Popovic v. U.S.

• Decision Date: 27 February 1998
• Docket Number: Civil No. PJM 96-3106.
• Citation: 997 F.Supp. 672
• Parties: Mikulas POPOVIC, M.D., Ph.D. Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Maryland

997 F.Supp. 672

Mikulas POPOVIC, M.D., Ph.D. Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civil No. PJM 96-3106.

United States District Court, D. Maryland.

February 27, 1998.

Paul S. Thaler, Lars H. Liebeler, Washington, DC, for Plaintiff.

S. Hollis Fleischer, U.S. Attorney's Office, Baltimore, Kerry William Kircher, U.S. House of Representatives, Washington, DC, for Defendants.

OPINION

MESSITTE, District Judge.

I.

Dr. Mikulas Popovic has sued the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, 2671 et seq. and one of its employees, Dr. Suzanne Hadley, based on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). He claims that from 1990 to 1993 the United States, through its Department of Health and Human Services (HHS) and Hadley in particular, conducted an administrative investigation into his scientific research activities, making charges of scientific misconduct which were later found by an HHS appeals board to be "totally groundless."

Both his Original and First Amended Complaints are styled in five Counts: Count I—Negligence (against the United States); Count II—Invasion of Privacy (against the United States); Count III—Refusal to Hire for Reasons Contrary to Public Policy (against the United States); Count IV—Intentional Infliction of Emotional Distress (against the United States); and Count V— Violation of Due Process (against Dr. Hadley).

In an earlier phase of the proceedings the Court dismissed with prejudice the negligence, invasion of privacy and refusal to hire counts, but deferred ruling on the intentional infliction and violation of due process counts. The Court ordered Popovic to specify by amended complaint any facts which he contended might show that Hadley violated his due process rights after October 3, 1993. It further ordered Defendants to brief the issues of whether Popovic has stated a cause of action for intentional infliction of emotional distress under Maryland law and whether, with regard to the alleged constitutional violation committed by Hadley, the defense of qualified immunity applies.

Popovic has now filed a First Amended Complaint containing, as directed, more precise factual allegations as to Hadley's post-October 3, 1993 activities, but which also carries forward all five Counts from the original Complaint.¹ The United States and Hadley have filed separate Motions to Dismiss the First Amended Complaint in all respects.

The Court DENIES Popovic's Motion to Alter or Amend its Judgment with regard to Counts I through III of the Original Complaint and dismisses with prejudice those Counts in the First Amended Complaint to the extent that Popovic seeks yet again to renew the claims. The Court stands on the reasons given at the close of oral argument held on April 21, 1997, as incorporated in its Order dated April 22, 1997.

The Court now DISMISSES WITH PREJUDICE the remaining counts of the First Amended Complaint, namely Count IV against the United States for intentional infliction of emotional distress and Count V against Defendant Hadley for violation of due process.

II.

The investigation that Popovic complains of involved AIDS researcher Dr. Robert Gallo and, among others, Popovic, his associate. The inquiry and investigation grew out of allegations that Gallo and his associates may have misappropriated the French AIDS virus isolated by the Institute Pasteur and thereafter may have misled government officials about the nature and timing of their research. The Court considers the involvement of Popovic in this affair.

III.

Between 1980 and 1989, Popovic worked in the Laboratory for Tumor Cell Biology (LTCB) at the National Institutes of Health (NIH) in Bethesda, Maryland.² During that time he helped to isolate the AIDS virus and demonstrate that it was a retrovirus. He also developed a technique for growing the virus in the laboratory in quantities large enough to permit the commercial development of a test to detect the virus in human blood.

In 1984, along with others, Popovic published the results of this AIDS research in a series of highly acclaimed articles in Science Magazine. He continued his research into the cause and cure of AIDS at the LTCB until 1989 when he accepted an offer to direct an advanced AIDS research laboratory at New Mexico State University funded in part by the National Cancer Institute of NIH. According to Popovic, when the New Mexico laboratory began to disband late in 1989, Gallo, then Chief of the LTCB at NIH, invited him to return to his old position. Certain intervening events, however, purportedly conspired to block his return.

In November of 1989, a reporter for the Chicago Tribune published an article citing possible wrongdoing on the part of Gallo and Popovic in their research. The article recounted a series of events implying that the isolate of the AIDS retrovirus allegedly discovered by the LTCB was in fact identical to an isolate discovered years earlier by the Pasteur Institute, the further suggestion being that the American researchers had misappropriated the French discovery.

There is no dispute that, in response to the Tribune article, NIH initiated a review of matters discussed in the article. Eventually, through its Office of Scientific Integrity (OSI) and its successor the Office of Research Integrity (ORI), NIH undertook a formal investigation of the Gallo/Popovic research.

Defendants maintain that their investigation proceeded in an appropriate manner and at a cautious pace. In October of 1990 Gallo and Popovic were notified that OSI would undertake a formal investigation of the Science paper. On June 25, 1991, after conducting several interviews and making initial determinations, OSI sent Popovic a draft report for review and comment. On September 6, 1991, Popovic and his counsel responded to the draft in writing, disagreeing with its conclusions. On March 27, 1992, a revised report was forwarded to the Office of Scientific Integrity Review (OSIR), the entity charged with, among other things, review of all final reports of investigations to assure that proposed findings or recommendations are sufficiently documented. See 42 C.F.R. § 50.102.

In the Fall of 1992, ORI, having succeeded OSI and OSIR, prepared a further draft report and on December 29, 1992 issued its final report. In the final report, ORI concluded that Popovic had indeed engaged in scientific misconduct which consisted, according to the report, of the falsification of certain data and methods in reporting the research in the 1984 Science article. While proposing that certain administrative sanctions be taken against Popovic, ORI noted that its findings should not preclude his employment as a scientist.

On January 28, 1993, Popovic appealed ORI's findings and proposed sanctions to the Department of Appeals Board (DAB), which some months later held a de novo hearing. On November 3, 1993, a Panel of the Board issued a lengthy decision concluding that ORI had not proven by a preponderance of evidence that Popovic had engaged in scientific misconduct. Thus ended the NIH phase of the investigation.

Popovic takes a considerably less charitable view of the NIH investigation, asserting that OSI/ORI personnel violated his rights in numerous ways. Among other things, he says, the investigators failed to give him timely notice of the nature of the proceedings and charges against him; failed to advise him of his right to counsel; failed to adhere to specified standards in judging the issues; denied him meaningful participation in the proceedings including the opportunity to confront and examine witnesses and respond to evidence; and failed to provide a reasoned statement of the decision which they reached. He also alleges that OSI/ORI investigators, Hadley in particular, ignored or misrepresented evidence and leaked confidential information.

Popovic reserves special ire for Hadley who, he says, until mid-1991 "spearheaded the biased investigation." Thereafter, he alleges, she was detailed to the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce of the United States House of Representatives where, with others on the Subcommittee, between 1991 and 1995, she continued an "overtly biased" investigation of him. But, according to Popovic, even after her departure from NIH in July, 1991, Hadley continued to participate in that agency's investigation of him, testifying against him at the de novo appeal hearing before the DAB in June 1993. Hadley also allegedly deprived Popovic of his due process rights when she testified before the House Appropriations Committee of the Maryland General Assembly on December 14, 1995, in opposition to a proposal to fund a research laboratory to be headed by Gallo.³

On October 17, 1995, Popovic took the required first step for pursuit of a claim under the FTCA by filing an administrative claim with NIH. See 28 U.S.C. § 2675(a). When NIH failed to act upon his complaint in timely fashion, see id., he filed his action in this Court. That occurred on October 2, 1995.

IV.

In assessing a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must accept all well-pleaded facts as true. Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 53 L.Ed.2d 557 (1977); Finlator v. Powers, 902 F.2d 1158, 1160 (4th Cir.1990). Viewing the complaint in this light, the court will not grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989). As this Court has noted, "[a] motion to dismiss will be granted if there is either a `lack of cognizable legal theory' or the `absence of sufficient facts alleged under a cognizable legal theory.'"...