Carlos Loumiet v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 13, 2018 Decided January 28, 2020

No. 18-5020

CARLOS LOUMIET, ESQUIRE,

APPELLEE

v.

UNITED STATES OF AMERICA,

APPELLEE

MICHAEL RARDIN, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01130)

Tyce R. Walters, Attorney, U.S. Department of Justice,

argued the cause for appellants. With him on the briefs were

Jessie K. Liu, U.S. Attorney, and Mark B. Stern, Attorney.

Carlos Loumiet, pro se, argued the cause for appellee. On

the brief was Andrés Rivero.

Before: GARLAND, Chief Judge, KATSAS, Circuit Judge,

and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KATSAS.

2

KATSAS, Circuit Judge: In Bivens v. Six Unknown

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

(1971), the Supreme Court held that the Fourth Amendment

creates an implied damages action for unconstitutional

searches against line officers enforcing federal drug laws. In

this case, we consider whether the First Amendment creates an

implied damages action against officials in the Office of the

Comptroller of the Currency (OCC) for retaliatory

administrative enforcement actions under the Financial

Institutions Reform, Recovery, and Enforcement Act of 1989

(FIRREA). Consistent with the Supreme Court’s marked

reluctance to extend Bivens to new contexts, we hold that the

First Amendment does not create such an implied damages

action.

I

In 1999, the OCC began an investigation of Hamilton

Bank and three of its executives for the allegedly fraudulent

concealment of some $22 million in loan losses. The bank

retained an outside law firm to investigate the charges. Carlos

Loumiet, then a partner at the law firm, prepared two reports.

The first one, made for the bank’s auditing committee and

shared with the OCC, was issued in November 2000. It found

no convincing evidence that the executives had fraudulently

concealed the losses. The OCC was skeptical and provided

Loumiet with additional evidence. In response, Loumiet

prepared a second report, issued in March 2001. It concluded

that the disputed transactions were poorly handled but still

found insufficient evidence to conclude that the executives had

fraudulently concealed the losses. The OCC disagreed and

placed the bank into a receivership. Later, the executives were

indicted. Two of them pleaded guilty; the third, Hamilton’s

former chairman and chief executive officer, was convicted

3

and sentenced to thirty years of imprisonment. United States

v. Masferrer, 514 F.3d 1158 (11th Cir. 2008).

According to Loumiet, OCC officials engaged in various

forms of misconduct during the investigation. The alleged

misconduct included lying to Hamilton officers, threatening to

retaliate against its lawyers, and making racist statements. In

March and April 2001, Loumiet raised these allegations with

the Secretary of the Treasury, the Inspector General of the

Treasury Department, and the Comptroller. In June 2001,

Loumiet met with an attorney in the Inspector General’s Office

to discuss his allegations. In July 2001, the Inspector General

concluded that there was no basis to investigate them any

further. Nonetheless, Loumiet represented the bank in suing

the OCC for alleged civil-rights violations. The bank

voluntarily dismissed its suit in 2002. Order of Dismissal,

Hamilton Bank, N.A. v. Comptroller, No. 01-4994 (S.D. Fla.

Oct. 16, 2002), ECF Doc. 64.

In 2006, after the Hamilton executives were convicted, the

OCC brought an administrative enforcement action against

Loumiet, one of his partners, and his law firm. The OCC

proceeded under FIRREA, which allows it to seek civil

penalties from “any institution-affiliated party” who breaches

a fiduciary duty to a federally-insured bank and thereby

“causes or is likely to cause more than a minimal loss” to the

bank. 12 U.S.C. § 1818(i)(2)(B). In turn, FIRREA defines an

“institution-affiliated party” to include “any attorney” who

“knowingly or recklessly participates in” a breach of fiduciary

duty that “caused or is likely to cause more than a minimal

financial loss to, or a significant adverse effect on” the bank.

Id. § 1813(u)(4). The law firm and Loumiet’s partner settled

with the OCC and agreed to pay $750,000 in fines. Loumiet

contested the charges against him. An Administrative Law

Judge recommended their dismissal on the ground that Loumiet

4

had not breached any fiduciary duty. Recommended Decision,

In re Loumiet, OCC-AA-EC-06-102 (June 18, 2008). The

Comptroller disagreed, but nonetheless dismissed on the

alternative ground that Loumiet had not caused the bank any

harm. Final Decision & Order, In re Loumiet, OCC-AA-EC-

06-102 (July 27, 2009).

Loumiet sought fees under the Equal Access to Justice Act

(EAJA). In pertinent part, EAJA allows a prevailing private

party in an administrative adjudication to recover “fees and

other expenses” unless the adjudicator “finds that the position

of the agency was substantially justified.” 5 U.S.C.

§ 504(a)(1). The OCC denied fees, but we reversed on the

ground that there was no substantial justification for the OCC’s

position that Loumiet could have significantly harmed the

bank. Loumiet v. OCC, 650 F.3d 796 (D.C. Cir. 2011). We

reasoned that even if Loumiet’s false exoneration of the

executives caused the bank to “retain the dishonest officers,”

there was no evidence that this harmed the bank. Id. at 800.

On remand, Loumiet was awarded $675,000.

Loumiet then filed this lawsuit against the United States

and four OCC officials. He asserted Bivens claims against the

officials as well as various tort claims. The Bivens claims rest

on the theory that the officials caused the OCC enforcement

action in retaliation for Loumiet’s protected speech criticizing

the OCC investigation, in violation of the First and Fifth

Amendments of the Constitution. The district court held that

the Bivens claims were untimely, and it dismissed the tort

claims on other grounds. Loumiet v. United States, 65 F. Supp.

3d 19 (D.D.C. 2014). We reversed both rulings. Loumiet v.

United States, 828 F.3d 935 (D.C. Cir. 2016).

On remand, the district court declined to dismiss the First

Amendment Bivens claims. Loumiet v. United States, 255

5

F. Supp. 3d 75, 83–96 (D.D.C. 2017). The court reasoned that

prior decisions had already “recognized the existence of a

Bivens implied cause-of-action for retaliatory prosecution in

violation of the First Amendment.” Id. at 84. Likewise, the

court concluded that the procedural and remedial protections

provided under FIRREA do not counsel against recognizing an

implied damages action. See id. at 85–90. The court further

held that the complaint plausibly stated First Amendment

claims against the OCC officials who allegedly “induce[d] an

enforcement action against Plaintiff in reprisal for critical

statements that he made against them and the OCC more

generally.” Id. at 95. And it denied those officials qualified

immunity on the ground that the “First Amendment right to be

free from retaliatory prosecution” was clearly established long

before 2006. Id. at 93 (quotation marks omitted). Finally, the

court held that the Fifth Amendment count did not state a claim,

converted the tort claims against the individual defendants into

claims against the United States, and dismissed some but not

all of the tort claims. Id. at 97–100.

After the Supreme Court decided Ziglar v. Abbasi, 137

S. Ct. 1843 (2017), the officials moved for reconsideration.

The district court denied the motion. Loumiet v. United States,

292 F. Supp. 3d 222 (D.D.C. 2017). In light of Abbasi, the

court assumed that Loumiet was seeking to extend Bivens into

a “new context.” Id. at 229. But the court concluded that the

“special factors counselling hesitation” in Abbasi, which

involved programmatic actions undertaken by high-ranking

officials in response to terrorist attacks, were not present in this

case. Id. at 227 (quotation marks omitted); see id. at 229–31.

Finally, the court discounted the significance of EAJA in its

special-factors analysis because that statute was not enacted as

part of FIRREA. Id. at 232–38.

6

The OCC officials now seek review of the district court’s

refusal to dismiss the First Amendment claims against them.

II

We begin, as we must, with our jurisdiction. See Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). We have

jurisdiction to review “final decisions” of the district court. 28

U.S.C. § 1291. Under the collateral-order doctrine, the “denial

of a claim of qualified immunity, to the extent that it turns on

an issue of law, is an appealable ‘final decision’” within the

meaning of section 1291. Mitchell v. Forsyth, 472 U.S. 511,

530 (1985). We thus have jurisdiction to decide whether the

OCC officials are entitled to qualified immunity on the First

Amendment claims.

We also have jurisdiction to decide whether the First

Amendment confers upon Loumiet an implied cause of action

for damages. Because “the recognition of the entire cause of

action” is “directly implicated by the defense of qualified

immunity,” both questions are “properly before us on

interlocutory appeal.” Wilkie v. Robbins, 551 U.S. 537, 549 n.4

(2007) (quotation marks omitted); see Liff v. Office of Inspector

Gen. for U.S. Dep’t of Labor, 881 F.3d 912, 917–18 (D.C. Cir.

2018).

III

In this court, the OCC officials contend that the First

Amendment creates no implied cause of action for damages

and that, in any event, they are entitled to qualified immunity

on the facts alleged by Loumiet. We begin with the cause-of-

action question, which is antecedent to the question of qualified

immunity. See Liff, 881 F.3d at 918 (“it is appropriate to

determine the availability of a Bivens remedy at the earliest

practicable phase of litigation”).

7

A

The Free Speech Clause of the First Amendment provides

that “Congress shall make no law … abridging the freedom of

speech.” Neither the First Amendment, nor any other provision

of the Constitution, provides an express cause of action for its

own violation. Congress has provided a statutory cause of

action against state officials for violations of the federal

Constitution, 42 U.S.C. § 1983, but it has provided no such

cause of action against federal officials. Nonetheless, Loumiet

asks us to hold that the First Amendment, by its own force,

creates an implied cause of action for damages against OCC

and other federal officials for retaliatory enforcement activities.

The Supreme Court first recognized an implied damages

action under the Constitution in Bivens. There, the Court held

that the Fourth Amendment creates an implied damages action

against federal narcotics officers for unconstitutional searches

and seizures. 403 U.S. at 389. Over the next decade, the

Supreme Court recognized two more implied damages actions

under the Constitution—one under the Fifth Amendment

against members of Congress for employment discrimination

on the basis of sex, Davis v. Passman, 442 U.S. 228, 248–49

(1979), and one under the Eighth Amendment against federal

prison officials for failure to provide adequate medical care,

Carlson v. Green, 446 U.S. 14, 19 (1980).

Since Carlson, however, the Supreme Court has carefully

circumscribed Bivens and “consistently refused to extend

Bivens to any new context or new category of defendants.”

Abbasi, 137 S. Ct. at 1857 (quotation marks omitted).

Recognizing an implied damages action “is a significant step

under separation-of-powers principles.” Id. at 1856. Imposing

personal liability on federal officers may promote important

interests in deterring constitutional violations and redressing

8

injuries, but it also “create[s] substantial costs” for the officers,

the government, and citizens who depend on the vigorous

enforcement of federal law. Id. The Constitution itself is silent

on how to balance these competing considerations in various

contexts, and judges are not well-suited to do so. Rather, “[i]n

most instances … the Legislature is in the better position to

consider if the public interest would be served by imposing a

new substantive legal liability.” Id. at 1857 (quotation marks

omitted). Moreover, in the decades since Bivens was decided,

the Court has grown wary of creating implied damages actions

in other contexts. See id. at 1855–56. For these reasons,

“expanding the Bivens remedy is now a disfavored judicial

activity,” so the Supreme Court demands “caution before

extending Bivens remedies into any new context.” Id. at 1857

(quotation marks omitted).

Exercising this caution, the Supreme Court has not

recognized a new Bivens action in the four decades since

Carlson was decided. At the same time, the Court has declined

to extend Bivens on ten separate occasions. Once, it declined

to create a Bivens cause of action because Congress had made

another remedy expressly exclusive. Hui v. Castaneda, 559

U.S. 799, 805–07 (2010). Twice, it declined to extend Bivens

to areas where Congress had provided an alternative scheme of

protections and remedies. Schweiker v. Chilicky, 487 U.S. 412,

424–29 (1988) (Social Security disability benefits); Bush v.

Lucas, 462 U.S. 367, 380–90 (1983) (federal employment).

Three times, it declined to extend Bivens to sensitive areas.

Abbasi, 137 S. Ct. at 1860–63 (national security); United States

v. Stanley, 483 U.S. 669, 678–86 (1987) (military); Chappell v.

Wallace, 462 U.S. 296, 298–305 (1983) (military). Three

times, it declined to extend Bivens to new categories of

defendants. Minneci v. Pollard, 565 U.S. 118, 126–31 (2012)

(private individuals); Corr. Servs. Corp. v. Malesko, 534 U.S.

61, 70–74 (2001) (private corporations); FDIC v. Meyer, 510

9

U.S. 471, 484–86 (1994) (federal agencies). Once, it declined

to extend Bivens simply because Congress is better positioned

to evaluate when agency officials “push too hard for the

Government’s benefit,” and what consequences should follow

if they do so. Robbins, 551 U.S. at 562.

After reviewing these precedents, Abbasi set out a two-part

test to decide when to recognize implied damages actions under

Bivens. First, we must consider whether the plaintiff seeks to

extend Bivens into a “new context.” If so, we then must

consider whether there are any “special factors counselling

hesitation.” See 137 S. Ct. at 1857–60.

B

The new-context inquiry in this case is straightforward.

According to the Supreme Court, “[t]he proper test for

determining whether a case presents a new Bivens context is as

follows. If the case is different in a meaningful way from

previous Bivens cases decided by this Court, then the context

is new.” Abbasi, 137 S. Ct. at 1859. The Court has provided a

non-exhaustive “list of differences that are meaningful enough

to make a given context a new one”:

the rank of the officers involved; the constitutional

right at issue; the generality or specificity of the

official action; the extent of judicial guidance as to

how an officer should respond to the problem or

emergency to be confronted; the statutory or other

legal mandate under which the officer was operating;

the risk of disruptive intrusion by the Judiciary into

the functioning of other branches; or the presence of

potential special factors that previous Bivens cases did

not consider.

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Id. at 1859–60. In addition, a “new context” is present

whenever the plaintiff seeks damages from a “new category of

defendants.” See id. at 1857 (quotation marks omitted);

Meshal v. Higgenbotham, 804 F.3d 417, 424 (D.C. Cir. 2015).

Under these criteria, “even a modest extension is still an

extension,” and so “the new-context inquiry is easily satisfied.”

Abbasi, 137 S. Ct. at 1864–65.

This case clearly presents a new Bivens context. First, the

constitutional right at issue differs from the ones at issue in

Bivens, Davis, and Carlson. Loumiet alleges a violation of the

Free Speech Clause of the First Amendment, but Bivens was a

Fourth Amendment search-and-seizure case, 403 U.S. at 389;

Davis was a Fifth Amendment sex-discrimination case, 442

U.S. at 231; and Carlson was an Eighth Amendment medical-

care case, 446 U.S. at 16 & n.1. Although the Supreme Court

twice has assumed that the First Amendment creates an implied

cause of action for damages, see Ashcroft v. Iqbal, 556 U.S.

662, 675 (2009) (Free Exercise Clause); Hartman v. Moore,

547 U.S. 250, 256 (2006) (Free Speech Clause), it has “never

held that Bivens extends to First Amendment claims,” Reichle

v. Howards, 566 U.S. 658, 663–64 n.4 (2012). Abbasi removed

any possible doubt on this point. There, the Supreme Court

stressed that “three cases—Bivens, Davis, and Carlson—

represent the only instances in which the Court has approved

of an implied damages remedy under the Constitution itself.”

137 S. Ct. at 1855. To the extent we suggested otherwise in

Munsell v. Department of Agriculture, 509 F.3d 572, 587–88

(D.C. Cir. 2007)—a case rejecting Bivens claims for failure to

exhaust, see id. at 591—Reichle and Abbasi have displaced that

dicta. And though we previously recognized First Amendment

Bivens claims in Haynesworth v. Miller, 820 F.2d 1245, 1255

(D.C. Cir. 1987), and Moore v. Valder, 65 F.3d 189, 196 n.12

(D.C. Cir. 1995), those cases have been overtaken by Abbasi’s

holding that the new-context analysis may consider only

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Supreme Court decisions approving Bivens actions. See 137

S. Ct. at 1859.

Second, the legal mandate under which the OCC officials

were operating is different from the ones in Bivens, Davis, and

Carlson. The dispute here arose from the enforcement of

federal banking laws under FIRREA, whereas Bivens involved

the enforcement of federal drug laws, 403 U.S. at 389; Davis

involved employment decisions by members of Congress, 442

U.S. at 230; and Carlson involved the provision of medical care

to federal prisoners, 446 U.S. at 16.

Third, Loumiet seeks damages from a new category of

defendants. The defendants here are OCC officials, whereas

the defendants in Bivens were federal narcotics agents, 403

U.S. at 389; the defendant in Davis was a former member of

Congress, 442 U.S. at 230; and the defendants in Carlson were

federal prison officials, 446 U.S. at 16. For each of these

reasons, this case presents a new context.

C

We next consider whether special factors counsel

hesitation. One factor stands out here: “if there is an alternative

remedial structure present in a certain case, that alone may limit

the power of the Judiciary to infer a new Bivens cause of

action.” Abbasi, 137 S. Ct. at 1858. Likewise, “when

alternative methods of relief are available, a Bivens remedy

usually is not.” Id. at 1863. Two Supreme Court cases—Bush

and Chilicky—illustrate these special factors.

In Bush, the Court refused to extend Bivens to a federal

employee allegedly demoted in retaliation for protected speech

criticizing his employer. 462 U.S. at 368–69. As the Court

explained, federal workers are “protected by an elaborate,

comprehensive scheme that encompasses substantive

12

provisions forbidding arbitrary action by supervisors and

procedures—administrative and judicial—by which improper

action may be redressed.” Id. at 385; see also id. at 368

(observing that the scheme affords “meaningful remedies

against the United States”). The Court held that such an

“elaborate remedial system that has been constructed step by

step, with careful attention to conflicting policy

considerations,” should not be “augmented by the creation of a

new judicial remedy” for the claimed First Amendment

violation. Id. at 388.

In Chilicky, the Court refused to extend Bivens to

individuals denied Social Security disability benefits, allegedly

in violation of the Fifth Amendment Due Process Clause. 487

U.S. at 414. Applying Bush, the Court concluded that the

“administrative structure and procedures of the Social Security

system” was a special factor counselling hesitation. Id. at 424.

That system established “federal standards and criteria” for the

provision of benefits, created “elaborate administrative

remedies” for claimants denied benefits, and provided for

“judicial review, including review of constitutional claims.”

Id. But it made “no provision for remedies in money damages

against officials responsible for unconstitutional conduct that

leads to the wrongful denial of benefits,” and the Court

declined to recalibrate the scheme to add that remedy. Id. at

424–25.

On three occasions, we have applied Bush and Chilicky to

reject Bivens claims. In Spagnola v. Mathis, 859 F.2d 223

(D.C. Cir. 1988) (en banc), we confirmed that the Civil Service

Reform Act bars First Amendment Bivens claims by

individuals allegedly denied federal employment or promotion

in retaliation for protected speech. See id. at 224–25, 229. We

stressed that, under Bush and Chilicky, “it is the

comprehensiveness of the statutory scheme involved, not the

13

‘adequacy’ of specific remedies extended thereunder, that

counsels judicial abstention.” Id. at 227. In Wilson v. Libby,

535 F.3d 697 (D.C. Cir. 2008), we held that the Privacy Act

barred First and Fifth Amendment Bivens claims brought by a

plaintiff alleging that her status as a covert agent had been

unconstitutionally disclosed. See id. at 702–04. And we did so

even though the Privacy Act, which authorizes private damages

actions for willful violations, exempts the Offices of the

President and the Vice President from coverage—and thus

afforded no remedy against the defendants in the case. See id.

at 706–08. In Liff, we held that the “myriad statutes and

regulations that provide remedies for contracting-related

disputes,” which collectively afford a “spectrum of remedies,”

bar the imposition of Bivens liability for claims arising out of

federal government contracts. See 881 F.3d at 920–21. In each

of these cases, we declined to question whether the remedial

scheme at issue was the “best response” in the specific context

at issue, “for Congress is the body charged with making the

inevitable compromises required.” Spagnola, 859 F.2d at 228

(cleaned up).

Here, FIRREA’s administrative enforcement scheme is

likewise a special factor counselling hesitation. This scheme

permits the imposition of civil penalties only for defined

offenses such as knowingly breaching a fiduciary duty or

recklessly engaging in an unsound banking practice. 12 U.S.C.

§ 1818(i)(2)(A)–(C). Any party subject to a penalty is entitled

to advance notice and a hearing, id. § 1818(i)(2)(H), which

must be conducted in accordance with the Administrative

Procedure Act, id. § 1818(h)(1). Thus, the party is entitled to

make arguments, cross-examine witnesses, and submit oral,

documentary, and rebuttal evidence. 5 U.S.C. § 554(c)(1); id.

§ 556(d). Enforcement officials within the OCC bear the

burden of proof and cannot participate or advise in the decision.

Id. § 556(b) & (d). And the presiding official, if not the OCC

14

itself, must be a duly appointed ALJ, id. § 556(b), who must

render a recommended decision on a closed record with a

statement of reasons, id. § 557(c), and without any ex parte

contacts relevant to the proceeding, id. § 557(d). FIRREA also

requires the OCC to augment these procedures with

implementing regulations, 12 U.S.C. § 1818(i)(2)(K), under

which administrative respondents are entitled to be represented

by counsel, 12 C.F.R. § 19.35; seek summary disposition, id.

§ 19.29; apply for document subpoenas, id. § 19.26; object to

evidence, id. § 19.36(d); depose unavailable witnesses, id.

§ 19.36(f); and more. The ALJ’s recommended decision is

then subject to further review by the Comptroller himself,

5 U.S.C. § 557(b), and his decision in turn is subject to judicial

review in a court of appeals, 12 U.S.C. § 1818(h)(2). Similar

rules, protections, and review attend other exercises of OCC

administrative enforcement, including the adjudication of

cease-and-desist orders, id. § 1818(b), and the removal of

affiliated individuals from participating in a bank’s affairs, id.

§ 1818(e). Together, these provisions afford regulated parties

an “alternative, existing process for protecting [their] interest.”

Abbasi, 137 S. Ct. at 1858 (quotation marks omitted).

Moreover, the FIRREA enforcement scheme gives

regulated parties a sword as well as a shield. Under EAJA, any

party prevailing in a contested agency adjudication is entitled

to “fees and other expenses incurred by that party in connection

with that proceeding,” unless the ALJ “finds that the position

of the agency was substantially justified or that special

circumstances make an award unjust.” 5 U.S.C. § 504(a)(1).

This stands in marked contrast to the American Rule, under

which “the prevailing litigant is ordinarily not entitled to

collect a reasonable attorneys’ fee from the loser.” Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247

(1975). Fee awards under EAJA can be substantial, as

evidenced by Loumiet’s own award of $675,000. The FIRREA

15

scheme thus affords “meaningful remedies against the United

States,” Bush, 462 U.S. at 368, as a general matter and in this

case.

One more aspect of the scheme is important—judicial

review, although available, is carefully circumscribed.

Specifically, FIRREA provides that “[j]udicial review” of any

OCC administrative adjudication “shall be exclusively as

provided” in FIRREA itself, which channels such review to the

courts of appeals. 12 U.S.C. § 1818(h)(1) & (2). Likewise,

FIRREA provides that, in any district-court action to enforce a

civil penalty, “the validity and appropriateness of the penalty

shall not be subject to review.” Id. § 1818(i)(2)(I)(ii). These

provisions come close to foreclosing a Bivens action expressly,

just as the exclusive-review provision at issue in Castaneda

expressly foreclosed Bivens actions against officers of the

Public Health Service. See 559 U.S. at 805–06. At a minimum,

the precise nature of the available judicial review makes clear

that Congress did not “inadvertently” omit a damages remedy

from FIRREA, see Liff, 881 F.3d at 921; Wilson, 535 F.3d at

708; Spagnola, 859 F.2d at 228, underscoring that the courts

should not augment the scheme to supply one. See Abbasi, 137

S. Ct. at 1865 (“legislative action suggesting that Congress

does not want a damages remedy is itself a factor counseling

hesitation”).

Loumiet’s contrary arguments are all without merit. First,

he contends that the procedural protections afforded in the

FIRREA administrative process are not remedies at all. True

enough, but they do help constrain the unconstitutional

exercise of government power—unlike the largely or wholly

unregulated search in Bivens, hiring decision in Davis, and care

provision in Carlson. Moreover, as explained above, we rely

not only on procedural protections, but also on the affirmative

EAJA remedy and the channeled nature of the judicial review

16

provided. Second, Loumiet contends that EAJA cannot be

considered because it is a separate statute from FIRREA. But

in Liff, we assessed special factors by considering the full

“constellation of statutes and regulations governing federal

contracts, as well as the Privacy Act.” 881 F.3d at 920. There

is no reason to disregard any of the statutes establishing the

governing scheme. Third, Loumiet contends that he is not

subject to the FIRREA scheme at all, because the Comptroller

concluded that he is not an institution-affiliated party. But

Loumiet—as an attorney for a federally-insured bank—was not

wholly outside the regulatory scheme. To the contrary, the

Comptroller concluded that Loumiet was not an institution-

affiliated party only because his conduct did not harm the bank.

If it had, he might have been subject to a penalty. Compare

12 U.S.C. § 1813(u)(4) (definition of “institution-affiliated

party”), with id. § 1818(i)(2)(A)–(C) (penalties for institution-

affiliated parties). Loumiet does not fall outside the FIRREA

scheme simply because he won his individual case. Finally,

Loumiet argues that the remedy afforded to him was

insufficient. But Bush and Chilicky were decided on the

premise that the available remedy in each of those cases—

setting aside an adverse personnel decision or denial of

benefits—was less effective than would be an award of full

damages for all consequential harms. See Chilicky, 487 U.S. at

425. Moreover, we later held that, so long as the administrative

scheme is comprehensive, a Bivens remedy is unavailable even

if the plaintiff before the court is afforded no remedy at all. See

Wilson, 535 F.3d at 709.

We recognize that retaliatory enforcement actions can be

hard to ferret out in administrative processes and can impose

harms well beyond those remediable through EAJA. On the

other hand, charges of a retaliatory motive are easy to make,

hard to disprove, potentially crippling to regulators, and

perhaps not unlikely in the context of hotly contested

17

adversarial proceedings. As in Abbasi, there is a hard “balance

to be struck” in considering whether to create a damages

remedy for the kind of claim that Loumiet seeks to press here.

137 S. Ct. at 1863. That decision is best left to Congress.

IV

The First Amendment creates no implied damages action

against OCC officials for inducing an allegedly retaliatory

administrative enforcement proceeding. We therefore reverse

the district court’s judgment and remand the case with

instructions to dismiss Loumiet’s First Amendment claims.

So ordered.