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Kumar v. George Washington University

United States District Court, District of Columbia

March 31, 2016

RAKESH KUMAR, Plaintiff,


JOHN D. BATES, United States District Judge

Plaintiff Dr. Rakesh Kumar, a professor of biochemistry and molecular medicine, brings suit against his employer George Washington University (“GW” or “the university”), alleging that the university improperly handled its investigation into his suspected research misconduct. The university’s motion to dismiss on the ground of official immunity succeeds in disposing of Kumar’s claim for tortious interference with business relations, but there is no immunity as to his other four claims. And his tortious invasion of privacy claims must be dismissed for failure to state a claim. But the university’s motion to dismiss will be denied in part because Kumar has pled sufficient facts to state a claim for breach of contract and breach of the implied covenant of good faith and fair dealing.


The university’s inquiry into Kumar’s alleged research misconduct began in late 2012 when the federal Office of Research Integrity (“ORI”) received anonymous allegations of scientific research misconduct against Kumar and transmitted those allegations to GW for review. First Am. Compl. [ECF No. 11] ¶ 17. In December 2012, GW notified Kumar that it had decided to open a formal inquiry into the allegations. Id. After a lengthy investigation process that included a draft inquiry report, a final inquiry report, witness interviews, and a draft investigation report, the university in July 2014 issued its final investigation report finding misconduct. As a result of the misconduct finding, the university took several actions against Kumar including the (1) removal of Kumar from his position as Department Chair, id. ¶ 73; (2) relinquishment of a federal grant, which had previously funded Kumar’s research, id. ¶ 85; (3) replacement of Kumar as the supervisor of a Ph.D. candidate, id. ¶ 96; and (4) closure of Kumar’s laboratory and office, id. ¶ 103.

Kumar alleges that the university’s inquiry and investigation processes were fraught with unfairness and, more importantly, were improper under the university’s research misconduct policy and D.C. law. He asserts five claims against the university: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) tortious interference with business relations; (4) tortious invasion of privacy (public disclosure of private facts); and (5) tortious invasion of privacy (false light). The university has responded with two motions to dismiss. One asserts that this case must be dismissed for lack of subject-matter jurisdiction as a result of the university’s Westfall immunity.[1] Def.’s 12(b)(1) Mot. to Dismiss [ECF No. 18]. The other seeks to dismiss all five counts of Kumar’s complaint for failure to state a claim. Def.’s 12(b)(6) Mot. to Dismiss [ECF No. 8].


I. Westfall Immunity

The university’s 12(b)(1) motion to dismiss raises a novel question for the Court: whether a non-governmental entity such as George Washington University, which engages in research misconduct investigations pursuant to the Public Health Services Act, is entitled to absolute immunity from state-law tort claims pursuant to the doctrine of official immunity. The question sounds at first like an open-and-shut case: what could “official” immunity have to do with a private university? But the label “official” is not as narrow as it first sounds.

A. Whether the university was delegated a governmental function

Official immunity attaches “to particular official functions, not to particular offices.” Westfall v. Erwin, 484 U.S. 292, 296 n.3 (1988). A principal purpose of official immunity is to prevent “disruption of governmental functions” by providing immunity to those “official function[s] [that] would suffer under the threat of prospective litigation.” Id. And when private entities perform “government functions, ” “there is obviously implicated the same interest in getting the Government’s work done.” Boyle v. United Techs. Corp., 487 U.S. 500, 505 (1988). “[T]he same policy considerations that justify immunity for government employees can apply with equal force to private actors when they are charged with implementing government policies.” Murray v. Northrop Grumman Info. Tech., Inc., 444 F.3d 169, 175 (2d Cir. 2006). Hence, Courts have extended immunity to non-governmental entities when they are performing “official” or “governmental” functions. Mangold v. Analytic Servs., 77 F.3d 1442, 1446-48 (4th Cir. 1996) (extending immunity to private sector government contractors participating in official investigations of government contracts).

To decide whether GW is entitled to official immunity, the Court must first determine whether the university was performing a governmental function when it investigated Kumar’s alleged research misconduct. Certain functions, like the detention of individuals charged with committing crimes, are unquestionably governmental. See Viehdeffer v. Tryon, No. 12-CV-23S, 2012 WL 3746372, at *12 (W.D.N.Y. Aug. 28, 2012). But “[n]ot every activity in which government might decide to engage is a function of government in private hands.” Houston Cmty. Hosp. v. Blue Cross and Blue Shield of Tex., 481 F.3d 265, 271 (5th Cir. 2007). And deciding whether to label an activity as “governmental” is hardly a precise science. Courts look to whether the activity is “critical to the efficient conduct of government, ” Mangold, 77 F.3d at 1447, as well as whether the activity “aligns with traditionally protected . . . function[s] of government, ” Houston Cmty. Hosp., 481 F.3d at 276. This is not a particularly limiting set of criteria, despite the Supreme Court’s “sparing . . . recognition of claims to absolute official immunity.” Forrester v. White, 484 U.S. 219, 224 (1988).

This case, fortunately, does not require the Court to tread entirely new ground in deciding whether a function is governmental. Here, Kumar’s lawsuit arises out of the university’s inquiry, investigation, and report of Kumar’s alleged misconduct in the course of federally funded research. Among the most frequently immunized “government functions” are the investigation of fraud in a government program and the reporting of information to the government pursuant to a federal duty. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 73 (2d Cir. 1998) (“The investigation and reporting of possible Medicare fraud is precisely the type of delegated discretionary function that the public interest requires to be protected by immunity.”); Mangold, 77 F.3d at 1447 (extending immunity to “government contractors participating in official investigations of government contracts”); Slotten v. Hoffman, 999 F.2d 333, 335 (8th Cir. 1993) (“When private parties are under a mandatory duty to supply [information necessary to execute governmental functions], they are entitled to the government’s official immunity.”); Nu-Air Mfg. Co. v. Frank B. Hall & Co. of N.Y., 822 F.2d 987, 995 (11th Cir. 1987) (recognizing the appropriate extension of immunity when it serves the “paramount” government purpose of “uncovering fraud in government programs”). Therefore, if the university has been delegated the responsibility to investigate fraud in the use of federal funds, it is performing a well-established government function.

Government functions can be delegated to private entities by way of legislation and regulations. See Murray, 444 F.3d at 175-76 (“The DOS and INS delegated responsibility to NGIT to administer an international program under the United States’ immigration laws.”); Pani, 152 F.3d at 73-74 (holding that fiscal intermediaries were “carrying out a traditional government function” when investigating and reporting Medicare fraud as required by federal regulations); Kwoun v. Se. Mo. Prof’l Standards Review Org., 811 F.2d 401, 406-07 (8th Cir. 1987) (holding private actors were performing a government function when “participating in a review process established and governed by federal law”); Bakhtiari v. Beyer, No. 4:06-CV-1489 (CEJ), 2009 WL 877884, at *7-8 (E.D. Mo. Mar. 30, 2009) (holding university official had been delegated a government function pursuant to federal immigration regulations). Here, the university argues that it was delegated a government function under the Public Health Service Act (PHSA) and its implementing regulations. The Court agrees.

The PHSA was amended in 1985 by the Health Research Extension Act, which allows the U.S. Department of Health and Human Services (HHS) to “provide National Research Service Awards for . . . biomedical and behavioral research and health services researc[h] . . . at public and nonprofit private entities.” Pub. L. No. 99-158, § 487(A)(iii), 99 Stat. 820, 869 (codified as amended at 42 U.S.C. § 288). The amendment also directed HHS to “make grants to public and nonprofit private institutions to enable such institutions to make National Research Service Awards” for biomedical and behavioral research “to individuals selected by such institutions.” § 487(B), 99 Stat. at 869.

The Act then created a separate section, codified as amended at 42 U.S.C. § 289b, for the protection against scientific fraud. § 493, 99 Stat. at 874-75. Section 289b requires that institutions applying for financial assistance under the Act have in place administrative processes for reviewing reports of research misconduct as a condition of funding for research. 42 U.S.C. § 289b(b)(1). Also as a condition of funding, those institutions must agree to report “any investigation of alleged research misconduct in connection with projects for which funds have been made available under this chapter that appears substantial.” 42 U.S.C. § 289b(b)(2).

In 1993, Congress amended Section 289b to establish the Office of Research Integrity to address research integrity and misconduct issues related to PHS-supported activities. National Institutes of Health Revitalization Act of 1993, Pub. L. No. 103-43, § 493, 107 Stat. 122, 140-41. The Secretary of HHS was directed to establish a process, to be followed by ORI, to respond to information “respecting research misconduct in connection with projects for which funds have been made available under this chapter”; receive reports “of such information from recipients of funds”; “conduct investigations”; and take “other actions, including appropriate remedies, with respect to such misconduct.” 42 U.S.C. § 289b(c). ORI was also charged with monitoring the institutions’ administrative processes and investigations. Id. § 289b(d). The grant of responsibility to ORI to conduct research investigations as well as the requirement that institutions report such investigations back to ORI indicates that the investigation of research misconduct is a government function.

The implementing regulations, promulgated in 2005, confirm the delegation of responsibility from HHS to the research institutions. “HHS has ultimate oversight authority for PHS supported research, and for taking other actions as appropriate or necessary, including the right to assess allegations and perform inquiries or investigations at any time.” 42 C.F.R. § 93.100(b). HHS “has delegated responsibility for addressing research integrity and misconduct issues related to PHS supported activities” to ORI. Id. § 93.217. “Institutions and institutional members have an affirmative duty to protect PHS funds from misuse by ensuring the integrity of all PHS supported work, and primary responsibility for responding to and reporting allegations of research misconduct . . . .” Id. § 93.100(b) (emphasis added).

The regulations put in place specific procedures to implement this delegation of authority. For example, when ORI receives an allegation of research misconduct it has the option to conduct an allegation assessment itself, id. § 93.400(a)(1), or it may refer the matter to the “appropriate institution or HHS component for inquiry or investigation, ” id. § 93.400(a)(3). If ORI forwards the matter to an institution, the institution must respond to the allegation of research misconduct in accordance with policies and procedures that conform to the regulatory requirements. See Id. §§ 93.300(a), (b), 93.301(b), 93.304. Throughout the investigation, the institution must report back to ORI. Id. § 93.304(d) (requiring institutions to provide “[w]ritten notice to ORI of any decision to open an investigation”); id. 93.304(i) (requiring institutions to provide notice to ORI “of any facts that may be relevant to protect public health, Federal funds and equipment, and the integrity of the PHS supported research process”). And at the conclusion of the investigation, the institution must give ORI a copy of the investigation report, inform ORI whether the institution found misconduct and if so, who committed the misconduct, and, finally, describe any pending or completed administrative actions against the respondent. Id. § 93.315. It is hard to see this regulatory scheme as anything less than the deputizing of research institutions to serve “as adjuncts to the government, ” Pani, 152 F.3d at 74, in investigating research misconduct on behalf of ORI and by extension HHS.

The conclusion that universities have been delegated a government function by the PHSA and its implementing regulations finds further support in the common federal policies on research misconduct issued by the Office of Science and Technology Policy (OSTP). In the policy, cited by both parties, the OSTP addressed the question: “Why don’t the Federal agencies conduct all inquiries and investigations?” The Office responded:

Research institutions are much closer to what is going on in their own institutions and are in a better position to conduct inquiries and investigations than are the Federal agencies. While the Federal agencies could have taken on the task of investigating all allegations of research misconduct, or established a separate agency for this purpose, this would have involved a substantial new Federal bureaucracy, which is not thought desirable.

Federal Policy on Research Misconduct, 65 Fed. Reg. 76, 260, 76, 262 (Dec. 6, 2000). The candid reply by OSTP provides context to the delegation of authority in the PHSA. There is a recognized government interest in “the health and safety of the public, ” “the integrity of research, ” and “the conservation of public funds.” 42 C.F.R. § 93.100(a). Protecting those interests requires an apparatus for the investigation of research misconduct allegations. Rather than create a “new Federal bureaucracy, ” HHS decided that the ...

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