
federal statute, regulation, or policy specifically prescrib[ing]
a course of action for [its] employee to follow,” Berkovitz,
486 U.S. at 536, the government lacks discretion to make
unconstitutional policy choices. Although the discretionary-
function exception shields government policymakers’ lawful
discretion to set social, economic, and political policy
priorities from judicial second-guessing via tort law, there is
no blanket exception for discretion that exceeds constitutional
bounds.
As we have previously held, the policy discretion of
federal personnel acting in their official capacity is
necessarily “circumscribed by the rules that limit the bounds
of [their] authority.” Red Lake, 800 F.2d at 1197. Thus, in
Red Lake, we concluded that an FBI agent who, due to FBI
policy, lacked authority over non-FBI officials at a hostage
situation was unprotected by the discretionary-function
exception from a suit challenging orders he gave to officials
not under his lawful command. Id. at 1196-97. The
exception did not apply, we explained, because “[a]
government official has no discretion to violate the binding
14
laws, regulations, or policies that define the extent of his
official powers. An employee of the government acting
beyond his authority is not exercising the sort of discretion the
discretionary function exception was enacted to protect.” Id.
at 1196.
The discretionary-function exception likewise does not
shield decisions that exceed constitutional bounds, even if
such decisions are imbued with policy considerations. See
Medina, 259 F.3d at 225 (acknowledging, in reliance on
Berkovitz, 486 U.S. at 536, and Red Lake, 800 F.2d at 1196,
that federal officials lack discretion to violate constitutional
rights). A constitutional limit on governmental power, no less
than a federal statutory or regulatory one like the FBI policy
in Red Lake, circumscribes the government’s authority even
on decisions that otherwise would fall within its lawful
discretion. The government “has no ‘discretion’ to violate the
Federal Constitution; its dictates are absolute and imperative.”
Owen v. City of Independence, Mo., 445 U.S. 622, 649
(1980). Indeed, the absence of a limitation on the
discretionary-function exception for constitutionally ultra
vires conduct would yield an illogical result: the FTCA
would authorize tort claims against the government for
conduct that violates the mandates of a statute, rule, or policy,
while insulating the government from claims alleging on-duty
conduct so egregious that it violates the more fundamental
requirements of the Constitution.
Neither Moore, 65 F.3d 189, nor Gray, 712 F.2d 490, on
which the government relies, addressed whether the
discretionary-function exception immunizes even
unconstitutional decisions to prosecute. In those cases, as
here, we considered FTCA common-law tort claims against
the government premised on conduct also alleged to be
unconstitutional. Moore, 65 F.3d at 191; Gray, 712 F.2d at
15
495. The parties in Moore disputed the scope of the
discretionary-function exception as applied to various alleged
misdeeds relating to investigation and prosecution. We drew
the line between conduct tied to the “quintessentially
discretionary” decision to prosecute, which we held was
immunized, and “discrete” and “separable” activity such as
“disclosing grand jury testimony to unauthorized third
parties,” which we held was not. Id. at 196-97. The plaintiff
in Moore did not argue, nor did we consider, whether
constitutional limits on a prosecutor’s discretion affected the
discretionary-function exception’s applicability. See id.; see
also Br. of Plaintiff-Appellant, Moore v. United States, Nos.
99-5197 & 99-5198, 1999 WL 34834283 (D.C. Cir. Dec. 17,
1999). Similarly in Gray, the focus of dispute was whether
the prosecutors’ pre-indictment investigatory actions were
distinct from their clearly discretionary—and thus, all
assumed, immunized—decision to prosecute. 712 F.2d at
515-16. In holding that they were not, we nowhere discussed
any effect the alleged unconstitutionality of the prosecutors’
actions might have on the availability of the discretionary-
function exception. Id.
The government also contends that recognition of
constitutional limitations on the FTCA’s discretionary-
function exception would run counter to the Supreme Court’s
statement in FDIC v. Meyer, 510 U.S. 471, 478 (1994), that
“the United States simply has not rendered itself liable under
[the FTCA] for constitutional tort claims,” which are
actionable only against individual officials under Bivens, Br.
of the United States 18-19. Judge Smith voiced a similar
concern in his dissent from the Fifth Circuit panel decision in
Castro when he worried that, “by a plaintiff’s artful pleading,
the United States c[ould] be liable whenever the Constitution
is violated even though, under Meyer, the sovereign is not
subject to liability for constitutional torts.” Castro v. United
16
States, 560 F.3d 381, 394 (5th Cir. 2009) (Smith, J.,
dissenting), rev’d on reh’g en banc, 608 F.3d 266 (5th Cir.
2010).
But those contentions miscast the relationship between
FTCA state-law torts and Bivens constitutional claims. The
state-law substance of an FTCA claim is unchanged by
courts’ recognition of constitutional bounds to the legitimate
discretion that the FTCA immunizes. Federal constitutional
claims for damages are cognizable only under Bivens, which
runs against individual governmental officials personally. See
Meyer, 510 U.S. at 482, 485-86. The FTCA, in contrast,
provides a method to enforce state tort law against the federal
government itself. See 28 U.S.C. § 1346(b)(1); cf. Carlson v.
Green, 446 U.S. 14, 20-21 (1980) (describing distinct goals
and characteristics of FTCA and Bivens claims and
concluding that “Congress views FTCA and Bivens as
parallel, complementary causes of action”). A plaintiff who
identifies constitutional defects in the conduct underlying her
FTCA tort claim—whether or not she advances a Bivens
claim against the individual official involved—may affect the
availability of the discretionary-function defense, but she does
not thereby convert an FTCA claim into a constitutional
damages claim against the government; state law is
necessarily still the source of the substantive standard of
FTCA liability. The First Circuit has similarly emphasized, in
holding unconstitutional conduct to fall outside of “the sweep
of the discretionary function exception,” that it does not view
the government’s “constitutional transgressions as
corresponding to the plaintiffs’ causes of action—after all, the
plaintiffs’ claims are not Bivens claims—but rather, as
negating the discretionary function defense.” Limone, 579
F.3d at 102 & n.12.
17
The question remains whether or to what degree a
constitutional mandate must be specific or clearly established
to render the discretionary-function exception inapplicable.
Contending that the exception should at least immunize
governmental policy discretion that is not clearly
unconstitutional, the government adverts to the qualified-
immunity doctrine of Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982), under which a constitutional tort plaintiff seeking to
defeat an individual official’s qualified-immunity defense
must show that the claimed constitutional rights were “clearly
established,” Br. of the United States 19. The government
appreciates that qualified immunity as such applies only to
governmental officials sued in their individual capacities, not
to the government as an entity. Harlow, 457 U.S. at 818.
Qualified immunity—a form of official immunity—is directly
tied to “the risk that fear of personal monetary liability and
harassing litigation will unduly inhibit officials in the
discharge of their duties,” to the detriment of the public
interest. Anderson v. Creighton, 483 U.S. 635, 638 (1987);
see also Harlow, 457 U.S. at 816, 819.
We take the government to be arguing by analogy that
principles similar to those that undergird qualified immunity
should extend to preserve discretionary-function immunity for
some unconstitutional acts. We have found no precedent in
any circuit holding as the government urges, nor does it cite
any. At this juncture we see no cause to make this the first.
Indeed, the district court on remand might allow Loumiet’s
FTCA claims to proceed under a narrow standard such as the
government suggests.4 That would leave for another day the
4
Cf. Moore v. Hartman, 704 F.3d 1003, 1004 (D.C. Cir. 2013)
(noting that “the precedent in this Circuit clearly established in
1988 . . . the contours of the First Amendment right to be free from
retaliatory prosecution”); Moore v. Valder, 65 F.3d at 196 (holding
18
question whether the FTCA immunizes exercises of policy
discretion in violation of constitutional constraints that are not
already clear.
To resolve this appeal, we need go no further than to hold
that the district court erred as a matter of law in barring
Loumiet’s FTCA claims on the ground that, as a general
matter, “even constitutionally defective” exercises of
discretion fall within the Act’s discretionary-function
exception. Loumiet II, 65 F. Supp. 3d at 25. That broad-
brush approach is foreclosed by our holding today. The
district court should determine in the first instance whether
Loumiet’s complaint plausibly alleges that the OCC’s conduct
exceeded the scope of its constitutional authority so as to
vitiate discretionary-function immunity.
III
Loumiet also asserts that the district court erred in
dismissing his First and Fifth Amendment Bivens claims as
time-barred.5 Those claims did not accrue, he contends, until
the OCC finally dismissed its enforcement action on July 27,
2009, because the agency’s ongoing prosecution of that action
inflicted continuing harm until its final dismissal. The
defendants counter that Loumiet failed to raise that
continuing-violations argument before the district court and
that a “retaliatory prosecution claim . . . does allege the violation of
clearly established law”).
5
Loumiet’s Fifth Amendment due-process and First Amendment
speech-based retaliation claims are premised on identical
allegations, and Loumiet does not argue that they should have
different dates of accrual. Accordingly, like the district court, we
do not differentiate between those claims in assessing their
timeliness. See Loumiet I, 968 F. Supp. 2d at 150 n.2.
19
that the doctrine in any event does not assist him. For the
following reasons, we conclude that Loumiet adequately
advanced the continuing-violations doctrine before the district
court, and that his Bivens claims, staked on continuing,
harmful conduct, were timely.
“When a federal action contains no statute of limitations,
courts will ordinarily look to analogous provisions in state
law as a source of a federal limitations period.” Doe v. Dep’t
of Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985); see id. at
1114-15 (applying state limitations period in Bivens action).
In this case, there is no dispute that the District of Columbia’s
general three-year statute of limitations applies to Loumiet’s
Bivens claims. See D.C. Code § 12-301(8). Therefore, if
Loumiet’s claims accrued before July 9, 2009—more than
three years before he filed his July 9, 2012, complaint—they
would be barred by the statute of limitations.
State law dictates the statute of limitations, but the timing
of the accrual of Loumiet’s claims is a question of federal
law. Cf. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“[T]he
accrual date of a § 1983 cause of action is a question of
federal law that is not resolved by reference to state law.”).
Ordinarily, “accrual occurs when the plaintiff has a complete
and present cause of action, that is, when the plaintiff can file
suit and obtain relief.” Id. (internal quotation marks,
alterations, and citations omitted). In other words, “[a] claim
normally accrues when the factual and legal prerequisites for
filing suit are in place.” Earle v. District of Columbia, 707
F.3d 299, 306 (D.C. Cir. 2012) (quoting Norwest Bank Minn.
Nat’l Ass’n v. FDIC, 312 F.3d 447, 451 (D.C. Cir. 2002)).
The defendants contend, and the district court agreed,
Loumiet I, 968 F. Supp. 2d at 149-53, that under that general
accrual rule, Loumiet’s First and Fifth Amendment retaliatory
20
prosecution claims are time-barred because all of the events
underpinning each of the elements of those claims took place
well before the statute-of-limitations cutoff of July 9, 2009.
We need not decide whether Loumiet’s claims would have
been untimely under the general accrual rule, however,
because we agree with Loumiet’s contention that the
continuing-violations doctrine displaced it here to render his
claims timely filed.
As an initial matter, Loumiet adequately raised, and thus
preserved for our review, his continuing-violations argument.
The district court relied on that argument in holding that the
FTCA claims were timely, but treated it as forfeited for the
Bivens claims. See Loumiet I, 968 F. Supp. 2d at 152 n.3,
155; Loumiet II, 65 F. Supp. 3d at 24-25. In addressing the
timeliness of his claims before the district court, however,
Loumiet expressly analogized his Bivens retaliatory
prosecution claims to his FTCA tort claims, characterizing the
former as “simply an offspring of the OCC’s malicious
prosecution.” Pl. Opp. to Mot. to Dismiss, App. Tab 3 at 35.
Loumiet thus adequately incorporated by reference his
invocation of the continuing-violations theory as to his FTCA
claims. Compare id. at 35-36, with id. at 49-51. We therefore
consider the argument.
Even while this court “do[es] not lightly create
exceptions to the general rule of claim accrual,” Earle, 707
F.3d at 306 n.9, it has “recognized various exceptions to, and
glosses on, the rule” including the “muddled, . . . intricate[,]
and somewhat confusing” continuing-violations, or
continuing-tort, doctrine, id. at 309 (internal quotation marks
omitted). The continuing-violations doctrine applies where
“no single incident in a continuous chain of tortious activity
can ‘fairly or realistically be identified as the cause of
significant harm,’” and so it is “proper to regard the
21
cumulative effect of the conduct as actionable.” Page v.
United States, 729 F.2d 818, 821-22 (D.C. Cir. 1984) (quoting
Fowkes v. Penn. R.R. Co., 264 F.2d 397, 399 (3d Cir. 1959)).
The court has recognized two types of continuing violations,
only the second of which is implicated here: (1) where
defendants violated a statutorily imposed continuing
obligation, Earle, 707 F.3d at 307; or (2) where the “character
[of the challenged conduct] as a violation did not become
clear until it was repeated during the limitations period,
typically because it is only its cumulative impact (as in the
case of a hostile work environment) that reveals its illegality,”
id. at 306 (quoting Taylor v. FDIC, 132 F.3d 753, 765 (D.C.
Cir. 1997)).
In Page, we recognized the latter type of continuing
violation in the context of an FTCA claim alleging a
“gradual” injury “resulting from the cumulative impact of
years of allegedly tortious drug treatment.” 729 F.2d at 822.
It “seem[ed] unrealistic,” we explained, “to regard each
prescription of drugs as the cause of a separate injury, or as a
separate tortious act triggering a new limitation period.” Id. at
822-23. Accordingly, we held that the plaintiff’s claim did
not accrue until the conclusion of what was alleged to have
been nearly twenty years of tortious drug treatment. Id. at
819, 822-23.
Under our decision in Whelan, that reasoning holds true
where a plaintiff has alleged that the full course of legal
proceedings effected a single, cumulative harm. We held
there that a claim of tortious interference with business
opportunities could proceed even if the business opportunities
did not exist at the time of the allegedly interfering lawsuit,
because under the continuing-violations doctrine, “a lawsuit is
a continuous, not an isolated event,” the effects of which
“persist from the initial filing to the final disposition of the
22
case.” 953 F.2d at 673. Put another way, a lawsuit “is
repetitive in that it represents the assertion, every day, of the
plaintiff’s claim,” and “[a] defendant subject to a lawsuit is
likely to suffer damage not so much from the initial complaint
but from the cumulative costs of defense and the reputational
harm caused by an unresolved claim.” Id. A lawsuit is thus
different from the typical case of a “mere failure to right a
wrong and make the plaintiff whole.” Id. (quoting Fitzgerald
v. Seamans, 553 F.2d 220, 230 (D.C. Cir. 1977)).
Page and Whelan are dispositive here. Loumiet alleges
continuing harm resulting not only from the filing of the
OCC’s frivolous, retaliatory legal proceedings against him,
but also from the agency’s continued prosecution of Loumiet
and associated publicity over a period of many years. It is not
only the initiation of the OCC’s action that Loumiet identified
as harmful; he also cited, among other things, the experts the
OCC sought to put on the stand, Compl. ¶¶ 93-94, App. Tab 2
at 52-54, statements made to the press, id. ¶¶ 15-16, 85, 91,
App. Tab 2 at 4-5, 48-49, 51-52, the three-week trial in which
Loumiet had to defend himself against baseless allegations,
id. ¶¶ 94-105, App. Tab 2 at 59-60, the testimony levelled
against him, id. ¶¶ 94-95, 98-105, App. Tab 2 at 53-54, 56-60,
and the four years of decreased income, downgraded
partnership stake, and continuing emotional distress he alleges
he suffered throughout the pendency of the OCC enforcement
action, id. ¶ 106, App. Tab 2 at 60-61. As with the ongoing
tort in Whelan, the commencement of the OCC action at issue
here was but “the first link in a chain of conduct that d[id] not
end until the [OCC] cease[d] prosecution of the suit.” 953
F.2d at 674 (citing Page, 729 F.2d at 821-22).
The defendants contend that neither Page nor Whelan
applies because neither case involved a Bivens claim.
Limitations doctrines are typically trans-substantive, however,
23
and this one is no exception. Whelan places squarely within
the scope of the continuing-violations doctrine ongoing legal
proceedings that cause continuing harm. 953 F.2d at 673-74.
The defendants offer no reason why that rule should differ in
the Bivens context. Cf. Va. Hosp. Ass’n v. Baliles, 868 F.2d
653, 663 (4th Cir. 1989), aff’d sub nom. Wilder v. Va. Hosp.
Ass’n, 496 U.S. 498 (1990) (applying continuing-violations
doctrine to delay accrual in § 1983 case). Loumiet filed his
Bivens claims on July 9, 2012, within three years of the
OCC’s July 27, 2009, dismissal of its enforcement action
against him. Those claims were therefore timely.
Accordingly, we remand to the district court for its
consideration of the remaining defenses raised but not yet
decided in the district court. See Loumiet I, 968 F. Supp. 2d
at 149.6
***
For the foregoing reasons, we reverse the dismissal order
of the district court and remand for further proceedings
consistent with this opinion.
So ordered.
6
Because we reverse the dismissal of Loumiet’s Bivens claims, we
need not reach the question whether the district court abused its
discretion in denying Loumiet’s motion for reconsideration as to
those claims.