Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1990)

MEMORANDUM^** 

Herbert Gilbert appeals the district court's order dismissing his complaint under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671, for failure to state a claim. Gilbert alleges that the Occupational Safety and Health Administration ("OSHA") negligently processed his Complaints About State Program Administration ("CASPAs"). The district judge concluded that the United States did not owe a duty to Gilbert, and that even if it did, any breach of that duty would come within the FTCA's discretionary function exception in 28 U.S.C. § 2680. We affirm.

Federal statutes and regulations do not automatically create duties which give rise to causes of action under the FTCA. United Scottish Insurance Co. v. United States, 614 F.2d 188, 193 (9th Cir. 1979); Snowbird Construction Co., Inc. v. United States, 666 F. Supp. 1437, 1446 (D. Idaho 1987). However, "negligent performance of a federal statutory duty may give rise to a claim under the Act in circumstances in which applicable state law recognizes a private cause of action." United Scottish Insurance Co., 614 F.2d at 193. Gilbert maintains that California's good samaritan doctrine establishes a duty to comply with OSHA regulations. See Indian Towing Co, Inc. v. United States, 350 U.S. 61, 64-69 (1955) (applying good samaritan doctrine to a claim under the FTCA); Irving v. United States, 532 F. Supp. 840 (D.N.H. 1982), aff'd, 867 F.2d 606 (1st Cir. 1988) (violations of OSHA provisions can breach duty under state good samaritan doctrine).

California has adopted the Restatement's good samaritan doctrine. Restatement (Second) of Torts Secs. 323, 324A (1977); Coffee v. McDonnell-Douglas Corp., 8 Cal. 3d 551, 503 P.2d 1366, 105 Cal. Rptr. 358 (1972); United Scottish Insurance Co. v. United States, 692 F.2d 1209, 1210 (9th Cir. 1982), rev'd on other grounds sub nom. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984). Under that doctrine, the defendant must have undertaken to render a service to the injured party which either increased the risk of injury to the person injured or caused the person to rely on proper performance of the service. Id. We believe that Gilbert's supposed injury, mal-processed or non-processed CASPAs, is not the type of injury that California courts would protect under their good samaritan doctrine.

California courts have denied recovery under the good samaritan doctrine expressed in Sec. 324A of the Restatement when plaintiffs could not prove "physical harm." Kane v. Hartford Accident and Indemnity Co., 98 Cal. App. 3d 350, 159 Cal. Rptr. 446, 449 (1979) (noting Restatement's "physical harm" requirement in Sec. 324A). Although Gilbert's claim falls within Sec. 323 as opposed to Sec. 324A of the Restatement, Sec. 323 contains the same "physical harm" requirement. Gilbert has not alleged physical harm. Even if California courts did not require physical harm, we believe that Gilbert's allegations would not state a claim under California's good samaritan doctrine. See Williams v. State, 34 Cal. 3d 18, 664 P.2d 137, 192 Cal. Rptr. 233, 237 (1983) (police officers investigating a traffic accident have no duty under good samaritan doctrine to investigate all witnesses and to gather evidence for plaintiff's benefit where police officers did not worsen plaintiff's injury and where plaintiff did not rely on police officers' actions); State v. Superior Court, 150 Cal. App. 3d 848, 197 Cal. Rptr. 914, 924 (1984) (real estate commissioner had no duty under good samaritan doctrine to inform parties who may suffer injury from a licensee under investigation by the commissioner pursuant to state regulations). See also Williams v. State, 62 Cal. App. 3d 960, 133 Cal. Rptr. 539 (1976) (although there was a mandatory regulatory duty on state administrator to render a decision on plaintiff's total disability claim within sixty days, plaintiff had no cause of action against administrator under state statute which creates causes of action for governmental non-compliance with regulations because plaintiff's injury of emotional distress was not the type of harm to which the regulation applied).

Even if the United States had a duty to process CASPAs, most of Gilbert's allegations would be barred by the FTCA's discretionary function exception. 28 U.S.C. § 2860. For example, Gilbert claims that OSHA ignored some of his CASPAs, negligently investigated others, and failed to intervene in his state administrative hearing. Neither the Occupational Safety and Health Act nor the regulations promulgated thereunder impose a mandatory duty on OSHA to investigate, see 29 C.F.R. Sec. 1954.20(c) (1985) (administration determines "whether an investigation shall be conducted"), or intervene in state administrative hearings, see 29 C.F.R. Secs. 1954.1-1954.22 (1985). Because these functions are discretionary, the United States cannot be held liable under the FTCA. 28 U.S.C. § 2860; Boyle v. United Technologies Corp., 108 S. Ct. 2510, 2517 (1988).

Gilbert points to mandatory regulatory duties in 29 C.F.R. Secs. 1977.9, 1977.18(c), 1977.23, and 1954.3(e). These provisions only apply to complaints filed with OSHA alleging discriminatory dismissal. Gilbert's complaint focused on the mis-processing of his CASPAs. His reliance upon these regulations is therefore misplaced.

The only mandatory regulations applicable to Gilbert's case are 29 U.S.C. §§ 1954.21(a) and 1954.21(d). Section 1954.21(a) requires OSHA to acknowledge receipt of CASPAs, and section 1954.21(d) requires OSHA to notify complaining parties of the administration's decision not to investigate a claim. Gilbert alleges that an unidentified number of the considerable number of complaints he filed received the "silent treatment." These claims under 29 U.S.C. §§ 1954.21(a) and 1954.21(d) are not barred by the discretionary function exception.

However, as we stated earlier, we believe that Gilbert has failed to state a claim under California's good samaritan doctrine. Gilbert's claims of denial of notice of receipt of his complaints and denial of an explanation for the federal administrator's decision not to investigate, sound in due process as opposed to tort. State good samaritan doctrines provide no remedy for federal due process violations. Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1160 (D.C. Cir. 1985); Nichols v. Block, 656 F.2d 1436, 1446 (D. Mont. 1987).

AFFIRMED.