United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, District Judge.
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 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,  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.
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. , 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-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 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 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. , 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 claim 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. , 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." 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 ...