Loumiet v. United States of America , 968 F. Supp. 2d 142 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARLOS LOUMIET,
Plaintiff,
v. Civil Action No. 12-01130 (CKK)
UNITED STATES OF AMERICA, et al.,
Defendants.
MEMORANDUM OPINION
(September 12, 2013)
Plaintiff Carlos Loumiet has filed 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. Plaintiff has 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. Presently before the Court are the [10] Motion of the
United States to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and
the [11] Motion of the Individual Defendants to Dismiss Plaintiff’s Bivens Claims. Upon
consideration of the pleadings 1, the relevant legal authorities, and the record as a whole, the
Court finds that Plaintiff’s Bivens claims against the Individual Defendants must be dismissed
pursuant to the statute of limitations, and his tort claims against the Individual Defendants must
1
Complaint, ECF No. [1] (“Compl.”); Mot. of the United States to Dismiss Pursuant to Fed. R.
Civ. P. 12(B)(1) and 12(B)(6), ECF No. [10] (“Gov’t MTD”); Mot. of the Individual Defs. to
Dismiss Pl.’s Bivens Claims, ECF No. [11] (“Indiv. Defs.’ MTD”); Carlos Loumiet’s Opp’n to
the Bivens Defs.’ Mot. to Dism. Under Fed. R. Civ. P. 12(B)(6) and the United States’ Mot. to
Dism. Under Fed. R. Civ. P. 12(B)(6) and 12(B)(1), ECF No. [19], (“Pl.’s Opp’n.”); Reply Mem.
in Supp. of Defs.’ Mot. to Dism., ECF No. [21] (“Defs.’ Reply”).
1
be dismissed pursuant to the Westfall Act. Accordingly, the [11] Motion of the Individual
Defendants to Dismiss Plaintiff’s Bivens Claims is GRANTED. Furthermore, the Court
concludes that Plaintiff’s claims for malicious prosecution and abuse of process against the
United States Government under the Federal Tort Claims Act must be dismissed pursuant to the
discretionary function exception. However, Plaintiff’s FTCA claims alleging intentional
infliction of emotional distress, invasion of privacy, negligent supervision, and conspiracy may
proceed to the extent they are premised on statements made by OCC officials to the press.
Consequently, the [10] Motion of the United States to Dismiss Pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) is GRANTED-IN-PART AND DENIED-IN-PART. Having
ruled on both of these motions, the Court accordingly DENIES Plaintiff’s [22] Motion for Oral
Hearing on Defendants’ Motions to Dismiss.
I. BACKGROUND
A. Factual Background
The Office of the Comptroller of the Currency (“OCC”) is the federal supervisor,
examiner, and enforcing agency for national banks. In 1998, Hamilton Bank, N.A. (“Hamilton”),
engaged in “adjusted price trades” or “ratio swaps” of debt instruments without properly
recognizing the resulting losses, a form of bank and securities fraud. As the D.C. Circuit
summarized the transaction:
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. Office of the Comptroller of the Currency, 650 F.3d 796, 797-98 (D.C. Cir. 2011)
(internal citations and quotation marks omitted). In September 1999, OCC examiners discovered
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the fraud and the following April, the OCC issued a temporary cease-and-desist order requiring
the Bank to take certain remedial measures. Loumiet, 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. Loumiet, 650 F.3d at
798; Compl. ¶ 27. A team of Greenberg attorneys, including Plaintiff Loumiet, reviewed certain
documents, interviewed Hamilton officials, and ultimately issued a report to the Bank’s Audit
Committee on November 15, 2000. Pl.’s Opp’n. at 3. Plaintiff alleges that he was only
peripherally involved in the preparation of this report. Pl.’s Opp’n at 3; Compl. ¶¶ 28-30. 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,
650 F.3d at 798; Compl ¶ 30.
In January 2001, the OCC sent Greenberg a letter responding to the November 2000
report. Pl.’s Opp’n at 3; Compl. ¶ 36. 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. Pl.’s Opp’n at 3. According to the OCC, the officer testified that Hamilton’s executives
knowingly executed the adjusted price trades, contradicting the report issued by Plaintiff’s firm.
Loumiet, 650 F.3d at 798. The OCC also orally identified six “red flags”, facts which tended to
show that the Bank’s management did knowingly participate in the fraudulent transactions. Pl.’s
Opp’n at 4. Plaintiff Loumiet responded to the OCC’s letter and addressed the six “red flags” in
a follow-up report to the Bank’s Audit Committee. This letter reaffirmed the conclusions of his
firm’s earlier report. Pl.’s Opp’n at 4-5.
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
3
the Bank. Pl.’s Opp’n at 5. Plaintiff claimed that during his participation in the OCC
investigations, he became aware of improper conduct by OCC examiners, including conduct by
three of the Individual Defendants. Plaintiff requested an independent investigation by the
Office of Inspector General (“OIG”) into what he described as “highly unusual and disturbing”
behavior by OCC staff, including allegations that OCC examiners, including Defendant Rardin,
made racist comments in dealing with Hamilton’s Hispanic employees, and disregarded their
own agency’s regulations and precedents. Pl.’s Opp’n at 5. In April 2001, Plaintiff sent the
Treasury Secretary and the OIG a second letter, again expressing concerns regarding the OCC’s
regulatory actions. Id. On July 18, 2001, the Treasury Inspector General notified Plaintiff that
the OIG had “considered the information and argument [he] presented, and . . . concluded that it
does not provide a basis for the Office of Inspector General to consider further investigation . . .”
Gov’t MTD, Exhibit 3. 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. Hamilton Bank, N.A. v. OCC, Case No. 01-cv-4994 (S.D. Fla.). This case was
voluntarily dismissed in 2002.
On January 11, 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. Pl.’s Opp’n. at 6; Loumiet, 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.
4
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, 650 F.3d at 799. 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 798 (quoting 12 U.S.C. § 1813(u)(4)). The OCC sought a $250,000
monetary penalty against Plaintiff and sought to permanently ban him from representing FDIC-
insured banks. Pl.’s Opp’n. at 7. Plaintiff claims that this prosecution as well as the surrounding
actions by OCC officials were made in retaliation for his letters expressing concern over bias
within the OCC. Id. During the ensuing three-week bench trial, Plaintiff alleges that the
Individual Defendants aggressively pressed unsubstantiated charges and made false statements to
the press covering the proceeding, both of which caused substantial damage to his reputation and
career. Compl. ¶ 15; Pl.’s Opp’n. at 7-12. Plaintiff similarly alleges that the Individual
Defendants violated various standards of professional conduct in pursuing this action, including
concealing evidence. Id. Ultimately, on June 18, 2008, an Administrative Law Judge (“ALJ”)
recommended complete dismissal of the Division’s claims. Compl. ¶ 16. On July 27, 2009, the
Comptroller, reviewing the ALJ’s recommendation, agreed dismissal of all claims against
Loumiet was appropriate, but on different grounds from the ALJ. Id.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. Compl. ¶ 17; Loumiet, 650 F.3d at 799. On July 20, 2010
5
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, 650 F.3d at 797.
B. Procedural History
July 20, 2011, Plaintiff presented his administrative claim to the OCC, demanding $4
million in damages and other relief. Compl. ¶ 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, and Loumiet subsequently
commenced this action on July 9, 2012. Id. ¶ 110. In addition to his FTCA claims, Plaintiff
seeks damages against four senior OCC employees under Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) for violations of his First and Fifth
Amendment rights. Compl. ¶¶ 137-142. He also brings tort claims against these officials. Id. ¶¶
113-136, 143-147. These officials, each sued in his individual capacity, are Michael Rardin, Lee
Straus, Gerard Sexton, and Ronald Schneck (collectively, the “Individual Defendants”), whom
Plaintiff alleges were closely involved in the OCC action against him. Id. ¶¶ 3-7.
II. LEGAL STANDARD
A. Federal Rule of Civil Procedure 12(b)(1)
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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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) (citations omitted).
B. Federal Rule of Civil Procedure 12(b)(6)
The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain
statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));
accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although “detailed factual
allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the
“grounds” of “entitle[ment] to relief,” a plaintiff must furnish “more than labels and conclusions”
or “a formulaic recitation of the elements of a cause of action.” Id. at 1964–65; see also Papasan
v. Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at
570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citing Twombly, 550 U.S. at 556).
7
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must
construe the complaint in the light most favorable to the plaintiff and must accept as true all
reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine
Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994). Further, the
Court is limited to considering the facts alleged in the complaint, any documents attached to or
incorporated in the complaint, matters of which the court may take judicial notice, and matters of
public record. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624
(D.C.Cir.1997).
A defendant may raise the affirmative defense of statute of limitations in a Rule 12(b)(6)
motion when the facts that give rise to the defense are clear from the face of the complaint. See
Smith–Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C. Cir. 1998). The court should
grant a motion to dismiss only if the complaint on its face is conclusively time-barred. Id.; Doe v.
Dep’t of Justice, 753 F.2d 1092, 1115 (D.C. Cir. 1985).
III. DISCUSSION
A. Claims Against Individual Defendants
i. Bivens Claims
Plaintiff asserts damages claims against four OCC employees under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff claims that
the OCC’s decision to pursue an enforcement action against him was in retaliation for his public
criticism of the agency. He specifically alleges that the OCC prosecuted him in retaliation for
complaints to the Treasury Inspector General about ostensibly racist comments and behavior by
OCC staff, in violation of his First and Fifth Amendment rights.
8
In Bivens, the Supreme Court “established that the victims of a constitutional violation by
a federal agent have a right to recover damages against the official in federal court despite the
absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). The
Court has described a Bivens action as “the federal analog to suits brought against state officials
under . . . 42 U.S.C. § 1983.” Hartman v. Moore, 547 U.S. 250, 254 n. 2 (2006). Bivens itself
recognized a right of action under the Fourth Amendment, and the Court has subsequently
expanded this doctrine to two other contexts. See Davis v. Passman, 442 U.S. 228 (1979)
(holding that the Fifth Amendment’s Due Process Clause created a right of action for damages
where a woman had been discharged from her employment with a congressman because of her
gender); Carlson, 446 U.S. 14 (holding that a prisoner could seek damages from prison officials
for Eighth Amendment violations). In addition, the Court has more recently assumed without
deciding that Bivens actions are permissible under the First Amendment. See Hartman, 547 U.S.
at 252 (establishing pleading standards in Bivens actions based on allegedly retaliatory
prosecution for speech critical of government agency). The D.C. Circuit has also recognized a
right to recover under Bivens for retaliation that runs afoul of the First Amendment.
Haynesworth v. Miller, 820 F.2d 1245, 1255 (D.C. Cir. 1987) (“We agree that the [plaintiff’s]
retaliatory prosecution constitutes an actionable First Amendment wrong redressable under
Bivens . . . .”), overruled in part on other grounds by Hartman, 547 U.S. at 256.
Nevertheless, Bivens is not an automatic remedy, and “[b]ecause implied causes of action
are disfavored, the Court has been reluctant to extend Bivens liability ‘to any new context or new
category of defendants.’” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (quoting Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 66 (2001)). Indeed, the Court has made clear that in determining
whether to imply a Bivens remedy in a particular context, a court should ask two questions: (1)
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“whether any alternative, existing process for protecting the interest amounts to a convincing
reason for the Judicial Branch to refrain from providing a new and freestanding remedy in
damages” and (2) “even in the absence of an alternative” whether “any special factors counsel[]
hesitation before authorizing a new kind of federal litigation.” Wilkie v. Robbins, 551 U.S. 337,
550 (2007) (internal citations and quotation marks omitted). On this second question, “[o]ne
‘special factor’ that precludes creation of a Bivens remedy is the existence of a comprehensive
remedial scheme.” Wilson v. Libby, 535 F.3d 697, 705 (D.C. Cir. 2008) (footnote omitted).
Here, Defendants argue that the comprehensive remedial scheme created by the Financial
Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) of 1989, Pub. L. No. 101-73,
103 Stat. 183 (codified in scattered sections of Title 12 of the U.S. Code), is the sort of special
factor precluding a Bivens remedy for Plaintiff. Indiv. Defs.’ MTD at 10. Plaintiff, by contrast,
argues that FIRREA falls short of the comprehensive remedial scheme needed to block his
Bivens remedy. Pl.’s Opp’n at 20-34.
This Court need not decide the question of whether FIRREA constitutes the sort of
comprehensive remedial scheme that would preclude a Bivens remedy for Plaintiff in this
context, because even if such a remedy existed, Plaintiff’s Bivens claims for retaliation are barred
by the statute of limitations.
The statute of limitations in a Bivens claim represents a combination of federal and state
law. “When a federal action contains no statute of limitations, courts will ordinarily look to
analogous provisions in state law as a source of a federal limitations period.” Doe v. U.S. Dept.
of Justice, 753 F.2d 1092, 1114 (D.C. Cir. 1985). Here, neither party contests the application of
the three-year general District of Columbia statute of limitations. See D.C. Code §12-301(8)
(three-year statute of limitations applies to actions “for which a limitation is not otherwise
10
specifically prescribed”). See also McDonald v. Salazar, 831 F.Supp.2d 313, 319 (D.D.C. 2011)
(applying three-year limitations period to Bivens retaliation and due process claims), aff’d in
part, 12-5023, 2012 WL 3068440 (D.C. Cir. July 20, 2012). However, while state law provides
the applicable statute of limitations, federal law controls when a Bivens claim accrues. Wallace
v. Kato, 549 U.S. 384, 388 (2007) (“the accrual date of a §1983 cause of action is a question of
federal law that is not resolved by reference to state law.”). Accrual occurs “when the plaintiff
has a complete and present cause of action.” Id. (citations omitted) (internal quotation marks
omitted). See also Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994) (“The claim accrues
when the plaintiff knows or has reason to know of the harm.”) (internal quotation marks
omitted); Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 955 (4th Cir. 1995) (en banc)
(“Under federal law a cause of action accrues when the plaintiff possesses sufficient facts about
the harm done to him that reasonable inquiry will reveal his cause of action.”).
Here, Loumiet’s Bivens claims under the First and Fifth Amendments accrued when he
knew or had reason to know of the Individual Defendants’ retaliatory action. 2 See Mata v.
Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011) (“First Amendment retaliatory-prosecution
claims accrued when [plaintiff] knew or had reason to know of the alleged retaliatory
prosecution”); Elliott Reihner Siedzikowski & Egan, P.C. v. Pa. Employees Benefit Trust Fund,
29 Fed. Appx. 838, 840 (3d Cir. 2002) (First Amendment retaliation claim accrues once a
plaintiff possesses “the critical facts that he has been hurt and who has inflicted the injury.”)
2
Plaintiff’s First and Fifth Amendment Bivens claims are premised on identical allegations that
Defendants violated Plaintiff’s constitutional rights “both in their frivolous attack on Mr.
Loumiet’s constitutionally-protected right to communicate with his client free of Government
intimidation and punishment, and because that attack was driven by a desire to retaliate against
Mr. Loumiet.” Compl. ¶¶ 138, 141. Neither party argues that Plaintiff’s First and Fifth
Amendment claims, given their identical factual basis, should have different dates of accrual, and
the Court does not address this possibility.
11
(quoting United States v. Kubrick, 444 U.S. 111, 122 (1979); Harris v. S. Huntington Sch. Dist.,
No. 06–CV–3879, 2009 WL 875538, at *9, 2009 U.S. Dist. LEXIS 27392, at *25
(E.D.N.Y.2009) (stating that “the point of accrual is not when plaintiff utters the alleged
protected speech, but rather when he suffers retaliatory action as a result of that speech”); Shub v.
Westchester Cmty. College, 556 F.Supp.2d 227, 242-43 (S.D.N.Y.2008) (stating that “[u]nder
federal law a First Amendment retaliation claim accrues once a plaintiff knows or has reason to
know of the injury that forms the basis of the action.”); Toscano v. Borough of Lavallette, No.
04-CV-4412, 2006 WL 1867197, at *3, 2006 U.S. Dist. LEXIS 48653, at *10 (D.N.J. June 30,
2006) (stating that First–Amendment retaliation claims accrue “when an alleged retaliatory act
occurs.”). From the outset of Defendants’ OCC action against him, Plaintiff had reason to
believe the action was in retaliation for his previous complaints to the Treasury Inspector
General about ostensibly racist comments and behavior by OCC staff. Indeed, Plaintiff claims
that from the time they filed their action against him “[t]he defendants’ retaliatory animus was
(and is) obvious.” Pl.’s Opp’n. at 7. Indeed, if as Plaintiff contends, merely “examining the
charges readily demonstrates that defendants were acting out of retaliatory animus,” id. at 8, then
he was surely on notice of his claim at the time of the OCC’s filing. The OCC filed its Notice of
Charges against Plaintiff on November 6, 2006. Plaintiff did not commence this action until July
9, 2012, meaning that any claim which accrued prior to July 9, 2009 is barred by the three-year
statute of limitations applicable here. To the extent that Plaintiff admits that the retaliatory
nature of the proceeding against him was “obvious” from the outset of the OCC prosecution and
that he was aware of his injury, his potential Bivens claim accrued well before July 9, 2009.
To be sure, in Hartman v. Moore, the Supreme Court held that in retaliatory prosecution
claims brought pursuant to Bivens, the absence of probable cause “must be pleaded and proven”
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“as an element of a plaintiff’s case.” 547 U.S. at 256. Yet, here, if as Plaintiff’s contends, the
absence of probable cause was self-evident from the outset of the prosecution, Plaintiff could
have easily pled such an element. Indeed, as Plaintiff notes, “‘probable cause’ is widely
understood to mean ‘a reasonable ground to suspect.’” Compl. ¶ 18 (quoting Black’s Law
Dictionary 1219 (7th ed. 2007)). Moreover, even if there was insufficient evidence to support a
pleading of probable cause at the time of the OCC’s filing of its Notice of Charges, Plaintiff
admits that the lack of probable cause became even more patent well before July 9, 2009.
Indeed, as Plaintiff notes “[a]fter Mr. Loumiet dared to call attention to their misbehavior,
defendants knowingly ginned up a prextextual enforcement action to persecute him for alleged
wrongdoing that never occurred, as an Administrative Law Judge (“ALJ”) employed by
defendants’ own agency concluded years later.” Pl.’s Opp’n at 1. The ALJ’s opinion,
recommending that the charges against Mr. Loumiet be dismissed, and providing strong evidence
of the absence of probable cause, was issued on June 17, 2008. Id., Exhibit A (ALJ Decision).
Yet Plaintiff did not file this suit until more than four years later. Accordingly, his action falls
outside the statute of limitations.
In arguing that the statute of limitations does not bar his Bivens claims, Plaintiff conflates
the tort of malicious prosecution with his Bivens claims alleging retaliatory prosecution. Plaintiff
argues that his Bivens claims for retaliatory prosecution did not accrue until the OCC dismissed
all its charges against him on July 27, 2009, just as the tort of malicious prosecution does not
accrue until the action terminates in the plaintiff’s favor. Pl.’s Opp’n. at 35-36. However,
considering this same question, the Tenth Circuit has held that the accrual dates for Bivens
claims alleging retaliatory prosecution are not identical to those for malicious prosecution tort
claims. In Mata, the court noted that while a “malicious prosecution claim, which requires
13
favorable termination as an element, does not accrue until the alleged malicious prosecution
terminates in favor of the plaintiff” “[u]nlike a malicious prosecution claim . . . a First
Amendment retaliatory-prosecution claim does not require a favorable termination of the
underlying action.” 635 F.3d at 1252-53. Rather, as noted, the claim accrues when a plaintiff
knows or has reason to know that the prosecutorial action is retaliatory.
All but one of the cases cited by Plaintiff for the proposition that his claims did not
accrue until the OCC dismissed its charges against him involve malicious prosecution and
accordingly do not affect the Court’s analysis. Pl.’s Opp’n at 35-36. Moreover, the only case
identified by Plaintiff as support for his argument that First Amendment retaliatory prosecution
claims do not accrue until the charges have been dismissed is a district court opinion from
outside this circuit adopting the recommendation of a magistrate judge. See Haagensen v.
Pennsylvania State Police, No. 08-CV-727, 2009 WL 790355, at *4 (W.D. Pa. 2009). That
opinion concluded that the absence of probable cause could not be shown until the charges
against the plaintiff had been dismissed. Id. The Court does not find the reasoning in
Haagensen persuasive. Although a conviction may ultimately establish probable cause for a
prosecution, “[t]he fact that the accused was acquitted after trial by a magistrate or court is
properly regarded as immaterial in determining the existence or nonexistence of probable cause.”
Restatement (Second) of Torts § 667(2), cmt. d. Dismissal of the underlying case is accordingly
not required for a claim of retaliatory prosecution to accrue, and Plaintiff’s Bivens claim accrued
prior to the OCC’s dismissal of his action on July 27, 2009.
Plaintiff argues that requiring him to bring his Bivens action prior to the OCC’s dismissal
of his action would result in the action being dismissed as a collateral attack or simply unripe.
Pl.’s Opp’n at 36. Plaintiff provides no further explanation and cites no case law in support of
14
this proposition, and the Court is uncertain how such a suit would be deemed a collateral attack.
Similarly, the Court is unclear how such a claim, if properly pled, would be deemed unripe,
given that the allegedly retaliatory action has already occurred.
Plaintiff also argues that even if the statute of limitations does bar his claim, he should
receive the benefit of the doctrine of equitable tolling. 3 Pl.’s Opp’n at 37. However, the
Supreme Court has held that, unless inconsistent with federal law, state law governs the issue of
whether a limitations period should be tolled. Wilson v. Garcia, 471 U.S. 261, 269 (1985) (“the
length of the limitations period, and closely related questions of tolling and application, are to be
governed by state law.”). Here, District of Columbia case law precludes equitable tolling of the
applicable statute of limitations. See Sayyad v. Fawzi, 674 A.2d 905, 906 (D.C. 1996) (per
curiam) (rejecting equitable tolling of D.C. Code §12-301(8) under principle of “strict adherence
to statutes of limitations.”); Melara v. China North Industries, Corp. 658 F.Supp.2d 178, 181
(D.D.C. 2009) (noting resistance to application of equitable tolling under District of Columbia
law). Plaintiff points to no reason why this policy against tolling conflicts with federal law, and
thus, pursuant to District of Columbia law, the Court will not apply equitable tolling here.
Finally, Plaintiff argues that resolution of statute of limitations questions is inappropriate
for a motion to dismiss because the question of accrual hinges on “matters of fact not suitable for
a motion to dismiss.” Pl.’s Opp’n at 35. Plaintiff provides little explanation for this claim and
indeed strangely notes a mere one paragraph later that the question of accrual is a matter of law.
See id. (“even if the Court were to entertain limitations questions now, Mr. Loumiet’s claim did
not accrue – as a matter of law – until the defendants dismissed the OCC action.”) (emphasis
3
Although Plaintiff argues that his failure to comply with the statute of limitations in the FTCA
context can be excused under the argument that Defendants’ actions constitute a continuing tort,
see Pl.’s Opp’n. at 49-53, Plaintiff has not raised this argument with respect to his Bivens claims.
15
added). Furthermore, Plaintiff fails to identify any factual dispute affecting the accrual of the
limitations period here. Consequently, the Court concludes that it may decide the statute of
limitations defense asserted by Defendants in their motion to dismiss, and that pursuant to this
defense, Plaintiff’s Bivens claims must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
ii. State-Law Tort Claims
Plaintiff also asserts several common law tort claims against the Individual Defendants.
Defendants argue that such claims must be dismissed pursuant to the Westfall Act, 28 U.S.C. §
2679(d)(1), as the Director of the Torts Branch of the Department of Justice’s Civil Division – a
designee of the Attorney General – has certified that the Individual Defendants were acting
within the scope of their employment at the time of the incidents out of which Plaintiff’s claims
arose. See Indiv. Defs.’ MTD, Exhibit 1 (Westfall Certification). Plaintiff has not responded to,
and therefore concedes, the Defendants’ argument that his common law tort claims against the
Individual Defendants are barred under the Westfall Act. See Hopkins v. Womens’s Div., Gen.
Bd. Of Global Ministries, 238 F.Supp.2d 174, 178 (D.D.C. 2002) (citing FDIC v. Bender, 127
F.3d 58, 67-68 (D.C. Cir. 1997) (“It is well understood in this Circuit that when a plaintiff files
an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a
court may treat those arguments that the plaintiff failed to address as conceded.”).
B. FTCA Claims
Plaintiff also asserts various claims under the Federal Tort Claims Act against the federal
government, claiming that the OCC’s decision to pursue an enforcement action against him
constituted retaliation for his public criticism of the agency. Specifically, Plaintiff brings claims
against the Government for Intentional Infliction of Emotional Distress (Count I), Invasion of
Privacy (Count II), Abuse of Process (Count III), Malicious Prosecution (Count IV), Negligent
16
Supervision (Count V), and Civil Conspiracy (Count VIII). Compl. ¶¶ 113-136, 143-147. The
Federal Tort Claims Act establishes district court jurisdiction and waives federal sovereign
immunity in suits against the United States “for injury or loss or property, or personal injury or
death caused by the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or 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).
In their motion to dismiss, the Government first argues that all of Loumiet’s claims
except for his claim of malicious prosecution are barred by the FTCA’s two-year statute of
limitations. Gov’t MTD at 9-12. 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, Loumiet 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. The
Government concedes that Loumiet’s malicious prosecution claim did not accrue until July 27,
2009 when the OCC enforcement action terminated in his favor. However, it argues that
Loumiet’s claims for intentional infliction of emotional distress (Count I), invasion of privacy
(Count II), abuse of process (Count III), negligent supervision (Count V), and conspiracy (Count
VIII) accrued before July 20, 2009 and are accordingly barred by the statute of limitations.
While termination of a prosecution in plaintiff’s favor is an element of malicious prosecution, it
is not required for any of Plaintiff’s remaining claims. The Government argues that Plaintiff had
sufficient information to know of his injury with respect to these remaining torts well before July
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20, 2009. Gov’t MTD at 10-11. Indeed, the allegations by Plaintiff with respect to these torts
refer specifically to events that occurred prior to July 20, 2009. Id.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. Pl.’s Opp’n. at 49-53. Under
the continuing tort doctrine, “when a tort involves continuing injury, the cause of action accrues,
and the limitation 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). “Since usually no
single incident in a continuous chain of tortious activity can fairly or realistically be identified as
the cause of significant harm, it seems proper to regard the cumulative effect of the conduct as
actionable.” Id. at 821-22 (internal citations and quotation marks omitted). When, as the court
noted in Page, “the injury claimed by [plaintiff] [is] gradual, resulting from the cumulative
impact of years of allegedly tortious [action]” the continuing tort doctrine applies. Id. at 822.
Pursuant to this doctrine, Plaintiff argues that his claims did not accrue, and the statute of
limitations did not begin to run, until the alleged retaliation against him ceased on July 27, 2009
with the OCC’s dismissal of charges.
“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
18
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). The D.C.
Circuit has identified the prosecution of an allegedly frivolous lawsuit as the sort of gradual harm
triggering the continuing tort doctrine. “[T]he commencement of a lawsuit is only the first link
in a chain of conduct that does not end until the complaining party ceases prosecution of the
suit.” Whelan v. Abell, 953 F.2d 663, 674 (D.C. Cir. 1992) (citing to Page as support for this
proposition). “[A] lawsuit is a continuous, not an isolated event, because its effects persist from
the initial filing to the final disposition of the case. . . . A defendant subject to a lawsuit is likely
to suffer damage not so much from the initial complaint but from the cumulative costs of defense
and the reputational harm caused by an unresolved claim.” Id. at 673.
Here, Plaintiff alleges that his prosecution by the OCC constitutes a continuing tort,
because he continued to be injured by the Government’s retaliatory action throughout the course
of the OCC proceeding from 2006 to July 27, 2009. This Court agrees, given the D.C. Circuit’s
statement in Whelan that a lawsuit constitutes a continuing harm which proceeds to the final
disposition of the case.
The Government’s attempts to distinguish Whelan are unavailing. First, the Government
argues that Whelan was a case involving private parties and did not address the FTCA. Defs.’
Reply at 10. Admittedly, Whelan involves common law tort claims under District of Columbia
law. Yet this fact only makes Plaintiff’s argument for the doctrine’s application stronger. The
continuing tort doctrine is stricter, and much less favorable to plaintiffs, under District of
Columbia law that what the D.C. Circuit has recognized under the FTCA. See Richards v. Duke
University, 480 F.Supp.2d 222 (D.D.C. 2007) (noting that District of Columbia courts “have
rejected the expansive application of the continuing tort doctrine exemplified in Page”) (quoting
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Beard v. Edmondson and Gallagher, 790 A.2d 541, 547 (D.C. 2002). A decision recognizing
that a lawsuit represents a continuing harm under the narrower context of District of Columbia
tort claims strongly suggests that the same action would represent a continuing tort under the
more expansive version of the doctrine the D.C. Circuit has applied in FTCA claims.
The Government next argues that Whelan reserved the question of whether an
administrative proceeding could constitute a continuing tort. Defs.’ Reply at 10. For this
proposition, they rely on the following sentence: “We need not decide whether the prosecution of
an administrative proceeding (such as the Maryland Securities Commission investigation which
is conducted independently by the agency once a complaint is filed, can constitute a continuing
tort on the part of the complainant, because we agree with appellants that the ongoing
prosecution of a lawsuit (such as the Putty Hill litigation) can suffice.” Whelan, 953 F.2d at 673(emphasis added). Read in context, this sentence has little application here. The italicized text,
which the Government selectively omits from its quotation, suggests that the court was reserving
the question of whether an administrative proceeding initiated at the urging of a third-party
complainant could represent a continuing tort by that complainant. The court was not
recognizing a potential argument concerning whether an administrative proceeding, unlike a
lawsuit, could constitute the basis for a continuing tort.
Arguing that the OCC prosecution of Loumiet does not constitute a continuing tort, the
Government cites Mittleman v. United States Dep’t of the Treasury, 919 F.Supp. 461 (D.D.C.
1995). Defs.’ Reply at 10-11. This Court finds Mittleman inapposite here. In Mittleman, the
plaintiff could point to no injurious acts by the defendants that occurred or continued during the
statute of limitations period. Rather, plaintiff simply claimed continuing damage from the
injurious acts outside the limitations period. Id. at 466-67. As the court there properly
20
recognized, “[t]he fact that [plaintiff] may continue to suffer damages does not transform the
alleged wrongful conduct into a continuing tort.” Id. at 467. This is consistent with the D.C.
Circuit’s explication of the doctrine in Page. See 729 F.2d at 822 n. 23 (“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.”). Accordingly, the Court concludes that pursuant to the
continuing tort doctrine, Plaintiff’s FTCA claims need not be dismissed on statute of limitations
grounds.
The Government next argues that because Plaintiff’s claims are founded on the
discretionary decision of OCC officials to commence an enforcement action against him, the
Government is immune to liability under the discretionary function exception to the FTCA. 28
U.S.C. § 2680(a). The Court agrees in part, concluding that some, but not all of Plaintiff’s
FTCA claims must be dismissed pursuant to the discretionary function exception.
The discretionary function exception provides that the FTCA’s waiver of sovereign
immunity shall not apply to:
[a]ny 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 be abused.
Id. 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
21
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). In this vein, the Supreme Court has stated that the
exception “protects only government actions and decisions based on considerations of public
policy.” Berkovitz, 486 U.S. at 537. Nevertheless, if applicable, “the discretionary function
exception immunizes even government abuses of discretion.” Shuler v. United States, 531 F.3d
930, 935 (D.C. Cir. 2008). “Discretionary function determinations are jurisdictional in nature.”
Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995). Accordingly, if the exception applies, this
Court must dismiss for lack of subject-matter jurisdiction.
The Government argues that Plaintiff’s FTCA claims are barred under the discretionary
function exception because they revolve around the OCC’s decision to prosecute him, a
discretionary decision founded in public policy. Gov’t MTD at 12-19. As the D.C. Circuit has
noted, “[p]rosecutorial decisions as to whether, when, and against whom to initiate prosecution
are quintessential examples of governmental discretion . . . and, accordingly, courts have
uniformly found them to be immune under the discretionary function exception.” Gray v. Bell,
712 F.2d 490, 513 (D.C. Cir. 1983) (footnote omitted) (emphasis added). See also Moore v.
Valder, 65 F.3d 189, 197 (D.C. Cir. 1996) (“Deciding whether to prosecute” and the manner of
prosecution are “quintessentially discretionary.”). The D.C. Circuit has stated that this principle
extends to an administrative agency’s enforcement actions. Sloan v. U.S. Dept. of Hous. and
Urban Dev., 236 F.3d 756, 760 (D.C. Cir. 2001) (“HUD’s decision to suspend plaintiffs, which
began a course of administrative proceedings regarding possible debarment” protected by
discretionary function exception).
22
As Plaintiff points out, a crucial antecedent question before deciding that the OCC’s
decision to prosecute Plaintiff falls within the discretionary function exception is whether the
Government had the authority to bring an administrative enforcement action against Plaintiff.
Pl.’s Opp’n. at 57-60. As the D.C. Circuit has observed, “a decision cannot be shielded from
liability if the decisionmaker is acting without actual authority. A government official has no
discretion to violate the binding laws, regulations, or policies that define the extent of his official
powers.” Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1196 (D.C. Cir.
1986). Accordingly, a government employee “acting beyond his authority is not exercising the
sort of discretion the discretionary function exception was enacted to protect.” Id. The question
here is whether OCC employees prosecuting Loumiet were acting beyond their authority and in
violation of the binding, laws, regulations, or policies that defined the extent of their official
powers. As support for this argument, Plaintiff points to the D.C. Circuit opinion awarding him
attorney’s fees on the basis that the OCC’s prosecution was not “substantially justified.” Pl.’s
Opp’n. at. 58. Plaintiff argues that this result shows that Defendant was “acting beyond [its’]
authority” in prosecuting him. The Court disagrees. The D.C. Circuit did not conclude that the
OCC was “violat[ing] the binding laws, regulations, or policies that define[d] the extent of [its]
official powers.” Rather, the court concluded that the OCC had failed to meet its burden of proof
in prosecuting Loumiet. See Loumiet, 650 F.3d 796, 800 (“the Agency’s evidence here . . . falls
short of the necessary quantum of proof”); id. at 801 (“there is no record evidence of the loan’s
causation.”). Under Plaintiff’s narrow view of the discretionary function exception, a large
number of failed prosecutions would fall outside the bounds of its protection, potentially chilling
prosecutors in the exercise of their discretion.
23
The Court similarly rejects Plaintiff’s argument that the OCC prosecution violated
various Constitutional provisions, congressional mandates, statutory mandates, ethical rules, and
the OCC’s internal policies and procedures. Pl.’s Opp’n. at. 61-64. The Supreme Court has
stated that the discretionary function exception does not apply if a “federal statute, regulation, or
policy specifically prescribes a course of action for an employee to follow.” Berkovitz, 486 U.S.
at 536 (emphasis added). Here, none of the provisions cited by Plaintiff specifically prescribe a
course of action for OCC employees to follow in their prosecutorial action. Indeed, many of the
provisions cited by Plaintiff, namely the ethical rules, represent generalized principles for
professional responsibility and can hardly be read as specific proscriptions. 4
Nevertheless, the D.C. Circuit has cautioned that even “in an area of governmental
functions, such as those involving decisions of a prosecutor, where courts traditionally have been
quick to find immunizing discretion, we must examine carefully the allegations made to
determine whether they are sufficiently separable from protected discretionary decisions.” Gray,
712 F.2d at 515. Where “such separability exists, then the conduct of the prosecutor may be
actionable under the FTCA.” Id. Indeed, “[a]lthough the decision whether or not to prosecute
clearly falls within the FTCA’s discretionary function clause . . . there can be cases where the
conduct of the prosecutor . . . is removed sufficiently from the decision to prosecute so that the
discretionary function clause would not provide any protection.” Id. By way of example, the
Gray court noted, that “participation by prosecutors in illegal searches and seizures during the
course of an investigation, or the dissemination of defamatory information to the media, easily
4
The same can be said of Loumiet’s argument that the OCC’s action violated a congressional mandate. As Loumiet
points out, the legislative history for FIRREA states that it was not Congress’ intent “to subject attorneys to agency
enforcement actions for those good faith activities falling within the traditional attorney-client relationship.” H.R.
REP. 101-54, pt. 2 at 467 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 263. Plaintiff argues that this is a policy that
“specifically prescribes” the OCC’s action here, prosecuting him for his good-faith activities as an attorney. Pl.’s
Opp’n. at 61-62. Yet again, the Government has not violated this policy, it has merely failed to meet its burden of
proof in showing Loumiet acted in bad faith. Such a failure does not mean the decision to prosecute was not
discretionary or was prohibited by statute.
24
could be dissociated from the discretionary decision to prosecute.” Id. The standard the Gray
court identified is whether “the harm alleged . . . is distinct from the harm caused by the ultimate
prosecution itself.” Id. However, “where the ‘allegation of improper . . . conduct is inextricably
tied to the decision to prosecute’ . . . the discretionary function exception applies and preserves
governmental immunity.” Moore, 65 F.3d at 196-97 (quoting Gray, 712 F.2d at 516).
Accordingly, to the extent Plaintiff’s claims are “inextricably tied” to the decision to
prosecute, they must be dismissed under the discretionary function exception. Here, the harms
alleged by Plaintiff divide generally into two categories: the harm suffered from the prosecution
and the harm suffered from the statements made by the prosecuting OCC officials to the press.
See Compl. ¶¶ 113-136, 143-147. While claims premised on the decision to prosecute Loumiet
are barred under the discretionary function exception, as the court noted in Gray, “dissemination
of defamatory information to the media, easily could be dissociated from the discretionary
decision to prosecute.” 712 F.2d at 515. Indeed, such statements can be seen as “a discrete
activity, sufficiently separable from protected discretionary decision to make the discretionary
function exception inapplicable to this allegation.” Moore, 65 F.3d at 197. Construing the
allegations in the complaint in the light most favorable to Plaintiff, Loumiet’s claims for
intentional infliction of emotional distress, invasion of privacy, negligent supervision, and
conspiracy allege harms caused by statements made by OCC officials to the press. Cf. Sloan,
236 F.3d at 762 (looking to complaint for allegations of harm and noting that “[t]he complaint
does not allege any damages arising from the investigation itself, but only harm caused by the
suspension to which it assertedly led.”). The Government has not argued that statements made to
the press are “inextricably tied” to the decision to prosecute, nor that these statements are
themselves protected by the discretionary function exception. Accordingly, the Court permits
25
these claims to proceed to the extent they allege harm from the OCC officials’ statements to the
press. By contrast, Loumiet’s claims for abuse of process and malicious prosecution only allege
harms caused by the prosecution. Consequently, these claims are dismissed pursuant to the
discretionary function exception under Fed. R. Civ. P. 12(b)(1). 5 Furthermore, to the extent
Loumiet’s claims for intentional infliction of emotional distress, invasion of privacy, negligent
supervision, and conspiracy allege harms suffered from OCC officials’ decision to and conduct
in prosecuting him, they are also dismissed.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the [11] Motion of the Individual
Defendants to Dismiss Plaintiff’s Bivens Claims is GRANTED. Furthermore, the Court
concludes that the [10] Motion of the United States to Dismiss Pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) is GRANTED-IN-PART AND DENIED-IN-PART. Having
ruled on both of these motions, the Court similarly DENIES Plaintiff’s [22] Motion for Oral
Hearing on Defendants’ Motions to Dismiss.
Dated: September 12, 2013
____/s/________________________
COLLEEN KOLLAR-KOTELLY
United States District Judge
5
Because the Court dismisses Loumiet’s claims for abuse of process and malicious prosecution
pursuant to the discretionary function exception, it does not address the Government’s argument
that these claims should be dismissed under the FTCA’s “law enforcement proviso.” Gov’t
MTD at 19-23.
26