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Legal Concerns -
Federal Court Decisions
Introduction
The process for handling allegations of research misconduct has been the
subject of Federal court rulings since
the PHS organized its efforts to respond to these allegations in 1989. Summaries of some of the key Federal court decisions and rulings are available
below.
Institutions and individuals should contact their legal counsel for
information on the applicability of the cited decisions. ORI makes no
representations regarding the accuracy of these summaries or the binding nature
of the summarized decisions in future proceedings.
Federal Court Jurisdiction and Final Agency Action
Federal courts do not have jurisdiction to review research
misconduct investigations under the Administrative Procedure Act
until there is a final agency action and the imposition of a
sanction. Until then, there is no legal force or practical
effect upon a respondent other than the disruptions that
accompany any major litigation. Abbs v. Sullivan,
963 F.2d 918 (7th Cir. 1992).
Federal courts do not have jurisdiction to review the
placement of a respondents
name in the PHS ALERT system before there is a final agency action
unless a respondent can make a showing of actual harm as a
consequence of being placed in the ALERT system. Abbs v.
Sullivan, 963 F.2d 918 (7th Cir. 1992).
Constitutional Issues
A respondent has no constitutional right that protects him from
being investigated for suspected violations of law by government
agencies authorized to conduct investigations, such as ORI. As
ORI's function is investigative rather than adjudicative, a
respondent has no entitlement to any particular set of due process
protections in connection with an ORI investigation. Popovic
v. United States, 997 F. Supp. 672 (D. Md. 1998), aff'd
without opinion 175 F.3d 1015 (4th Cir. 1999), reported in
full 1999 U.S. App. LEXIS 7593 (4th Cir. 1999).
Research misconduct investigations alone, without further
evidence of actual harm, are not a denial of equal protection of
the laws nor do they violate a respondent's
First Amendment rights to perform research, publish on research, or to
hold an academic position and enjoy academic freedom. Hiserodt
v. Shalala, C.A. No. 91-00224 (W.D. Pa. 1994), aff'd
65 F.3d 162 (3rd Cir. 1995).
Principal investigators do not have a constitutionally
protected property interest in continuing to serve as a
principal investigator on PHS funded research grants because
institutions are the grantees of the awards, and the decision to
transfer or award research funds is solely within the discretion
of the Secretary. Abbs v. Sullivan, 756 F. Supp. 1172 (W.D.
Wis. 1990); Hiserodt v. Shalala, C.A. No. 91-0224 (W.D.
Pa. 1994), aff'd 65 F.3d 162 (3rd Cir.
1995); Needleman v. Healy, et. al., 1996 U.S. Dist. LEXIS 21614 (W.D.
Pa. 1996).
Principal Investigators do not have a constitutionally protected
liberty interest at stake in the investigation of alleged
misconduct, Abbs v. Sullivan, 756 F.Supp. 1172 (W.D.
Wis. 1990); Hiserodt v. Shalala, C.A. No. 91-00224 (W.D. Pa.
1994), aff'd 65 F.3d 162 (3rd Cir. 1995); Needleman v. Healy,
et, al., 1996 U.S. dist. LEXIS 21614 (W.D. Pa. 1996).
The False Claims Act and Qui Tam Suits
Misstatements actionable under the False Claims Act range from
explicit, factual falsehoods to more subtle intimations designed to
deceive and defraud. False statements on grant applications and
status reports and tables representing statistically invalid data
qualify as false statements under the False Claims Act. Condie v.
Board of Regents of the University of California, 1993 U.S.
Dist. LEXIS 21384 (N.D. Cal. 1993).
Private individuals may not bring suits against a State or a
State agency on behalf of the United States under the False Claims
Act (FCA). Vermont Agency of Natural Resources v. U.S. ex rel.
Stevens, 529 U.S. 765 (2000). The Supreme Court decision does
not affect the ability of private individuals or the United States
to bring a FCA suit against a private institution or individual.
Institutional Internal Policies and Standards
Institutions may have the same, greater, or lesser standards under
their own internal administrative policies and procedures than those
mandated by the regulation. Thus, in the course of an investigation,
an institution may find conduct to be actionable under its internal
standards and may impose administrative actions pursuant to findings
made under those standards even though ORI would not make a finding
under the PHS definition. For example, even though ORI may not have
considered duplicate publications to constitute research
misconduct, "it recognized the University’s right to hold
such a practice to be unacceptable." Shovlin v. University
of Medicine and Dentistry of New Jersey, 50 F. Supp. 2d 297, 314
(D.N.J. 1998).
Freedom of Information Act
The Freedom of Information Act (FOIA) does not
require ORI to disclose the names of respondents and complainants in
cases in which there has not been a finding of research
misconduct. Exemption 7(C) of FOIA allows an agency to withhold
records or information compiled for law enforcement purposes to the
extent that their production could reasonably be expected to
constitute an unwarranted invasion of personal privacy. (5 U.S.C. § 552(b)(7)(C)). The substantial privacy interest in withholding the
names of respondents and complainants in cases in which no finding
of misconduct was made outweighs any public interest in releasing
the names. McCutchen v. DHHS, 30 F.3d 183 (D.C. Cir. 1994).
Plagiarism
In reversing a lower court decision finding
plagiarism, the court cited in dicta the ORI policy that plagiarism
does not include credit disputes. U.S. ex rel. Berge v.
University of Alabama, 104 F.3d 1453, cert. denied, 522
U.S. 916 (1997)
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