Carlos Loumiet v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 24, 2016 Decided July 12, 2016

No. 15-5208

CARLOS LOUMIET, ESQUIRE,

APPELLANT

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01130)

Carlos Loumiet, pro se, argued the cause and filed the

briefs for appellant.

Steve Frank, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were

Benjamin C. Mizer, Principal Deputy Assistant Attorney

General, and Mark B. Stern, Attorney.

Before: ROGERS and PILLARD, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

2

PILLARD, Circuit Judge: Appellant Carlos Loumiet’s

participation in a bank audit got him into trouble with the

Office of the Comptroller of the Currency (OCC), a bureau

within the Department of Treasury. Loumiet claims the

OCC’s enforcement action against him was trumped-up and

retaliatory. On this appeal from the district court’s dismissal

of the case on the pleadings, we address only the timeliness of

his claims, and whether the Constitution places any limit on

the governmental policymaking discretion immunized by the

discretionary-function exception to the Federal Tort Claims

Act (FTCA or the Act).

After prosecuting Loumiet for nearly three years,

culminating in a three-week trial, the OCC dismissed its

enforcement action against him—an action which this court

has since described as not “substantially justified.” Loumiet

v. Office of Comptroller of Currency, 650 F.3d 796, 797-98

(D.C. Cir. 2011). Loumiet then brought suit against the

United States and four OCC employees, claiming that their

enforcement action and related conduct were both tortious and

unconstitutional. The district court dismissed Loumiet’s tort

claims against the United States under the FTCA’s

discretionary-function exception and dismissed his

constitutional Bivens claims against the individual defendants

as time-barred.

We conclude, in line with the majority of our sister

circuits to have considered the question, that the

discretionary-function exception does not categorically bar

FTCA tort claims where the challenged exercise of discretion

allegedly exceeded the government’s constitutional authority

to act. Nor are Loumiet’s Bivens claims time-barred, because

the continuing-violations doctrine applies to extend the

applicable statute of limitations where, as here, a plaintiff

alleges continuing conduct causing cumulative harm.

3

Accordingly, we reverse the district court’s dismissal order

and remand for further proceedings.

I

We review the district court’s dismissal of Loumiet’s

claims de novo, accepting as true the factual allegations in the

complaint. See Jerome Stevens Pharm., Inc. v. FDA, 402

F.3d 1249, 1250 (D.C. Cir. 2005).

In the early 2000s, Loumiet was on a team of attorneys

Hamilton Bank hired to prepare an audit report during a

securities-fraud investigation of the bank by the OCC. The

final audit report was unable to reach a conclusion as to

whether the bank’s executives had engaged in intentional

wrongdoing. The OCC contested certain of the report’s

findings, but, after further investigation, Loumiet and his team

declined to change their conclusions.

Around that time, Loumiet sent the Treasury Inspector

General a series of letters in which he expressed concern that,

while on site at Hamilton Bank during the OCC’s

investigation, OCC employees had made racist remarks

regarding the bank’s Hispanic employees. The bank filed suit

against the OCC in 2002, alleging civil rights violations

arising out of the investigation. Shortly thereafter, the OCC

closed Hamilton Bank for operating in an unsafe manner—a

closure Loumiet alleges was unjustified and incurred

considerable unnecessary cost for the bank’s receiver, the

Federal Deposit Insurance Corporation.

On November 6, 2006, the Comptroller initiated an

administrative enforcement proceeding against Loumiet under

the Financial Institutions Reform, Recovery, and Enforcement

Act, alleging that he was an “institution-affiliated party” who

knowingly or recklessly breached his fiduciary duty to

4

Hamilton Bank when preparing the audit and caused a

“significant adverse effect” on the bank. 12 U.S.C.

§ 1813(u)(4). During the course of the enforcement action

against him, Loumiet alleges, OCC personnel made

unsubstantiated charges and false statements to the press. On

June 18, 2008, after a three-week administrative trial, the

presiding Administrative Law Judge recommended dismissal

of the OCC’s claims in their entirety, and on July 27, 2009,

the Comptroller dismissed the action. Later, this court

concluded the OCC’s enforcement action was not

“substantially justified” and awarded Loumiet attorney’s fees.

Loumiet, 650 F.3d at 797.

According to Loumiet’s complaint in the action now

before us, the OCC’s frivolous enforcement proceeding

caused significant damage: his banking-law practice

evaporated, his income fell significantly, he dropped several

partnership levels at his firm, and he suffered severe

emotional distress. Seeking compensation for those harms, in

2011 Loumiet filed an administrative unlawful-retaliation

claim, which the OCC denied in January 2012. Loumiet filed

this suit in federal district court on July 9, 2012. He brought

common-law tort claims under the FTCA against the

government for intentional infliction of emotional distress,

invasion of privacy, abuse of process, malicious prosecution,

negligent supervision, and civil conspiracy.1 He sued the

individual government officials under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

1

Loumiet also asserted many of these same common-law tort

claims under the FTCA against the individual defendants, which the

district court dismissed pursuant to the Westfall Act, 28 U.S.C.

§ 2679(d)(1). See Loumiet v. United States (Loumiet I), 968 F.

Supp. 2d 142, 153 (D.D.C. 2013). Loumiet has not appealed that

ruling.

5

(1971), claiming retaliatory prosecution in violation of the

First and Fifth Amendments. Loumiet alleged that the

officials were “driven by a desire to retaliate” against him in

bringing a baseless prosecution that interfered with his “right

to communicate with his client free of Government

intimidation and punishment.” Compl. ¶¶ 138, 141.

The district court granted the defendants’ motion to

dismiss as to most of Loumiet’s claims. See Loumiet v.

United States (Loumiet I), 968 F. Supp. 2d 142, 144-45

(D.D.C. 2013). First, the court concluded that many of

Loumiet’s FTCA claims were “inextricably tied” to the

OCC’s decision to prosecute, so must be dismissed pursuant

to the FTCA’s discretionary-function exception, 28 U.S.C.

§ 2680(a). See Loumiet I, 968 F. Supp. 2d at 156-58. A

prosecutorial decision is a quintessential discretionary

function even if, in the circumstances of a particular case, the

prosecution proceeded unreasonably in light of the paucity of

its evidence. Id. at 156-57. In the court’s view, none of the

authorities Loumiet cited “specifically prescribe[d] a course

of action for an employee to follow” so as to bar application

of the discretionary-function exception here. Id. at 157

(quoting Berkovitz v. United States, 486 U.S. 531, 536

(1988)).

Before dismissing Loumiet’s FTCA claims on that

ground, however, the court explained that those claims, which

he filed with the agency on July 20, 2011, were not barred by

the FTCA’s two-year statute of limitations. Id. at 153-55.

The malicious-prosecution claim did not accrue until July 27,

2009, when the OCC dismissed the enforcement action, id. at

153, and the continuing-violations doctrine delayed accrual of

his other FTCA claims until the same date because the

enforcement action constituted a continuing harm until its

6

final disposition, id. at 154-55 (citing Whelan v. Abell, 953

F.2d 663, 674 (D.C. Cir. 1992)).

Notwithstanding its application of the continuing-

violations doctrine to Loumiet’s FTCA claims and its

characterization of the Bivens and FTCA claims as

intertwined, the court held that Loumiet had forfeited that

doctrine’s applicability to his Bivens claims. Id. at 152 n.3.

The claims were barred by the applicable three-year statute of

limitations, the court concluded, because the claims accrued

when Loumiet knew or had reason to know that the

enforcement action was retaliatory and was unsupported by

probable cause, which was either when the OCC first filed the

action or, at the latest, when the ALJ ruled in his favor four

years before Loumiet filed his complaint. Id. at 150-51.

On Loumiet’s motion for reconsideration, the district

court addressed for the first time his allegations that the

OCC’s decision to prosecute him was unconstitutionally

retaliatory and so beyond the governmental policymaking

authority protected by the FTCA’s discretionary-function

exception. Loumiet v. United States (Loumiet II), 65 F. Supp.

3d 19, 25-26 (D.D.C. 2014). “[E]ven ‘constitutionally

defective’ actions,” the court held, “are in fact protected by

the discretionary function exception.” Id. at 25. The court

eventually dismissed Loumiet’s remaining claims on grounds

not pressed before this court. Loumiet timely appealed.

II

We begin with the government’s contention that the

conduct Loumiet alleges to be tortious under the FTCA

involved performance of a “discretionary function” and is

therefore immune from liability under the Act. The FTCA

provides a limited waiver of the federal government’s

sovereign immunity from damages liability for torts

7

committed by federal employees acting within the scope of

their employment. See 28 U.S.C. §§ 1346(b), 2674. The Act

expressly retains immunity from some tort liability through a

number of statutory exceptions. See id. § 2680. If one of

those exceptions applies, the court lacks subject-matter

jurisdiction to hear the plaintiff’s claims. See Simmons v.

Himmelreich, 136 S. Ct. 1843, 1846 (2016).

At issue here is the discretionary-function exception,

which provides that the Act’s waiver of sovereign immunity

“shall not apply to”:

Any claim . . . based upon the exercise or

performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal

agency or an employee of the Government, whether

or not the discretion involved be abused.

28 U.S.C. § 2680(a). “[T]he purpose of the exception is to

‘prevent judicial second-guessing of legislative and

administrative decisions grounded in social, economic, and

political policy through the medium of an action in tort.’”

United States v. Gaubert, 499 U.S. 315, 323 (1991) (quoting

United States v. Varig Airlines, 467 U.S. 797, 814 (1984)).

Congress enacted the FTCA to remedy and deter tortious

conduct by federal personnel, but sought in the FTCA’s

discretionary-function exception to prevent such claims from

impairing the government’s legitimate exercises of policy

discretion. See Red Lake Band of Chippewa Indians v. United

States, 800 F.2d 1187, 1195-96 (D.C. Cir. 1986); Gray v. Bell,

712 F.2d 490, 506 (D.C. Cir. 1983). A factfinder’s post-hoc

determination in a lawsuit that governmental conduct fell

short of standards of reasonable care, for example, should not

be permitted to gainsay the contrary determination of officials

vested with discretion to decide “how best to accommodate”

8

conflicting policy goals “and the reality of finite agency

resources.” Berkovitz, 486 U.S. at 537 (internal quotation

marks omitted). Duly authorized government personnel, not

judges or juries, decide what counts as reasonable public

policy.

To determine whether governmental conduct falls within

the discretionary-function exception, we look at the “nature of

the conduct, rather than the status of the actor,” Gaubert, 499

U.S. at 322 (quoting Varig Airlines, 467 U.S. at 813), and ask

two questions:

First, we consider whether the challenged conduct

“involves an element of judgment or choice.” Berkovitz, 486

U.S. at 536. If an exercise of discretion is involved, then,

consistent with the last clause of the exception, “the

discretionary function exception immunizes even government

abuses of discretion.” Shuler v. United States, 531 F.3d 930,

935 (D.C. Cir. 2008); see 28 U.S.C. § 2680(a) (excluding

from the reach of the FTCA government exercises of

discretion “whether or not the discretion involved be

abused”). But the element of discretion is necessarily absent

where “a federal statute, regulation, or policy specifically

prescribes a course of action for an employee to follow.”

Berkovitz, 486 U.S. at 536. The exception thus does not apply

to a claim that an agency failed to “perform its clear duty” or

to “act in accord with a specific mandatory directive.” Id. at

545.

Second, if the conduct does involve some element of

judgment or choice, we must ask whether the “judgment is of

the kind that the discretionary function exception was

designed to shield,” Gaubert, 499 U.S. at 322-23 (quoting

Berkovitz, 486 U.S. at 536), that is, whether the actions or

decisions “were within the range of choice accorded by

9

federal policy and law and were the results of policy

determinations,” Berkovitz, 486 U.S. at 538. Even a

discretionary act within the scope of a federal official’s

employment is not within the exception if it “cannot be said to

be based on the purposes that the regulatory regime seeks to

accomplish.” Gaubert, 499 U.S. at 325 n.7. The exception

thus “insulates the Government from liability if the action

challenged in the case involves the permissible exercise of

policy judgment,” Berkovitz, 486 U.S. at 537, but “[a]n

employee of the government acting beyond his authority is

not exercising the sort of discretion the discretionary function

exception was enacted to protect,” Red Lake, 800 F.2d at

1196.

This court has long held that the decision “whether to

prosecute” is typically a “quintessentially discretionary”

function that involves judgment and requires balancing policy

goals and finite agency resources, thus meriting protection

under the discretionary-function exception. Moore v. Valder,

65 F.3d 189, 197 (D.C. Cir. 1995); see Gray, 712 F.2d at 514.

In determining whether the exception applies, we have treated

the decision to initiate an administrative proceeding as we do

a decision to pursue a criminal prosecution. See Sloan v. U.S.

Dep’t of Hous. & Urban Dev., 236 F.3d 756, 760 (D.C. Cir.

2001). A decision by the OCC to bring an action pursuant to

its broad statutory enforcement authority, 12 U.S.C.

§ 1818(b), (i), therefore ordinarily would appear to qualify for

the discretionary-function exception, even if a factfinder

considering a tort claim arising out of the enforcement

decision might conclude that the prosecution was

unreasonable or otherwise amounted to an abuse of the

OCC’s enforcement discretion.

But our inquiry into the viability of Loumiet’s FTCA

claims does not end there. This case raises the additional,

10

thorny question—novel in our circuit—whether the FTCA’s

discretionary-function exception shields the United States

from common-law tort liability under the Act even when the

otherwise discretionary conduct the plaintiff challenges

exceeds constitutional limits on the government’s authority to

act. Loumiet alleges FTCA tort claims, including claims of

intentional infliction of emotional distress and malicious

prosecution, based on conduct generally subject to the

agency’s enforcement discretion. But he also alleges that the

OCC’s retaliatory enforcement action violated his First and

Fifth Amendment rights and thus was not an exercise of the

sort of discretion the exception shields. See Compl. ¶ 111,

App. Tab 2 at 64 (“Because the defendants’ behavior failed to

comply with the internal rules and procedures of the OCC

itself, and also grossly offended the First and Fifth

Amendments to our Constitution, the ‘discretionary activity’

exclusion under the FTCA does not apply.”).

The government responds that the challenged prosecution

was, at bottom, discretionary, and that Loumiet’s

constitutional allegations do not affect the applicability of the

discretionary-function exception to bar the FTCA claims.

Because the FTCA does not waive sovereign immunity for

constitutional torts, the government objects, there can be no

unconstitutional-discretion limitation on the exception. In any

event, it contends, Loumiet alleges no violation of any clearly

established constitutional directive—the only type of

constitutional violation that, in the government’s view, might

render the discretionary-function exception inapplicable.

We hold that the FTCA’s discretionary-function

exception does not provide a blanket immunity against

tortious conduct that a plaintiff plausibly alleges also flouts a

constitutional prescription. At least seven circuits, including

the First, Second, Third, Fourth, Fifth, Eighth, and Ninth,

11

have either held or stated in dictum that the discretionary-

function exception does not shield government officials from

FTCA liability when they exceed the scope of their

constitutional authority. In Nurse v. United States, for

example, the Ninth Circuit held that “[i]n general,

governmental conduct cannot be discretionary if it violates a

legal mandate,” including a constitutional mandate. 226 F.3d

996, 1002 (9th Cir. 2000). The discretionary-function

exception was inapplicable, that court explained, because the

plaintiff had alleged tort claims based on “discriminatory,

unconstitutional policies which the[] [defendants] had no

discretion to create.” Id. Likewise, the Eighth Circuit in Raz

v. United States held that the FBI’s “alleged surveillance

activities f[e]ll outside the FTCA’s discretionary-function

exception” where the plaintiff had “alleged they were

conducted in violation of his First and Fourth Amendment

rights.” 343 F.3d 945, 948 (8th Cir. 2003); see also, e.g.,

Limone v. United States, 579 F.3d 79, 102 (1st Cir. 2009)

(holding that challenged “conduct was unconstitutional and,

therefore, not within the sweep of the discretionary function

exception”); Medina v. United States, 259 F.3d 220, 225 (4th

Cir. 2001) (In “determin[ing] the bounds of the discretionary

function exception . . . we begin with the principle that federal

officials do not possess discretion to violate constitutional

rights or federal statutes.” (internal quotation marks,

alterations, and citations omitted)); U.S. Fid. & Guar. Co. v.

United States, 837 F.2d 116, 120 (3d Cir. 1988) (“[C]onduct

cannot be discretionary if it violates the Constitution, a

statute, or an applicable regulation. Federal officials do not

possess discretion to violate constitutional rights or federal

statutes.”); Sutton v. United States, 819 F.2d 1289, 1293 (5th

Cir. 1987) (“[A]ction does not fall within the discretionary

function exception of § 2680(a) when governmental agents

12

exceed the scope of their authority as designated by statute or

the Constitution.”);2 Myers & Myers Inc. v. USPS, 527 F.2d

1252, 1261 (2d Cir. 1975) (“It is, of course, a tautology that a

federal official cannot have discretion to behave

unconstitutionally or outside the scope of his delegated

authority.”).3

To this court’s knowledge, only the Seventh Circuit has

held otherwise. Kiiskila v. United States, 466 F.2d 626, 627-

28 (7th Cir. 1972). That court applied the discretionary-

function exception to immunize the government from FTCA

liability arising from the decision of a military-base

commander to exclude the plaintiff, a civilian manager at the

base’s credit union, from entering the base because she

carried antiwar literature and planned an off-site antiwar

2

A panel of the Fifth Circuit later relied on Sutton to hold the

discretionary-function exception inapplicable to conduct a plaintiff

had alleged to violate the Fourth and Fifth Amendments. See

Castro v. United States, 560 F.3d 381, 389-90 (5th Cir. 2009)

(subsequent history omitted). The en banc Fifth Circuit summarily

vacated the Castro panel decision, but in so doing did not address

the interplay between constitutional allegations and the

discretionary-function exception. See Castro v. United States, 608

F.3d 266, 268-69 (5th Cir. 2010) (en banc). Instead, it adopted the

prior district court opinion, id., which also was silent on the import

of the plaintiff’s constitutional allegations, see Castro v. United

States, No. CIV.A. C-06-61, 2007 WL 471095, at *7-*9 (S.D. Tex.

Feb. 9, 2007) (subsequent history omitted). Notwithstanding

Sutton, the Fifth Circuit has since observed that the circuit has “not

yet determined whether a constitutional violation, as opposed to a

statutory, regulatory, or policy violation, precludes the application

of the discretionary function exception.” Spotts v. United States,

613 F.3d 559, 569 (5th Cir. 2010) (citing Castro, 608 F.3d 266).

3

The government’s briefing not only failed to distinguish this great

weight of authority, but did not even acknowledge it.

13

rally—an exclusion the court had already determined violated

the First Amendment. Id.; see Kiiskila v. Nichols, 433 F.2d

745, 746-51 (7th Cir. 1970) (en banc). The bank manager

sought damages under the FTCA, but the court of appeals

sustained dismissal of that claim as deriving from an FTCA-

excepted governmental “exercise of discretion, albeit

constitutionally repugnant.” Kiiskila, 466 F.2d at 627-28.

This circuit has yet to decide whether the FTCA’s

discretionary-function exception generally immunizes

allegedly unconstitutional abuses of discretion by the

government. In deciding that it does not, we follow the clear

weight of circuit authority. By the same token that the

government has no policymaking discretion to violate “a

federal statute, regulation, or policy specifically prescrib[ing]

a course of action for [its] employee to follow,” Berkovitz,

486 U.S. at 536, the government lacks discretion to make

unconstitutional policy choices. Although the discretionary-

function exception shields government policymakers’ lawful

discretion to set social, economic, and political policy

priorities from judicial second-guessing via tort law, there is

no blanket exception for discretion that exceeds constitutional

bounds.

As we have previously held, the policy discretion of

federal personnel acting in their official capacity is

necessarily “circumscribed by the rules that limit the bounds

of [their] authority.” Red Lake, 800 F.2d at 1197. Thus, in

Red Lake, we concluded that an FBI agent who, due to FBI

policy, lacked authority over non-FBI officials at a hostage

situation was unprotected by the discretionary-function

exception from a suit challenging orders he gave to officials

not under his lawful command. Id. at 1196-97. The

exception did not apply, we explained, because “[a]

government official has no discretion to violate the binding

14

laws, regulations, or policies that define the extent of his

official powers. An employee of the government acting

beyond his authority is not exercising the sort of discretion the

discretionary function exception was enacted to protect.” Id.

at 1196.

The discretionary-function exception likewise does not

shield decisions that exceed constitutional bounds, even if

such decisions are imbued with policy considerations. See

Medina, 259 F.3d at 225 (acknowledging, in reliance on

Berkovitz, 486 U.S. at 536, and Red Lake, 800 F.2d at 1196,

that federal officials lack discretion to violate constitutional

rights). A constitutional limit on governmental power, no less

than a federal statutory or regulatory one like the FBI policy

in Red Lake, circumscribes the government’s authority even

on decisions that otherwise would fall within its lawful

discretion. The government “has no ‘discretion’ to violate the

Federal Constitution; its dictates are absolute and imperative.”

Owen v. City of Independence, Mo., 445 U.S. 622, 649

(1980). Indeed, the absence of a limitation on the

discretionary-function exception for constitutionally ultra

vires conduct would yield an illogical result: the FTCA

would authorize tort claims against the government for

conduct that violates the mandates of a statute, rule, or policy,

while insulating the government from claims alleging on-duty

conduct so egregious that it violates the more fundamental

requirements of the Constitution.

Neither Moore, 65 F.3d 189, nor Gray, 712 F.2d 490, on

which the government relies, addressed whether the

discretionary-function exception immunizes even

unconstitutional decisions to prosecute. In those cases, as

here, we considered FTCA common-law tort claims against

the government premised on conduct also alleged to be

unconstitutional. Moore, 65 F.3d at 191; Gray, 712 F.2d at

15

495. The parties in Moore disputed the scope of the

discretionary-function exception as applied to various alleged

misdeeds relating to investigation and prosecution. We drew

the line between conduct tied to the “quintessentially

discretionary” decision to prosecute, which we held was

immunized, and “discrete” and “separable” activity such as

“disclosing grand jury testimony to unauthorized third

parties,” which we held was not. Id. at 196-97. The plaintiff

in Moore did not argue, nor did we consider, whether

constitutional limits on a prosecutor’s discretion affected the

discretionary-function exception’s applicability. See id.; see

also Br. of Plaintiff-Appellant, Moore v. United States, Nos.

99-5197 & 99-5198, 1999 WL 34834283 (D.C. Cir. Dec. 17,

1999). Similarly in Gray, the focus of dispute was whether

the prosecutors’ pre-indictment investigatory actions were

distinct from their clearly discretionary—and thus, all

assumed, immunized—decision to prosecute. 712 F.2d at

515-16. In holding that they were not, we nowhere discussed

any effect the alleged unconstitutionality of the prosecutors’

actions might have on the availability of the discretionary-

function exception. Id.

The government also contends that recognition of

constitutional limitations on the FTCA’s discretionary-

function exception would run counter to the Supreme Court’s

statement in FDIC v. Meyer, 510 U.S. 471, 478 (1994), that

“the United States simply has not rendered itself liable under

[the FTCA] for constitutional tort claims,” which are

actionable only against individual officials under Bivens, Br.

of the United States 18-19. Judge Smith voiced a similar

concern in his dissent from the Fifth Circuit panel decision in

Castro when he worried that, “by a plaintiff’s artful pleading,

the United States c[ould] be liable whenever the Constitution

is violated even though, under Meyer, the sovereign is not

subject to liability for constitutional torts.” Castro v. United

16

States, 560 F.3d 381, 394 (5th Cir. 2009) (Smith, J.,

dissenting), rev’d on reh’g en banc, 608 F.3d 266 (5th Cir.

2010).

But those contentions miscast the relationship between

FTCA state-law torts and Bivens constitutional claims. The

state-law substance of an FTCA claim is unchanged by

courts’ recognition of constitutional bounds to the legitimate

discretion that the FTCA immunizes. Federal constitutional

claims for damages are cognizable only under Bivens, which

runs against individual governmental officials personally. See

Meyer, 510 U.S. at 482, 485-86. The FTCA, in contrast,

provides a method to enforce state tort law against the federal

government itself. See 28 U.S.C. § 1346(b)(1); cf. Carlson v.

Green, 446 U.S. 14, 20-21 (1980) (describing distinct goals

and characteristics of FTCA and Bivens claims and

concluding that “Congress views FTCA and Bivens as

parallel, complementary causes of action”). A plaintiff who

identifies constitutional defects in the conduct underlying her

FTCA tort claim—whether or not she advances a Bivens

claim against the individual official involved—may affect the

availability of the discretionary-function defense, but she does

not thereby convert an FTCA claim into a constitutional

damages claim against the government; state law is

necessarily still the source of the substantive standard of

FTCA liability. The First Circuit has similarly emphasized, in

holding unconstitutional conduct to fall outside of “the sweep

of the discretionary function exception,” that it does not view

the government’s “constitutional transgressions as

corresponding to the plaintiffs’ causes of action—after all, the

plaintiffs’ claims are not Bivens claims—but rather, as

negating the discretionary function defense.” Limone, 579

F.3d at 102 & n.12.

17

The question remains whether or to what degree a

constitutional mandate must be specific or clearly established

to render the discretionary-function exception inapplicable.

Contending that the exception should at least immunize

governmental policy discretion that is not clearly

unconstitutional, the government adverts to the qualified-

immunity doctrine of Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982), under which a constitutional tort plaintiff seeking to

defeat an individual official’s qualified-immunity defense

must show that the claimed constitutional rights were “clearly

established,” Br. of the United States 19. The government

appreciates that qualified immunity as such applies only to

governmental officials sued in their individual capacities, not

to the government as an entity. Harlow, 457 U.S. at 818.

Qualified immunity—a form of official immunity—is directly

tied to “the risk that fear of personal monetary liability and

harassing litigation will unduly inhibit officials in the

discharge of their duties,” to the detriment of the public

interest. Anderson v. Creighton, 483 U.S. 635, 638 (1987);

see also Harlow, 457 U.S. at 816, 819.

We take the government to be arguing by analogy that

principles similar to those that undergird qualified immunity

should extend to preserve discretionary-function immunity for

some unconstitutional acts. We have found no precedent in

any circuit holding as the government urges, nor does it cite

any. At this juncture we see no cause to make this the first.

Indeed, the district court on remand might allow Loumiet’s

FTCA claims to proceed under a narrow standard such as the

government suggests.4 That would leave for another day the

4

Cf. Moore v. Hartman, 704 F.3d 1003, 1004 (D.C. Cir. 2013)

(noting that “the precedent in this Circuit clearly established in

1988 . . . the contours of the First Amendment right to be free from

retaliatory prosecution”); Moore v. Valder, 65 F.3d at 196 (holding

18

question whether the FTCA immunizes exercises of policy

discretion in violation of constitutional constraints that are not

already clear.

To resolve this appeal, we need go no further than to hold

that the district court erred as a matter of law in barring

Loumiet’s FTCA claims on the ground that, as a general

matter, “even constitutionally defective” exercises of

discretion fall within the Act’s discretionary-function

exception. Loumiet II, 65 F. Supp. 3d at 25. That broad-

brush approach is foreclosed by our holding today. The

district court should determine in the first instance whether

Loumiet’s complaint plausibly alleges that the OCC’s conduct

exceeded the scope of its constitutional authority so as to

vitiate discretionary-function immunity.

III

Loumiet also asserts that the district court erred in

dismissing his First and Fifth Amendment Bivens claims as

time-barred.5 Those claims did not accrue, he contends, until

the OCC finally dismissed its enforcement action on July 27,

2009, because the agency’s ongoing prosecution of that action

inflicted continuing harm until its final dismissal. The

defendants counter that Loumiet failed to raise that

continuing-violations argument before the district court and

that a “retaliatory prosecution claim . . . does allege the violation of

clearly established law”).

5

Loumiet’s Fifth Amendment due-process and First Amendment

speech-based retaliation claims are premised on identical

allegations, and Loumiet does not argue that they should have

different dates of accrual. Accordingly, like the district court, we

do not differentiate between those claims in assessing their

timeliness. See Loumiet I, 968 F. Supp. 2d at 150 n.2.

19

that the doctrine in any event does not assist him. For the

following reasons, we conclude that Loumiet adequately

advanced the continuing-violations doctrine before the district

court, and that his Bivens claims, staked on continuing,

harmful conduct, were timely.

“When a federal action contains no statute of limitations,

courts will ordinarily look to analogous provisions in state

law as a source of a federal limitations period.” Doe v. Dep’t

of Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985); see id. at

1114-15 (applying state limitations period in Bivens action).

In this case, there is no dispute that the District of Columbia’s

general three-year statute of limitations applies to Loumiet’s

Bivens claims. See D.C. Code § 12-301(8). Therefore, if

Loumiet’s claims accrued before July 9, 2009—more than

three years before he filed his July 9, 2012, complaint—they

would be barred by the statute of limitations.

State law dictates the statute of limitations, but the timing

of the accrual of Loumiet’s claims is a question of federal

law. Cf. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“[T]he

accrual date of a § 1983 cause of action is a question of

federal law that is not resolved by reference to state law.”).

Ordinarily, “accrual occurs when the plaintiff has a complete

and present cause of action, that is, when the plaintiff can file

suit and obtain relief.” Id. (internal quotation marks,

alterations, and citations omitted). In other words, “[a] claim

normally accrues when the factual and legal prerequisites for

filing suit are in place.” Earle v. District of Columbia, 707

F.3d 299, 306 (D.C. Cir. 2012) (quoting Norwest Bank Minn.

Nat’l Ass’n v. FDIC, 312 F.3d 447, 451 (D.C. Cir. 2002)).

The defendants contend, and the district court agreed,

Loumiet I, 968 F. Supp. 2d at 149-53, that under that general

accrual rule, Loumiet’s First and Fifth Amendment retaliatory

20

prosecution claims are time-barred because all of the events

underpinning each of the elements of those claims took place

well before the statute-of-limitations cutoff of July 9, 2009.

We need not decide whether Loumiet’s claims would have

been untimely under the general accrual rule, however,

because we agree with Loumiet’s contention that the

continuing-violations doctrine displaced it here to render his

claims timely filed.

As an initial matter, Loumiet adequately raised, and thus

preserved for our review, his continuing-violations argument.

The district court relied on that argument in holding that the

FTCA claims were timely, but treated it as forfeited for the

Bivens claims. See Loumiet I, 968 F. Supp. 2d at 152 n.3,

155; Loumiet II, 65 F. Supp. 3d at 24-25. In addressing the

timeliness of his claims before the district court, however,

Loumiet expressly analogized his Bivens retaliatory

prosecution claims to his FTCA tort claims, characterizing the

former as “simply an offspring of the OCC’s malicious

prosecution.” Pl. Opp. to Mot. to Dismiss, App. Tab 3 at 35.

Loumiet thus adequately incorporated by reference his

invocation of the continuing-violations theory as to his FTCA

claims. Compare id. at 35-36, with id. at 49-51. We therefore

consider the argument.

Even while this court “do[es] not lightly create

exceptions to the general rule of claim accrual,” Earle, 707

F.3d at 306 n.9, it has “recognized various exceptions to, and

glosses on, the rule” including the “muddled, . . . intricate[,]

and somewhat confusing” continuing-violations, or

continuing-tort, doctrine, id. at 309 (internal quotation marks

omitted). The continuing-violations doctrine applies where

“no single incident in a continuous chain of tortious activity

can ‘fairly or realistically be identified as the cause of

significant harm,’” and so it is “proper to regard the

21

cumulative effect of the conduct as actionable.” Page v.

United States, 729 F.2d 818, 821-22 (D.C. Cir. 1984) (quoting

Fowkes v. Penn. R.R. Co., 264 F.2d 397, 399 (3d Cir. 1959)).

The court has recognized two types of continuing violations,

only the second of which is implicated here: (1) where

defendants violated a statutorily imposed continuing

obligation, Earle, 707 F.3d at 307; or (2) where the “character

[of the challenged conduct] as a violation did not become

clear until it was repeated during the limitations period,

typically because it is only its cumulative impact (as in the

case of a hostile work environment) that reveals its illegality,”

id. at 306 (quoting Taylor v. FDIC, 132 F.3d 753, 765 (D.C.

Cir. 1997)).

In Page, we recognized the latter type of continuing

violation in the context of an FTCA claim alleging a

“gradual” injury “resulting from the cumulative impact of

years of allegedly tortious drug treatment.” 729 F.2d at 822.

It “seem[ed] unrealistic,” we explained, “to regard each

prescription of drugs as the cause of a separate injury, or as a

separate tortious act triggering a new limitation period.” Id. at

822-23. Accordingly, we held that the plaintiff’s claim did

not accrue until the conclusion of what was alleged to have

been nearly twenty years of tortious drug treatment. Id. at

819, 822-23.

Under our decision in Whelan, that reasoning holds true

where a plaintiff has alleged that the full course of legal

proceedings effected a single, cumulative harm. We held

there that a claim of tortious interference with business

opportunities could proceed even if the business opportunities

did not exist at the time of the allegedly interfering lawsuit,

because under the continuing-violations doctrine, “a lawsuit is

a continuous, not an isolated event,” the effects of which

“persist from the initial filing to the final disposition of the

22

case.” 953 F.2d at 673. Put another way, a lawsuit “is

repetitive in that it represents the assertion, every day, of the

plaintiff’s claim,” and “[a] defendant subject to a lawsuit is

likely to suffer damage not so much from the initial complaint

but from the cumulative costs of defense and the reputational

harm caused by an unresolved claim.” Id. A lawsuit is thus

different from the typical case of a “mere failure to right a

wrong and make the plaintiff whole.” Id. (quoting Fitzgerald

v. Seamans, 553 F.2d 220, 230 (D.C. Cir. 1977)).

Page and Whelan are dispositive here. Loumiet alleges

continuing harm resulting not only from the filing of the

OCC’s frivolous, retaliatory legal proceedings against him,

but also from the agency’s continued prosecution of Loumiet

and associated publicity over a period of many years. It is not

only the initiation of the OCC’s action that Loumiet identified

as harmful; he also cited, among other things, the experts the

OCC sought to put on the stand, Compl. ¶¶ 93-94, App. Tab 2

at 52-54, statements made to the press, id. ¶¶ 15-16, 85, 91,

App. Tab 2 at 4-5, 48-49, 51-52, the three-week trial in which

Loumiet had to defend himself against baseless allegations,

id. ¶¶ 94-105, App. Tab 2 at 59-60, the testimony levelled

against him, id. ¶¶ 94-95, 98-105, App. Tab 2 at 53-54, 56-60,

and the four years of decreased income, downgraded

partnership stake, and continuing emotional distress he alleges

he suffered throughout the pendency of the OCC enforcement

action, id. ¶ 106, App. Tab 2 at 60-61. As with the ongoing

tort in Whelan, the commencement of the OCC action at issue

here was but “the first link in a chain of conduct that d[id] not

end until the [OCC] cease[d] prosecution of the suit.” 953

F.2d at 674 (citing Page, 729 F.2d at 821-22).

The defendants contend that neither Page nor Whelan

applies because neither case involved a Bivens claim.

Limitations doctrines are typically trans-substantive, however,

23

and this one is no exception. Whelan places squarely within

the scope of the continuing-violations doctrine ongoing legal

proceedings that cause continuing harm. 953 F.2d at 673-74.

The defendants offer no reason why that rule should differ in

the Bivens context. Cf. Va. Hosp. Ass’n v. Baliles, 868 F.2d

653, 663 (4th Cir. 1989), aff’d sub nom. Wilder v. Va. Hosp.

Ass’n, 496 U.S. 498 (1990) (applying continuing-violations

doctrine to delay accrual in § 1983 case). Loumiet filed his

Bivens claims on July 9, 2012, within three years of the

OCC’s July 27, 2009, dismissal of its enforcement action

against him. Those claims were therefore timely.

Accordingly, we remand to the district court for its

consideration of the remaining defenses raised but not yet

decided in the district court. See Loumiet I, 968 F. Supp. 2d

at 149.6

***

For the foregoing reasons, we reverse the dismissal order

of the district court and remand for further proceedings

consistent with this opinion.

So ordered.

6

Because we reverse the dismissal of Loumiet’s Bivens claims, we

need not reach the question whether the district court abused its

discretion in denying Loumiet’s motion for reconsideration as to

those claims.