Civil Action 12-1130 (CKK) (D.D.C. Jun. 16, 2023)

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Loumiet v. United States

United States District Court, District of Columbia

Jun 16, 2023

Civil Action 12-1130 (CKK) (D.D.C. Jun. 16, 2023)

Opinion

Civil Action 12-1130 (CKK)

06-16-2023

CARLOS LOUMIET, Plaintiff v. UNITED STATES OF AMERICA Defendant.

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

Proceeding under the Federal Tort Claims Act, Plaintiff Carlos Loumiet (“Plaintiff” or “Loumiet”), a banking attorney, alleges that certain employees of the Office of the Comptroller of the Currency unconstitutionally and tortiously retaliated against him for his complaint that these employees violated the civil rights of his corporate client. After two appeals to the United States Court of Appeals for the District of Columbia Circuit, this case is now before the Court on Defendant's [109] Motion for Summary Judgment. As a threshold matter, the Court sanctions Plaintiff's failure to comply with LCvR 7(h) by assuming all material facts asserted by Defendant as admitted. Having done so, the Court holds that there are no material facts in the record that would permit a reasonable jury to find that Defendant unconstitutionally retaliated against Plaintiff for protected speech, the Court now lacks subject matter jurisdiction over this case. Accordingly, and upon consideration of the pleadings,the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant's Motion and DISMISSES the case for lack of subject matter jurisdiction.

The Court's consideration has focused on the following documents:

• Defendant's Motion for Summary Judgment (“Motion” or “Mot.”), ECF No. 109;

• Defendant's Statement of Undisputed Material Facts (“SOMF”), appended to ECF No. 109;

• Plaintiff's Memorandum of Points and Authorities and Statement of Genuine Issues in Opposition to the Government's Motion for Summary Judgment (“Opp.”), ECF No. 111;

• Plaintiff's Response to Defendant's Statement of Undisputed Material Facts (“RSOMF”), ECF No. 111-19; and

• Defendant's Reply Memorandum of Points and Authorities in Support of the United States' Motion for Summary Judgment (“Repl.”), ECF No. 113.

In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).

I. BACKGROUND

A. Procedural Background

During its pendency, the contours of this case have been clearly delineated. See Loumiet v. United States, 828 F.3d 935 (D.C. Cir. 2016). In its present posture, Plaintiff asserts four state law tort claims against the United States: intentional infliction of emotional distress, invasion of privacy, negligent supervision and civil conspiracy. These claims arose, he alleges, from prosecutorial actions taken in retaliation against him for reporting on inappropriate behavior by Office of the Comptroller of the Currency (“OCC”) bank examiners who were examining the bank for which he was counsel. The Court of Appeals held here that while the discretionary-function exception of the Federal Tort Claims Act typically applies in cases involving the decision to prosecute, it “does not provide a blanket immunity against tortious conduct that a plaintiff plausibly alleges also flouts a constitutional prescription.” Id. at 943. This Court was therefore directed to “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.” Id. at 946.

In accordance with the Court of Appeals' instructions, and following extensive pleading and appellate practice, Loumiet's claims against the United States proceeded to discovery in April 2020. The Court gave the parties some ten months to complete discovery. See ECF No. 98,

Scheduling and Procedures Order, at 5. Notably, although Loumiet served document requests, receiving some 280,168 pages of production, Loumiet requested no depositions, served no interrogatories or subpoenas, and disclosed no expert witness. See Defendant's [105] Discovery Status Report, at 1; Defendant's [109] Memorandum, at 1. Defendant's Motion for Summary Judgment followed the close of discovery.

B. Factual Background

1. Local Rule 7(h)

Before turning in more detail to the material facts at issue, the Court must pause to address Plaintiff's noncompliance with this jurisdiction's local rules. As the Court has warned the parties repeatedly, LCvR 7(h) requires the parties advancing or opposing summary judgment to concisely set out the genuine issues of material fact that are agreed or disputed. Compliance with the local rule allows the Court to make an efficient comparison of the parties' contentions and their citations to record evidence. Regrettably, despite the repeated admonitions of this Court to the parties to comply strictly with Local Civil Rule 7(h), see ECF No. 106, Scheduling and Procedures Order (March 22, 2021) (citing Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir. 2002)); ECF No. 98, Scheduling and Procedures Order (April 28, 2020) (same); ECF No. 3, Order Establishing Procedures (July 27, 2012) (same), Loumiet signally failed to comply. In its Reply, the government trenchantly pointed out that Loumiet had failed to comply with Local Civil Rule 7(h) by failing to respond to its Statement of Undisputed Material Fact on a fact-by-fact basis with citations to contrary record evidence. Yet, despite being aware of his error, at no time thereafter did Loumiet make any effort to seek leave to supplement the record or to provide a new, compliant, Statement of Material Facts in Dispute.

The United States submitted 203 paragraphs of facts it contended were undisputed and material. While its Statement is exhaustive, it nonetheless fell to Loumiet to respond to each fact pursuant to Local Civil Rule 7(h) and to controvert it by citing to particular parts of materials in the record. This Court has observed that “[b]oth the moving party's initial statement and the opposing party's responsive statement must be based on references to the parts of the record relied on to support the statement.” Glass v. Lahood, 786 F.Supp.2d 189, 197 (D.D.C. 2011) (cleaned up). The Local Rule facilitates the efficient use of judicial resources by “plac[ing] the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record.” Id. (cleaned up). Local Rule 7(h) thus required Loumiet “to support each individual factual statement identified in [his] responsive statement with supporting references to the record.” Id. at 199.

More importantly, the Rule places the onus on the nonmoving party to actually contest the moving party's facts. Where the nonmoving party fails to do so, the Court “may assume that facts identified by the moving party in its statement of material facts are admitted[.]” LCvR 7(h)(1). This local rule aligns well with Federal Rule of Civil Procedure 56, which provides that “[a] party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record[.]” Fed.R.Civ.P. 56(c)(1)(A).

Here, Loumiet has simply failed to comply. Apart from 57 paragraphs Loumiet conceded were undisputed, Loumiet did not take issue with the remaining facts other than by general statements that the asserted facts were disputed because: either (1) the United States is “collaterally estopped from relitigating” the underlying administrative or criminal proceedings, see RSOMF at 8-10, or (2) because they were generally disputed in his Statement of Genuine Issues, see Opp. at 1-11. This Court has frequently rejected a party's efforts to evade this local rule after multiple warnings, and this case will be no exception. See, e.g., Morris v. Carter Goble Lee, Inc., 113 F.Supp.3d 289, 291 (D.D.C. 2015).Fifteen other paragraphs (Nos. 189-203), also in stark violation of Rule 7(h), are disputed generally, with blanket and unspecified references to the 12-page Statement of Genuine Issues in his Opposition. The 25 paragraphs in this Statement do not track the Defendant's Statement of Undisputed Material Fact. They are a mix of argument, supposition, beliefs, and self-serving contentions that restate Loumiet's theory of the case as originally set out in his Complaint. More to the point, they do not directly specifically address the various pieces of significant record evidence cited by the government in denying any retaliatory animus or actions.

Two statements of fact were objected to by Loumiet on the basis of collateral estoppel but were nonetheless not disputed by him. See, e.g., App'x to Memorandum Opinion at ¶¶ 38-39.

See also, e.g., Burke v. Gould, 286 F.3d 513, 517-18 (D.C. Cir. 2022) (summary judgment affirmed where nonmoving party did not cite record evidence or set forth specific material facts); Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996) (pursuant to local rule, the district court is to deem admitted the movant's facts that are uncontroverted by the opposing party's statement of facts); Twist v. Meese, 854 F.2d 1421, 1424 (D.C. Cir. 1988) (no abuse of discretion in district court accepting as true properly supported statement of facts where opposing party failed to submit counterstatement); Tarpley v. Greene, 684 F.2d 1, 7 (D.C. Cir. 1982) (summary judgment affirmed where nonmoving party failed to cite record evidence, relying on the complaint itself); Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980) (failure to provide a proper statement of facts under local rule may be fatal to a delinquent party's position).

Notwithstanding the wholesale failure to comply with Rule 7(h), the Court undertook to parse the contentions and responses in order to divine whether Loumiet did meet his burden to fairly dispute the government's Statement of Undisputed Material Fact with record evidence. The Court attaches that analysis as an appendix. As explained further therein, Loumiet does not actually place any particular factual allegation at issue.

Nor can Defendant contest Defendant's statement of material facts through summary incantation of collateral estoppel. In its usual form, sometimes called “defensive” collateral estoppel, a defendant seeks to bar a plaintiff from contesting facts found in a prior proceeding. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 328-29 (1979). This form of collateral estoppel “has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.” Id. at 326. If anything, it is Defendant seeking to stop Plaintiff from relitigating facts from prior proceedings by relying on record evidence from the prior proceedings, record evidence that is Plaintiff's own sworn testimony and documents. It appears to be Plaintiff who seeks re-litigation or, at best, a questionable use of “offensive” collateral estoppel, a doctrine to be applied sparingly. See Jake Faucett Assocs., Inc. v. Am. Tel. & Tel. Co., 744 F.2d 118, 125 (D.C. Cir. 1984) (Mikva, J.).

See, e.g., App'x to Mem. Op. at ¶¶ 33-35, 46-54, 56, 60, 65, 67-68, 77, 79-85, 99-101, 110. Such party admissions and testimony do not implicate collateral estoppel.

However, whether or not collateral estoppel even applies here as a legal matter is largely academic. Loumiet's generalized contention that these facts are disputed solely because he contends they are ostensibly seeking to relitigate, without any explanation of how that might be the case, cannot be given credence. Simply invoking the doctrine in a response to a statement of material facts is insufficient to place facts at issue, for it contests neither specific facts nor “support[s] [factual] allegations . . . with facts in the record.” See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (internal quotation marks omitted).

Altogether, the Court must assume Defendant's statement of material facts as admitted.

2. Material Facts

Having deemed Defendant's material facts as admitted, the Court summarizes the particularly key facts advanced in Defendant's statement of material facts.The facts underlying this case began more than twenty years ago, in 1998. At that time, Loumiet represented a regional bank in Florida, Hamilton Bank, N.A. Hamilton Bank made a number of risky investments, including a $22,000,000 outlay for debt securities it purchased from two other banks. As the D.C. Circuit summarized the transaction:

The facts here are largely identical to the Court discussion in Loumiet v. United States, 65 F.Supp.3d 19, 23-24 (D.D.C. 2014) (“Loumiet II”).

Hamilton invested $22M in Russian debt instruments, which subsequently lost value in the summer of 1998. To conceal the loss, the Bank swapped the Russian debt instruments for other financial instruments. General accounting rules require such swaps to be accounted for as related transactions. By not doing so, the Bank made it appear as if it managed to sell its Russian assets at face value, thereby hiding their highly discounted sales prices.

Loumiet v. Off. of the Comptroller of the Currency, 650 F.3d 796, 797-98 (D.C. Cir. 2011) (internal citations and quotation marks omitted) (“Loumiet I”). In September 1999, OCC examiners discovered the fraud and the following April, the OCC issued a temporary cease-and-desist order requiring the Bank to take certain remedial measures. Loumiet I, 650 F.3d at 798. Hamilton's Audit Committee retained an outside law firm, Greenberg Traurig LLP (“Greenberg”), which was tasked with conducting an independent investigation of the alleged fraud. Id. A team of Greenberg attorneys, including Loumiet, reviewed certain documents, interviewed Hamilton officials, and ultimately issued a report to the Bank's Audit Committee on November 15, 2000. SOMF ¶¶ 31 (report), 49 (interview). The November 2000 report found “no convincing evidence” to establish that Bank Executives “intentionally misled” the Bank's outside auditor or the Bank's own Audit Committee. Loumiet I, 650 F.3d at 798.

In January 2001, the OCC sent Greenberg a letter responding to the November 2000 report. SOMF ¶ 105. The letter informed the firm that the OCC had obtained sworn testimony from an officer at one of the counterparties to Hamilton in the adjusted price trades. Id. The officer testified that Hamilton's executives knowingly executed the adjusted price trades, contradicting the report issued by Plaintiff's firm. Id. ¶¶ 105-106; Loumiet I, 650 F.3d at 798. The OCC also orally identified a number of “red flags[,]” facts which tended to show that the Bank's management did knowingly participate in the fraudulent transactions. SOMF ¶ 109. Loumiet responded to the OCC's letter and addressed the “red flags” in a follow-up report to the Bank's Audit Committee. Id. ¶ 110. This letter reaffirmed the conclusions of his firm's earlier report. Id.

In March 2001, Plaintiff wrote to Treasury Inspector General Jeffrey Rush and other Treasury Department officials, expressing concerns about the OCC's enforcement action against the Bank. Id. ¶ 112. Plaintiff claimed that during his participation in the OCC investigations, he became aware of improper conduct by OCC examiners. Id. Plaintiff requested an independent investigation by the Office of Inspector General (“OIG”), alleging that OCC examiners made racist comments in dealing with Hamilton's Hispanic employees, and disregarded their own agency's regulations and precedents. Loumiet v. United States, 828 F.3d 935, 939 (D.C. Cir. 2016) (“Loumiet III”). In April 2001, Plaintiff sent the Treasury Secretary and the OIG a second letter, again expressing concerns regarding the OCC's regulatory actions. SOMF ¶ 115. On July 18, 2001, the Treasury Inspector General notified Plaintiff that the OIG's investigation concluded that nothing raised in Loumiet's letters warranted further action. See id. ¶ 119.

On January 2002, after concluding that Hamilton was operating in an unsafe and unsound manner, the OCC closed the Bank and appointed the Federal Deposit Insurance Corporation as its receiver. Loumiet I, 650 F.3d at 798. Subsequently, a grand jury indicted three of the Bank's senior officers for bank and securities fraud in connection with the adjusted price trades. United States v. Masferrer, 514 F.3d 1158, 1160-61 (11th Cir. 2008). The former CFO and President pled guilty and were sentenced to 28 months in prison, while the Bank's CEO was convicted and sentenced to 30 years in prison. Id. at 1161. Ultimately, the Eleventh Circuit affirmed the conviction of the Bank's CEO. Id. at 1165.

On November 2006, the OCC initiated an enforcement proceeding against Plaintiff, pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) of 1989, Pub. L. No. 101-73, 102 Stat. 183 (codified in scattered sections of Title 12 of the U.S. Code). Loumiet I, 650 F.3d at 798. The action, brought by the OCC's Enforcement and Compliance Division, alleged that Plaintiff was an “institution-affiliated party” (“IAP”) who, as part of his role in the independent investigation of Hamilton, had “knowingly or recklessly . . . breach[ed his] fiduciary duty,” and as a result “caused . . . a significant adverse effect” on the Bank. Loumiet I, 650 F.3d at 799 (quoting 12 U.S.C. § 1813(u)(4)). The OCC sought a monetary penalty against Plaintiff and sought to permanently ban him from representing FDIC-insured banks. SOMF ¶ 160. Ultimately, an Administrative Law Judge (“ALJ”) recommended complete dismissal of the Division's claims, SOMF ¶ 188, with which the Comptroller concurred, Loumiet I, 650 F.3d at 799.

Following the Comptroller's dismissal of the administrative proceeding, on August 26, 2009, Plaintiff filed an application with the ALJ for attorney's fees under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. §504. Loumiet I, 650 F.3d at 799. On July 20, 2010 the ALJ issued a recommended decision denying the application. Id. Plaintiff appealed the denial of his EAJA claim to the D.C. Circuit, which unanimously reversed the agency's determination, concluding that “the Comptroller was not ‘substantially justified' in bringing the underlying administrative proceedings against Loumiet.” Loumiet I, 650 F.3d at 797. Although Plaintiff maintains that the administrative proceeding was motivated by his complaints of discrimination, OCC officials deny commencing the action for any reason other than Loumiet's misfeasance. SOMF ¶¶ 189-203.

Before this Court, Loumiet argued that the Comptroller and its agents, through the United States, should be liable for damages in tort, based in part on purported retaliation against Plaintiff for his complaints of discrimination. Loumiet II, 65 F.Supp.3d at 25-26. The Court disagreed, concluding that the Federal Tort Claims Act barred recovery pursuant to the discretionary-function exception. Id. The United States Court of Appeals for the District of Columbia Circuit, however, reversed in part, concluding that the discretionary-function exception applied as a matter of law, concluding that there is no bar to recovery where a federal employee makes a discretionary decision that nevertheless exceeds constitutional bounds. Loumiet III, 828 F.3d at 942-43. In effect, the Court of Appeals instructed this Court to determine whether, as a matter of law, the discretionary-function exception applied to the OCC's decision to commence administrative proceedings and, if not, whether the United States should be vicariously liable in tort. See id. at 949. On these questions, the United States has moved for summary judgment. The Court now turns to these questions on the merits.

II. LEGAL STANDARD

The Court may grant summary judgment where, “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). Under the summary judgment standard, the moving party bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (internal citations omitted).

“Mere allegations or denials of the adverse party's pleading are not enough to prevent the issuance of summary judgment.” Williams v. Callaghan, 938 F.Supp. 46, 49 (D.D.C. 1996). The adverse party must do more than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the nonmovant to “come forward with ‘specific facts showing that there is a genuine issue for trial.'” Id. at 587 (citing Fed.R.Civ.P. 56(e) (emphasis in original)).

III. DISCUSSION

The United States essentially raises two classes of argument in favor of summary judgment. First, the United States argues that the Court lacks jurisdiction because the United States has not waived sovereign immunity for purportedly tortious, but discretionary, actions. Second, and in the alternative, the United States maintains that each of Plaintiff's surviving tort claims fails on the merits. Because the Court agrees that it lacks subject matter jurisdiction, it does not reach the merits of Plaintiff's claims. See Chevron U.S.A. Inc. v. EPA, 45 F.4th 380, 384 (D.C. Cir. 2022) (“[A] court ‘may not rule on the merits of a case' without jurisdiction[.]” (quoting Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007)).

The Federal Tort Claims Act provides for a limited waiver of sovereign immunity in suits against the United States for tortious actions committed by federal employees acting in the scope of their employment “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The limited waiver is, however, “subject to a number of express exceptions.” Sloan v. U.S. Dep't of Hous. and Urban Dev., 236 F.3d 756, 759 (D.C. Cir. 2001). At issue here is the “discretionary function exception.” By statute, this exception strips a federal district court from exercising jurisdiction over “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 by abused.” 28 U.S.C. § 2680(a).

This exception, as its name suggests, “covers only acts that are discretionary in nature[,]” United States v. Gaubert, 499 U.S. 315, 322 (1991), which the Supreme Court has described as those acts that “involv[e] an element of judgment or choice.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). “The requirement of judgment or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.'” Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536). If a court determines that “the challenged conduct involves an element of judgment[,]” it must next decide “whether that judgment is of the kind that the discretionary function exception was designed to shield.” Id. at 322-23 (quoting Berkovitz, 486 U.S. at 536).

The Court has previously held that OCC's decision to commence the administrative proceeding against Plaintiff was “discretionary” within the meaning of the discretionary function exception. See Loumiet II, 65 F.Supp.3d at 25. This holding was affirmed sub silentio on appeal. See Loumiet III, 828 F.3d at 942 (“This court has long held that the decision whether to prosecute is typically a quintessentially discretionary function ....” (internal quotation marks omitted)).

The “inquiry into the viability of Loumiet's FTCA claims[, however,] does not end there.” Id. Rather, the discretionary function does not apply here if “the OCC's conduct exceeded the scope of its constitutional authority.” Id. at 946. In other words, the discretionary function exception does not apply if a reasonable jury could conclude that OCC's decision to commence the administrative proceedings was retaliation for protected speech, i.e., Loumiet's complaints of racial discrimination at OCC. See id. at 946 & n.4 (discussing, exclusively “the First Amendment right to be free from retaliatory prosecution” (quoting Moore v. Hartman, 704 F.3d 1003, 1004 (D.C. Cir. 2013)).

To survive summary judgment on a First Amendment retaliation claim, a plaintiff must demonstrate that a reasonable jury could find that: “(1) he or she engaged in conduct protected under the First Amendment; (2) the defendant took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff's position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against him or her.” See Black Lives Matter D.C. v. Trump, 544 F.Supp.3d 15, 46 (D.D.C. 2021) (quoting Aref v. Lynch, 833 F.3d 242, 258 (D.C. Cir. 2016)) (motion to dismiss); Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018).

Now that we are no longer at the pleading stage, Plaintiff must point to some record evidence of causation. See Velikonja v. Gonzales, 466 F.3d 122, 124 (D.C. Cir. 2006). To establish causation, “[i]t is not enough to show that an official acted with a retaliatory motive and the plaintiff was injured.” Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019). Rather, the retaliatory motive “must be a ‘but-for' cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” Id.

Here, Plaintiff can point to no overt evidence of “but for” discriminatory motive, for the Court has assumed Defendant's statement of facts as admitted. Specifically, the Court has assumed as admitted that OCC commenced the administrative proceeding against Loumiet because it believed that there was sufficient evidence to demonstrate that Loumiet and his firm “fail[ed] to perform an honest investigation” and that failure “caused or was likely to cause ‘harm'” to Hamilton. SOMF ¶ 164. Even had Loumiet properly contested this admitted fact, Loumiet has pointed to no record evidence beyond the mere fact of his protected activity and that a decision of the United States Court of Appeals concluded that OCC's legal positions were not substantially justified as a matter of law. Plaintiff offers no legal authority for the proposition that merely advancing an erroneous legal theory to address his professional misfeasance, by itself, establishes causation, much less discriminatory animus alone.

Therefore, Loumiet can rely only on temporal proximity. See, e.g., Cones v. Shalala, 199 F.3d 512, 521 (D.C. Cir. 2000) (causal connection can be shown by knowledge of protected activity and retaliatory action shortly thereafter). Here, Loumiet's case at summary judgment is all the weaker. Five years elapsed between Loumiet's protected activity and the administrative proceedings, far beyond a 20-month lapse that the Supreme Court has held to suggest “no causality at all.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001) (noting further that the temporal connection must be “very close”). In other words, whether or not Loumiet had complied with Local Rule 7(h) in his briefing, there is still no record evidence permitting a reasonable jury to find that OCC would not have commenced administrative proceedings against Loumiet absent his protected speech.

Given the lack of any evidence of retaliation or causation, Loumiet has not identified any evidence of a constitutional violation that would overcome the FTCA's discretionary function exception. Accordingly, the United States retains sovereign immunity and the case in its entirety must be dismissed for lack of subject matter jurisdiction.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant's [109] Motion for Summary Judgment. An appropriate order accompanies this memorandum opinion.

APPENDIX TO MEMORANDUM OPINION

The following numbered paragraphs are from Defendant's Statement of Undisputed Material Facts, ECF No. 109. In order to determine whether materials facts are genuinely in dispute, the Court has noted which paragraphs are undisputed, which paragraphs are simply claimed to be disputed, and which paragraphs are claimed to be supported by argument and/or citation to the record. The Court's notations and determinations are in bold below.

Defendant's Statement of Undisputed Material Facts

I. OCC Procedures for Initiating Formal Investigations and Enforcement Actions

1. The Office of the Comptroller of the Currency (“OCC”) supervises national banks to ensure that they comply with the law and operate in a safe and sound manner. Declaration of Ronald G. Schneck (“Schneck Decl.”), ¶ 1 (Exhibit 1); see also Declaration of C. Michael Rardin (“Rardin Decl.”), ¶ 2 (Exhibit 2).

Plaintiff Carlos Loumiet (“Loumiet”) Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

2. When conducting bank examinations, examination staff occasionally discover information indicating that the bank may have engaged in a violation of law, a breach of fiduciary duty, or an unsafe or unsound banking practice. Schneck Decl. ¶ 5; Declaration of Gerard Sexton (“Sexton Decl.”), ¶ 5 (Exhibit 3); Declaration of Kristin Merritt (“Merritt Decl.”), ¶ 3 (Exhibit 4).

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

3. The examination staff refers any such information to the OCC's Enforcement and Compliance Division (“E&C”), which reviews the information and may request a formal Order of Investigation (“OOI”). Id.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

4. E&C is a division of the OCC's Chief Counsel's Office and is responsible for conducting investigations and litigating enforcement actions. Sexton Decl. ¶ 2; Merritt Decl. ¶ 2.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

5. An OOI authorizes a formal investigation into whether a bank or institution affiliated party (“IAP”) - for example, a bank's officer, director, employee, or independent contractor - has engaged in misconduct. Schneck Decl. ¶ 6.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

6. To obtain an OOI, E&C enforcement attorneys prepare a detailed memorandum outlining the facts and legal basis for the proposed investigation, and, after approval by the E&C Director and an Assistant Director, the memorandum is presented to the OCC's Washington Supervision Review Committee (“WSRC”). Sexton Decl. ¶¶ 5-6; Merritt Decl. ¶ 4.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

7. The WSRC is an advisory committee of eight senior OCC officials from a cross- section of disciplines within the agency that is responsible for ensuring that bank supervision and enforcement policies are applied consistently. Merritt Decl. ¶ 4; Sexton Decl. ¶ 4; Schneck Decl. ¶ 15.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

8. E&C attorneys present the proposed investigation at a WSRC meeting, and the WSRC then determines whether to recommend that the appropriate Senior Deputy Comptroller authorize an OOI. Sexton Decl. ¶ 6; Merritt Decl. ¶ 4.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

9. If approved, the Senior Deputy Comptroller signs a formal OOI, which memorializes the matter under investigation and authorizes E&C attorneys to subpoena documents and obtain sworn testimony from relevant sources. Id.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

10. To obtain authorization to commence an administrative enforcement action against a bank or IAP, E&C attorneys follow essentially the same process just described for obtaining an OOI. Specifically, E&C attorneys prepare a detailed memorandum setting forth the facts and legal basis for the proposed enforcement action; the memorandum is reviewed by the E&C Director or an Assistant Director; if approved by those individua ls, E&C attorneys formally present the proposed action at a WSRC meeting; the WSRC determines whether to recommend the enforcement action; and the Senior Deputy Comptroller ultimately decides whether to accept the WSRC's recommendation and authorize the action. Sexton Decl. ¶ 17; Merritt Decl. ¶ 11.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

11. The Adjusted Price Trades

11. Hamilton Bank, N.A. (“Hamilton”) was a national bank located in Miami, Florida before the OCC closed the bank in 2002 and appointed the Federal Deposit Insurance Corporation (“FDIC”) as receiver. Schneck Decl. ¶ 7.

Loumiet Response: Undisputed; Loumiet asserts this paragraph is not material.

The Court's Determination: The Court accepts this as admitted.

A. The Reserve Requirement

12. In 1998, the Russian economy was in a state of crisis, and Russian borrowers had a heightened chance of default on their debt obligations. Rardin Decl. ¶ 10; see also Ex. 3 (“FDIC Compl.”) to the Declaration of William Smith (“Smith Decl.”), ¶ 29 (Exhibit 5).

Loumiet Response: Undisputed; Loumiet asserts this paragraph is not material.

The Court's Determination: The Court accepts this as admitted.

13. In 1998, the OCC directed Hamilton to establish a reserve equal to 25 percent of the value of its Russian loans (approximately $3,125,000) in order to reflect the risk of default. Rardin Decl. ¶ 10; FDIC Compl. ¶¶ 29-30, 246-247.

Loumiet Response: Undisputed; Loumiet asserts this paragraph is not material.

The Court's Determination: The Court accepts this as admitted.

14. Instead of establishing the reserve, however, Hamilton's management later told the OCC that it sold its Russian loans at par (full face value). Rardin Decl. ¶ 10; FDIC Compl. ¶¶ 32, 37.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

B. The OCC's Discovery of the Swap Transactions

15. How Hamilton managed to sell its distressed Russian loans at par value when the Russian economy was in turmoil and the market value of Russian debt was substantially less than par was a key question for the OCC's 1999 safety and soundness examination of Hamilton (“1999 Examination”). Rardin Decl. ¶ 10.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

16. The examination team discovered documents and other information revealing that, at about the same time Hamilton sold its impaired Russian loans at par value, Hamilton purchased several debt securities at par value from the same counterparties, even though substantial market information showed that the securities were worth considerably less. Rardin Decl. ¶¶ 11-15; FDIC Compl. ¶¶ 42-45; Sexton Decl. ¶ 8; Merritt Decl. ¶ 6; Declaration of Lee Straus (“Straus Decl.”), ¶ 4 (Exhibit 6).

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

17. In total, Hamilton overpaid by $22.2 million for the debt securities it purchased from WMB and Standard Bank. Rardin Decl. ¶ 16; FDIC Compl. ¶¶ 34, 195.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

18. Hamilton's three most senior officers-Chairman and Chief Executive Officer Eduardo Masferrer, President Carlos Bernace, and Chief Financial Officer John Jacobs-denied the existence of any connection between the purchases and the sales. Rardin Decl. ¶ 17; FDIC Compl. ¶ 38; Schneck Decl. ¶ 9.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

19. The OCC suspected that Masferrer, Bernace, and Jacobs were not being truthful and that the transactions were related in what are known as “assets swaps” or “adjusted price trades.” Rardin Decl. ¶ 18; FDIC Compl. ¶ 46; Schneck Decl. ¶ 9.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

20. In an adjusted price trade, a party sells an asset with an embedded loss (i.e., an asset that is worth less than its face value) at an inflated price and compensates the counterparty by paying an inflated price for another asset with an embedded loss. If the “buy” and “sell” sides of the transaction are improperly accounted for as separate and independent transactions, then it appears that the party avoided taking a loss on an asset that had a severely depreciated value. Rardin Decl. ¶ 18; Schneck Decl. ¶ 9; Straus Decl. ¶ 5.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

21. The OCC deems the use of adjusted price trading to conceal a loss on the sale of an asset to be an unsafe and unsound banking practice. Rardin Decl. ¶ 18.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

22. The use of adjusted price trading to hide losses and misrepresent an institution's true financial condition can also be a form of securities and accounting fraud. Straus Decl. ¶ 5.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

23. Hamilton accounted for the purchases and sales as separate and independent transactions, showing no loss on the sale of the Russian loans and no loss on the purchase of the Latin American and Asian securities. Rardin Decl. ¶ 19; FDIC Compl. ¶ 35; Schneck Decl. ¶ 8.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

24. Had the transactions been properly accounted for as swaps, Hamilton would have had to report a $22.2 million loss on the transactions, representing the amount it overpaid for the Latin American and Asian securities. Rardin Decl. ¶ 19; FDIC Compl. ¶ 34.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

C. OCC Opens Formal Investigation into the Adjusted Price Trades

25. Following standard procedure, the OCC's examination team prepared a comprehensive report of the findings from the 1999 Examination (“Examination Report”), setting forth in detail the suspected swap transactions. Rardin Decl. ¶ 20; Schneck Decl. ¶ 8.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

26. The Examination Report identified Hamilton's pattern of paying millions above market value and failing to record a loss on the transactions as an unsafe and unsound banking practice, a breach of the bank's fiduciary duty to its shareholders, and a violation of Generally Accepted Accounting Principles (“GAAP”). Ex. 1 to Rardin Decl., OCC's 1999 Examination Report of Hamilton Bank (“Examination Report”), at ¶ 0017704, US0017711, US0017723- US0017731.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

27. The Examination Report notified Hamilton that the OCC would initiate an enforcement action against the bank and evaluate the need for civil money penalties and criminal referrals against each member of Hamilton's board of directors, senior management, and the bank itself. Examination Report, at ¶ 0017706, US0017724, US0017733; Schneck Decl. ¶ 9.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

28. In June 2000, Senior Deputy Comptroller Leann G. Britton authorized E&C's request to amend an existing OOI into Hamilton (regarding possible money laundering and Bank Secrecy Act violations) to include a formal investigation of Hamilton's suspected adjusted price trades. Merritt Decl. ¶ 6; Sexton Decl. ¶ 9; Schneck Decl. ¶ 9.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

III. Greenberg Traurig's “Independent Investigation”

A. Hamilton's Retention of Greenberg Traurig

29. The OCC shared its concerns about the suspected swap transactions with Hamilton's outside auditor Deloitte & Touche (“Deloitte”), which requested that Hamilton's audit committee retain “independent counsel” to investigate the true nature of the Russian loan transactions and whether Masferrer, Bernace, and Jacobs had lied to Deloitte and the OCC about them. Schneck Decl. ¶ 10; Rardin Decl. ¶ 22; FDIC Compl. ¶¶ 46-47.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

30. Hamilton's audit committee retained Greenberg Traurig LLP (“Greenberg”) to conduct the independent investigation. Rardin Decl. ¶ 22; Schneck Decl. ¶ 10; Sexton Decl. ¶ 10; Merritt Decl. ¶ 7; Straus Decl. ¶ 6; FDIC Compl. ¶¶ 6-9, 50.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

31. Greenberg attorneys Robert Grossman and Carlos Loumiet led the investigation and were the principle [sic] authors of two reports-one on November 15, 2000 (“November 2000 Report”) (Exhibit 7), and a follow-up report on March 14, 2001 (“March 2001 Report”) (Exhibit 8). Schneck Decl. ¶ 11; Sexton Decl. ¶ 11.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

32. Grossman and Loumiet reported that there was “no clear evidence of an ‘agreement' to swap or exchange financial assets” and “no convincing evidence that anyone at Hamilton intentionally misled [Deloitte] or the Audit Committee on those matters.” November 2000 Report, at ¶ 0181612, US0181616.

B. The “Obvious” and “Clear” Conflict of Interest

33. Despite ultimately ruling in Loumiet's favor in the OCC's enforcement action against him, the Comptroller of the Currency observed in his July 27, 2009, Final Decision and Order that Greenberg and Loumiet had an “obvious” and “clear” conflict of interest when the law firm was retained to investigate the Russian loan transactions. In re: Carlos Loumiet, Esq., No. OCC-AA-EC-06-102 (July 27, 2009), at 14-15 (“Comptroller's Final Decision), available at https://www.occ.gov/static/enforcement-actions/ea2009-253. pdf.

34. In the summer and early fall of 2000, at roughly the same time Hamilton's audit committee retained Greenberg to impartially investigate the Russian loan transactions and whether Masferrer, Bernace, and Jacobs lied about them, Loumiet was personally advising the Hamilton officers on limiting their legal exposure related to a Consent Order sought by the OCC, which concerned those very same transactions. See Letter from Carlos Loumiet to Hamilton General Counsel J. Reid Bingham (“Bingham Ltr.”) (Exhibit 9); Tr. of OCC Dep. of Carlos Loumiet (“Loumiet OCC Dep.”), 36:20-38:23 (Exhibit 10); Ex. 1 to Straus Decl., Sept. 11, 2006 E&C Mem. to WSRC (“2006 WSRC Mem.”), at ¶ 0277060-US0277061.

35. In a letter to Hamilton's General Counsel, Loumiet likened the OCC's regulatory actions to a “witch hunt.” Bingham Ltr., at ¶ 0207947.

36. Grossman was securities counsel for the bank's holding company (Hamilton Bancorp), and he was principally responsible for advising Hamilton Bancorp on its securities filings, which had failed to disclose the adjusted price trades. Tr. of OCC Dep. of Robert Grossman (“Grossman OCC Dep.”), 114:15-19; 116:8-19 (Exhibit 11); 2006 WSRC Mem., at ¶ 0277060- US0277061; FDIC Compl. ¶¶ 62-63.

37. In early 2001, Greenberg defended Hamilton's senior officers in one of several class action lawsuits brought by shareholders over the adjusted price trades while simultaneously investigating the officers' credibility concerning those same transactions. Loumiet OCC Dep. 99:18-25; 2006 WSRC Mem., at ¶ 0277060-US0277061; FDIC Compl. ¶¶ 82-83.

C. Greenberg's Whitewash “Investigation”

38. Years later, on the subject of Greenberg's investigation into the adjusted price trades, the federal judge presiding over Masferrer's criminal trial asked in open court, “Do we know what they got paid for this whitewash?” Tr. of Jury Trial, United States v. Masferrer, No. 04-cr-20404 (Dec. 2, 2005), at 122:24-25, (“Masferrer Trial Tr.) (Exhibit 12) (emphasis added).

Loumiet Response: Undisputed. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered in the criminal cases of Hamilton Bank Officers; he does not dispute the fact. See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 8.

The Court's Determination: The Court accepts this as admitted.

39. Similarly, the Assistant United States Attorney handling Masferrer's criminal prosecution confirmed on the record that “quite frankly the Government's position is [Greenberg's investigation] was a whitewash.” Id. 123:9-10 (emphasis added).

The Court's Determination: The Court accepts this as admitted.

40. The FDIC and the OCC concluded that Greenberg displayed a lack of impartiality in the investigation. FDIC Compl. ¶¶ 12-21, 120-127; 2006 WSRC Mem. at ¶ 0277060-US0277063.

41. Greenberg associates Jordan Clark and John Varney assisted Grossman and Loumiet during the investigation. Loumiet OCC Dep. 53:21-54:4.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted. 42. Varney's notes from his initial meeting with Grossman and Loumiet to discuss the Hamilton investigation state, “did not want to show linkage.” Handwritten Notes of John Varney, Undated, at 1 (Exhibit 13); FDIC Compl. ¶¶ 120-27.

43. Varney testified that, “It wasn't intended that anybody did not want to [show linkage.] My recollection is linkage would show swap bad fact. I think it's more accurate to say that we were hoping that we did not find bad facts . . . .” Tr. of FDIC Dep. of John Varney (“Varney FDIC Dep.”), 85:9-21 (emphasis added) (Exhibit 14).

44. The FDIC and the OCC concluded that Greenberg suppressed key evidence material to the investigation. FDIC Compl., ¶¶ 98-151; Ex. 1 (“2004 WSRC Mem.”) to the Declaration of Gregory F. Taylor (“Taylor Decl.”), at ¶ 0232541-US0232543 (Exhibit 15); 2006 WSRC Mem., at ¶ 0277057.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

45. Grossman's notes of his interview with Hamilton President Carlos Bernace contain Bernace's admission that Hamilton “had to buy LA to get out of Russia because of market.” Handwritten Notes of Robert Grossman, Sept. 17, 2000 (“Grossman Handwritten Notes”), at ¶ 0145621 (emphasis added) (Exhibit 16); Typed Notes of Robert Grossman, Sept. 17, 2000 (“Grossman Typed Notes”), at ¶ 0145982 (emphasis added) (Exhibit 17).

46. Loumiet acknowledged that Bernace's statement could be evidence that Hamilton had to buy Latin American loans from the counterparties in order to sell Hamilton's Russian loans to the counterparties-a classic quid pro quo. Tr. of FDIC Dep. of Carlos Loumiet (“Loumiet FDIC Dep.”), 194:6-14 (Exhibit 18).

Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10. Notably, this fact is derived from Loumiet's own testimony.

47. Loumiet further acknowledged that Bernace's statement could be evidence that Hamilton personnel knew of a connection between the sale of the Russian loans and the purchase of the Latin American loans. Id. 195:10-17.

48. Loumiet had no explanation for why he and Grossman failed to disclose in their investigation reports Bernace's admission that Hamilton had to buy “LA” (Latin American) loans “to get out of Russia because of market.” Id. 194:16-195:8.

49. Loumiet's notes of his interview with Bernace state, “‘Morally' obligated to buy LA loans. Nothing in writing.” Handwritten Notes of Carlos Loumiet, Oct. 4, 2000 (“Loumiet Handwritten Notes”), at ¶ 0209164 (Exhibit 19) (emphasis added).

50. Loumiet acknowledged that by “LA loans,” he was referring to Latin American loans. Loumiet FDIC Dep., 137:15-20.

51. When deposed by the FDIC in 2005, Loumiet did not deny that his notes reflect Bernace's statement to him that Hamilton was “‘morally' obligated to buy [Latin American] loans. Nothing in writing.” Loumiet FDIC Dep., 137:4-142:19.

52. The word “morally” appears in Loumiet's notes in quotation marks. Loumiet Handwritten Notes, at ¶ 0209164.

53. Greenberg's reports did not disclose any information regarding whether Hamilton was morally obligated to purchase the Latin American loans. Loumiet FDIC Dep., 138:22- 139:6; Tr. of DOJ Dep. of Carlos Loumiet (“Loumiet DOJ Dep.”) 206:13-16 (Exhibit 20); 2006 WSRC Mem., at ¶ 0277062.

Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

54. Loumiet testified that he had no explanation for why Greenberg's investigation reports did not disclose the statement “‘Morally' obligated to buy LA loans. Nothing in writing.” Loumiet FDIC Dep. 139:7-10.

55. Greenberg possessed a complete copy of a September 21, 1998 fax from Hamilton to counterparty WMB confirming the adjusted price trade with WMB for the City of Moscow loan. Fax from J. Reid Bingham to Peter Batrouni (“Complete Bingham Fax”) (Exhibit 21); Loumiet OCC Dep., 206:21-207:8.

The Court's Determination: For the reasons set forth in the accompanying Memorandum Opinion, Loumiet's blanket assertion, in violation of Local Civil Rule 7(h), incorrectly contending that the recitation of the facts implicates collateral estoppel, and accordingly that he disputes the facts in this paragraph, cannot be given credence, and the Court accordingly assumes this fact to be admitted.

56. Bingham's fax was responding to WMB's offer of September 15, 1998 to engage in the adjusted price trade. November 2000 Report, at ¶ 0181620.

57. Bingham's September 21 transmission to WMB included (1) a fax coversheet showing that Bingham sent a four-page fax; (2) a letter from Bernace to WMB stating that Hamilton would sell the City of Moscow loan to WMB, but would not purchase from WMB the Latin American and Asian debt securities; and (3) a letter from Jacobs to intermediary Morgan Grenfell confirming that Hamilton would buy the Latin American and Asian debt securities. See Complete Bingham Fax, at ¶ 0181699-US0181701.

58. By including both letters in his fax to WMB, Bingham confirmed that Hamilton accepted WMB's offer, but would complete the adjusted price trade by purchasing the Latin American and Asian debt securities through a straw middleman, Morgan Grenfell. Id.; FDIC Compl. ¶¶ 103-109, 128-139.

59. Grossman's notes describe this evidence as a “huge smoking gun.” Grossman Handwritten Notes, at ¶ 0145633.

60. Grossman and Loumiet did not disclose any concerns over “huge smoking gun” evidence in either of their investigation reports. FDIC Compl. ¶¶ 103-109, 128-139; November 2000 Report; March 2001 Report.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

61. Instead, the coversheet from Bingham's September 21 fax transmission was omitted and the remainder of the transmission was split into two separate annexes (“Annex III” and “Annex IV”) in Greenberg's November 2000 investigation report. November 2000 Report at ¶ 0181622-US0181625; FDIC Compl. ¶¶ 128-139.

62. When Deloitte, in response to Greenberg's November 2000 Report, observed that Annexes III and IV seemed to be part of the same fax transmission and inquired about the missing fax coversheet, Grossman and Loumiet claimed that Hamilton had an “informal policy of not retaining fax coversheets.” Joseph Echevarria Mem. to File (Dec. 21, 2000), at ¶ 0181704 (Exhibit 22); Sexton Decl. ¶ 11.

63. The FDIC and the OCC concluded that Greenberg accepted at face value the bank officers' false representations. FDIC Compl. ¶¶ 204-213, 237-248; 2004 WSRC Mem. at ¶ 0232545; 2006 WSRC Mem. at ¶ 0277062-US0277064.

64. Hamilton knowingly paid millions over market value for the Latin American and Asian debt securities it purchased. Rardin Decl. ¶ 16; FDIC Compl. ¶¶ 34, 195.

65. To explain why Hamilton would pay face value for debt securities worth considerably less, Grossman and Loumiet repeated in their November 2000 report what Masferrer, Bernace, and Jacobs had told them-namely, that Hamilton had a “practice” of buying investments at par when it intended to hold the investments to maturity, and that Hamilton accordingly did not consider “the current market pricing or valuation of those loans.” November 2000 Report, at ¶ 0181597.

66. In fact, as reflected in Greenberg's November 2000 Report, according to the Hamilton officers, Hamilton actually told the counterparties that the bank “only” wanted to buy at par and “insisted” on paying full face value for the Latin American and Asian debt securities. November 2000 Report at ¶ 0181597, US0181600, US0181614 (emphasis added).

67. Loumiet conceded that this purported practice of always buying and selling at par value despite opportunities to purchase assets at a cheaper price “was not a sensible business practice” because it is “[a]lways better to pay less for something than more.” Loumiet FDIC Dep.271:3- 10; 276:25-277:1.

68. Over the span of his long career as a banking attorney, Loumiet could not think of any bank other than Hamilton that supposedly had a practice of buying and selling investments only at par. Id. 277:2-9.

69. Grossman conceded that it “generally doesn't make sense” to buy an asset at par when the market value of the asset is less than par just because the buyer intends to hold the asset to maturity. Tr. of FDIC Dep. of Robert Grossman (“Grossman FDIC Dep.”), 75:25-76:16 (Exhibit 23).

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

70. On November 30, 2000, Benton Moyer, who was a Hamilton director and a member of the bank's audit committee, wrote to other members of the board of directors:

I was not in [Hamilton Bank] at the time of the Russian transactions and therefore I will abstain from public comment on the Greemberg [sic] report. Nevertheless, for you only, I believe there was linkage and the transactions were done to avoid losses in Russia. No one in their right mind could have had the policy of buying and selling at par value only - least of all Eduardo who is not stupid in any sense. Nov. 30, 2000 Email of Benton Moyer to Hamilton Directors (Exhibit 24) (emphasis added).

71. Hamilton Executive Vice President Adolfo Martinez, who, as head of International Marketing was responsible for business development and loan generation, was not aware of any policy under which Hamilton bought investments at par only where the bank intended to hold those investments to maturity. Tr. of FDIC Dep. of Adolfo Martinez (“Martinez FDIC Dep.”), 8:20-25 (Exhibit 25).

Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

72. Martinez testified that such a policy would not make any sense, regardless of whether the investment is being held to maturity, because “[y]ou should negotiate the best possible price.” Id.9:1-14.

73. According to Martinez, when Loumiet interviewed him during Greenberg's “independent investigation,” Loumiet never asked him whether Hamilton had a policy of buying assets only at par when the bank planned to hold those assets to maturity. Id. 9:15-23.

74. Hamilton Assistant Treasurer Dwight McKey, who managed a $200 million portfolio of investments for Hamilton, was not aware of any policy requiring the bank to purchase investments at par where the bank intended to hold the investment to maturity. Tr. of FDIC Dep. of Dwight McKey (“McKey FDIC Dep.”), 25:25-27:8 (Exhibit 26).

75. McKey did not follow any such policy when managing Hamilton's $200 million investment portfolio, and he had never heard of any bank adopting such a practice in his twenty- year career in the securities industry. Id. 23:8-24:1; 28:7-29:1; 30:12-31:5.

76. According to McKey, a policy of buying only at par would be “essentially the same” as deliberately paying sticker price for a car when it can be purchased for less. Id. 29:2- 20.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

77. Grossman and Loumiet identified McKey as one of the individuals Greenberg interviewed during the investigation. November 2000 Report, at ¶ 0181618.

78. McKey testified under oath that he did not recall ever being interviewed by Greenberg. McKey FDIC Dep. 44:20-25.

79. Loumiet could not recall anything he did to test the accuracy of the Hamilton officers' representation that the bank had a practice of buying and selling investments only at par without considering fair market value. Loumiet FDIC Dep. 278:12-17.

80. Loumiet could not recall finding any documentation that supported the Hamilton officers' representation that the bank had a practice of buying and selling investments only at par without considering fair market value. Id. 278:19-25.

81. Loumiet personally did not make any effort to document whether Hamilton purchased and sold debt securities at par value before September 1998; nor did he know whether anyone at Greenberg did. Loumiet OCC Dep. 108:22-109:1.

82. Loumiet could not identify any investment that Hamilton purchased or sold at par value before September 1998. Id. 109:2-4.

83. Loumiet personally did not make any effort to determine whether Hamilton purchased and sold debt securities at the best available market price before September 1998; nor did he know whether anyone at Greenberg did. Id. 109:5-12; 115:13-21.

Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

84. Loumiet could not recall asking anyone at Greenberg if they made such an inquiry. Id. 109:13-16.

85. Loumiet never asked Hamilton for a copy of the bank's written investment policy; nor did he know if anyone at Greenberg did. Id. 65:9-11.

86. Hamilton's Lending and Investment Policy at the time of the Russian loan transactions Bank will seek the highest yields possible from its investment activities, consistent with market conditions, desirable levels of risks and maturity profiles.” Hamilton Lending and Investment Policy, at ¶ 0001205 (Exhibit 27) (emphasis added).

87. The FDIC and the OCC concluded that Greenberg downplayed contemporaneous documents that were strong evidence of an adjusted price trade. FDIC Compl. ¶¶ 158-177; 2004 WSRC Mem. US0232556; 2006 WSRC Mem. at ¶ 0277061 - US0277064.

88. A September 28, 1998 internal memorandum written by Peter Kennedy (the “Kennedy Memorandum”), an officer for counterparty Standard Bank, is entitled “Hamilton Bank-Asset Swap.” November 2000 Report, at ¶ 0181684-US0181687 (emphasis added).

89. The Kennedy Memorandum described in detail how the adjusted price trade between Hamilton and Standard Bank, would be structured. Id.

90. Evidencing the quid pro quo arrangement between Hamilton and Standard Bank, the Kennedy Memorandum explained, “Only when we have cleared funds for the package of Latin American assets we are selling will we proceed with the purchase of the Mezcohmbank US$7,500,000.” Id. at US0181684.

91. The Kennedy Memorandum detailed the benefits to both parties in proceeding with the adjusted price trade and summarized Standard Bank's understanding of the benefits Hamilton sought:

Benefits to Hamilton in proceeding with the asset swap

• • They want to proceed with an IPO in 1999. To have defaulted Russian bank debt on their balance sheet next year would be “embarrassing”.

• • Their main business is in Latin America. They will not have to mark-to-market the Latin American debt listed below but will simply hold the assets to maturity. No “loss” therefore needs to be accounted for.

Id. at US0181685.

92. Grossman and Loumiet downplayed the Kennedy Memorandum's significance, stating “Hamilton's officers have told us that they never discussed the matters addressed in the Standard Bank memorandum with Peter Kennedy or anyone else at Standard Bank.” Id. at US0181607; see also FDIC Compl. ¶¶158-177.

Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

93. A September 17, 1998 internal memorandum from counterparty WMB (the “Bigelow Memorandum”), described the essence of the swap agreement between Hamilton and WMB. November 2000 Report, at ¶ 0181661.

94. The memorandum states that Hamilton approached the New York agency of WMB to sell a “quantity of a City of Moscow Debt Instrument in exchange for Subordinated Debt Instruments issued by Standard Chartered and HSBC.” Id. (emphasis added).

95. The Bigelow Memorandum described additional details of Hamilton's adjusted price trade with WMB:

The proposed structure of the deal was for Hamilton to sell us the Moscow paper at par, rather than at the market value for .15. In exchange, they were willing to purchase from us a corresponding amount of the Standard Chartered/HSBC paper, valued at .60-70, also at par.

Id. (emphasis added).

96. Grossman and Loumiet downplayed this document, stating “Hamilton's officers all advised us that they approached WMB to sell WMB Russian loans, that no pricing or relative values were discussed other than face value, and that the sales by Hamilton were not linked to or contingent upon any particular purchase . . . .” Id. at US0181604.

97. Grossman and Loumiet also claimed that WMB's outside counsel, James Warnot, “advised [them] that no discussions of pricing or market value were held with Hamilton” - a claim that was subsequently discredited by the sworn testimony of Ian Tweedley, the officer who was the primary contact point for the Russian swaps. Id. at US0181604.

98. The FDIC and the OCC concluded that Greenberg employed a double standard for evaluating the evidence. FDIC Compl. ¶¶ 10, 18; 2004 WSRC Mem., at ¶ 0232556.

99. The Greenberg attorneys employed a “convincing evidence” standard to evaluate whether the Hamilton officers misrepresented the nature of the Russian loan transactions to Deloitte or the OCC. November 2000 Report, at ¶ 0181616; Loumiet OCC Dep. 201:24-206:9.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

100. In terms of the evidence necessary to conclude that there was an agreement to engage in an adjusted price trade, Loumiet testified that he needed to see a written, legally- enforceable swap contract, complete with “reps and warranties,” “covenants,” “an incident of fault,” “recourse,” “jurisdiction,” “governing law provisions” and the like. Loumiet OCC Dep. 164:15-165:22; Loumiet FDIC Dep. 163:7-9; 206:23-24.

101. Loumiet testified that he did not “specifically focus on” the fact that if the bank officers engaged in an adjusted price trade, they had an incentive to suppress any documentation of it in order to avoid civil or criminal liability. Loumiet OCC Dep. 166:20-168:11.

IV. Re action to Greenberg's November 2000 Report

102. Deloitte rejected Greenberg's conclusion that there was no evidence of an adjusted price trade, finding that “there was clear evidence showing that swap transactions had occurred.” Ex. 5 (“OIG Mem. of Activity - Echevarria Interview”) to the Declaration of Richard K. Delmar (“Delmar Decl.”), at ¶ 0000477 (Exhibit 28).

103. Deloitte required Hamilton to correct and refile its financial statements. Id.

Loumiet Response: Loumiet asserts this paragraph is not material.

The Court's Determination: For the reasons set forth in the accompany Memorandum Opinion, Loumiet's failure to respond, or provide a record citation, in violation of Local Civil Rule 7(h), the Court assumes this fact to be admitted.

104. In December 2000, in connection with the OCC's formal investigation into the Russian loan transactions, E&C Attorneys Gerard Sexton and Kristin Merritt deposed Ian Tweedley, the WMB officer who was Jacobs's primary contact point for the transactions with WMB. Merritt Decl. ¶ 9.

105. On January 17, 2001, Ann F. Jaedicke, the OCC's Deputy Comptroller for

Supervision Support, notified Loumiet that the OCC had obtained sworn testimony from Tweedley that directly contradicted the conclusions in Greenberg's November 2000 Report. Letter of Ann F. Jaedicke to Carlos Loumiet (“Jaedicke Letter”), at ¶ 0183693-US0183696 (Exhibit 29).

106. Deputy Comptroller Jaedicke's letter notified Loumiet that WMB's outside counsel, James Warnot, represented Tweedley at the deposition, and that Tweedley testified that (1) Jacobs contacted him to propose an asset swap; (2) Jacobs acknowledged that the assets they discussed were not worth par value; and (3) the two men discussed the assets' pricing and market values. Id.; see also Ex.2 to Merritt Decl.,Tr. of OCC Dep. of Ian Tweedley (“Tweedley Dep.”), 14:14-15:17; 20:7-21; 28:3-9; 30:16-31:15; 38:5-21; 40:16-41:7; 50:3-18; 61:12-62:2.

Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

107. The letter observed that Tweedley's sworn testimony contradicted the statements Greenberg had attributed to Warnot in the November 2000 report and raised serious questions about the report's conclusions. Jaedicke Letter, at ¶ 0183695-US0183696.

108. Loumiet and Grossman met with OCC representatives on February 8, 2001, at which time E&C enforcement attorneys read the relevant portions of the Tweedley deposition to the Greenberg attorneys. 2004 WSRC Mem., at ¶ 0232543.

109. The enforcement attorneys also highlighted what the OCC believed were additional “red flags” that would cause any reasonable investigator to question the deals. Id. at US0232543- US0232544.

110. In response to this information, Grossman and Loumiet issued their March 2001 Report, reaffirming the conclusions stated in November 2000 Report. March 2001 Report, at ¶ 0181583-US0181584.

111. Greenberg billed Hamilton approximately $210,000 for the firm's work (including work performed by ten different individuals) on the “independent investigation.” Greenberg Investigation Billing Timesheets, at ¶ 0248147 (Exhibit 30).

V. Loumiet's “Whistleblower” Letters to the Treasury Inspector General

112. On March 26, 2001, Loumiet sent a letter (“March 2001 Complaint Letter”) to then-Secretary of the Treasury Paul O'Neill and then-Treasury Inspector General Jeffrey Rush, Jr., containing allegations about the OCC's supervision of Hamilton and requesting that the United States Department of the Treasury, Office of the Inspector General (“OIG”) open an investigation. Delmar Decl. ¶ 4.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

113. Loumiet's March 2001 Complaint Letter did not identify any particular OCC employee by name. Id. ¶ 4.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

114. Loumiet's March 2001 Complaint Letter was reviewed Richard K. Delmar, who was then Counsel to the Inspector General. Id. ¶¶ 3-4.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

115. On April 20, 2001, Loumiet sent a second letter addressed to Messrs. O'Neill and Rush, making additional allegations that unspecified OCC officials were behaving unprofessionally with respect to the examination of Hamilton. Id. ¶ 5.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

116. In response to Loumiet's letters, the OIG conducted a preliminary inquiry in order to determine whether a formal investigation was warranted. Id. ¶ 6.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

117. OIG Counsel Richard Delmar was responsible for coordinating the preliminary inquiry into Loumiet's allegations. Id.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

118. On May 15, 2001, Loumiet visited the OIG's Washington, D.C. office and made a presentation to Delmar and other OIG officials, during which Loumiet reiterated the allegations that he made in his two letters. Id. ¶ 8.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

119. After the meeting with Loumiet on May 15, 2001, the OIG concluded that nothing raised in his presentation or letters warranted the exercise of the OIG's oversight function with regard to the OCC's supervision of Hamilton, and accordingly Loumiet was notified that the OIG would not conduct a further investigation. Id.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

120. Other than the two complaint letters Loumiet wrote in March and April 2001, the OIG has no record of any other matters raised by or involving Mr. Loumiet. Id. ¶ 10.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

121. Greenberg billed Hamilton for the time Loumiet spent researching and drafting his “whistleblower” letters to the OIG and meeting with OIG officials in Washington, D.C. See Hamilton-Greenberg Billing Correspondence (Exhibit 31), at ¶ 0166066.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted. VI. FDIC's Complaint against Greenberg, Grossman, and Loumiet

122. On January 11, 2002, the OCC closed Hamilton and appointed the FDIC as receiver. Smith Decl. ¶ 3; Rardin Decl. ¶ 26.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

123. The OIG determined that Hamilton's “unwillingness to recognize problems, patterns of resistance, and failure to comply with laws and regulations, or to take corrective action, contributed to Hamilton's losses and were significant factors in OCC's decision to place Hamilton in receivership.” Dep't of Treasury Off. of Inspector Gen., Material Loss Review of Hamilton Bank, N.A.,at23 (Dec.17, 2002) (“OIG Material Loss Review”), available at https://permanent.fdlp.gov/ lps81616/ oig03032.pdf.

Loumiet Response: Undisputed; Loumiet asserts this paragraph is not material.

The Court's Determination: The Court accepts this as admitted.

124. The FDIC estimated Hamilton's failure cost the Bank Insurance Fund an estimated $148 million. FDIC Compl. ¶ 23.

Loumiet Response: Undisputed; Loumiet asserts this paragraph is not material.

The Court's Determination: The Court accepts this as admitted.

125. The FDIC, acting as receiver for a federally insured depository institution, has the statutory authority to investigate and, where appropriate, bring professional liability claims against directors, officers, and outside professionals who fail to fulfill their responsibilities to a bank. Smith Decl. ¶ 2 (citing 12 U.S.C. § 1821).

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

126. The FDIC exercised its statutory authority to investigate potential professional liability claims against officers, directors, and outside professionals arising from Hamilton's failure. Smith Decl. ¶ 3.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

127. As a result of the FDIC's investigation, on December 7, 2004, the FDIC's Board of Directors authorized the filing of a civil lawsuit asserting professional liability claims against Greenberg, Grossman, and Loumiet, including claims for legal malpractice and negligent misrepresentation. Id. ¶ 4.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

128. On May 16, 2005, the FDIC's Board of Directors authorized the addition of a fraudulent misrepresentation claim to the lawsuit previously authorized against Greenberg, Grossman, and Loumiet. Id. ¶ 5.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

129. The FDIC, with the express intention to commence a lawsuit against Greenberg, Grossman, and Loumiet, prepared a complaint asserting professional liability claims in connection with Grossman and Loumiet's “independent investigation” into the Russian loan transactions. Id. ¶ 6.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

130. In addition to other relief, the FDIC sought disgorgement of the $210,000 in fees Hamilton paid Greenberg for the “independent investigation.” FDIC Compl. ¶ 307.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

131. Loumiet has “never claimed that the FDIC's complaint or investigation of [him was] retaliatory.” Loumiet DOJ Dep., 113:12-15.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

VII. E&C Obtains Approval to Initiate a Debarment Against Grossman and Loumiet

132. In 2002, attorney Gregory Taylor joined E&C as Counsel. In late 2003 or early 2004, E&C Assistant Director Robert Pasley assigned Taylor to review 11 boxes of documents that the OCC had obtained from the FDIC and determine whether any basis existed to take action against Greenberg's attorneys for apparently facilitating a cover-up of crimes by Hamilton's senior officers. Taylor Decl. ¶ 3.

133. Based on his analysis of the facts and applicable law, Taylor recommended a proceeding to censure Grossman and Loumiet under the agency's Rules of Practice and Procedure, which authorized disbarment from practice before the OCC for attorneys who engaged in “disreputable conduct.” Taylor Decl. ¶ 7 (citing 12 C.F.R. § 19.196).

134. Taylor prepared a detailed, 39-page legal memorandum for presentation to the WSRC, discussing the factual and legal basis for an action to debar Grossman and Loumiet from practice before the OCC on account of engaging in a “whitewash” of criminal activity perpetrated by Hamilton's senior officers. Id. ¶ 8.

135. Assistant Director Pasley and then-E&C Director Brian McCormally approved the memorandum. Id. ¶ 9; Merritt Decl. ¶ 12.

136. Under the OCC's policies and procedures, to obtain authorization for an action to censure the Greenberg attorneys, E&C was required to formally present the proposed action to the WSRC, which would provide its recommendation to the Senior Deputy Comptroller, who held the ultimate authority on whether to authorize the proposed action. See supra, ¶ 10; Schneck Decl. ¶ 14-15; Taylor Decl. ¶ 8; Merritt Decl. ¶ 4.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

137. E&C cannot initiate an enforcement action unless the WSRC first concurs and the Senior Deputy Comptroller authorizes the action. Schneck Decl. ¶ 16; Taylor Decl. ¶ 8.

138. On August 5, 2004, the WSRC recommended in favor of E&C's proposed action to debar Loumiet and Grossman. Schneck Decl. ¶ 18; Taylor Decl. ¶ 10.

139. Senior Deputy Comptroller for Midsize & Community Bank Supervision Timothy W. Long then authorized the debarment action. Schneck Decl. ¶ 18; Taylor Decl. ¶ 11.

VIII. Criminal Indictment and Conviction of Hamilton's Senior Officers

140. In 2004, a federal grand jury indicted Masferrer, Bernace, and Jacobs on felony charges relating to the 1998 adjusted price trades. Ex. 2 to Sexton Decl., Federal Criminal Indictment of Masferrer, Bernace, and Jacobs (“Criminal Indictment”).

Loumiet Response: Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in the following numbered paragraphs of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered in the criminal cases of Hamilton Bank Officers; he does not dispute the fact. See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 8.

141. Bernace pleaded guilty to two counts of securities fraud. See United States v. Bernace, No. 04-cr-20404, at ¶ 0218333-US0218334 (Exhibit 32).

142. Jacobs pleaded guilty to one count of securities fraud and one count of obstructing the OCC's proceedings related to the illegal adjusted price trades. See United States v. Jacobs, 04-cr-20404 (Plea Colloquy), at ¶ 0218361-US0218362 (Exhibit 33).

143. The charges against Masferrer were tried to a jury. Sexton Decl. ¶ 19.

144. On the subject of Greenberg's “independent investigation” into the Russian loan transactions, United States District Judge Michael Moore inquired in open court, “Do we know what they got paid for this whitewash?” Masferrer Trial Tr., 122:24-25.

Loumiet Response: Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in the following numbered paragraphs of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered in the criminal cases of Hamilton Bank Officers; he does not dispute the fact. See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 8.

145. Likewise, the Assistant United States Attorney handling the Masferrer prosecution confirmed on the record that “the Government's position is [the Greenberg investigation] was a whitewash.” Id.at123:7-10.

146. Loumiet acknowledges that the characterization of Greenberg's investigation as a “whitewash” is “consistent with what the OCC later said at [the] enforcement proceeding” brought against him. Loumiet DOJ Dep. 63:21-66:12.

147. A jury found Masferrer guilty on all 18 counts of the indictment, and he was subsequently sentenced to thirty years' imprisonment. United States v. Masferrer, No. 04-cr- 20404 (Verdict Form) (Exhibit 34).

IX. E&C Obtains Authorization to Initiate Action for Civil Money Penalties and Personal Cease-and-Desist Orders against Greenberg, Grossman, and Loumiet

148. The FDIC and the OCC pursued their enforcement actions related to Greenberg, Grossman, and Loumiet independently, but shared evidence and other information on an as- needed basis. Merritt Decl. ¶ 15; Smith Decl. ¶¶ 1-6.

149. At the FDIC's request, E&C deferred commencing any enforcement activity until the FDIC completed administrative discovery in its related case against Greenberg, Grossman, and Loumiet. Sexton Decl. ¶ 19; Merritt Decl. ¶ 15; 2006 WSRC Mem. at ¶ 0277058.

150. Greenberg, Grossman, and Loumiet ultimately settled and executed releases in connection with the FDIC's claims against them, with Greenberg agreeing to pay $7.6 million. Sexton Decl. ¶ 19; Merritt Decl. ¶ 15; 2006 WSRC Mem. at ¶ 0277058-US0277059.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

151. In May 2005, Lee Straus joined the OCC as an experienced trial attorney from the Department of Justice's Civil Division. Straus Decl. ¶ 1.

152. Straus was assigned as the lead attorney to the Grossman and Loumiet matter, and was supervised by then E&C Assistant Director Sexton. Straus Decl. ¶¶ 7-9; Merritt Decl. ¶ 16.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

153. E&C Director Brian McCormally asked Straus to review the evidence and evaluate whether, in light of the higher standard of proof for debarment, E&C should consider withdrawing its recommendation that the OCC initiate a debarment action and proposing instead an action for civil money penalties and personal cease-and-desist orders against Greenberg, Grossman, and Loumiet pursuant to 12 U.S.C. § 1818. Straus Decl. ¶ 8.

154. Debarment required proof that the Greenberg attorneys “knowingly” gave false or misleading information to the OCC, whereas an enforcement action under 12 U.S.C. § 1818 required only proof that the attorneys “knowingly or recklessly” engaged in misconduct. Straus Decl. ¶ 8; Merritt Decl. ¶ 18.

155. Meanwhile, Straus and E&C attorney Kristin Merritt drafted “15-day letters” to Loumiet and Grossman, providing formal notice that the OCC was considering an enforcement action against them. Straus Decl. ¶ 17; Merritt Decl. ¶ 17.

156. The 15-day letters detailed the factual and legal basis for an enforcement action and notified Grossman and Loumiet of their right to submit a written response. Id. ¶ 19.

157. E&C Assistant Director Gerard Sexton approved the letters. Sexton Decl. ¶ 18.

Loumiet Response: Disputed without record citation. Loumiet asserts that the

Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

158. Pursuant to a delegation of authority from the Comptroller, Director of Special Supervision Ronald Schneck signed the 15-day letters. Schneck Decl. ¶ 19.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

159. Straus and Merritt reviewed the evidence and concluded that an action for civil money penalties and personal cease-and-desist orders was preferable not only because of the lower burden of proof, but also because such an action would have a greater deterrent effect on Greenberg, Grossman, Loumiet, and any individual who might attempt a similar “whitewash” investigation in the future. Straus Decl. ¶ 9; Merritt Decl. ¶ 18.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

The Court's Determination: For the reasons set forth in the accompanying Memorandum Opinion, Loumiet's blanket assertion, in violation of Local Civil Rule 7(h), incorrectly contending that the recitation of the facts implicate collateral estoppel, and accordingly that he disputes the facts in this paragraph, cannot be given credence, and the Court accordingly assumes this fact to be admitted.

160. In contrast to a debarment action, which would only prevent Grossman and Loumiet from representing any financial institution before the OCC, an action for a civil money penalty would impose a financial sanction on Greenberg and its attorneys and provide deterrence to the repetition of other banking attorneys who might attempt a similar “whitewash” investigation in the future. Merritt Decl. ¶ 18; Straus Decl. ¶ 9.

161. In accordance with the OCC's policies and procedures, Straus and Merritt prepared a detailed memorandum to the WSRC, withdrawing E&C's recommendation that the OCC initiate a debarment action and proposing instead an action for civil money penalties and personal cease-and-desist orders against Greenberg, Grossman, and Loumiet pursuant to 12 U.S.C. § 1818. Straus Decl. ¶ 10; Merritt Decl. ¶ 18; 2006 WSRC Mem.

162. Assistant Director Sexton and then-E&C Director Richard Stearns approved the memorandum. Straus Decl. ¶ 11; Sexton Decl. ¶¶ 20-21; Schneck Decl. ¶ 21.

163. On September 14, 2006, Straus formally presented the E&C's recommendation to the WSRC. Straus Decl. ¶ 12; Schneck Decl. ¶ 21.

164. Establishing that Greenberg's failure to perform an honest investigation caused or was likely to cause “harm” to the bank was always the most difficult aspect of the case. Straus Decl. ¶ 12. E&C's memorandum discussed this issue in great detail and identified “institution- affiliated-party” (IAP) status, including the harm element, as “the greatest litigation risk associated with the OCC's case against Greenberg, Loumiet, and Grossman[.]” Straus Decl. ¶ 12; Schneck Decl. ¶ 21; 2006 WSRC Mem., at ¶ 0277066.

165. The WSRC unanimously recommended in favor of approving the enforcement action. Schneck Decl.¶21-22; Straus Decl. ¶15.

166. On September 14, 2006, Senior Deputy Comptroller Long accepted the WSRC's recommendation and authorized E&C to initiate an action for civil money penalties and cease-and-desist orders against Greenberg, Grossman, and Loumiet. Ex. 4 to Schneck Decl., 2006 WSRC Meeting Minutes, at ¶ 0000009.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

167. Straus and Merritt prepared identical notices of charges against Greenberg, Grossman, and Loumiet. Straus Decl. ¶ 16; Merritt Decl. ¶ 21.

168. E&C Assistant Director Sexton and E&C Director Stearns approved the notices. Sexton Decl. ¶ 23.

The Court's Determination: For the reasons set forth in the accompanying Memorandum Opinion, Loumiet's blanket assertion, in violation of Local Civil Rule 7(h), incorrectly contending that the recitation of the facts implicate collateral estoppel, and accordingly that he disputes the facts in this paragraph, cannot be given credence, and the Court accordingly assumes this fact to be admitted. 169. Deputy Chief Counsel Daniel Stipano also reviewed the notices, and, on October 27, 2006, he sent an email message to E&C Assistant Director Sexton and E&C Director Stearns expressing approval. Ex. 3 to Sexton Decl., Oct. 27, 2006, Email from Stipano, at ¶ 0277534.

170. Greenberg and Grossman settled with the OCC, with Greenberg agreeing to pay a civil money penalty of $750,000 and Grossman paying a civil money penalty of $175,000. Straus Decl. ¶ 17.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

171. When efforts to settle with Loumiet proved unsuccessful, the OCC filed a Notice of Charges against him on November 6, 2006. Id. ¶ 18.

X. Proceedings before the Administrative Law Judge 172. E&C closely monitored a significant case, In the Matter of: Grant Thornton LLP, which had major implications for the action against Loumiet as an “institution-affiliated-party” (“IAP”) under 12 U.S.C. §§ 1818, 1821. Straus Decl. ¶ 20; Merritt Decl. ¶ 17.

173. The issue in In re Grant Thornton was whether a professional services company (an accounting firm, in that case) could be held liable as an IAP for conducting a reckless audit and failing to discover fraud by a national bank. Straus Decl. ¶ 20.

174. ALJ Ann Z. Cook-the same ALJ presiding over the action against Loumiet- recommended dismissal of the charges in Grant Thornton on the basis that the accounting firm's audit, while erroneous, was not reckless. Id.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

175. In December 2006, the Comptroller rejected the ALJ's recommendation in Grant Thornton and held the accounting firm liable as an IAP, providing further support for the OCC's action against Loumiet. Id.

176. The enforcement action against Loumiet proceeded through discovery and motion practice, with E&C Assistant Director Sexton or E&C Director Stearns approving all significant filings and litigation decisions. Sexton Decl. ¶ 24; Straus Decl. ¶ 19; Merritt Decl. ¶ 22.

177. On January 17, 2007, ALJ Cook denied Loumiet's motion to strike and dismiss the OCC's charges. Sexton Decl. ¶ 24.

178. Assistant Director Sexton praised the “[g]reat result” and the trial team's “[g]reat work.” Ex. 4 to Sexton Decl., Jan. 17, 2007 Sexton Email, at ¶ 0277545.

179. The ALJ subsequently denied Loumiet's summary judgment motion, and the case proceeded to trial in October 2007. Sexton Decl. ¶ 24; Straus Decl. ¶ 19-20; Merritt Decl. ¶ 22.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

180. The OCC issued a press release shortly before the trial. Press Release, OCC Will Hold Hearing on Charges Against Carlos Loumiet, Esq. (Oct. 3, 2007), available at https://www.occ.gov/news-issuances/news-releases/2007/ nr-occ-2007-107.html.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

181. The press release linked to the OCC's Notice of Charges and, as in the Notice of Charges, the press release stated that Greenberg collected “$1.16 million in fees from the bank and the holding company during 2001-02, and Mr. Loumiet received a share of these fees.” Id.; see also Ex. 3 (“Notice of Charges”) to Straus Decl., ¶ 66.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

182. Loumiet claims the press release “falsely” suggested that he earned part of the fees because he “left Greenberg [on May 1, 2001,] before most of that money was paid and [he] never saw a nickel of it[.]” Loumiet DOJ Dep., 93:1-10.

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

183. Grossman testified in this matter that a Greenberg partner's billing rate is openly shared with clients, is “not a secret,” and “definitely [is] not equivalent to salary” because Greenberg attorneys “work on a draw.” Grossman DOJ Dep., 26:4-27:15 (Exhibit 35).

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted. 184. In February 2008, the D.C. Circuit vacated the Comptroller's decision in Grant Thornton and held that the accounting firm could not be held liable as an IAP. Grant Thornton, LLP v. OCC, 514 F.3d 1328 (D.C. Cir. 2008); Straus Decl. ¶ 21

185. ALJ Cook received post-trial briefing and heard oral argument on the impact of the D.C. Circuit's Grant Thornton decision on the OCC's enforcement action against Loumiet. Merritt Decl. ¶ 22.

186. In the interim, Straus was instructed by senior OCC management to no longer cite the Comptroller's 2006 decision in Grant Thornton as support for the OCC's enforcement action against Loumiet. Straus Decl. ¶ 21.

Loumiet Response: Disputed without record citation. Loumiet asserts that the Defendant is collaterally estopped from relitigating the matters raised in this paragraph of Defendant's Statement of Undisputed Material Facts to the extent final judgments on the merits have been entered regarding Loumiet's actions in the Hamilton Investigation in In re: Carlos Loumiet, Esq., Final Order FIRREA Decision, OCC-AA-EC- 06-102 at 17 (July 27, 2009) and Loumiet v. Off. of Comptroller of Currency, 650 F.3d 796, 800, 802 (D.C. Cir. 2011). See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 9-10.

187. E&C Director Stearns emailed the “first-rate trial team,” acknowledging that they “worked very hard, put in long hours, and d[id] a terrific job in this case, pre-trial, during trial, and in post-trial briefing.” Ex. 5 to Sexton Decl., Mar. 7, 2008 Stearns Email, at ¶ 0277536.

188. On June 17, 2008, ALJ Cook issued a decision recommending dismissal of the charges against Loumiet. In the Matter of: Carlos Loumiet, Esq, No. OCC-AA-EC-06-102, 2008 WL 11398993 (June 17, 2008).

Loumiet Response: Undisputed

The Court's Determination: The Court accepts this as admitted.

XI. No Evidence of Retaliation or Conspiracy

189. Rardin denies retaliating against Loumiet or conspiring with anyone to do so. Rardin Decl. ¶ 29.

Loumiet Response: Disputed without record citation; Loumiet asserts that this paragraph is disputed in his Statement of Genuine Issues, included in his Opposition to Defendant's Motion for Summary Judgment [111]. See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 23.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. The only response by Loumiet that can be characterized as addressing this fact is paragraph 10 of his Statement, which cites to paragraphs in the declarations of Rardin, Schneck, Sexton, and Loumiet himself. The first three merely relate that they were involved in the matter in one form or another, with no reference to any proof supporting Loumiet's denial; Loumiet's declaration restates the gist of his Complaint, i.e., his supposition that there must have been retaliation because there is no other credible explanation. This is insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

190. Rardin denies Loumiet's allegation that he was angered or embarrassed by Loumiet's letters to the OIG. Id.

Loumiet Response: Disputed without record citation; Loumiet asserts that this paragraph is disputed in his Statement of Genuine Issues, included in his Opposition to Defendant's Motion for Summary Judgment [111]. See Loumiet's Response to Defendant's Statement of Undisputed Material Facts [111-19], at 23.

191. Taylor, who joined the OCC in 2002, maintains that the letters Loumiet wrote to the OIG “did not influence, in any way, [his] recommendation to [his] supervisors, and ultimately to the WSRC, that the OCC bring an enforcement action against the Greenberg attorneys.” Taylor Decl. ¶¶ 2, 12.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. There is no citation to Taylor's declaration or any other declaration that takes issue with this fact. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

192. Straus affirms that “[n]o one ever suggested to [him] that we should go through the elaborate process of presenting a revised proposed action to the WSRC and obtaining authorization from the Senior Deputy Comptroller to retaliate against Mr. Loumiet for (a) writing two letters five years ago, or (b) a lawsuit filed by Hamilton.” Straus Decl. ¶ 14.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. There is no citation to Straus' declaration or any other declaration that takes issue with this fact. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

193. Straus declares that Loumiet's “OIG letters and Hamilton's lawsuit were complete non-factors with regard to my recommendation for a revised proposed enforcement action.” Id.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. There is no citation to Straus' declaration or any other declaration that takes issue with this fact. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

194. Straus does “not recall anyone mentioning Mr. Loumiet's letters or Hamilton's lawsuit at any point during the WSRC meeting.” Id.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. There is no citation to Straus' declaration or any other declaration that takes issue with this fact. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

195. Sexton declares that “the action against Greenberg, Mr. Grossman, and Mr. Loumiet was vetted and approved by senior E&C and OCC management before it was initiated, and it abided by the OCC's policies and procedures.” Sexton Decl. ¶ 26.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. There is no citation to Sexton's declaration or any other declaration that takes issue with this fact. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

196. The action against Loumiet “was no different from any of the hundreds of other cases [Sexton] was involved in or supervised during my more than 25 years with E&C” and was “predicated on the facts, legal analysis, and conclusions in E&C's September 2006 memo to the WSRC.” Id. ¶ 27.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. There is no citation to Sexton's declaration or any other declaration that takes issue with this fact, other than Loumiet's own. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

197. “At no time in the consideration of the action against Greenberg or its attorneys did [Sexton] ever hear any reference to or discussion about Mr. Loumiet's 2001 OIG letters or a 2001 civil rights case filed on behalf of Hamilton.” Id.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. There is no citation to Sexton's declaration or any other declaration that takes issue with this fact. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

198. Schneck denies retaliating or conspiring against Loumiet. Schneck Decl. ¶ 24.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page

Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. The only response by Loumiet that can be characterized as addressing this fact is paragraph 10 of his Statement, which cites to paragraphs in the declarations of Rardin, Schneck, Sexton, and Loumiet himself. The first three merely relate that they were involved in the matter in one form or another, with no reference to any proof supporting Loumiet's denial; Loumiet's declaration restates the gist of his Complaint, i.e., his supposition that there must have been retaliation because there is no other credible explanation. This is insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

199. Schneck denies Loumiet's allegations that he was angered or embarrassed by his letters to the OIG. Id.

200. Schneck does not recall being aware of any letters Loumiet wrote to the OIG when he, as one of several WSRC members, recommended in favor of E&C's proposed action for civil money penalties and cease-and-desist orders against Greenberg, Grossman, and Loumiet. Id. ¶ 23.

There is no citation to Schneck's declaration or any other declaration that takes issue with this fact. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

201. Schneck first learned of Loumiet's OIG letters around the time Loumiet filed this lawsuit. Id.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. There is no citation to Schneck's declaration or any other declaration that takes issue with this fact. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

202. Schneck recommended in favor of the enforcement action because he believed Grossman and Loumiet “ignored the evidence directly in front of them and instead conducted a whitewashed investigation of Hamilton's officers' illegal activity-the same activity that resulted in multiple criminal indictments and convictions.” Id. ¶ 24.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. There is no citation to Schneck's declaration or any other declaration that takes issue with this fact. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

203. Merritt maintains that the enforcement action against Loumiet “followed all applicable policies and procedures, was based solely on E&C's analysis of the facts and legal basis for the proposed action, and was not at all influenced by” Loumiet's letters to the OIG or Hamilton's civil rights lawsuit against the OCC. Merritt Decl. ¶ 23.

The Court's Determination: Despite Loumiet's violation of Local Civil Rule 7(h), see Memorandum Opinion, the Court nonetheless sought to determine from his 12-page Statement of Genuine Issues, included in his Opposition Memorandum [111], whether he fairly asserted a cognizable response to dispute this fact supported by record evidence. There is no citation to Merritt's declaration or any other declaration that takes issue with this fact. Moreover, there is no response or citation to record evidence by Loumiet in his Statement that can be characterized as responsive to this fact other than his speculation and the repetition of the unsupported assertions of his Complaint. His general denial and blanket reference to his Statement are insufficient to raise an issue of material fact and the Court concludes that this paragraph is therefore admitted.

Loumiet v. United States

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Loumiet v. United States

Loumiet v. United States

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Loumiet v. United States

Opinion

Loumiet v. United States

Loumiet v. United States

Case Details

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