Reuber v. U.S.

• Citation: 750 F.2d 1039,242 U.S.App.D.C. 370
• Decision Date: 23 January 1985
• Docket Number: 82-2414,83-1536 and 83-1537,Nos. 82-2376,s. 82-2376
• Parties: Melvin D. REUBER, Appellant v. UNITED STATES of America, et al. (Two cases.) Melvin D. REUBER, Appellant v. FOOD CHEMICAL NEWS, et al. (Two cases.)
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1039

750 F.2d 1039

242 U.S.App.D.C. 370

Melvin D. REUBER, Appellant v. UNITED STATES of America, et al. (Two cases.)

Melvin D. REUBER, Appellant v. FOOD CHEMICAL NEWS, et al. (Two cases.)

Nos. 82-2376, 82-2414, 83-1536 and 83-1537.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 3, 1984.

Decided Dec. 7, 1984.

As Amended Jan. 23, 1985.

Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 81-01857 and 82-01033).

Raymond D. Battocchi, Washington, D.C., with whom Isaac N. Groner, Judith E. Olingy, Daniel S. Goodman, Steven F. Korostoff and P. Scott Marshall, Washington, D.C., were on the brief, for appellant in Nos. 82-2376, 82-2414, 83-1536 and 83-1537.

Leonard E. Cohen, Baltimore, Md., with whom Frances E. Kanterman, Baltimore, Md., was on the brief for appellees, Litton Industries, Inc., et al. in Nos. 82-2376, 82-2414, 83-1536 and 83-1537.

Rebecca L. Ross, Asst. U.S. Atty., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief for appellees, United States of America, et al. in Nos. 82-2376, 82-2414, 83-1536 and 83-1537.

Aaron L. Handleman and Waldemar J. Pflepsen, Jr., Washington, D.C., entered appearances for appellee, Food Chemical News in Nos. 82-2376, 82-2414, 83-1536 and 83-1537.

Before WALD, BORK and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Opinion concurring in part and concurring as to the judgment only in Part IV filed by Circuit Judge BORK.

Opinion dissenting in part and concurring in part filed by Circuit Judge STARR.

WALD, Circuit Judge:

Plaintiff Dr. Melvin D. Reuber, appeals the district court's dismissal of his Federal Tort Claims Act (FTCA) suit against the United States, and his constitutional tort and common law claims against several federal officials, Litton Industries, Inc. (Litton), Litton Bionetics, Inc. (Bionetics), and numerous employees of Bionetics. ¹ Reuber's suits are grounded in the issuance and dissemination of a letter of reprimand from his employer, Bionetics, charging that he mischaracterized personal research as work done under the auspices of the Frederick Cancer Research Center (FCRC), where Reuber worked, and that he did this personal research on company time. The district court in dismissing his claim held that venue did not lie in the District of Columbia for Reuber's FTCA claim or his claims against the individual defendants, that in addition the court lacked personal jurisdiction over the individual defendants, and finally that Reuber's allegations that Litton and Bionetics violated his constitutional rights were insufficient to confer subject matter jurisdiction. It further refused to exercise pendent jurisdiction over the common law claims against the corporate defendants.

We affirm the dismissal of the FTCA actions against the United States and the constitutional and common law tort claims against the individual defendants generally for the reasons stated by the district court. We reverse the district court's dismissal of constitutional and pendent state claims against the two corporate defendants, Litton Industries, Inc., and Litton Bionetics, Inc., and remand these claims to the district court.

I. FACTUAL BACKGROUND

A. Events Prior to 1981

From 1976 to April, 1981, Reuber, a Maryland resident, worked as a research pathologist at FCRC, a government-owned facility located in Maryland, which Bionetics operates pursuant to a cost-plus contract with the National Cancer Institute (NCI). ² Until 1981, Reuber's employer, Bionetics, was apparently pleased with his work; as late as November, 1980, defendant Dr. Michael Hanna, Director of FCRC, rated Reuber's job performance as outstanding, and earlier in 1981 Reuber was picked to head FCRC's Experimental Pathology Laboratory. See Deposition of Michael George Hanna, Reuber v. United States, Civ. No. 81-1857 [hereinafter cited as Hanna Dep.]. ³

During this time FCRC encouraged Reuber to do personal research on his own time. Reuber contends that FCRC's policy allowed researchers to take up to one day a week off from official work to engage in "scholarly activities," see Deposition of Melvin D. Reuber at 196-99 [hereinafter cited as Reuber Dep.], which he interpreted to include personal research. Thus, Reuber conducted several studies based on review of NCI slides available at Tracor Jitco, a repository in Maryland for NCI slides. Id. at 29-30. He submitted several of these studies for publication without first clearing them through FCRC and NCI. Reuber also completed numerous FCRC-sponsored studies, which he did subject to the FCRC and NCI clearance process prior to submittal for publication. Unlike his personal research, these studies were required to expressly state:

[t]he work upon which this publication is based was performed pursuant to [the FCRC] Contract ... with the [NCI].

Id., Exh. 4. ⁴

In one personal study Reuber submitted for publication in 1979 dealing with the "carcinogenicity of malathion," see Reuber v. United States, Civ. No. 81-1857, slip op. at 1 (D.D.C. Aug. 25, 1982) (Memorandum Opinion), ⁵ he reported that after examining 24,000 slides used in prior NCI studies, ⁶ he concluded contrary to the results of these studies that malathion did cause cancer in test mice and rats.

B. Events Leading to the Letter of Reprimand

In late 1980, Reuber's malathion paper attracted publicity when the United States Department of Agriculture sought to conduct aerial spraying with malathion in California in an effort to eradicate the mediterranean fruit fly, which threatened the state's agricultural industry. Upon request, Reuber sent a copy of his malathion study to Chris Jenkins, an employee of the John Muir Institute in Berkeley, California. Reuber put his office address at FCRC on the paper, which apparently led Jenkins and others at the John Muir Institute to assume the work was sponsored and approved by FCRC and NCI. According to the government, this misconception was furthered by the John Muir Institute's distribution of a packet which "cited Reuber's study as that of FCRC/NCI." Brief for Federal Appellees, No. 83-1536, at 4.

Following the distribution of Reuber's paper, NCI officials began receiving a succession of telephone calls asking who Reuber was, and whether NCI still stood behind its conclusions in prior studies that malathion was not carcinogenic. See Brief for Appellee United States, No. 83-1536 at 8. ⁷ In addition, a letter from a California official to NCI complaining about Reuber's study was forwarded to defendants Adamson and Hartwell, both officials at NCI.

Hartwell and Adamson began an investigation. Hartwell contacted Dr. James Liverman at Bionetics and alerted him to the controversy prompted by Reuber's study. According to Reuber, Hartwell subsequently accused him of misusing government funds and misrepresenting himself as an NCI employee. See Brief for Appellant, No. 82-2376, at 14. Liverman relayed these allegations to defendant James Nance, President of Bionetics, who in turn notified FCRC Director Hanna of them.

At the same time, according to the government, Adamson checked with NCI pathologists and other scientists involved in the original malathion studies and concluded that their negative findings on the carcinogenicity of malathion were correct. See Brief for Federal Appellees, No. 83-1536, at 9. He contacted Hanna with this information.

The parties disagree about the events that ensued. According to the government, "Dr. Hanna took the matter over from there." Brief for Federal Appellees, No. 83-1536, at 10. Hanna originally wanted to fire Reuber, but was convinced not to do so by defendant Dr. Vincent DeVita, the director of NCI and the person ultimately responsible for the review of Bionetics' FCRC contract. Id. Hanna instead drafted a strong letter of reprimand, and despite suggestions by defendant Dr. William Payne, an NCI official, to "tone it down a bit," sent it as originally drafted. Id.

According to Reuber's version, on the other hand, Hanna was pressured into disciplining Reuber by NCI officials who were "very upset" by Reuber's reinterpretation of the NCI [malathion] studies and his labelling as carcinogenic chemicals that NCI had found to be noncarcinogenic. Brief for Appellant, No. 82-2376, at 17. Reuber alleges that Hartwell "went around the NCI telling people that this time he was 'going to get' plaintiff." Id. He also claims that, although NCI generally does not make employment decisions regarding Bionetics' employees at FCRC, Adamson instructed Hanna to call Reuber to "straighten ... out" matters, id., and "DeVita ... insisted" that Hanna write the letter of reprimand. Brief for Appellant, No. 83-1536, at 11.

C. Publication of the Letter of Reprimand

Hanna's letter of reprimand, dated March 26, 1981, admonished Reuber for "mishandling of scientific data and unrestrained interpretations of those data, ... [and] operat[ing] under the guise of the endorsement of both NCI and [FCRC]." Docket No. 12, Reuber v. United States, No. 82-2376 (filed Sept. 17, 1981). The letter stated that Reuber's "obstreperous actions" created a "public distrust and lack of confidence in ... [NCI] authorities who administer the carcinogenesis testing program," and gave "the impression that the NCI may be administering programs of questionable competency." Id. Hanna ordered that Reuber thereafter "adhere to the rigid policy of internal scientific review and clearance through [Hanna's] office and through [NCI] administrative offices" for "all publications that [Reuber] is associated with." Id.

Hanna sent copies of this letter to defendants DeVita, Adamson, Hartwell and Payne, all of whom are NCI officials, as well as to defendants Nance and I.J. Fidler at Bionetics. Several of the recipients showed the letter to other people at NCI and...