1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CARLOS LOUMIET,

Plaintiff,

v.

UNITED STATES OF AMERICA, et al.,

Defendants.

Civil Action No. 12-1130 (CKK)

MEMORANDUM OPINION

(June 13, 2017)

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 FTCA 

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. 
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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 

 1 The Court’s consideration has focused on the following documents:

• Individual Defs.’ Mot. to Dismiss and Statement of P&A in Supp., ECF No. 62 

(“Ind. Defs.’ Mem.”);

• United States’ Mot. to Dismiss and Statement of P&A in Supp., ECF No. 63 (“U.S. 

Mem.”); 

• Carlos Loumiet’s Opp’n to the Individual Defs.’ Mot. to Dismiss under Fed. R. Civ. 

P. 12(b)(6) and the United States’ Mot. to Dismiss under Fed. R. Civ. P. 12(b)(6) 

and 12(b)(1), ECF No. 64 (“Opp’n Mem.”);

• Reply Mem. of P&A in Supp. of the Defs.’ Mot. to Dismiss, ECF No. 66 (“Reply 

Mem.”). 
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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. 

II. LEGAL STANDARD

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 

 2 The full sequence of decisions is as follows: Loumiet v. United States, 968 F. Supp. 2d 

142 (D.D.C. 2013) (Loumiet I); Loumiet v. United States, 65 F. Supp. 3d 19 (D.D.C. 2014) 

(Loumiet II); Loumiet v. United States, 106 F. Supp. 3d 219 (D.D.C. 2015) (Loumiet III); 

Loumiet v. United States, 828 F.3d 935 (D.C. Cir. 2016) (“Loumiet IV”). In addition, the 

D.C. Circuit previously ruled on Plaintiff’s application for attorney fees under the Equal 

Access to Justice Act (“EAJA”) in connection with his defense before the OCC, Loumiet 

v. Office of Comptroller of Currency, 650 F.3d 796, 798 (D.C. Cir. 2011) (“Loumiet EAJA”).
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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).
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III. DISCUSSION

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 
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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 
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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 
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(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 
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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 
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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 
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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. 
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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 
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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 
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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 crossexamine 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 
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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, 
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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

remedy.” Munsell, 509 F.3d at 590. Moreover, the D.C. Circuit opined that even 

“assuming, arguendo, that the existence of APA review might factor into a determination 

as to whether a Bivens remedy is available, its relevance would be minimal in a case 

involving claimants who are ineligible for relief under the APA.” Id. 

Whatever the significance of APA review may have been in Sinclair, it does little 

here to obviate the need for a Bivens remedy. In Sinclair, the OCC successfully engaged in 

regulatory action that could have been challenged in court pursuant to the APA. Here, the 

presiding ALJ and the Comptroller ultimately declined to take any enforcement action 

against Plaintiff. As a result, there was no final decision to review, and Defendants have 

not proffered any explanation of how Plaintiff, under the particular factual circumstances 

of this case, could have sought relief through the amalgam of FIRREA and the APA. 

However, while this distinction is important, it does not end the inquiry. As recounted 

above, the failure of a putative “comprehensive remedial scheme” to afford “complete 

relief” is not dispositive if the absence of such relief is the product of intentional 

Congressional policy making. In this vein, the Sinclair court determined that regulatory 

action pursuant to FIRREA was limited to APA review as a result of Congressional 

balancing of competing policy interests: those of banks, who would benefit from additional 

review, against those of depositors, who would benefit from the ability of banking 
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regulators to take prompt ameliorative action. As such, the absence of a remedy equivalent 

to what would be available under Bivens was not accidental, but a product of that 

intentional balancing of competing interests. This reasoning is consistent with that of the 

Supreme Court and D.C. Circuit authorities discussed earlier, each of which concluded that 

although the pertinent remedial scheme was limited as applied to the plaintiff at bar, that 

limitation was the product of Congressional choice in an area subject to Congressional lawmaking, and consequently counseled against the recognition of a judicially created remedy. 

In order to press a similar argument in this case, Defendants would need to show 

that the absence of a remedy for Plaintiff under the circumstances of this case was the 

intentional product of how Congress constructed the administrative review procedures 

under FIRREA. But Defendants have completely failed to furnish any legislative or other 

evidence that Congress intentionally excluded claims similar to Plaintiff’s from FIRREA. 

Nor does the statute itself indicate an intent to exclude such claims. While it may be 

sensible for review of regulatory action to be limited to what is available under the APA, 

that conclusion does not flow so readily for prosecutorial action that is alleged to have been 

wholly ultra vires. In fact, Defendants have pointed to no mechanism under FIRREA for 

review of prosecutorial abuse, other than the APA review that generally applies to a final 

decision of the Comptroller. Consequently, the question at hand ultimately reduces to 

whether the absence of APA review for Plaintiff’s claim is the product of intentional 

Congressional policymaking in constructing FIRREA. 

On this point, however, no evidence has been proffered, nor does such intent seem 

likely. The absence of APA review in this case stems from the fact that the presiding ALJ 

and the Comptroller ultimately determined that the enforcement action against Plaintiff had 
18

to be dismissed. As a result, to agree with Defendants, the Court would need to conclude 

that Congress intended to limit review of retaliatory prosecution claims within the confines 

of FIRREA to only those cases where the OCC rendered a final decision (i.e., where the 

allegedly improper prosecution is successful), regardless of the length of the prosecution 

and its toll on plaintiff, and the practical reality that the most meritless prosecutions are the 

ones that are most likely to prove unsuccessful when subject to the review of a neutral 

arbiter. Absent some affirmative evidence, the Court declines to conclude that Congress 

intended this odd result. See Munsell, 509 F.3d at 591 (“Thus, in a case of this sort, were 

the possibility of APA review deemed sufficient to foreclose a Bivens remedy, the very 

success of the unconstitutional conduct in removing [Plaintiff] from the regulated arena 

would make APA review unavailable and insulate the conduct entirely from judicial 

review. That would make little sense.”). Moreover, this determination comports with the 

recognition of a Bivens claim for retaliatory prosecution in the criminal context, given that 

in those cases further review was plainly available via the appeals process (although, like 

here, only for retaliatory prosecutions that proved successful); and this determination also 

comports with other district court decisions that have allowed Bivens claims to proceed 

under similar circumstances. See Navab-Safavi v. Broad. Bd. of Governors, 650 F. Supp. 

2d 40, 69 (D.D.C. 2009) (recognizing Bivens remedy despite the availability of APA 

review), aff’d sub nom. Navab-Safavi v. Glassman, 637 F.3d 311 (D.C. Cir. 2011); Zherka 

v. Ryan, 52 F. Supp. 3d 571, 580 (S.D.N.Y. 2014) (recognizing Bivens claim for retaliation 

by employees of the Internal Revenue Service, despite the availability of administrative 

review as provided by the Internal Revenue Code, and also noting that “[l]eaving plaintiff 

to pursue administrative remedies through the very agency he asserts has targeted him for 
19

retaliatory investigation would be, in essence, no remedy at all”). Accordingly, for all of 

the foregoing reasons, the Court concludes that FIRREA is not a “comprehensive remedial 

scheme” that counsels against the recognition of a Bivens remedy under the particular 

factual circumstances of this case. 

Defendants’ remaining “special factor” argument is that recognizing a Bivens claim 

here would have a “chilling effect” on the willingness of banking regulators like the OCC 

employees at issue “to aggressively attack unsafe banking practices.” Ind. Defs.’ Mem. at 

11 (citing Sinclair, 314 F.3d at 939). As such, Defendants contend that “there is more than 

a reasonable fear that a general Bivens cure would be worse than the disease.” Id. (citing 

Wilkie, 551 U.S. at 561). The Court disagrees. First, this case treads on familiar ground, as 

its salient facts are not substantially dissimilar from the controlling authorities that have 

recognized the existence of a Bivens claim for retaliatory prosecution. Second, the factual 

circumstances of this case are unique in the context of regulatory enforcement actions 

undertaken by banking regulators like the OCC. Plaintiff alleges that he was prosecuted 

without cause, in connection with a matter in which he had little substantive involvement, 

solely for statements he made against the prosecuting agency. See infra at 26–27. Although 

these allegations may, on their own, seem self-serving, the Court is also guided by the 

practical reality that the presiding ALJ and the Comptroller determined that the prosecution 

should be dismissed, and that the D.C. Circuit later concluded that the prosecution was not 

“justified” by the administrative record. Loumiet EAJA, 650 F.3d at 800. Based on these 

allegations, which must be taken as true for purposes of the pending motions, the case at 

bar is plainly not a run-of-the-mill lawsuit in which the subject of adverse regulatory action, 

unhappy with the result, sues the responsible government officials. Rather, this case 
20

presents a unique constellation of factual allegations—most importantly that neutral 

authorities have expressed skepticism at the propriety of the challenged prosecution—that 

are unlikely to be present in other cases. Consequently, given the uniqueness of the 

allegations in this case, in this Court’s view, allowing Plaintiff to proceed with his First 

Amendment Bivens claim is unlikely to have a chilling effect on the proper regulatory 

activities of banking regulators like the Individual Defendants. Accordingly, no special 

factor pressed by Defendants counsels against the recognition of a Bivens remedy in this 

case for Plaintiff’s claim of retaliatory prosecution by the Individual Defendants in 

violation of his First Amendment right to freedom of speech. As such, Plaintiff’s First 

Amendment claim is cognizable under Bivens, and the Court proceeds to assess whether 

Plaintiff has stated viable claims against each of the Individual Defendants to whom such 

a claim could attach. 

B. Plaintiff Has Stated a Plausible First Amendment Bivens Claim Against 

Defendants Rardin, Schneck, and Sexton, But Not Straus

Before assessing whether the allegations of the Complaint state a plausible First 

Amendment claim against each of the Individual Defendants, the Court surveys the legal 

framework of two doctrines that could potentially preclude such a claim: absolute 

prosecutorial immunity, and qualified immunity. 

1. Absolute Immunity 

Federal prosecutors enjoy absolute immunity for “initiating a prosecution and in 

presenting the State’s case . . . .” Imbler v. Pachtman, 424 U.S. 409, 431 (1976). This 

principle has been extended by the Supreme Court to agency officials who perform tasks 

under administrative auspices that are equivalent to that of a prosecutor in a court of law. 

Butz v. Economou, 438 U.S. 478, 515 (1978) (“agency officials performing certain 
21

functions analogous to those of a prosecutor should be able to claim absolute immunity 

with respect to such acts”). Consequently, “those officials who are responsible for the 

decision to initiate or continue a proceeding subject to agency adjudication are entitled to 

absolute immunity from damages liability for their parts in that decision.” Id. at 516; see 

also Gray v. Poole, 243 F.3d 572, 577 (D.C. Cir. 2001) (extending absolute immunity to a 

government attorney for initiating a civil child neglect action). Nonetheless, an act is not 

immune merely because it is performed by a prosecutor; for instance, absolute 

prosecutorial immunity does not extend to “investigative functions normally performed by 

a detective or police officer[,]” which are generally only afforded qualified immunity. 

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). 

In Hartman, the Supreme Court explained the effect of absolute immunity in the 

context of a First Amendment Bivens claim for retaliatory prosecution. There, the Court 

instructed that a Bivens

action for retaliatory prosecution will not be brought against the prosecutor, 

who is absolutely immune from liability for the decision to prosecute . . . . 

Instead, the defendant will be a nonprosecutor, an official, like an inspector 

here, who may have influenced the prosecutorial decision but did not 

himself make it, and the cause of action will not be strictly for retaliatory 

prosecution, but for successful retaliatory inducement to prosecute.

Hartman, 547 U.S. at 261–62. Thus, in light of absolute prosecutorial immunity, the focus 

of a retaliatory prosecution claim is primarily on the non-prosecuting officials who induced 

the allegedly improper prosecution, and not the prosecutors themselves, unless they 

perform non-immunized tasks that likewise engender the improper prosecution. Id. at 262 

n.8 (noting that “[a]n action could still be brought against a prosecutor for conduct taken 

in an investigatory capacity,” and noting that plaintiff’s complaint “charged the prosecutor 

with acting in an investigative as well as in a prosecutorial capacity, . . . but dismissal of 
22

the complaint as against the prosecutor was affirmed . . . , and no claim against him is 

before us now”). 

The Court addresses whether any of the Individual Defendants are entitled to 

dismissal on the basis of absolute prosecutorial immunity below, in connection with its 

assessment of whether Plaintiff has stated a plausible claim for retaliatory prosecution. 

2. Qualified Immunity 

The Individual Defendants also contend that they are shielded from litigation by 

the doctrine of qualified immunity, which “protects government officials from liability for 

civil damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Pearson v. 

Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). In order for a 

complaint to counter an assertion of qualified immunity, a plaintiff must plead “facts 

showing (1) that the official violated a statutory or constitutional right, and (2) that the right 

was clearly established at the time of the challenged conduct.” Ashcroft v. al–Kidd, 563 

U.S. 731, 735 (2011) (internal quotation marks omitted). With respect to the second 

element, “though in the light of pre-existing law the unlawfulness of the officer’s conduct

must be apparent, there is no need that the very action in question have previously been 

held unlawful.” Navab-Safavi, 637 F.3d at 317 (internal quotation marks and alterations 

omitted) (declining to remand on the basis of qualified immunity because it “cannot be 

gainsaid that a person expressing her viewpoint is exercising an established constitutional 

right”); Ashcroft, 563 U.S. at 735 (“We do not require a case directly on point, but existing 

precedent must have placed the statutory or constitutional question beyond debate.”). Put 

differently, qualified immunity does not attach simply because the factual circumstances 
23

of the present case are in some sense unique. Hope v. Pelzer, 536 U.S. 730, 741 (2002)

(“officials can still be on notice that their conduct violates established law even in novel 

factual circumstances”). Rather, the “relevant, dispositive inquiry in determining whether 

a right is clearly established is whether it would be clear to a reasonable officer that his 

conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 

201–02 (2001).

Defendants contend that they did not violate a “clearly established” right because 

when the OCC initiated its enforcement action against Plaintiff in November 2006, there 

“was no law establishing that the initiation of a civil administrative proceeding—as 

opposed to a criminal prosecution—can support a retaliatory prosecution claim.” Ind. 

Defs.’ Mem. at 18. The Court notes that this is the only instance in their briefing on the 

pending motions where Defendants seek to distinguish the OCC’s enforcement action from 

other retaliatory prosecution cases on the basis that the prosecution here proceeded under 

administrative auspices (for example, they do not argue that this case presents a new Bivens 

context on that basis). This position is also somewhat at odds with Defendants’ claim of 

absolute prosecutorial immunity. In any event, the argument is of no avail. 

The D.C. Circuit has stated unequivocally that it “clearly established in 1988 . . .

the contours of the First Amendment right to be free from retaliatory prosecution.” Moore

v. Hartman, 704 F.3d 1003, 1004 (D.C. Cir. 2013). More generally, in Hartman, the 

Supreme Court stated that “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 . . . .” 547 U.S. at 256. As support for 

that general proposition, the Supreme Court relied upon two earlier decisions, Crawford, 
24

issued in 1998, and Perry, issued in 1972. Id.; Crawford–El v. Britton, 523 U.S. 574, 588, 

592 (1998) (“the general rule has long been clearly established [that] the First Amendment 

bars retaliation for protected speech”); Perry v. Sindermann, 408 U.S. 593, 597 (1972)

(noting that the government may not punish a person or deprive him of a benefit on the 

basis of his “constitutionally protected speech”). Based on these precedents, it has been 

clearly established, long before the OCC instituted the enforcement action against Plaintiff,

that retaliatory action by Federal officials against protected speech is unconstitutional. And 

this general principle was further crystalized by authorities which held that retaliatory 

prosecutions were a particular example of this sort of unconstitutional behavior. That these 

cases did not involve an administrative proceeding is ultimately a distinction without a 

difference. The pertinent question is whether the general constitutional principle was 

sufficiently established that it should have been clear to the Individual Defendants that their 

conduct, if the allegations prove true, was unlawful. Here, the case law had clearly 

established the unlawfulness of retaliatory conduct generally, and retaliatory prosecutions 

more specifically. The OCC’s enforcement powers, by Defendants’ own admission, are 

immense and may be exercised in an administrative hearing with all the hallmarks of full 

court proceeding. See supra at 14. Moreover, the possible sanctions, albeit not criminal, 

are no less severe than what could face a criminal defendant. Plaintiff, in particular, faced 

a $250,000 fine and exclusion from the banking industry, and by extension, his chosen 

legal practice.3 Compl. ¶ 80.

 3 These factual circumstances distinguish this case from the non-controlling authority 

pressed by Defendants: Bank of Jackson County v. Cherry, 980 F.2d 1362 (11th Cir. 1993).

See Ind. Defs.’ Mem. at 18–19. There, the United States Court of Appeals for the Eleventh 

Circuit (“Eleventh Circuit”) affirmed a grant of summary judgment on the basis of qualified 

immunity for a Bivens suit in which plaintiff, a small bank, alleged that it was “debarred”
25

Given the gravity of the enforcement action, and the established case law just 

recounted, if the allegations are substantiated, it should have been clear to the Individual 

Defendants that using their immense enforcement powers as a means to retaliate against 

Plaintiff for his protected speech was unconstitutional. Accordingly, the Court concludes 

that the right against retaliatory prosecution was clearly established at the time the 

Individual Defendants initiated the enforcement action. As a result, the Individual 

Defendants are not entitled to dismissal on the basis of qualified immunity so long as 

Plaintiff has stated a plausible claim that they violated this right, an issue addressed in the 

following section. 

3. Plaintiff Has Stated a Plausible Claim Against Defendants Rardin, Schneck,

and Sexton, But Not Straus

The “essential elements” of a retaliatory prosecution claim are

[F]irst, that the conduct allegedly retaliated against or sought to be deterred 

was constitutionally protected, and, second, that the State’s bringing of the 

criminal prosecution was motivated at least in part by a purpose to retaliate 

for or to deter that conduct. If the Court concludes that the plaintiffs have 

successfully discharged their burden of proof on both of these issues, it 

should then consider a third: whether the State has shown by a 

preponderance of the evidence that it would have reached the same decision 

as to whether to prosecute even had the impermissible purpose not been 

considered.

Haynesworth, 820 F.2d at 1257 n.93.4

 

from working with the Farmers Home Administration, a federal agency that guaranteed the 

bank’s loans to farmers, in retaliation for a legal dispute with the agency. Id. at 1364–65. 

In relevant part, the Eleventh Circuit held that “[a]ny legal similarity between [the]

debarment, on the one hand, and criminal prosecution, on the other, would not have been 

readily apparent to government officials attempting to do their jobs on a day-to-day basis.” 

Id. at 1370. Here, for the reasons stated, the allegations suggest that the similarity was far 

more apparent. 

4 In Hartman, the Supreme Court added the additional requirement that plaintiffs bringing 

a retaliatory prosecution suit must plead and prove the absence of probable cause. 547 U.S. 
26

Plaintiff alleges that Defendant Rardin was the examiner-in-chief (“EIC”) in charge 

of Hamilton Bank from 2000 to 2001, and that he was “actively involved” in the OCC 

enforcement action against Plaintiff, Compl. ¶ 3; that Lee Straus “is an enforcement 

attorney at the OCC who was the lead counsel” in the enforcement action, id. ¶ 4; that

Defendant Schneck “is Director of the Special Supervision and Fraud Division at the OCC

[and] was actively involved in the OCC’s various dealings with Hamilton from 2000 to 

2001,” as well as with the enforcement action, id. ¶ 5; and finally, that Defendant Sexton 

is “Assistant Director of the Enforcement and Compliance Division of the OCC,” and was 

similarly “actively involved in the OCC’s various dealings with Hamilton from 2000 to 

2001,” and the enforcement action, id. ¶ 6. Defendant Sexton, like Defendant Straus, is an 

“experienced Government enforcement lawyer.” Id. Plaintiff alleges that the Individual 

Defendants were all “senior, influential employees of the OCC, with particularly strong 

say and influence on enforcement matters.” Id. ¶ 7. 

According to the Complaint, Plaintiff’s critical statements toward the OCC caused 

severe embarrassment to OCC “officials who had been involved in the OCC behavior 

relating to Hamilton that those letters criticized, including prominently, and in senior roles, 

defendants Rardin, Schneck, and Sexton.” Id. ¶ 52. According to Plaintiff, these same 

officials, “all embarrassed and angered by [Plaintiff’s] whistle-blowing, began discussing 

how to retaliate against him for his temerity, [and] all three of these defendants were 

actively involved in the case brought by the OCC.” Id. ¶ 61. Defendant Sexton, in 

 

at 265. Defendants do not challenge the Complaint on the basis that it has failed to 

adequately plead the absence of probable cause (or its equivalent), an unsurprising result 

given the D.C. Circuit’s determination that the enforcement action was not justified. In any 

event, the Court finds that Plaintiff has adequately pled the absence of probable cause, or 

its equivalent in the administrative setting in which the enforcement action was brought. 
27

particular, is alleged to have said, in reference to the investigative reports prepared by 

Plaintiff, that Plaintiff had “gone too far,” and that he and others “had to pay.” Id. ¶ 64. 

Consequently, Plaintiff alleges that the decision to bring an enforcement action against him 

was “unduly influenced by defendants Rardin, Sexton and Schneck . . . .” Id. ¶ 72. 

Taking the foregoing allegations as true and drawing all reasonable inferences in 

Plaintiff’s favor, as the Court must at this procedural juncture, Plaintiff’s allegations, taken 

as a whole, plausibly suggest that Defendants Rardin, Schneck, and Sexton used the fruits 

of their investigation into Hamilton Bank (i.e., their scrutiny of the investigative reports 

drafted by Plaintiff) to improperly induce an enforcement action against Plaintiff in reprisal 

for critical statements that he made against them and the OCC more generally. This view 

of the Complaint is corroborated by the fact that the ALJ, the Comptroller, and the D.C. 

Circuit ultimately concluded that the enforcement action was not meritorious. Loumiet 

EAJA, 650 F.3d at 800; see also Hartman, 547 U.S. at 261 (“[d]emonstrating that there was 

no probable cause for the underlying criminal charge will tend to reinforce the retaliation 

evidence and show that retaliation was the but-for basis for instigating the prosecution”). 

Moreover, Plaintiff has alleged that an action was brought against him—and not other 

advisors involved with the Hamilton Bank investigation—despite him having relatively 

less involvement with that investigation, id. ¶¶ 28, 84, and that the OCC ultimately 

concluded that Plaintiff’s work product, which was the purported basis of the enforcement 

action, did not “cause[] more than a minimal financial loss to, or a significant adverse effect 

on [Hamilton Bank,]” Loumiet EAJA, 650 F.3d at 800. Taken as a whole, the foregoing 

suffices to state a claim of retaliatory prosecution against Defendants Rardin, Schneck, and 

Sexton. 
28

Because the allegations against these three Defendants plausibly state that they 

induced the enforcement action against Plaintiff through their investigative conduct, and 

did not merely act as prosecutors who made the ultimate decision to prosecute, they are not 

entitled to absolute prosecutorial immunity at this procedural juncture. See supra at 19–20. 

Furthermore, because the Complaint plausibly alleges that they violated a right that the 

Court has concluded was clearly established at the time of the alleged violation, these three 

Defendants are also not entitled to qualified immunity at this procedural juncture. 

Nonetheless, further factual development may show that these Defendants are entitled to

one or both of these immunities. The only allegations in the Complaint with respect to 

Defendant Straus, however, are that he was lead counsel of the enforcement action, and 

that he made certain comments to the press in the course of the prosecution that were 

critical of Plaintiff. Compl. ¶¶ 4, 78, 85. Of these two, the only actionable conduct is 

Defendant Straus’ press commentary,5 his prosecutorial conduct being entitled to absolute 

immunity, see supra 19–20. But the gravamen of a retaliatory prosecution claim is the 

decision to, or inducement of, prosecution, and consequently the statements that Defendant 

Straus allegedly made to the press in the course of the prosecution do not make out a claim 

of retaliatory prosecution. Accordingly, Plaintiff’s First Amendment Bivens claim shall 

proceed against Defendants Rardin, Schneck, and Sexton, but shall be dismissed, without 

prejudice, against Defendant Straus on the basis of absolute immunity and for failure to 

state a claim.

 5 Defendants acknowledge that the press commentary alleged in the Complaint is not 

entitled to absolute prosecutorial immunity. Reply Mem. at 8 (citing Buckley, 509 U.S. at

278).
29

C. Plaintiff Has Not Stated a Viable Fifth Amendment Bivens Claim

Plaintiff also alleges a Fifth Amendment due process claim against the Individual 

Defendants. The count in the Complaint alleging this claim merely mirrors the First 

Amendment count. Compare Compl. ¶¶ 140–142, with id. ¶¶ 137–139. Moreover, Plaintiff 

has not briefed whether a Fifth Amendment claim for retaliatory prosecution is cognizable 

under Bivens, or whether such a Fifth Amendment claim was sufficiently established to 

avoid dismissal on the basis of qualified immunity. To the extent Plaintiff’s Fifth 

Amendment claim is intended to bring a substantive due process claim for the First 

Amendment violation already discussed at length, that is foreclosed by Supreme Court 

precedent. Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a particular Amendment 

provides an explicit textual source of constitutional protection against a particular sort of 

government behavior, that Amendment, not the more generalized notion of substantive due 

process, must be the guide for analyzing these claims.” (internal quotation marks omitted)). 

However, in his opposition to the pending motions, Plaintiff seeks to restyle his 

Fifth Amendment claim as a “stigma plus” or “reputation plus” due process claim. Opp’n 

Mem. at 32. To bring such a claim in the D.C. Circuit, Plaintiff must plausibly allege that 

the Individual Defendants engaged in conduct that not only harmed Plaintiff’s reputation, 

but that also either formally excluded Plaintiff from a chosen trade or profession, or caused 

“harms approaching, in terms of practical effect, formal exclusion from a chosen trade or 

profession . . . .” Trifax Corp. v. District of Columbia, 314 F.3d 641, 644 (D.C. Cir. 2003). 

“The key inquiry then is this: Has the government, by attacking personal or corporate 

reputation, achieved in substance an alteration of status that, if accomplished through 

formal means, would constitute a deprivation of liberty?” Id. Absent such “broad 
30

preclusion” from a chosen trade or profession, a Fifth Amendment claim will not lie even 

if the government conduct would “impair [plaintiff’s] future employment prospects . . . so 

long as such damage flows from injury caused by the defendant to a plaintiff's reputation.” 

Siegert v. Gilley, 500 U.S. 226, 234 (1991). For example, in Kartseva, the D.C. Circuit 

remanded for the district court to determine whether the government conduct in that case 

had effectively precluded plaintiff “from pursuing her profession as a Russian language 

translator,” or whether plaintiff had “merely lost one position in her profession but is not 

foreclosed from reentering the field,” in which case her Fifth Amendment claim would not 

be viable. Kartseva v. Dep’t of State, 37 F.3d 1524, 1529 (D.C. Cir. 1994). 

Here, Plaintiff has not alleged that the conduct of the Individual Defendants has 

precluded him from engaging in his chosen career as a banking law practitioner. Rather, 

the Complaint alleges that Plaintiff’s “practice—particularly in the banking field—largely 

evaporated,” and that his “income dropped significantly,” and that he “fell six partnership 

levels . . . .” Compl. ¶ 106. Although these allegations plausibly state that Plaintiff’s 

employment prospects were impaired, that is not equivalent to him being precluded from 

practicing law as a banking attorney. Indeed, by the plain terms of the Complaint, he 

remained a partner at a law firm, and his practice only “largely” evaporated; it did not cease 

to exist. Accordingly, the Complaint does not state a plausible “reputation-plus” or 

“stigma-plus” Fifth Amendment Bivens claim, and Plaintiff has not presented any other 

theory of how his Fifth Amendment claim could proceed. As a result, the Fifth Amendment 

claim shall be dismissed. 
31

D. The State-Law Tort Claims Against the Individual Defendants are Converted 

to FTCA Claims Against the United States

Defendants contend that the state-law tort claims against the Individual Defendants 

for intentional infliction of emotional distress (Count I), invasion of privacy (Count II), 

abuse of process (Count III), malicious prosecution (Count IV), and conspiracy (Count 

VIII), are automatically converted to FTCA claims against the United States pursuant to 

the Westfall Act, 28 U.S.C. § 2679(d), which “accords federal employees absolute 

immunity from common-law tort claims arising out of acts they undertake in the course of 

their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007). Pursuant to the Westfall 

Act, all that is required for conversion of the state-law claims against the Individual 

Defendants is a certification of a designee of the Attorney General that the Individual 

Defendants were “acting within the scope of [their] office or employment at the time of the 

incident out of which the claim[s] arose . . . .” 28 U.S.C. § 2679(d)(1). Here, such a 

certification has been provided by the Director of the Torts Branch of the Department of 

Justice’s Civil Division, a designee of the Attorney General, and Plaintiff does not oppose 

the conversion in his opposition to the pending motions. Ind. Defs. Mem at 21, Ex. 1; see 

FDIC v. Bender, 127 F.3d 58, 67–68 (D.C. Cir. 1997) (“It is well understood in this Circuit 

that when a plaintiff files an opposition to a motion to dismiss addressing only certain 

arguments raised by the defendant, a court may treat those arguments that the plaintiff 

failed to address as conceded.”). Accordingly, the state-law tort claims against the 

Individual Defendants are converted to FTCA claims against the United States.
32

E. Plaintiff’s FTCA Claim 

1. Discretionary-Function Exception

The D.C. Circuit has instructed 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.” Loumiet IV, 828 F.3d at 939. 

The task for this Court on remand was to determine 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.” Id. at 946. For the reasons discussed 

above, the Court has concluded that Plaintiff has plausibly alleged that Defendants engaged 

in conduct that violated a clearly established First Amendment right against retaliatory

prosecution. See supra at 28. As Defendants make no other challenges on this point, the 

Court concludes that the United States may not make use of the discretionary-function 

exception of the FTCA under the circumstances of this case to shield itself from Plaintiff’s 

state-law tort claims predicated on the OCC’s allegedly retaliatory enforcement action. 

2. Plaintiff’s Malicious Prosecution and Abuse of Process Claims Must be 

Dismissed

The waiver of sovereign immunity afforded by the FTCA generally does not apply 

to claims of malicious prosecution or abuse of process, among a number of other intentional 

torts. 28 U.S.C. § 2680(h). Nonetheless, the Act contains an exception to this general rule, 

known as the Law Enforcement Proviso, which states that “with regard to acts or omissions 

of investigative or law enforcement officers of the United States Government, the [FTCA] 

shall apply to any claim arising . . . out of . . . abuse of process, or malicious prosecution.” 

Id. Accordingly, in order for Plaintiff to pursue these two claims, as he seeks to do in the 
33

Complaint, he must establish that the OCC employees who engaged in the allegedly 

tortious activity were “investigative or law enforcement officers of the United States.” 

The FTCA defines “investigative or law enforcement officer” as “any officer of the 

United States who is empowered by law to execute searches, to seize evidence, or to make 

arrests for violations of Federal law.” Id. According to Plaintiff, OCC officials are vested 

with 

so-called “visitorial powers,” which allows federal agents to (i) examine a 

bank; (ii) inspect a bank’s books and records; (iii) regulate and supervise 

the bank; and (iv) enforce compliance with any applicable federal or state 

laws concerning those activities. The agents also are empowered to engage 

in comprehensive investigations, where they can command attendance at 

depositions, administer oaths, and depose officers, directors, employees, or 

agents of the bank under oath.

Opp’n Mem. at 35 (citing 12 U.S.C. §§ 481, 484, 1820). The officials are also empowered 

to “issue, revoke, quash, or modify subpoenas.” Id. (citing 12 U.S.C. § 1818(n)). In the 

Court’s view, however, these powers do not suffice to render OCC officials “investigative 

or law enforcement officers,” as none of these rights amount to a power to execute searches, 

to seize evidence, or to make arrests. In a closely analogous case, another district court held 

that officials of the Office of Thrift Supervision (“OTS”), a bank regulator, were not 

investigative or law enforcement officers, as there was no “legal authority vested in the 

OTS to execute searches, to seize evidence, or to make arrests for violations of Federal 

law.” Biase v. Kaplan, 852 F. Supp. 268, 281 (D.N.J. 1994); see also Saratoga Sav. & Loan 

Ass’n v. Fed. Home Loan Bank of San Francisco, 724 F. Supp. 683, 689 (N.D. Cal. 1989)

(finding that Federal bank examiners with the Federal Home Loan Bank were not 

“investigative or law enforcement officers”). In particular, the Biase court noted that while 

“OTS is empowered to examine bank documents and issue subpoenas therefor, . . . OTS 
34

must make application to a district court to compel access to documents,” which does not 

suffice to render such bank examiners law enforcement officers. 852 F. Supp. at 281 n.9 

(collecting cases). 

The same is true here. Of the various powers described above, the only one that 

potentially suffices to render the OCC officials subject to the Law Enforcement Proviso is 

the ability to subpoena evidence. Nonetheless, much like the OTS officials in Biase, the 

OCC officials in this case can only enforce witness and document subpoenas by application 

to a United States District Court. 12 U.S.C. § 1818(n) (“such agency . . . may apply to the 

United States District Court . . . for enforcement of any subpena or subpena duces tecum 

issued pursuant to this subsection”). Accordingly, OCC officials are not subject to the Law 

Enforcement Proviso merely by virtue of their subpoena powers. See Art Metal-U.S.A., Inc. 

v. United States, 577 F. Supp. 182, 185 (D.D.C. 1983) (“[o]btaining evidence by subpoena 

is the antithesis of obtaining it through search and seizure”), aff’d, 753 F.2d 1151 (D.C. 

Cir. 1985).

The other powers afforded to OCC officials—to review bank records and engage 

in regulatory activities—likewise do not constitute the types of powers to execute searches, 

seize evidence, or make arrests that were envisioned by the Law Enforcement Proviso. The 

Proviso was enacted by Congress “as a counterpart to the Bivens case and its progeny, in 

that it waives the defense of sovereign immunity so as to make the Government 

independently liable in damages under state law for the same type of conduct that is alleged 

to have occurred in Bivens[,]” which involved federal narcotics agents searching a 

residence and making arrests. Denson v. United States, 574 F.3d 1318, 1336 (11th Cir. 

2009) (citing S. Rep. No. 93–588 (1974)) (alterations in original omitted). Consequently, 
35

the bank examination functions of the OCC described above are plainly not equivalent to 

the type of law enforcement searches and seizures that Congress intended to waive 

immunity for with the passage of the Law Enforcement Proviso. 

Finally, although Plaintiff requests that the Court permit discovery on this issue, 

which would be tantamount to jurisdictional discovery given that sovereign immunity 

implicates this Court’s subject-matter jurisdiction,6 he does not explain how that discovery 

would be helpful to the resolution of this issue. The FTCA makes clear that whether an 

official is an “investigative or law enforcement officer” depends on whether they are 

“empowered by law” to execute the functions enumerated in the statute. Here, the Court 

has reviewed the relevant law and found that the OCC officials are not so empowered. 

Furthermore, the two out-of-Circuit authorities relied upon by Plaintiff to seek discovery 

are not persuasive. First, in Sutton, the Fifth Circuit did not require the district court on 

remand to permit discovery, as Plaintiff contends, but rather required the court to make a 

determination as to whether the official at issue fit the Proviso. Sutton v. United States, 819 

F.2d 1289, 1294 n.8 (5th Cir. 1987). And while Plaintiff seeks to equate the powers of the 

OCC officials here with those of the Postal Inspectors in Sutton, the Fifth Circuit expressly 

noted that the latter are empowered to “[m]ake arrests without warrant . . . .” Id. The other 

 6 See FC Inv. Grp. LC v. IFX Markets, Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008) (“a 

request for jurisdictional discovery cannot be based on mere conjecture or speculation”); 

Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 53 (D.D.C. 2003) (“Where there is 

no showing of how jurisdictional discovery would help plaintiff discover anything new, it 

is inappropriate to subject defendants to the burden and expense of discovery.” (internal 

quotation marks and alterations omitted)); Williams v. ROMARM, 187 F. Supp. 3d 63, 72 

(D.D.C. 2013), aff’d sub nom. Williams v. Romarm, SA, 756 F.3d 777 (D.C. Cir. 2014) 

(“[W]hen requesting jurisdictional discovery, a plaintiff must make a detailed showing of 

what discovery it wishes to conduct or what results it thinks such discovery would 

produce.” (internal quotation marks and alterations omitted)).
36

authority relied upon by Plaintiff, Pellegrino, faced the question of whether “airport 

security screenings” by Transportation Security Agents constituted “searches” for purposes 

of the Law Enforcement Proviso. The Pellegrino court expressly noted the similarity 

between these “screenings” and the type of unlawful, warrantless searches that were the 

subject of Bivens and the Law Enforcement Proviso, and consequently permitted discovery 

to determine whether this conduct in fact amounted to a type of warrantless search subject 

to the Proviso. Pellegrino v. U.S. Transp. Sec. Admin., 855 F. Supp. 2d 343, 356 (E.D. Pa. 

2012). As already stated here, there is no indication in the applicable law, or any allegation 

in the Complaint, that OCC officials are empowered to engage in conduct that 

approximates the activities envisaged by the Law Enforcement Proviso. Accordingly, the 

Court finds that the OCC officials at issue were not “investigative or law enforcement 

officers,” and that, as a result, Plaintiff’s malicious prosecution and abuse of process claims 

shall be dismissed without prejudice. 

3. Based on the Court’s Prior Ruling, The Invasion of Privacy Claim Can 

Proceed

“Invasion of privacy is not one tort, but a complex of four, each with distinct 

elements and each describing a separate interest capable of being invaded.” Greenpeace, 

Inc. v. Dow Chem. Co., 97 A.3d 1053, 1061 (D.C. 2014) (internal quotation marks 

omitted). Of the four, the one relevant here is “public disclosure of private facts.” Id. The 

elements of this claim are “(1) publicity, (2) absent any waiver or privilege, (3) given to 

private facts (4) in which the public has no legitimate concern (5) and which would be 

highly offensive to a reasonable person of ordinary sensibilities.” Wolf v. Regardie, 553 

A.2d 1213, 1220 (D.C. 1989). Plaintiff alleges that private facts were tortiously disclosed 

in two instances: the November 6, 2006 Notice of Charges, and an October 3, 2006 press 
37

release issued by the OCC with respect to the enforcement action. Opp’n Mem. at 39–40. 

Both of these documents are subject to the Court’s review as they are “public records and 

government documents available from reliable sources.” Al-Aulaqi v. Panetta, 35 F. Supp. 

3d 56, 67 (D.D.C. 2014).

Although the Court agrees with Defendants that some of the statements in these 

documents do not appear to concern private facts and/or are matters of public concern (e.g., 

the results of the Hamilton Bank investigation), the amount of fees charged by Plaintiff and 

his firm, relayed by both documents, is a seemingly private fact, the public importance of 

which is not apparent, and the disclosure of which may be highly offensive to a reasonable 

person (much like one may be offended by the disclosure of his or her salary). As such, 

Plaintiff has stated a plausible claim for invasion of privacy, in particular, the public 

disclosure of private facts. 

The remaining question is whether this claim is timely. On this, the Court 

previously ruled that the continuing tort doctrine tolled the statute of limitations with 

respect to Plaintiff’s FTCA claims, all of which arose out of the allegedly retaliatory 

prosecution, until the “final disposition of the case.” Loumiet I, 968 F. Supp. 2d at 154 

(citing Whelan v. Abell, 953 F.2d 663, 674 (D.C. Cir. 1992)). Because Plaintiff brought an 

administrative action within two years of the cessation of the prosecution, the Court 

concluded that “Plaintiff’s FTCA claims need not be dismissed on statute of limitations 

grounds.” Id. at 155. Defendants point the Court’s towards its later decision, which held 

that the statements underling the invasion of privacy claim did not warrant application of 

the continuing tort doctrine. Loumiet III, 106 F. Supp. 3d at 225–26. Importantly, this 

decision was rendered after the Court had determined that Defendants’ decision to 
38

prosecute was not actionable under the discretionary-function exception. Id. at 222. That 

decision has now been reversed, and accordingly, the Court’s analysis reverts to its prior 

conclusion that the pendency of the prosecution constituted a continuing tort that tolled the 

statute of limitations for Plaintiff’s FTCA claims. Accordingly, Plaintiff’s invasion of 

privacy claim may proceed.

IV. CONCLUSION

For all of the foregoing reasons, 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).

An appropriate Order accompanies this Memorandum Opinion. 

Dated: June 13, 2017

 /s/

COLLEEN KOLLAR-KOTELLY 

United States District Judge