IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30543
Summary Calendar
YORAM RAZ,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(96-CV-2422)
November 14, 1997
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.*
PER CURIAM:
Plaintiff-appellant Yoram Raz (Raz) appeals from the district
court’s dismissal of his complaint under the Federal Tort Claims
Act (FTCA) for failure to state a claim. We affirm.
Factual and Procedural Background
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
While employed at the Louisiana State University Medical
Center at Shreveport (LSUS-MC), Raz observed what he perceived to
be irregularities in the statistical analyses, and the conclusions
derived from those analyses, in a government-funded scientific
study. Raz expressed his concerns to officials at LSUS-MC, but was
dissatisfied with their response and chose to report his concerns
to officials at the United States Department of Health and Human
Services (HHS).
The matter was referred to the Office of Research Integrity
(ORI), a division within HHS that is authorized to handle charges
of scientific misconduct. ORI instructed LSUS-MC to conduct an
investigation. Upon completion of its investigation, LSUS-MC
submitted a formal report to ORI. ORI then conducted an "oversight
review" of the LSUS-MC investigation and determined that there was
no basis for further investigation. Subsequently, ORI wrote Raz
that, while his allegations may have been "made in good faith,"
they had not been borne out by the investigation and did not
warrant further inquiry.
Unsatisfied both with the LSUS-MC investigation and with ORI’s
review, Raz filed suit under the FTCA, claiming that the ORI review
was grossly negligent and that the LSUS-MC investigation was
conducted in contravention of both "common sense" and federal
regulations. He sought monetary compensation for personal
financial losses and damage to his professional reputation. He
also requested that the court order ORI to withdraw the conclusions
2
of its review and to conduct a full investigation into the matter.
In the proceedings below, the court found that Raz’s pleadings
appeared only to charge ORI with a violation of their federal duty
to supervise investigations into scientific misconduct.
Consequently, the district court found that Raz had alleged the
breach of a duty that was based solely in federal law, and
therefore that he had failed to state a claim under the FTCA as
this Court construed that statute in Johnson v. Sawyer, 47 F.3d 716
(5th Cir. 1995) (en banc). As we stated in Johnson, the "violation
of a federal statute or regulation does not give rise to FTCA
liability unless the relationship between the offending federal
employee or agency and the injured party is such that the former,
if a private person or entity, would owe a duty under state law to
the latter in a nonfederal context." Id. at 728 (emphasis in
original). Finding that the duty which Raz claimed ORI owed to him
arose, if at all, only out of federal law, the district court
dismissed Raz’s complaint for failure to state a claim.
Discussion
On appeal, Raz argues that the district court erred in failing
to construe 28 U.S.C. § 2674 expansively to include his claim of
"negligent investigation." He notes that when the activity giving
rise to the injury is not one that a private individual would
typically undertake (for example, directing traffic), courts have
entertained FTCA claims based on analogous torts that would have
3
been recognized against state and municipal entities under
applicable state law. See, e.g., Crider v. United States, 885 F.2d
294 (5th Cir. 1989). Raz argues that the inquiry conducted by ORI
should be considered analogous, for purposes of his FTCA claim, to
a criminal fraud investigation conducted by a municipal police
department. He further asserts that Louisiana law imposes a duty
to conduct investigations in a non-negligent manner, and thus that
his claim against ORI has a basis in state tort law.
Raz relies on Tompkins v. Kenner Police Dep’t, 402 So.2d 276
(La.Ct.App. 1981), for the proposition that under state law police
departments have an affirmative duty to perform competent
investigations and that they may be held liable in tort if their
investigation was grossly negligent. In Tompkins, the plaintiff
alleged that a police officer, while investigating the scene of an
accident, was told by the driver of one of the vehicles that a
passenger lay injured in the bushes by the side of the road. Id.
at 278. It was further alleged that the injured man was moaning
audibly and was visible from where the officer stood. Id. The
officer took no action, and the injured passenger died several
hours later. Id. The court held that the plaintiff had stated a
cause of action.
Contrary, however, to Raz’s contention, the court in Tompkins
did not abrogate, but rather reaffirmed, the general rule that "a
local government cannot be held liable in cases of failure to
4
enforce a protective regulation when the injuries resulting
therefrom are not readily foreseeable and a substantial time passes
between the negligent actions and the injuries sustained by the
plaintiff." Id. at 280. The holding in Tompkins did not impose
general liability upon police departments for negligent
investigation, but rather articulated a very narrow exception to
the general rule against such liability. The court held that, on
the facts as alleged, an individual duty toward the injured
passenger arose due to the exceptional nature of the situation,
explaining that where "closeness in proximity or time, results in
a one-to-one relationship between the police officer and the
injured party, the police officer ceases to act only for the public
good and at that moment becomes obligated to the individual to
conduct himself in such a way as not to cause him unnecessary
injury." Id. at 280.
The facts alleged by Raz clearly do not bring his claim within
the narrow exception envisioned by the Tompkins court. Raz alleges
that "damages [were] inflicted upon his occupation and wealth" as
a consequence of ORI’s decision that his allegations did not merit
further investigation. Raz, however, was discharged before ORI
conducted its review of the LSUS-MC investigation. The monetary
damages alleged appear to stem from a libel suit filed against Raz
based on statements made by him regarding the research
improprieties reported to ORI, as well as from his loss of
5
employment and subsequent career difficulties. The lawsuit against
Raz, his discharge from employment, and any negative effect on his
career, however, all result from actions taken by individuals not
associated in any way with ORI. Thus, the essence of Raz’s claim
is not that ORI directly caused his injuries, but rather that ORI’s
failure to conclude that his version of the facts were true,
concomitantly exonerating him from charges that his allegations
were false or made in bad faith, has paved or eased the way for the
libel suit brought against him and has made it more difficult for
him to demonstrate that he was wrongfully discharged.1 These
alleged injuries clearly lack the causal and temporal proximity
that were essential to the holding in Tompkins.2
1
It appears from the record that Raz is, or at least was at
the time of the district court proceedings, a plaintiff in a
wrongful discharge suit against his former employer and a defendant
in a libel suit brought by Dr. Struve, one of Raz’s former co-
workers.
2
Further, even if Raz’s injuries and ORI’s allegedly negligent
investigation had been sufficiently connected to be considered
causally and temporally proximate, the exchange of letters between
Raz and ORI is simply not the type of interaction needed to create
a Tompkins-type "one-to-one relationship" between the police and
the injured party. Informing officials that a crime has been or is
about to be committed does not, in and of itself, entitle the
informant to a competent investigation or to police protection.
This point is made forcefully by the Tompkins court itself, which
cites with approval a case in which a police department was held
not liable for injuries sustained by the plaintiff, where the
police refused to conduct a full investigation despite her repeated
requests for protection from a rejected suitor who had made
numerous threats. Ultimately, the ex-suitor hired an individual to
throw lye in the victim’s face, blinding her in one eye and causing
damage to the other and permanent scarring of her face. The court
held that the police were not liable for negligence in failing to
investigate the threats. See Tompkins, 402 So.2d at 280 n.6
6
In sum, the facts pleaded by Raz would not be sufficient to
give rise to the duty based on the Louisiana precedents upon which
he relies, and consequently, as held by the district court, he has
(citing Riss v. New York, 240 N.E.2d 860 (NY 1968)).
Also, we note that subsequent Louisiana cases dealing with
alleged "negligent investigation" appear to have considered the
fact that an investigation was conducted in a routine manner as
establishing something similar to a rebuttable presumption that the
defendant police department did not breach the duty it owed the
plaintiff. For example, in Barry v. Dennis, 633 So.2d 806
(La.Ct.App. 1994), a plaintiff alleged, inter alia, that the police
department had been negligent in conducting a criminal
investigation in which he had been charged, resulting in his being
incarcerated for an unnecessarily long period of time. In holding
that the plaintiff had not shown negligence the court stated that
"[u]nless a plaintiff can prove that the police department owed him
a special duty outside of the one owed to the general public, he
cannot recover damages for breach of such a duty." Id. 809-10
(citations omitted). Despite the fact that the plaintiff in Barry
was actually incarcerated during the investigation (creating a duty
toward him personally), the court found that "[t]he evidence does
not show that the police department conducted its investigation any
differently in this case than in any other similar case." Id. at
810. Thus, there was "no evidence that the investigation . . . was
conducted in such an extraordinary manner as to constitute a breach
of any special duty owed plaintiff." Id. Accordingly, the case
against the municipal police department was dismissed.
Under the reasoning of Barry, Raz’s pleading may be
insufficient with respect to both the element of duty and of
breach. Raz does not allege, nor does the record indicate, that
ORI conducted its investigation any differently than it has in
other, similar situations. If anything, the record, provided
largely by Raz, tends to show that ORI conducted the review in
question with more than ordinary care, deviating from its normal
procedures only in ways that would favor Raz (for example, by
accepting and considering evidence that Raz refused to submit
during the LSUS-MC investigation). Thus, even had Raz properly
alleged a state-based duty, it would appear that he may have failed
to plead facts sufficient for any reasonable fact finder to have
found that ORI’s behavior fell short of that duty. We choose,
however, not to base our decision on the possible inadequacy of
Raz’s pleadings as to the element of breach because it is not
entirely clear how cases such as Barry should apply to the facts of
the case at bar.
7
failed to state a claim under the FTCA. In his voluminous
submissions to the district court, which he improperly seeks to
incorporate by reference in his brief on appeal, Raz proposes
various other potential sources of a duty. Because we find each of
them to be plainly without merit, and because these claims were
adequately dealt with by the court below, see Raz v. United States,
No. 96-CV-2422 (W.D. La. May 23, 1997), we decline to further treat
them here.3
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
3
In addition, we note that even if Raz had been able to
establish that there was an applicable Louisiana law duty to
investigate, relief for a negligent investigation would likely have
been unavailable to him, irrespective of its source in state law,
due to the "discretionary function" exception to government
liability under the FTCA. See 28 U.S.C. § 2680(a). Unless a
specific course of investigation is mandated, the determination of
the scope and manner of investigation is typically a discretionary
decision. See, e.g., Black Hills Aviation, Inc. v. United States,
34 F.3d 968 (10th Cir. 1994). We do not fully discuss this issue,
however, because we find that Raz has failed to adequately allege
the element of duty, and thus has not stated a cognizable claim.
8