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 pr ocess, intentional infliction of emotional distress, invasion of p rivacy, negligen t supervision, and conspiracy. Plaintiff also filed suit against Defendants Michael Ra rdin, Lee Straus, Gerard Sext on, and Ronald Schneck (collectively “Individual Defenda nts”), 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 Defenda nts’ Motion to Dismiss as to Plaintiff’s Bivens and tort claims. The Court also granted the United States’ Mot ion to Dismiss as to Plaintiff’s claims for malicious prosecution and abuse of pr ocess under the FTCA, but denied the United States’ Motion to Dismiss as to Plaintiff’s FTCA cla ims 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 Co urt issued a Memorandum Opinion

CARLOS LOUMIET, Plaintiff,

v. UNITED STATES OF AMERICA, et al , Defendants.2 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 t he 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 consider ation of the pleadings, 1 the relevant legal authorities, and the record as a whole, the Court shall G RANT 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 t he OCC conducted an investigation of Hamilton Bank, N. A., Plaintiff wrote to Treasu ry Inspector General Jeffrey Rush and other Treasury Department o fficials expressing concerns abo ut 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 s econd letter, again expressing concerns regarding the OCC’s regulatory actions. Id. ¶ 50. On July 18, 2001, the Treasury I nspector General notifie d Plaintiff that the OIG had “considered the information and argu ment [Plaintiff] presented, and . . . concluded that it did not provide a basis for the Office of Ins pector General to consider further investigation . . . .” Def.’s Mo t. to Dismiss, ECF No. [10], Ex . 3 (Letter from Jeffrey Rush, Jr., Inspector General). On December 14, 2001, Plaintiff filed a law suit against the OCC in the Southern District of Florida, a lleging that the OCC’s superviso ry actions were motivated by anti-

1 The United States’ Renewed Motion to Dismiss for Lack of Juris diction (“Def.’s Mot.”), ECF No. [50]; Plaintiff’s Opposit ion to Defendant’s Motion to D ismiss (“Pl.’s Opp’n”), ECF No. [51]; Defendant’s Reply in Suppor t of the United States’ Renewe d Motion to Dismiss for Lack of Jurisdiction (“Def.’s Reply”), ECF No. [52].3 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 proceedin g against Plaintiff, pursuant to the Financial Institutions Reform, Recovery, and En forcement 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, bro ught 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 reckle ssly . . . breach[ed his] fiduciary duty,” and, as a result, “caused . . . a significant adverse ef fect” 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 duri ng the three-week bench trial in 2007 the Individual Defendants aggr essively 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 dismiss al of all claims against Plaintiff was appropriate, but on differe nt grounds from the ALJ. Id.
B. Procedural Background On July 20, 2011, Plaintiff presented an administrative claim t o 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 the4 United States Government for the actions of its agency, the OCC , under the FTCA alleging malicious prosecution, abuse of p rocess, intentio nal infliction of emotional distress, invasion of privacy, negligent supervision, a nd conspiracy, as well as seve ral 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 De fendants as untimely and the to rt claims as precluded by the Westfall Act. With respect to Plaintiff’s cla ims for malicious prosecution and abuse of process against the Unit ed 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 distre ss, invasion of pri vacy, 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. Th e Court denied Plaintiff’s Motion for Reconsideration, but g ranted Defendant’s Motion in p art. 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 ou t of libel or slander. The Court did not d ismiss Plaintiff’s i nvasion of privacy claim to the extent it alleges harms from the public disclosure of private facts in the statements Plaintiff alleges Defendant mad e to the press, and not harm fro m defamation. The Court held a Status Hearing in this matter on September 17, 2014. During the Status Hearing, Defendant indicated tha t it intended to challenge Plai ntiff’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 ha d resolved the issue of subject matter5 jurisdiction over Plaintiff’s i nvasion of privacy claim, “wheth er the Court possesses subject matter jurisdiction over Plaintiff’s remaining invasion of privacy cla im and, specifically, whether the continuing tort doctrine applies to this claim.” Order (Oct. 1 5, 2014), ECF No. [47], at 1. Plaintiff submitted a response to Defendant’s letter and Defendant was af forded an opportunity to reply. After reviewing the parties’ let ters, 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 claim 2 or whether the Court possesses subject matter jurisdiction ove r this particular claim. Accordingly, the Court ordered th e parties to fully brief “the issue of the Court’s subject matter jurisdiction over Plaintiff’s FT CA claim alleging invasion of p rivacy.” Order (Oct. 20, 2014), ECF No. [49], at 1. Having received the parties’ briefing on this discrete remaining issue, Defendant’s Motion to Dismiss fo r Lack of Jurisdiction is now r ipe for review.
II. LEGAL STANDARD To survive a motion to dismiss pursuant to Rule 12(b)(1), the p laintiff bears the burden of establishing that the court has subject matter jurisdiction ove r its claim. Moms Against Mercury
v. FDA , 483 F.3d 824, 828 (D.C. Cir. 2007). In determining whether t here is jurisdiction, the Court may “consider the complaint supplemented by undisputed fa cts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”

2 Although none of the parties drew the Court’s attention to thi s language in their briefing of the present motion, the Cour t does acknowledge that in its S eptember 12, 2013, Memorandum Opinion resolving Defendant’s ini tial Motion to Dismiss, the Co urt made the broad statement that, “pursuant to the continuing tort doctrine, Plaintiff’s FTCA cla ims 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 ex clusively 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 stat ements themselves complied with the statute of limitations pursu ant to the continuing tort doctrine. The Court acknowledges that its initial statement about the applicability of the continuing tor t doctrine to Plaintiff’s FTCA claims was confusingly broad since the Court’s analysis of the doctrin e is clearly limited to tortious injury arising out of lawsuits, and not s tatements to the press.6 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 possib le 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 c ontained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1),” the f actual 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. 1 7, 2008) (citations omitted).
III. DISCUSSION Count II of Plaintiff’s Complaint alleges that “[t]he OCC and I ndividual Defendants invaded [Plaintiff’s] privacy by making public through the Noti ce of Charges and their statements to the press and press releases, private facts that would not o therwise have become public concerning [Plaintiff’s] representation of Hamilton.” Compl. ¶ 118. Plaintiff further alleges that “[t]he facts disclosed would be o ffensive to any reasonable per son.” Id. ¶ 119. Defendant makes two arguments in an effort to show that the Cou rt does not have subject matter jurisdiction over this invasion of privacy claim. First , Defendant argues that there are no allegations in Plaintiff’s Comp laint identifying a non-defamato ry statement that constituted an invasion of privacy, consequentl y, the FTCA’s libel/slander exc eption 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 d isclosure of Plaintiff’s representation of Hamilton Bank is not actionable as an invasio n of privacy because the disclosure of the allegedly “private facts” was either privileged or of “l egitimate concern” to the public. Def.’s Mot. at 7-9. As the Court finds that Plaintiff’s invasi on of privacy claim is barred by the statute of limitations, the Cour t need not address these additi onal arguments for dismissal.7 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 o f 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 t he libel/slander exception, the Court need not revisit its holding on this issue. Defendant’s second argument is tha t 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 i t is presented in writing to the appropriate federal agency “with in two years after such claim a ccrues . . . .” 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 2 0, 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 t o the press on which the claim is based occurred in October 2007 and Plaintiff became aware of th e statements in 2007—well before July 2009. While recognizing the general rule that an FTCA claim accrues w hen a plaintiff “has discovered both his injury and its cause,” United States v. Kubrick , 444 U.S. 111, 120 (1979), Plaintiff argues that the conti nuing tort doctrine should apply here. Under the continuing tort doctrine, “when a tort involves continuing injury, the cause of action accrues, and the limitation8 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 a fter 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 c haracter and [when] . . . no single act can be identified as the cause of significant harm, it is n ot limited to such circumstances. Rather, the theory applies even t o a series of acts that are not inherently ‘of a repetitive character’ and even when a plaintiff was sufficiently aware of the harm ca used 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 briefi ng that Defendant made four stat ements that publicly disclosed private facts about Plaintiff’s representation of Hamilton Bank and that these statements were part of a continuing tort. The first s tatements occurred in the Not ice 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 O ctober 2007 trial “when the lead prosecutor disclosed additional privileged and private information relating to [Plaintiff’s] in vestigation;” 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 con tends 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)). Pl aintiff argues that since9 the tortious conduct ceased with the OCC’s Final Decision on Ju ly 27, 2009, Plaintiff’s invasion of privacy claim, and his injury from all of the statements tha t 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 argumen t. 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 containe d in the OCC’s Final Decision issued on July 27, 2009. All of the other alleged statements o ccurred outside of the statutory period. Accordingly, the OCC’s Final Decision is essential to Plaintiff’s argument that his in vasion of privacy claim is not barred by the statute of limitations. H owever, Count II—Plaintiff’s i nvasion 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 i nvasion of privacy claim is base d only on “the Notic e 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 Decisio n as a basis for Plaintiff’s invasion of privacy claim when Plaintiff specifically enumerated the Not ice of Charges, press statements, and press releases within Count II of his Complaint, but omitte d any reference to the Final Decision. Moreover, Plaintiff ca nnot now seek to amend his Com plaint 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 plaint iff 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 De cision as a parting shot.” Compl. ¶ 93. The Court finds this allegation insufficient to put Defe ndant on notice that the statements included in the OCC’s Final Decision were also part of Plaintif f’s invasion of privacy claim. Plaintiff cannot expect Defendant, much less the Court, to infe r from an allegation that a document “bad-mouth[ed]” Plaintiff that that document published private facts about Plaintiff.10 75 (D.D.C. 2008) (same). Furthermore, the Court previously ruled that Plaintiff’s invasi on of privacy claim survived the prior Motion to Dismiss and M otion for Reconsideration “to the extent that it arises out of the public disclosure of private fact s 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 D efendant’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 ba sed on harms suffered from the prosecution are barred under the discretionary function excepti on. 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 F inal Decision. Accordingly, the Court finds that Plaint iff’s invasion of pri vacy 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 Mo tion 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