1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 12-1130 (CKK) 

MEMORANDUM OPINION 

(May 28, 2015) 

Plaintiff Carlos Loumiet brought suit against the United States Government for the actions 

of its agency, the Office of the Comptroller of the Currency (“OCC”), under the Federal Tort 

Claims Act (“FTCA”) alleging malicious prosecution, abuse of process, intentional infliction of 

emotional distress, invasion of privacy, negligent supervision, and conspiracy. Plaintiff also filed 

suit against Defendants Michael Rardin, Lee Straus, Gerard Sexton, and Ronald Schneck 

(collectively “Individual Defendants”), alleging claims under Bivens v. Six Unknown Named 

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), as well as various state law tort claims. 

On September 12, 2013, the Court granted the Individual Defendants’ Motion to Dismiss as to 

Plaintiff’s Bivens and tort claims. The Court also granted the United States’ Motion to Dismiss as 

to Plaintiff’s claims for malicious prosecution and abuse of process under the FTCA, but denied 

the United States’ Motion to Dismiss as to Plaintiff’s FTCA claims alleging intentional infliction 

of emotional distress, invasion of privacy, negligent supervision, and conspiracy to the extent they 

are premised on statements made by OCC officials to the press. Each of the parties subsequently 

filed a Motion for Reconsideration. On August 21, 2014, the Court issued a Memorandum Opinion 

CARLOS LOUMIET, 

 Plaintiff, 

 v. 

UNITED STATES OF AMERICA, et al, 

 Defendants. 
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and Order dismissing Plaintiff’s remaining FTCA claims in their entirety, “except for Plaintiff’s 

invasion of privacy claim to the extent it alleges harms from the public disclosure of private facts 

in the statements Plaintiff alleges Defendant made to the press.” Mem. Op. (Aug. 21, 2014), at 

12. 

Presently before the Court is Defendant’s Motion to Dismiss for Lack of Jurisdiction 

Plaintiff’s remaining invasion of privacy claim. Upon consideration of the pleadings,1 the relevant 

legal authorities, and the record as a whole, the Court shall GRANT Defendant’s Motion to 

Dismiss and DISMISS Plaintiff’s remaining claim for the reasons that follow. 

I. BACKGROUND 

A. Factual Background 

In March 2001, after becoming troubled by the manner in which the OCC conducted an 

investigation of Hamilton Bank, N.A., Plaintiff wrote to Treasury Inspector General Jeffrey Rush 

and other Treasury Department officials expressing concerns about the OCC’s enforcement action 

against the bank. Compl. ¶ 49. In April 2001, Plaintiff sent the Treasury Secretary and the Office 

of Inspector General (“OIG”) a second letter, again expressing concerns regarding the 

OCC’s regulatory actions. Id. ¶ 50. On July 18, 2001, the Treasury Inspector General notified 

Plaintiff that the OIG had “considered the information and argument [Plaintiff] presented, and . . . 

concluded that it did not provide a basis for the Office of Inspector General to consider further 

investigation . . . .” Def.’s Mot. to Dismiss, ECF No. [10], Ex. 3 (Letter from Jeffrey Rush, Jr., 

Inspector General). On December 14, 2001, Plaintiff filed a lawsuit against the OCC in the 

Southern District of Florida, alleging that the OCC’s supervisory actions were motivated by anti-

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 The United States’ Renewed Motion to Dismiss for Lack of Jurisdiction (“Def.’s Mot.”), 

ECF No. [50]; Plaintiff’s Opposition to Defendant’s Motion to Dismiss (“Pl.’s Opp’n”), ECF No. 

[51]; Defendant’s Reply in Support of the United States’ Renewed Motion to Dismiss for Lack of 

Jurisdiction (“Def.’s Reply”), ECF No. [52]. 
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Hispanic bias. See Hamilton Bank, N.A. v. OCC, Case No. 01-cv-4994 (S.D. Fla.). This case was 

voluntarily dismissed in 2002. 

On November 6, 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). Compl. ¶ 16; Loumiet v. Office of the Comptroller of the Currency, 650 F.3d 796, 799 

(D.C. Cir. 2011). 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, 650 F.3d 

at 799. Plaintiff claims that this prosecution as well as the surrounding actions made by OCC 

officials during the prosecution were made in retaliation for his letters expressing concern over 

bias within the OCC. Compl. ¶ 15. Plaintiff alleges that during the three-week bench trial in 2007 

the Individual Defendants aggressively pressed unsubstantiated charges and made statements to 

the press covering the proceeding, both of which caused substantial damage to his reputation, 

career, and privacy. Id. Ultimately, on June 18, 2008, an Administrative Law Judge (“ALJ”) 

recommended complete dismissal of the Division’s claims. Id. ¶ 16. On July 27, 2009, the 

Comptroller, reviewing the ALJ’s recommendation, agreed dismissal of all claims against Plaintiff 

was appropriate, but on different grounds from the ALJ. Id.

B. Procedural Background 

On July 20, 2011, Plaintiff presented an administrative claim to the OCC, demanding $4 

million in damages and other relief. Id. ¶ 110. Plaintiff alleged that the OCC initiated and conducted 

the enforcement action against him in retaliation for his earlier criticism of the agency. Id. ¶ 8. The 

OCC denied his claim on January 9, 2012. Id. ¶ 110. On July 9, 2012, Plaintiff filed suit against the 
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United States Government for the actions of its agency, the OCC, under the FTCA alleging 

malicious prosecution, abuse of process, intentional infliction of emotional distress, invasion of 

privacy, negligent supervision, and conspiracy, as well as several Bivens and state law tort claims 

against three individual Defendants. In ruling on Defendants’ motions, the Court dismissed 

Plaintiff’s Bivens claims against the Individual Defendants as untimely and the tort claims as 

precluded by the Westfall Act. With respect to Plaintiff’s claims for malicious prosecution and 

abuse of process against the United States Government under the FTCA, the Court dismissed these 

claims pursuant to the discretionary function exception. However, the Court allowed Plaintiff’s 

FTCA claims alleging intentional infliction of emotional distress, invasion of privacy, negligent 

supervision, and conspiracy to proceed “to the extent they are premised on statements made by 

OCC officials to the press.” Mem. Op. (Sept. 12, 2013), at 2. 

The parties subsequently filed motions for reconsideration. The Court denied Plaintiff’s 

Motion for Reconsideration, but granted Defendant’s Motion in part. The Court dismissed, in their 

entirety, all of Plaintiff’s remaining FTCA claims, except for invasion of privacy, because they 

arose out of Plaintiff’s defamation claim and the FTCA’s waiver of immunity does not apply to 

any claim arising out of libel or slander. The Court did not dismiss Plaintiff’s invasion of privacy 

claim to the extent it alleges harms from the public disclosure of private facts in the statements 

Plaintiff alleges Defendant made to the press, and not harm from defamation. 

The Court held a Status Hearing in this matter on September 17, 2014. During the Status 

Hearing, Defendant indicated that it intended to challenge Plaintiff’s remaining invasion of privacy 

claim on jurisdictional grounds. Specifically, Defendant contended that Plaintiff’s invasion of 

privacy claim was barred by the statute of limitations. The Court subsequently ordered Defendant 

to submit a letter to the Court addressing whether the Court had resolved the issue of subject matter 
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jurisdiction over Plaintiff’s invasion of privacy claim, “whether the Court possesses subject matter 

jurisdiction over Plaintiff’s remaining invasion of privacy claim and, specifically, whether the 

continuing tort doctrine applies to this claim.” Order (Oct. 15, 2014), ECF No. [47], at 1. Plaintiff 

submitted a response to Defendant’s letter and Defendant was afforded an opportunity to reply. 

After reviewing the parties’ letters, the Court found that the Court had not addressed in any of its 

previous opinions whether the continuing tort doctrine applies to Plaintiff’s invasion of privacy 

claim2 or whether the Court possesses subject matter jurisdiction over this particular claim. 

Accordingly, the Court ordered the parties to fully brief “the issue of the Court’s subject matter 

jurisdiction over Plaintiff’s FTCA claim alleging invasion of privacy.” Order (Oct. 20, 2014), 

ECF No. [49], at 1. Having received the parties’ briefing on this discrete remaining issue, 

Defendant’s Motion to Dismiss for Lack of Jurisdiction is now ripe for review. 

II. LEGAL STANDARD 

To survive a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of 

establishing that the court has subject matter jurisdiction over its claim. Moms Against Mercury 

v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether there is jurisdiction, the 

Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or 

the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” 

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 Although none of the parties drew the Court’s attention to this language in their briefing 

of the present motion, the Court does acknowledge that in its September 12, 2013, Memorandum 

Opinion resolving Defendant’s initial Motion to Dismiss, the Court made the broad statement that, 

“pursuant to the continuing tort doctrine, Plaintiff’s FTCA claims need not be dismissed on statute 

of limitations grounds.” Mem. Op. (Sept. 12, 2013), at 21. In coming to this conclusion, however, 

the Court’s analysis of the continuing tort doctrine focused exclusively on the doctrine’s 

applicability to claims alleging harm from a prosecution. Id. at 19-21. The Court never conducted 

an analysis of whether claims alleging harm from the press statements themselves complied with 

the statute of limitations pursuant to the continuing tort doctrine. The Court acknowledges that its 

initial statement about the applicability of the continuing tort doctrine to Plaintiff’s FTCA claims 

was confusingly broad since the Court’s analysis of the doctrine is clearly limited to tortious injury 

arising out of lawsuits, and not statements to the press. 
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Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations 

omitted). “At the motion to dismiss stage, counseled complaints, as well as pro se complaints, are 

to be construed with sufficient liberality to afford all possible inferences favorable to the pleader 

on allegations of fact.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005). 

“Although a court must accept as true all factual allegations contained in the complaint when 

reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the factual allegations in the complaint 

“will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for 

failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 

2007), aff’d 2008 WL 4068606 (D.C. Cir. Mar. 17, 2008) (citations omitted).

III. DISCUSSION 

Count II of Plaintiff’s Complaint alleges that “[t]he OCC and Individual Defendants 

invaded [Plaintiff’s] privacy by making public through the Notice of Charges and their statements 

to the press and press releases, private facts that would not otherwise have become public 

concerning [Plaintiff’s] representation of Hamilton.” Compl. ¶ 118. Plaintiff further alleges that 

“[t]he facts disclosed would be offensive to any reasonable person.” Id. ¶ 119. 

Defendant makes two arguments in an effort to show that the Court does not have subject 

matter jurisdiction over this invasion of privacy claim. First, Defendant argues that there are no 

allegations in Plaintiff’s Complaint identifying a non-defamatory statement that constituted an 

invasion of privacy, consequently, the FTCA’s libel/slander exception divests the Court of subject 

matter jurisdiction over Plaintiff’s invasion of privacy claim.3

 Def.’s Mot. at 6. Defendant already 

 3

 Within this argument, Defendant also argues that the alleged disclosure of Plaintiff’s 

representation of Hamilton Bank is not actionable as an invasion of privacy because the disclosure 

of the allegedly “private facts” was either privileged or of “legitimate concern” to the public. 

Def.’s Mot. at 7-9. As the Court finds that Plaintiff’s invasion of privacy claim is barred by the 

statute of limitations, the Court need not address these additional arguments for dismissal. 
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raised, and the parties already fully briefed, this argument in Defendant’s Motion for 

Reconsideration. In resolving Defendant’s Motion for Reconsideration, the Court found that 

“Plaintiff clearly alleged in his Complaint that his invasion of privacy claim was based on the 

dissemination of ‘private facts that would not otherwise have become public’ and not on the 

defamatory aspect of these facts.” Mem. Op (Aug. 21, 2014), at 10. Accordingly, the Court found 

that Plaintiff’s invasion of privacy claim did not arise out of defamation and thus was not barred 

by the FTCA’s libel/slander exception. Id. As Defendant has not made any new arguments 

regarding the applicability of the libel/slander exception, the Court need not revisit its holding on 

this issue. 

Defendant’s second argument is that Plaintiff’s remaining claim is barred by the statute of 

limitations and cannot be saved by the “continuing tort” doctrine. The Court agrees. Under the 

FTCA, a tort claim against the United States is barred unless it is presented in writing to the 

appropriate federal agency “within two years after such claim accrues . . . .” 28 U.S.C. § 2401(b). 

In this case, Plaintiff filed his administrative claim with the OCC alleging various tort claims on 

July 20, 2011, meaning any claims which accrued prior to July 20, 2009, are barred under the 

FTCA’s statute of limitations. Defendant argues that Plaintiff’s invasion of privacy claim is barred 

by the two-year statute of limitations because the statements to the press on which the claim is 

based occurred in October 2007 and Plaintiff became aware of the statements in 2007—well before 

July 2009. 

While recognizing the general rule that an FTCA claim accrues when a plaintiff “has 

discovered both his injury and its cause,” United States v. Kubrick, 444 U.S. 111, 120 (1979), 

Plaintiff argues that the continuing tort doctrine should apply here. Under the continuing tort 

doctrine, “when a tort involves continuing injury, the cause of action accrues, and the limitation 
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period begins to run, at the time the tortious conduct ceases.” Page v. United States, 729 F.2d 818, 

821 (D.C. Cir. 1984) (applying the doctrine to an FTCA claim). “This continuing-tort doctrine, 

which becomes relevant only when the tortious conduct is ongoing, is to be distinguished from the 

rule applicable when the plaintiff’s injury continues or is manifested after the tortious conduct has 

ceased.” Id. at 822 n. 23 (emphasis added). “Although [the continuing tort] doctrine is most 

commonly applied when the acts are ‘by nature of a repetitive character and [when] . . . no single 

act can be identified as the cause of significant harm, it is not limited to such circumstances. 

Rather, the theory applies even to a series of acts that are not inherently ‘of a repetitive character’ 

and even when a plaintiff was sufficiently aware of the harm caused to file an administrative 

complaint challenging the defendant’s conduct.” Rochon v. F.B.I., 691 F.Supp. 1548, 1563 

(D.D.C. 1988). 

Plaintiff alleges in his briefing that Defendant made four statements that publicly disclosed 

private facts about Plaintiff’s representation of Hamilton Bank and that these statements were part 

of a continuing tort. The first statements occurred in the Notice of Charges which was filed on 

November 6, 2006; the second statement occurred in an October 3, 2007, press release; the third 

statement happened before the October 2007 trial “when the lead prosecutor disclosed additional 

privileged and private information relating to [Plaintiff’s] investigation;” and the fourth set of 

statements occurred in the Final Decision issued by the OCC on July 27, 2009, dismissing the 

charges against Plaintiff. Pl.’s Opp’n at 9-10. Plaintiff contends that, together, these statements 

constitute a “continuous chain of tortious activity” in which “no single incident . . . can ‘fairly or 

realistically be identified as the cause of significant harm’ [making it] proper to regard the 

cumulative affect of the conduct as actionable.” Id. at 6 (quoting Dooley v. United Technologies 

Corp., No. 91-2499, 1992 WL 167053, *13 (D.D.C. June 17, 1992)). Plaintiff argues that since 
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the tortious conduct ceased with the OCC’s Final Decision on July 27, 2009, Plaintiff’s invasion 

of privacy claim, and his injury from all of the statements that make up that claim, should be 

considered to have accrued on July 27, 2009—seven days into the statutory period. 

Even assuming it is appropriate to apply the continuing tort theory to this series of 

statements, there are several problems with Plaintiff’s argument. The only tortious statements 

Plaintiff alleges occurred within the statute of limitations (i.e. between July 20, 2009, and July 20, 

2011) were the statements contained in the OCC’s Final Decision issued on July 27, 2009. All of 

the other alleged statements occurred outside of the statutory period. Accordingly, the OCC’s 

Final Decision is essential to Plaintiff’s argument that his invasion of privacy claim is not barred 

by the statute of limitations. However, Count II—Plaintiff’s invasion of privacy claim—in no way 

mentions the Final Decision as a medium through which private facts about Plaintiff were made 

public. Instead, Plaintiff’s invasion of privacy claim is based only on “the Notice of Charges and 

[Defendants’] statements to the press and press releases.”4

 Compl. ¶ 118. The Court finds it 

unreasonable to read the Complaint to include the Final Decision as a basis for Plaintiff’s invasion 

of privacy claim when Plaintiff specifically enumerated the Notice of Charges, press statements, 

and press releases within Count II of his Complaint, but omitted any reference to the Final 

Decision. Moreover, Plaintiff cannot now seek to amend his Complaint through his pleadings to 

include the OCC’s Final Decision as a basis for his invasion of privacy claim. See Sloan v. Urban 

Title Servs., Inc., 689 F.Supp.2d 94, 114 (D.D.C. 2010) (explaining that a plaintiff cannot amend 

her complaint through her opposition briefing); Juergens v. Urban Title Servs., 533 F.Supp.2d 64, 

 4

 Within the factual recitation section of Plaintiff’s Complaint, Plaintiff does state that the 

OCC “further bad-mouth[ed] [Plaintiff] publicly in the Final Decision as a parting shot.” Compl. 

¶ 93. The Court finds this allegation insufficient to put Defendant on notice that the statements 

included in the OCC’s Final Decision were also part of Plaintiff’s invasion of privacy claim. 

Plaintiff cannot expect Defendant, much less the Court, to infer from an allegation that a document 

“bad-mouth[ed]” Plaintiff that that document published private facts about Plaintiff. 
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75 (D.D.C. 2008) (same). 

Furthermore, the Court previously ruled that Plaintiff’s invasion of privacy claim survived 

the prior Motion to Dismiss and Motion for Reconsideration “to the extent that it arises out of the 

public disclosure of private facts in the statements Plaintiff alleges Defendant made to the press . 

. . .” Mem. Op. (Aug. 21, 2014), at 11 (emphasis added). The OCC’s Final Decision was not a 

statement to the press; instead, it was an integral aspect of Defendant’s prosecution of Plaintiff. 

To the extent that Plaintiff is alleging that facts made public through the prosecution invaded his 

privacy, the Court has already ruled that Plaintiff’s claims based on harms suffered from the 

prosecution are barred under the discretionary function exception. See Mem. Op. (Sept. 12, 2013), 

at 25. For all of these reasons, Plaintiff cannot now attempt to base his invasion of privacy claim 

and his continuing tort argument on the OCC’s issuance of the Final Decision. Accordingly, the 

Court finds that Plaintiff’s invasion of privacy claim is based on allegedly tortious statements that 

were made prior to 2009 and, thus, Plaintiff’s claim is barred by the statute of limitations. 

IV. CONCLUSION 

For the foregoing reasons, the Court shall GRANT Defendant’s Motion to Dismiss for 

Lack of Jurisdiction and DISMISS this case in its entirety. An appropriate Order accompanies this 

Memorandum Opinion. 

 /s/ 

 COLLEEN KOLLAR-KOTELLY

 UNITED STATES DISTRICT JUDGE