Carlos Loumiet v. United States ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2018 Decided January 28, 2020
No. 18-5020
CARLOS LOUMIET, ESQUIRE,
APPELLEE
v.
UNITED STATES OF AMERICA,
APPELLEE
MICHAEL RARDIN, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01130)
Tyce R. Walters, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Jessie K. Liu, U.S. Attorney, and Mark B. Stern, Attorney.
Carlos Loumiet, pro se, argued the cause for appellee. On
the brief was Andrés Rivero.
Before: GARLAND, Chief Judge, KATSAS, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KATSAS.
2
KATSAS, Circuit Judge: In Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), the Supreme Court held that the Fourth Amendment
creates an implied damages action for unconstitutional
searches against line officers enforcing federal drug laws. In
this case, we consider whether the First Amendment creates an
implied damages action against officials in the Office of the
Comptroller of the Currency (OCC) for retaliatory
administrative enforcement actions under the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989
(FIRREA). Consistent with the Supreme Court’s marked
reluctance to extend Bivens to new contexts, we hold that the
First Amendment does not create such an implied damages
action.
I
In 1999, the OCC began an investigation of Hamilton
Bank and three of its executives for the allegedly fraudulent
concealment of some $22 million in loan losses. The bank
retained an outside law firm to investigate the charges. Carlos
Loumiet, then a partner at the law firm, prepared two reports.
The first one, made for the bank’s auditing committee and
shared with the OCC, was issued in November 2000. It found
no convincing evidence that the executives had fraudulently
concealed the losses. The OCC was skeptical and provided
Loumiet with additional evidence. In response, Loumiet
prepared a second report, issued in March 2001. It concluded
that the disputed transactions were poorly handled but still
found insufficient evidence to conclude that the executives had
fraudulently concealed the losses. The OCC disagreed and
placed the bank into a receivership. Later, the executives were
indicted. Two of them pleaded guilty; the third, Hamilton’s
former chairman and chief executive officer, was convicted
3
and sentenced to thirty years of imprisonment. United States
v. Masferrer, 514 F.3d 1158 (11th Cir. 2008).
According to Loumiet, OCC officials engaged in various
forms of misconduct during the investigation. The alleged
misconduct included lying to Hamilton officers, threatening to
retaliate against its lawyers, and making racist statements. In
March and April 2001, Loumiet raised these allegations with
the Secretary of the Treasury, the Inspector General of the
Treasury Department, and the Comptroller. In June 2001,
Loumiet met with an attorney in the Inspector General’s Office
to discuss his allegations. In July 2001, the Inspector General
concluded that there was no basis to investigate them any
further. Nonetheless, Loumiet represented the bank in suing
the OCC for alleged civil-rights violations. The bank
voluntarily dismissed its suit in 2002. Order of Dismissal,
Hamilton Bank, N.A. v. Comptroller, No. 01-4994 (S.D. Fla.
Oct. 16, 2002), ECF Doc. 64.
In 2006, after the Hamilton executives were convicted, the
OCC brought an administrative enforcement action against
Loumiet, one of his partners, and his law firm. The OCC
proceeded under FIRREA, which allows it to seek civil
penalties from “any institution-affiliated party” who breaches
a fiduciary duty to a federally-insured bank and thereby
“causes or is likely to cause more than a minimal loss” to the
bank. 12 U.S.C. § 1818(i)(2)(B). In turn, FIRREA defines an
“institution-affiliated party” to include “any attorney” who
“knowingly or recklessly participates in” a breach of fiduciary
duty that “caused or is likely to cause more than a minimal
financial loss to, or a significant adverse effect on” the bank.
Id. § 1813(u)(4). The law firm and Loumiet’s partner settled
with the OCC and agreed to pay $750,000 in fines. Loumiet
contested the charges against him. An Administrative Law
Judge recommended their dismissal on the ground that Loumiet
4
had not breached any fiduciary duty. Recommended Decision,
In re Loumiet, OCC-AA-EC-06-102 (June 18, 2008). The
Comptroller disagreed, but nonetheless dismissed on the
alternative ground that Loumiet had not caused the bank any
harm. Final Decision & Order, In re Loumiet, OCC-AA-EC-
06-102 (July 27, 2009).
Loumiet sought fees under the Equal Access to Justice Act
(EAJA). In pertinent part, EAJA allows a prevailing private
party in an administrative adjudication to recover “fees and
other expenses” unless the adjudicator “finds that the position
of the agency was substantially justified.” 5 U.S.C.
§ 504(a)(1). The OCC denied fees, but we reversed on the
ground that there was no substantial justification for the OCC’s
position that Loumiet could have significantly harmed the
bank. Loumiet v. OCC, 650 F.3d 796 (D.C. Cir. 2011). We
reasoned that even if Loumiet’s false exoneration of the
executives caused the bank to “retain the dishonest officers,”
there was no evidence that this harmed the bank. Id. at 800.
On remand, Loumiet was awarded $675,000.
Loumiet then filed this lawsuit against the United States
and four OCC officials. He asserted Bivens claims against the
officials as well as various tort claims. The Bivens claims rest
on the theory that the officials caused the OCC enforcement
action in retaliation for Loumiet’s protected speech criticizing
the OCC investigation, in violation of the First and Fifth
Amendments of the Constitution. The district court held that
the Bivens claims were untimely, and it dismissed the tort
claims on other grounds. Loumiet v. United States, 65 F. Supp.
3d 19 (D.D.C. 2014). We reversed both rulings. Loumiet v.
United States, 828 F.3d 935 (D.C. Cir. 2016).
On remand, the district court declined to dismiss the First
Amendment Bivens claims. Loumiet v. United States, 255
5
F. Supp. 3d 75, 83–96 (D.D.C. 2017). The court reasoned that
prior decisions had already “recognized the existence of a
Bivens implied cause-of-action for retaliatory prosecution in
violation of the First Amendment.” Id. at 84. Likewise, the
court concluded that the procedural and remedial protections
provided under FIRREA do not counsel against recognizing an
implied damages action. See id. at 85–90. The court further
held that the complaint plausibly stated First Amendment
claims against the OCC officials who allegedly “induce[d] an
enforcement action against Plaintiff in reprisal for critical
statements that he made against them and the OCC more
generally.” Id. at 95. And it denied those officials qualified
immunity on the ground that the “First Amendment right to be
free from retaliatory prosecution” was clearly established long
before 2006. Id. at 93 (quotation marks omitted). Finally, the
court held that the Fifth Amendment count did not state a claim,
converted the tort claims against the individual defendants into
claims against the United States, and dismissed some but not
all of the tort claims. Id. at 97–100.
After the Supreme Court decided Ziglar v. Abbasi, 137
S. Ct. 1843 (2017), the officials moved for reconsideration.
The district court denied the motion. Loumiet v. United States,
292 F. Supp. 3d 222 (D.D.C. 2017). In light of Abbasi, the
court assumed that Loumiet was seeking to extend Bivens into
a “new context.” Id. at 229. But the court concluded that the
“special factors counselling hesitation” in Abbasi, which
involved programmatic actions undertaken by high-ranking
officials in response to terrorist attacks, were not present in this
case. Id. at 227 (quotation marks omitted); see id. at 229–31.
Finally, the court discounted the significance of EAJA in its
special-factors analysis because that statute was not enacted as
part of FIRREA. Id. at 232–38.
 6
The OCC officials now seek review of the district court’s
refusal to dismiss the First Amendment claims against them.
II
We begin, as we must, with our jurisdiction. See Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). We have
jurisdiction to review “final decisions” of the district court. 28
U.S.C. § 1291. Under the collateral-order doctrine, the “denial
of a claim of qualified immunity, to the extent that it turns on
an issue of law, is an appealable ‘final decision’” within the
meaning of section 1291. Mitchell v. Forsyth, 472 U.S. 511,
530 (1985). We thus have jurisdiction to decide whether the
OCC officials are entitled to qualified immunity on the First
Amendment claims.
We also have jurisdiction to decide whether the First
Amendment confers upon Loumiet an implied cause of action
for damages. Because “the recognition of the entire cause of
action” is “directly implicated by the defense of qualified
immunity,” both questions are “properly before us on
interlocutory appeal.” Wilkie v. Robbins, 551 U.S. 537, 549 n.4
(2007) (quotation marks omitted); see Liff v. Office of Inspector
Gen. for U.S. Dep’t of Labor, 881 F.3d 912, 917–18 (D.C. Cir.
2018).
III
In this court, the OCC officials contend that the First
Amendment creates no implied cause of action for damages
and that, in any event, they are entitled to qualified immunity
on the facts alleged by Loumiet. We begin with the cause-of-
action question, which is antecedent to the question of qualified
immunity. See Liff, 881 F.3d at 918 (“it is appropriate to
determine the availability of a Bivens remedy at the earliest
practicable phase of litigation”).
7
A
The Free Speech Clause of the First Amendment provides
that “Congress shall make no law … abridging the freedom of
speech.” Neither the First Amendment, nor any other provision
of the Constitution, provides an express cause of action for its
own violation. Congress has provided a statutory cause of
action against state officials for violations of the federal
Constitution, 42 U.S.C. § 1983, but it has provided no such
cause of action against federal officials. Nonetheless, Loumiet
asks us to hold that the First Amendment, by its own force,
creates an implied cause of action for damages against OCC
and other federal officials for retaliatory enforcement activities.
The Supreme Court first recognized an implied damages
action under the Constitution in Bivens. There, the Court held
that the Fourth Amendment creates an implied damages action
against federal narcotics officers for unconstitutional searches
and seizures. 403 U.S. at 389. Over the next decade, the
Supreme Court recognized two more implied damages actions
under the Constitution—one under the Fifth Amendment
against members of Congress for employment discrimination
on the basis of sex, Davis v. Passman, 442 U.S. 228, 248–49
(1979), and one under the Eighth Amendment against federal
prison officials for failure to provide adequate medical care,
Carlson v. Green, 446 U.S. 14, 19 (1980).
Since Carlson, however, the Supreme Court has carefully
circumscribed Bivens and “consistently refused to extend
Bivens to any new context or new category of defendants.”
Abbasi, 137 S. Ct. at 1857 (quotation marks omitted).
Recognizing an implied damages action “is a significant step
under separation-of-powers principles.” Id. at 1856. Imposing
personal liability on federal officers may promote important
interests in deterring constitutional violations and redressing
8
injuries, but it also “create[s] substantial costs” for the officers,
the government, and citizens who depend on the vigorous
enforcement of federal law. Id. The Constitution itself is silent
on how to balance these competing considerations in various
contexts, and judges are not well-suited to do so. Rather, “[i]n
most instances … the Legislature is in the better position to
consider if the public interest would be served by imposing a
new substantive legal liability.” Id. at 1857 (quotation marks
omitted). Moreover, in the decades since Bivens was decided,
the Court has grown wary of creating implied damages actions
in other contexts. See id. at 1855–56. For these reasons,
“expanding the Bivens remedy is now a disfavored judicial
activity,” so the Supreme Court demands “caution before
extending Bivens remedies into any new context.” Id. at 1857
(quotation marks omitted).
Exercising this caution, the Supreme Court has not
recognized a new Bivens action in the four decades since
Carlson was decided. At the same time, the Court has declined
to extend Bivens on ten separate occasions. Once, it declined
to create a Bivens cause of action because Congress had made
another remedy expressly exclusive. Hui v. Castaneda, 559
U.S. 799, 805–07 (2010). Twice, it declined to extend Bivens
to areas where Congress had provided an alternative scheme of
protections and remedies. Schweiker v. Chilicky, 487 U.S. 412,
424–29 (1988) (Social Security disability benefits); Bush v.
Lucas, 462 U.S. 367, 380–90 (1983) (federal employment).
Three times, it declined to extend Bivens to sensitive areas.
Abbasi, 137 S. Ct. at 1860–63 (national security); United States
v. Stanley, 483 U.S. 669, 678–86 (1987) (military); Chappell v.
Wallace, 462 U.S. 296, 298–305 (1983) (military). Three
times, it declined to extend Bivens to new categories of
defendants. Minneci v. Pollard, 565 U.S. 118, 126–31 (2012)
(private individuals); Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 70–74 (2001) (private corporations); FDIC v. Meyer, 510
9
U.S. 471, 484–86 (1994) (federal agencies). Once, it declined
to extend Bivens simply because Congress is better positioned
to evaluate when agency officials “push too hard for the
Government’s benefit,” and what consequences should follow
if they do so. Robbins, 551 U.S. at 562.
After reviewing these precedents, Abbasi set out a two-part
test to decide when to recognize implied damages actions under
Bivens. First, we must consider whether the plaintiff seeks to
extend Bivens into a “new context.” If so, we then must
consider whether there are any “special factors counselling
hesitation.” See 137 S. Ct. at 1857–60.
B
The new-context inquiry in this case is straightforward.
According to the Supreme Court, “[t]he proper test for
determining whether a case presents a new Bivens context is as
follows. If the case is different in a meaningful way from
previous Bivens cases decided by this Court, then the context
is new.” Abbasi, 137 S. Ct. at 1859. The Court has provided a
non-exhaustive “list of differences that are meaningful enough
to make a given context a new one”:
the rank of the officers involved; the constitutional
right at issue; the generality or specificity of the
official action; the extent of judicial guidance as to
how an officer should respond to the problem or
emergency to be confronted; the statutory or other
legal mandate under which the officer was operating;
the risk of disruptive intrusion by the Judiciary into
the functioning of other branches; or the presence of
potential special factors that previous Bivens cases did
not consider.
10
Id. at 1859–60. In addition, a “new context” is present
whenever the plaintiff seeks damages from a “new category of
defendants.” See id. at 1857 (quotation marks omitted);
Meshal v. Higgenbotham, 804 F.3d 417, 424 (D.C. Cir. 2015).
Under these criteria, “even a modest extension is still an
extension,” and so “the new-context inquiry is easily satisfied.”
Abbasi, 137 S. Ct. at 1864–65.
This case clearly presents a new Bivens context. First, the
constitutional right at issue differs from the ones at issue in
Bivens, Davis, and Carlson. Loumiet alleges a violation of the
Free Speech Clause of the First Amendment, but Bivens was a
Fourth Amendment search-and-seizure case, 403 U.S. at 389;
Davis was a Fifth Amendment sex-discrimination case, 442
U.S. at 231; and Carlson was an Eighth Amendment medical-
care case, 446 U.S. at 16 & n.1. Although the Supreme Court
twice has assumed that the First Amendment creates an implied
cause of action for damages, see Ashcroft v. Iqbal, 556 U.S.
662, 675 (2009) (Free Exercise Clause); Hartman v. Moore,
547 U.S. 250, 256 (2006) (Free Speech Clause), it has “never
held that Bivens extends to First Amendment claims,” Reichle
v. Howards, 566 U.S. 658, 663–64 n.4 (2012). Abbasi removed
any possible doubt on this point. There, the Supreme Court
stressed that “three cases—Bivens, Davis, and Carlson—
represent the only instances in which the Court has approved
of an implied damages remedy under the Constitution itself.”
137 S. Ct. at 1855. To the extent we suggested otherwise in
Munsell v. Department of Agriculture, 509 F.3d 572, 587–88
(D.C. Cir. 2007)—a case rejecting Bivens claims for failure to
exhaust, see id. at 591—Reichle and Abbasi have displaced that
dicta. And though we previously recognized First Amendment
Bivens claims in Haynesworth v. Miller, 820 F.2d 1245, 1255
(D.C. Cir. 1987), and Moore v. Valder, 65 F.3d 189, 196 n.12
(D.C. Cir. 1995), those cases have been overtaken by Abbasi’s
holding that the new-context analysis may consider only
11
Supreme Court decisions approving Bivens actions. See 137
S. Ct. at 1859.
Second, the legal mandate under which the OCC officials
were operating is different from the ones in Bivens, Davis, and
Carlson. The dispute here arose from the enforcement of
federal banking laws under FIRREA, whereas Bivens involved
the enforcement of federal drug laws, 403 U.S. at 389; Davis
involved employment decisions by members of Congress, 442
U.S. at 230; and Carlson involved the provision of medical care
to federal prisoners, 446 U.S. at 16.
Third, Loumiet seeks damages from a new category of
defendants. The defendants here are OCC officials, whereas
the defendants in Bivens were federal narcotics agents, 403
U.S. at 389; the defendant in Davis was a former member of
Congress, 442 U.S. at 230; and the defendants in Carlson were
federal prison officials, 446 U.S. at 16. For each of these
reasons, this case presents a new context.
C
We next consider whether special factors counsel
hesitation. One factor stands out here: “if there is an alternative
remedial structure present in a certain case, that alone may limit
the power of the Judiciary to infer a new Bivens cause of
action.” Abbasi, 137 S. Ct. at 1858. Likewise, “when
alternative methods of relief are available, a Bivens remedy
usually is not.” Id. at 1863. Two Supreme Court cases—Bush
and Chilicky—illustrate these special factors.
In Bush, the Court refused to extend Bivens to a federal
employee allegedly demoted in retaliation for protected speech
criticizing his employer. 462 U.S. at 368–69. As the Court
explained, federal workers are “protected by an elaborate,
comprehensive scheme that encompasses substantive
12
provisions forbidding arbitrary action by supervisors and
procedures—administrative and judicial—by which improper
action may be redressed.” Id. at 385; see also id. at 368
(observing that the scheme affords “meaningful remedies
against the United States”). The Court held that such an
“elaborate remedial system that has been constructed step by
step, with careful attention to conflicting policy
considerations,” should not be “augmented by the creation of a
new judicial remedy” for the claimed First Amendment
violation. Id. at 388.
In Chilicky, the Court refused to extend Bivens to
individuals denied Social Security disability benefits, allegedly
in violation of the Fifth Amendment Due Process Clause. 487
U.S. at 414. Applying Bush, the Court concluded that the
“administrative structure and procedures of the Social Security
system” was a special factor counselling hesitation. Id. at 424.
That system established “federal standards and criteria” for the
provision of benefits, created “elaborate administrative
remedies” for claimants denied benefits, and provided for
“judicial review, including review of constitutional claims.”
Id. But it made “no provision for remedies in money damages
against officials responsible for unconstitutional conduct that
leads to the wrongful denial of benefits,” and the Court
declined to recalibrate the scheme to add that remedy. Id. at
424–25.
On three occasions, we have applied Bush and Chilicky to
reject Bivens claims. In Spagnola v. Mathis, 859 F.2d 223
(D.C. Cir. 1988) (en banc), we confirmed that the Civil Service
Reform Act bars First Amendment Bivens claims by
individuals allegedly denied federal employment or promotion
in retaliation for protected speech. See id. at 224–25, 229. We
stressed that, under Bush and Chilicky, “it is the
comprehensiveness of the statutory scheme involved, not the
13
‘adequacy’ of specific remedies extended thereunder, that
counsels judicial abstention.” Id. at 227. In Wilson v. Libby,
535 F.3d 697 (D.C. Cir. 2008), we held that the Privacy Act
barred First and Fifth Amendment Bivens claims brought by a
plaintiff alleging that her status as a covert agent had been
unconstitutionally disclosed. See id. at 702–04. And we did so
even though the Privacy Act, which authorizes private damages
actions for willful violations, exempts the Offices of the
President and the Vice President from coverage—and thus
afforded no remedy against the defendants in the case. See id.
at 706–08. In Liff, we held that the “myriad statutes and
regulations that provide remedies for contracting-related
disputes,” which collectively afford a “spectrum of remedies,”
bar the imposition of Bivens liability for claims arising out of
federal government contracts. See 881 F.3d at 920–21. In each
of these cases, we declined to question whether the remedial
scheme at issue was the “best response” in the specific context
at issue, “for Congress is the body charged with making the
inevitable compromises required.” Spagnola, 859 F.2d at 228
(cleaned up).
Here, FIRREA’s administrative enforcement scheme is
likewise a special factor counselling hesitation. This scheme
permits the imposition of civil penalties only for defined
offenses such as knowingly breaching a fiduciary duty or
recklessly engaging in an unsound banking practice. 12 U.S.C.
§ 1818(i)(2)(A)–(C). Any party subject to a penalty is entitled
to advance notice and a hearing, id. § 1818(i)(2)(H), which
must be conducted in accordance with the Administrative
Procedure Act, id. § 1818(h)(1). Thus, the party is entitled to
make arguments, cross-examine witnesses, and submit oral,
documentary, and rebuttal evidence. 5 U.S.C. § 554(c)(1); id.
§ 556(d). Enforcement officials within the OCC bear the
burden of proof and cannot participate or advise in the decision.
Id. § 556(b) & (d). And the presiding official, if not the OCC
14
itself, must be a duly appointed ALJ, id. § 556(b), who must
render a recommended decision on a closed record with a
statement of reasons, id. § 557(c), and without any ex parte
contacts relevant to the proceeding, id. § 557(d). FIRREA also
requires the OCC to augment these procedures with
implementing regulations, 12 U.S.C. § 1818(i)(2)(K), under
which administrative respondents are entitled to be represented
by counsel, 12 C.F.R. § 19.35; seek summary disposition, id.
§ 19.29; apply for document subpoenas, id. § 19.26; object to
evidence, id. § 19.36(d); depose unavailable witnesses, id.
§ 19.36(f); and more. The ALJ’s recommended decision is
then subject to further review by the Comptroller himself,
5 U.S.C. § 557(b), and his decision in turn is subject to judicial
review in a court of appeals, 12 U.S.C. § 1818(h)(2). Similar
rules, protections, and review attend other exercises of OCC
administrative enforcement, including the adjudication of
cease-and-desist orders, id. § 1818(b), and the removal of
affiliated individuals from participating in a bank’s affairs, id.
§ 1818(e). Together, these provisions afford regulated parties
an “alternative, existing process for protecting [their] interest.”
Abbasi, 137 S. Ct. at 1858 (quotation marks omitted).
Moreover, the FIRREA enforcement scheme gives
regulated parties a sword as well as a shield. Under EAJA, any
party prevailing in a contested agency adjudication is entitled
to “fees and other expenses incurred by that party in connection
with that proceeding,” unless the ALJ “finds that the position
of the agency was substantially justified or that special
circumstances make an award unjust.” 5 U.S.C. § 504(a)(1).
This stands in marked contrast to the American Rule, under
which “the prevailing litigant is ordinarily not entitled to
collect a reasonable attorneys’ fee from the loser.” Alyeska
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247
(1975). Fee awards under EAJA can be substantial, as
evidenced by Loumiet’s own award of $675,000. The FIRREA
15
scheme thus affords “meaningful remedies against the United
States,” Bush, 462 U.S. at 368, as a general matter and in this
case.
One more aspect of the scheme is important—judicial
review, although available, is carefully circumscribed.
Specifically, FIRREA provides that “[j]udicial review” of any
OCC administrative adjudication “shall be exclusively as
provided” in FIRREA itself, which channels such review to the
courts of appeals. 12 U.S.C. § 1818(h)(1) & (2). Likewise,
FIRREA provides that, in any district-court action to enforce a
civil penalty, “the validity and appropriateness of the penalty
shall not be subject to review.” Id. § 1818(i)(2)(I)(ii). These
provisions come close to foreclosing a Bivens action expressly,
just as the exclusive-review provision at issue in Castaneda
expressly foreclosed Bivens actions against officers of the
Public Health Service. See 559 U.S. at 805–06. At a minimum,
the precise nature of the available judicial review makes clear
that Congress did not “inadvertently” omit a damages remedy
from FIRREA, see Liff, 881 F.3d at 921; Wilson, 535 F.3d at
708; Spagnola, 859 F.2d at 228, underscoring that the courts
should not augment the scheme to supply one. See Abbasi, 137
S. Ct. at 1865 (“legislative action suggesting that Congress
does not want a damages remedy is itself a factor counseling
hesitation”).
Loumiet’s contrary arguments are all without merit. First,
he contends that the procedural protections afforded in the
FIRREA administrative process are not remedies at all. True
enough, but they do help constrain the unconstitutional
exercise of government power—unlike the largely or wholly
unregulated search in Bivens, hiring decision in Davis, and care
provision in Carlson. Moreover, as explained above, we rely
not only on procedural protections, but also on the affirmative
EAJA remedy and the channeled nature of the judicial review
16
provided. Second, Loumiet contends that EAJA cannot be
considered because it is a separate statute from FIRREA. But
in Liff, we assessed special factors by considering the full
“constellation of statutes and regulations governing federal
contracts, as well as the Privacy Act.” 881 F.3d at 920. There
is no reason to disregard any of the statutes establishing the
governing scheme. Third, Loumiet contends that he is not
subject to the FIRREA scheme at all, because the Comptroller
concluded that he is not an institution-affiliated party. But
Loumiet—as an attorney for a federally-insured bank—was not
wholly outside the regulatory scheme. To the contrary, the
Comptroller concluded that Loumiet was not an institution-
affiliated party only because his conduct did not harm the bank.
If it had, he might have been subject to a penalty. Compare
12 U.S.C. § 1813(u)(4) (definition of “institution-affiliated
party”), with id. § 1818(i)(2)(A)–(C) (penalties for institution-
affiliated parties). Loumiet does not fall outside the FIRREA
scheme simply because he won his individual case. Finally,
Loumiet argues that the remedy afforded to him was
insufficient. But Bush and Chilicky were decided on the
premise that the available remedy in each of those cases—
setting aside an adverse personnel decision or denial of
benefits—was less effective than would be an award of full
damages for all consequential harms. See Chilicky, 487 U.S. at
425. Moreover, we later held that, so long as the administrative
scheme is comprehensive, a Bivens remedy is unavailable even
if the plaintiff before the court is afforded no remedy at all. See
Wilson, 535 F.3d at 709.
We recognize that retaliatory enforcement actions can be
hard to ferret out in administrative processes and can impose
harms well beyond those remediable through EAJA. On the
other hand, charges of a retaliatory motive are easy to make,
hard to disprove, potentially crippling to regulators, and
perhaps not unlikely in the context of hotly contested
17
adversarial proceedings. As in Abbasi, there is a hard “balance
to be struck” in considering whether to create a damages
remedy for the kind of claim that Loumiet seeks to press here.
137 S. Ct. at 1863. That decision is best left to Congress.
IV
The First Amendment creates no implied damages action
against OCC officials for inducing an allegedly retaliatory
administrative enforcement proceeding. We therefore reverse
the district court’s judgment and remand the case with
instructions to dismiss Loumiet’s First Amendment claims.
So ordered.