UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MIKULAS POPOVIC, M.D., Ph.D.,

Plaintiff-Appellant,

v.

No. 98-1432

UNITED STATES OF AMERICA; SUZANNE

W. HADLEY, Ph.D.,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CA-96-3106-PJM)

Argued: December 2, 1998

Decided: April 20, 1999

Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge,

and HERLONG, United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Lars Howard Liebeler, THALER & LIEBELER, Washington, D.C., for Appellant. S. Hollis Fleischer, Assistant United

States Attorney, Baltimore, Maryland, for Appellees. ON BRIEF:

Paul S. Thaler, THALER & LIEBELER, Washington, D.C., for

Appellant. Lynne A. Battaglia, United States Attorney, Baltimore,

Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

We have before us an appeal from a former NIH scientist, Mikulas

Popovic, raising a Federal Tort Claims Act claim against NIH for its

failure to conclude its investigation of him in a timely manner and its

subsequent decision not to rehire him after the investigation exonerated him. Because the district court viewed Popovic's claims as, in

substance, claims of defamation -- a type of suit specifically

excluded under the FTCA -- it dismissed his suit and did not grant

him leave to amend his complaint. For his part, Popovic claims that

his suit sounds in negligence and invasion of privacy, both of which

are well recognized torts in Maryland, whose law applies here. Finding no error, we affirm.

I.

Popovic was employed by the National Institutes Of Health (NIH)

between 1980 and 1989 as a scientist. He worked in the Laboratory

for Tumor Cell Biology (LTCB). Principally, he worked with Dr.

Robert Gallo, the chief of the LTCB, in an effort to find a cure for

AIDS. Popovic and Gallo made a breakthrough discovery by finding

a way to isolate the AIDS virus and by proving that it was a

retrovirus. Moreover, the doctors succeeded in growing amounts of

the virus sufficient to facilitate the development of a test for humans.

The results of the research were then published in Science magazine

by Popovic, Gallo and other doctors.

Based on his success at NIH, Popovic left the laboratory there in

1989 to head a laboratory at New Mexico State University, which

received some funding from the National Cancer Institute. When that

laboratory began to suffer difficulties in 1989, Popovic called Gallo

in hopes of returning to his old position at NIH. Gallo was unable to

bring Popovic back to NIH because of the government investigation

that is the subject of the instant litigation.

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The government investigation initiated its investigation of Popovic

and Gallo after a reporter's November 1989 article in the Chicago

Tribune that alleged that the doctors' discovery was not original, but

a misappropriation of an identical discovery made years earlier by

researchers at the Pasteur Institute in France. NIH then began reviewing the doctors' work and its investigative arm, the Office of Scientific Integrity (OSI) (and its successor the Office of Research Integrity

(ORI)), later concluded that a formal investigation was necessary.

Here is where Popovic and the defendants sharply diverge. The

investigation, which the defendants contend was undertaken reasonably, essentially began in October of 1990, when OSI notified

Popovic that it would proceed with a formal investigation. Approximately eight months later, in June 1991, OSI sent a report to Popovic

detailing its findings and requesting his response. Popovic did

respond in September 1991, and disputed the allegations contained in

the report. OSI then amended the report, and in March 1992 forwarded it to the Office of Scientific Integrity Review (OSIR), which

reviews all final reports of investigations to assure that proposed findings or recommendations are sufficiently documented.

While that process was pending, ORI, which had by then succeeded OSI, prepared another report. It issued its final report on

December 29, 1992. That final report contained ORI's conclusion that

Popovic had behaved improperly and recommended sanctions. The

report stated that Popovic had falsified certain data and methods in

reporting the research in the 1984 article. Despite its findings, however, ORI did state that its report should not bar Popovic from gaining

employment as a scientist.

In late January 1993, Popovic appealed ORI's conclusions to the

Department of Appeals Board (DAB). Later in the year, the DAB

held a de novo hearing. On November 3, 1993, the DAB exonerated

Popovic, finding that ORI had not established its claims of wrongdoing by a preponderance of the evidence. NIH's investigation ended

with that finding.

Popovic believed that the entire investigation was conducted

because of ill will, and filed a complaint with NIH, as he is required

to do under the FTCA. See 28 U.S.C. § 2675. When NIH did not

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grant him relief, he filed the instant action. The district court dismissed the action, holding that Popovic's claims essentially were defamation claims. Popovic filed a timely appeal.

II.

The district court dismissed Popovic's claims of negligence and

invasion of privacy, reasoning that in reality Popovic was claiming

that he was defamed. We review de novo dismissals of complaints for

failure to state a claim. See Flood v. New Hanover County, 125 F.3d

249, 251 (4th Cir. 1997). In reviewing the complaint, all of its allegations are assumed to be true and all reasonable inferences are drawn

in favor of the Plaintiff. Id. Similarly, we also review de novo dismissals for lack of jurisdiction. See Williams v. United States, 50 F.3d

299, 304 (4th Cir. 1995).

The Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., provides

individuals injured by the tortious acts of federal government employees with an avenue to seek compensation from the federal government

where they otherwise would be barred by sovereign immunity. In fact,

the federal government is "liable . . . in the same manner and to the

same extent as a private individual under like circumstances, but shall

not be liable for interest prior to judgment or punitive damages." 28

U.S.C. § 2674 (1994).

However, the FTCA excludes from the waiver of sovereign immunity specific types of tort claims. Those claims generally are intentional torts and claims "arising out of" those torts. See 28 U.S.C.

§ 2680(h). Included on that list of torts for which the government has

not waived its sovereign immunity are the defamation torts, libel and

slander. See id. However, where an action is not excluded, courts

determine the nature and extent of tort liability by applying the law

of the state in which the cause of action arose. See 28 U.S.C. § 1346

(1994).

The question we must resolve is whether Popovic's claims of negligence (negligent investigation) and invasion of privacy (false light),

torts which are not enumerated in the statute and are thus cognizable,

see Block v. Neal, 460 U.S. 289, 298 (1983), in fact "arise out of"

defamatory acts. If so, then Popovic's suit is barred. See United States

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v. Neustat, 366 U.S. 696, 714 (1961) (barring claim of negligence

because it "arose out of" the excluded tort of misrepresentation).

It is well settled that the form of the tort does not control; we must

look to the substance of the conduct of which the plaintiff complains.

See Neustat, 366 U.S. at 703 (1961); Kugel v. United States, 947 F.2d

1504, 1506-07 (D.C. Cir. 1991). Moreover, the "arising out of" language is construed rather broadly to avoid permitting plaintiffs to sue

the United States under theories that are not cognizable. See United

States v. Shearer, 473 U.S. at 55 (Opinion of Burger, J.).

With the applicable principles in mind, we conclude that the district court properly dismissed Popovic's negligence and invasion of

privacy claims. Popovic claims that ORI's four-year investigation --

an investigation that its regulations require it to complete within 120

days1 -- resulted in lost job opportunities with NIH and other institutions that fund research projects. He argues that his action does not

sound in defamation, and indeed cannot sound in defamation because

such actions are predicated upon the falsity of the information communicated to others, while the information leaked in his case -- i.e.,

that he was being investigated -- was true. Thus, he argues, even if

some of the elements of defamation are present, defamation is not the

essence of his claim. He argues that Supreme Court precedent

requires a holding in his favor.

The Supreme Court has held that where a cause of action permitted

under the FTCA and one prohibited under the FTCA share some common elements, the action not prohibited may still go forward. See

Block v. Neal, 460 U.S. 289, 298 (1983). In Block, the plaintiff purchased a home through the Farmers' Home Association (FHA). The

FHA made some representations to the plaintiff through its inspection

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1 The government disputes the contention that its own regulations

require that it complete investigations within 120 days. However, the

regulations state that formal investigations should be completed within

120 days. See 56 FED. REG. 27384, 27390 (1991). If the investigationcannot be completed within that period, ORI must submit to OSIR an

interim report discussing the nature of the investigation and its progress.

See id. There is no evidence on the record that ORI filed such a report

with respect to Popovic's investigation within the 120-day period.

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and report, which induced her to purchase the home. Id. at 292. However, the FHA arguably was negligent in its inspection of the home.

Id. at 292-93. That voluntary inspection created a separate duty of

care. See id. Had it exercised greater care, the flaws in the house that

ultimately caused the plaintiff's injuries would have been discovered.

The district court barred the plaintiff's suit, reasoning that the negligence claim really arose from FHA's misrepresentations. Misrepresentation is specifically excluded from the FTCA's waiver of

immunity. See 28 U.S.C. § 2680(h).

The Court of Appeals reversed and the Supreme Court affirmed the

Court of Appeals' decision. The Court reasoned that as long as the

claim is not completely based on a set of facts that state a claim that

the FTCA prohibits, the claim is cognizable. Id. at 296-97. As the

plaintiff's negligence claim arose from a different duty (i.e., the duty

to properly inspect the house, once that duty was voluntarily

undertaken) than the misrepresentation (i.e., the duty to exercise care

in communicating information) the negligence is cognizable under the

FTCA. Id. at 298-99.

Popovic cannot fit within the Block rule. Unlike the plaintiff in

Block, Popovic's claims essentially arise from defamatory acts. His

Complaint belies any attempts to rely on government standards for

conducting the investigation. For example, he claims that two theories

that ORI posited before the DAB were "false, and ORI knew, or

should have known, [they were] false at the time [they were] made."

J.A. at 26. One of the headings of his initial Complaint is styled "[t]he

Aftermath of OSI/ORI's Witch Hunt." J.A. at 31. The Complaint is

rife with references to the falsity of, or baseless nature of, the charges.

The dissemination of information relating to the charges through

leaks to the media and the ALERT damaged his reputation as a scientist, which kept him from obtaining employment.

Moreover, Popovic's claims of negligence are also undermined

because he appears to claim that HHS acted intentionally. He claims

that OSI/ORI continually leaked information to media sources, and

does not even allege that the information was negligently disseminated. He claims that OSI/ORI continued to pursue him after filing

reports by raising new allegations at the DAB hearing. In more general allegations, he claims that OSI/ORI refused to consider any

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exculpatory evidence and repeatedly denied him other due process

rights. As a result, we cannot conclude that Popovic's claims sounded

in negligence, but rather in defamation.2 

The same reasoning holds true for the invasion of privacy claim.

Popovic correctly asserts that Maryland recognizes a cause of action

for invasion of privacy, specifically false light invasion of privacy.

The elements, which are similar to those of defamation, are the following: (1) a publication (2) of false information; (3) putting the

plaintiff in a false light; (4) in an objectionable manner. See Allen,

547 A.2d at 1108. There also is a cause of action for disclosure of private facts. See Holander v. Lubrow, 351 A.2d 421, 425 (Md. 1976)

(stating that an action lies where one publicizes a matter that is of a

type that "(a) [w]ould be highly offensive to a reasonable person, and

(b) [i]s not of legitimate concern to the public.").

A cursory look at Popovic's Complaint reveals that his claim here

must also fail. As stated above, the acts complained of were defamatory acts. Defamation is not actionable under the FTCA. See 28

U.S.C. § 2680(h). As the statute and Supreme Court precedent make

clear, not only are torts such as defamation not actionable, but claims

"arising from" those torts are not actionable. See § 2680(h); Neustat,

366 U.S. at 703. Since Popovic's claims rely on defamatory acts, his

invasion of privacy claims at best arise out of the excluded tort of defamation. As a result, they are not cognizable either.

III.

Popovic also challenges the district court's dismissal of his refusal

to hire claim because it found that no such public policy exists in

Maryland. Popovic contends that the abusive discharge cause of

action applies to refusal to hire claims as well. We disagree.

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2 Moreover, his insistence that ORI doggedly pursued the investigation

based on charges that were groundless from the beginning also sounds

in malicious prosecution, which is another tort excluded under § 2680(h).

See Allen v. Bethlehem Steel Corp., 547 A.2d 1105, 1109 (Md. App.

1988) (stating that an action for malicious prosecution lies when a party

initiates or continues a prosecution against another that was brought

without probable cause, but with malice on the prosecutor's part, and the

prosecution terminated in the innocent party's favor).

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Under Maryland law, an employer has abusively discharged an

employee when the employer discharges the employee in violation of

some clearly articulated public policy and there is a nexus between

the particular defendant and the decision to discharge the employee.

See Bagwell v. Peninsula Medical Ctr., 665 A.2d 297, 309 (Md. App.

1995), cert. denied, 669 A.2d 1360 (Md. 1996). The public policy of

the state of Maryland is not limited to "legislative enactments, prior

judicial decisions or administrative regulations." Adler v. American

Standard Corp., 432 A.2d 464, 472 (Md. 1981). However, where that

public policy is "otherwise undeclared," Maryland courts are far more

hesitant to decide the case on that basis. Id. 

Such hesitancy is proper here. Popovic asserts that his case is like

that of the plaintiff in O'Leary v. Shipley, 545 A.2d 17, 25 (Md.

1988). There, the plaintiff, a deputy clerk of the court, brought an

abusive discharge claim because the clerk chose not to rehire her after

she opposed him in that November's election. Id. at 18. Following the

instruction that the appropriate test was whether the plaintiff was discharged for reasons solely related to one's political affiliation, the

jury found for the defendant after he introduced evidence that he had

other problems with O'Leary. Id.

However, the Maryland Court of Appeals vacated the judgment,

concluding that the wrong test was applied. It concluded that

O'Leary's claim in fact was that she was not rehired because of her

clear expression of her rights under the First Amendment. As a result,

it remanded the case.

Popovic's case is immediately distinguishable from O'Leary in

important respects. First, the clerk's refusal to reappoint O'Leary to

her position immediately after the election effectively operated as a

discharge since O'Leary held the job prior to the election. By contrast, Popovic voluntarily resigned from NIH in 1989 (before the

investigation) to take another job in New Mexico. His departure was

not related to the investigation. Thus, O'Leary's situation more neatly

fits the abusive discharge paradigm. Second, in O'Leary's case, there

was an established policy, as articulated in a manual, that no one

could be discharged because of his or her political affiliation, which

was thought to be a major issue in the case. See O'Leary, 545 A.2d

at 18. By contrast, neither NIH nor any other agency to which

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Popovic points has a policy that prohibits an employer from refusing

to hire an individual under investigation for misconduct. Finally,

O'Leary's claim was determined to have involved her First Amendment rights, while Popovic's First Amendment rights are not at issue

here.

The above points illustrate a more general reason why Popovic's

claims fail. There is no established public policy in Maryland that an

individual must be hired merely because he has the requisite professional qualifications. In essence, Popovic is claiming that NIH's

refusal to hire him is a tort because he is a world class researcher

who, if given the opportunity, would save thousands of lives with

AIDS breakthroughs. By contrast, individuals who have raised abusive discharge claims generally have done so where employers either

made them choose between committing some criminal act and losing

the job or discharged them for exercising some constitutionally protected right. See, e.g., Milton v. ITT Research Inst., 138 F.3d 519, 522

(4th Cir. 1998); O'Leary, 545 A.2d at 18-20 (exercising a constitutionally protected right). Neither of those situations applies to

Popovic.

Finally, Popovic also raises due process claims. He alleges that the

government "ignored exculpatory evidence, and failed to share evidence with [him or] inform him of who his accusers were. . . ." While

he cloaks the claims in terms of negligence, they clearly are claims

that his investigation was not conducted fairly. As such, they are constitutional claims: (1) that federal law controls; and (2) for which a

private person (who is not acting under color of state law) would not

be liable. See 28 U.S.C. § 2674(b) (1994) (stating that the United

States is to be liable to "the extent of a private person"); FDIC v.

Meyer, 510 U.S. 471, 475-78 (1994) (holding that, inter alia, plaintiff's constitutional claim -- i.e., a deprivation of a property interest

in continued employment without due process -- is not cognizable

under the FTCA). Thus, Popovic's argument fails.

IV.

After dismissing Popovic's claims with prejudice, the district court

refused to allow him to amend his complaint. The denial of leave to

amend a complaint is reviewable for abuse of discretion. See Ward

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Electronics v. First Commercial Bank, 819 F.2d 496, 497 (4th Cir.

1987). Popovic claims that the court abused its discretion because he

could have amended his complaint to state a cause of action. See Bank

v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1989).

The district court did not abuse its discretion. Although leave to

amend is to be "freely granted" whenever the"interests of justice

require," see FED. R. CIV. P. 15(a), the court need not grant leave to

amend where such a grant would be futile -- i.e., where the plaintiff

would not be able to recast his claim to state a cause of action. See

Forman v. Davis, 371 U.S. 178, 182 (1962). Here, Popovic's claims

of negligence and invasion of privacy still could not be -- and were

not -- recast into a cause of action that reflected anything other than

claims of defamation and malicious prosecution. In the amended complaint, he still refers to the investigation as a"witch hunt," and still

complains of ORI's failure to consider "exculpatory evidence," and

that ORI "knew or should have known that its disclosures were false

and acted with reckless disregard for the truth. . .." J.A. at 247. Thus,

as base, his amended complaint states that false information was

leaked and that the information damaged his reputation. Therefore, it

would have been futile to permit Popovic to amend his complaint.

In light of our decision to affirm the dismissal of Popovic's complaint, we need not address the question of whether it was filed in

time.

The judgment is accordingly

AFFIRMED.

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