Abbs v. Sullivan

• Decision Date: 01 May 1992
• Docket Number: Nos. 91-1923,91-1924 and 91-2149,s. 91-1923
• Citation: 963 F.2d 918
• Parties: , 75 Ed. Law Rep. 162 James H. ABBS and Board of Regents of the University of Wisconsin System, Plaintiffs-Appellants, Cross-Appellees, v. Louis W. SULLIVAN, Secretary of the Department of Health and Human Services, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 918

963 F.2d 918

23 Fed.R.Serv.3d 8, 75 Ed. Law Rep. 162

James H. ABBS and Board of Regents of the University of Wisconsin System, Plaintiffs-Appellants, Cross-Appellees, v. Louis W. SULLIVAN, Secretary of the Department of Health and Human Services, et al., Defendants-Appellees Cross-Appellants.

Nos. 91-1923, 91-1924 and 91-2149.

United States Court of Appeals Seventh Circuit.

Argued Jan. 13, 1992.

Decided May 1, 1992.

Carl E. Gulbrandsen (argued), Richard L. Bolton, Stroud, Stroud, Willink, Thompson & Howard, Madison, Wis., for James H. Abbs.

Charles D. Hoornstra, Asst. Atty. Gen. (argued), James E. Doyle, Atty. Gen., Waltraud A. Arts, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for Board of Regents of University of Wisconsin System.

Marsha Edney, John F. Daly, Steve Frank (argued), Stuart M. Gerson, Sheila Lieber, Dept. of Justice, Civ. Div., Appellate Section, Washington, D.C., Patrick J. Fiedler, U.S. Atty., Madison, Wis., for Louis W. Sullivan et al.

Before CUMMINGS, CUDAHY, and POSNER, Circuit Judges.

POSNER, Circuit Judge.

This case grows out of an investigation by the National Institutes of Health's Office of Scientific Integrity into alleged scientific misconduct by Dr. James Abbs, a professor of neurology at the University of Wisconsin and the director of the national shared x-ray microbeam laboratory there. The laboratory studies the neurology of human speech with the aid of techniques that, we are told without contradiction, make it the only facility of its kind in the world. Abbs's research is supported by the National Institutes of Health (a branch of the Public Health Service of the Department of Health and Human Services) to the tune of a million or more dollars a year. Scientific fraud, on which see Patricia K. Woolf, "Deception in Scientific Research," 29 Jurimetrics J. 67 (1988), is much in the news these days; and this case, the government advises us in its brief, "is of far-reaching national significance, as it affects investigations into suspected scientific misconduct in research funded by the federal government. Essentially, it asks whether the policies and procedures governing such investigations comply with the Administrative Procedure Act and the due process clause of the Fifth Amendment."

In 1987 a predecessor body to the Office of Scientific Integrity received a tip that graphs in a then-recent article coauthored by Abbs had been traced from graphs in a previous publication rather than generated by data from a study supported by an NIH grant, as the article claimed. The University of Wisconsin investigated the allegation (superficially, in the view of the Office of Scientific Integrity) and exonerated Abbs. Nothing further happened until January 1990, when the Office of Scientific Integrity began to investigate the allegation. The first thing it did, however--an act not strictly investigative--was to place in the Public Health Service's "ALERT" system a notice that Dr. James Abbs of the University of Wisconsin was being investigated for scientific misconduct. The ALERT system distributes such notices to all agencies of the Public Health Service that make research grants. Next, the Office of Scientific Integrity retained outside experts to work with its staff in the investigation of the alleged misconduct. The investigative panel wanted to interview Dr. Abbs and at first he agreed, but he changed his mind when he discovered (in June 1990) that he would not have complete access to the investigative file, would not be allowed to attend interviews with other witnesses, and would not be entitled to a full evidentiary hearing before a finding of misconduct was made.

At that point Abbs filed this suit. It charges that the investigative procedures used by the Office of Scientific Integrity are invalid because they were not adopted in conformity with the requirements of the Administrative Procedure Act for administrative rulemaking and because they do not provide due process of law. Section 493(b) of the Public Health Service Act, 42 U.S.C. § 289b(b), directs NIH to establish a "process" for responding to complaints of scientific fraud. Pursuant to this directive, but without notice or opportunity for public comment, the predecessor of the Office of Scientific Integrity had announced "Policies and Procedures for Dealing with Possible Misconduct in Science" in the July 18, 1986, issue of an NIH publication called the NIH Guide for Grants and Contracts. The Office of Scientific Integrity adopted the procedures when it was established. Under them, the Office, when it receives a report of possible scientific misconduct (defined as "serious deviation, such as fabrication, falsification, or plagiarism, from accepted practices in carrying out research or in reporting the results of research"), is to conduct a preliminary inquiry to determine whether a formal investigation would be appropriate. If, as in Abbs's case, the office determines on the basis of this inquiry that there should be a formal investigation, it places the name of the scientist (and perhaps of his institution as well, although this is unclear) who is under investigation in the ALERT system and at the same time notifies the scientist and his institution that they are being investigated. The notice must describe the issues that are the focus of the investigation. The scientist is entitled to make written submissions and to comment on the Office of Scientific Integrity's proposed findings and sanctions. If the Office concludes that there has been scientific misconduct, it can recommend to higher officials in the Department of Health and Human Services sanctions ranging from a letter of reprimand to the termination of a grant. The intermediate sanctions include requiring special approval for particular activities as a condition of a grant and prohibiting the scientist from serving for a specified period of time on peer review committees for Public Health Service grants. The Office of Scientific Integrity can impose some sanctions, including suspension of current grants or of eligibility for new grants, even before the investigation is completed.

The procedures have become somewhat more elaborate over the years. Notice of Policies and Procedures for Dealing with Possible Scientific Misconduct in Extramural Research, 56 Fed.Reg. 27384 (June 13, 1991). The scientist now has a right to an interview at which he can be assisted by counsel and a right to comment on the outside experts whom the Office of Scientific Integrity proposes to engage to assist in the investigation. If the office recommends terminating a grant or barring the scientist or his institution from future grants, further procedural safeguards click in. The new procedures are academic in this case because Abbs was offered an interview at which he could be assisted by counsel and an opportunity to comment on the outside experts and because the Office has not yet recommended any of the draconian sanctions that under the new procedures would entitle Abbs to still further safeguards.

The university became a coplaintiff with Abbs in this suit, pointing to its financial stake in the grants by the NIH that pay for Abbs's research and also defray some of the University's overhead expenses. Both sides moved for summary judgment. In December 1990 the district judge entered a purported judgment granting the plaintiffs' motion in part and the defendants' in part and denying the plaintiffs' motion for preliminary injunction as moot. 756 F.Supp. 1172 (W.D.Wis.1990). In an accompanying opinion the judge explained that while the procedures employed by the Office of Scientific Integrity were indeed invalid because adopted in violation of the Administrative Procedure Act (she rejected the government's argument that they are within various exemptions to the Act), they did not deny the plaintiffs due process of law--and anyway, she opined, Abbs has no liberty or property interest in continued funding by NIH, so even if the procedures were inadequate he had no constitutional claim. The plaintiffs moved the judge to vacate the portion of her opinion and judgment that pronounced the procedures constitutional. They argued that the constitutional issue had been rendered moot by the judge's ruling that the procedures violated the Administrative Procedure Act. The judge denied this motion, clearing the way for all parties--so they thought, anyway--to appeal.

Pending the decision of the appeal, the Office of Scientific Integrity has suspended its investigation of Dr. Abbs, although the district judge never entered an injunction against its conducting the investigation by the procedures that she had held invalid. The Public Health Service has not removed Dr. Abbs's name from the ALERT system nor has either plaintiff attempted to get it to do so. Yet, so far at least, the accusation against Abbs, the posting of his name in the ALERT system, and the investigation now in limbo have not affected his funding by the NIH or any other agency. Indeed, so far as appears, it has not interfered with his activities or those of the university in the least.

We begin, and in fact end, with a hornet's nest of jurisdictional issues. The first concerns our jurisdiction of the appeal. There is no judgment in the district court--at least no judgment that conforms to Rule 58 of the civil rules. Entered on the usual form for Rule 58 judgments employed by the district court was the judge's ruling granting both sides' motions for summary judgment in part and denying the motion for a preliminary injunction. The latter order, the denial of the motion for a preliminary injunction, was appealable though interlocutory, 28 U.S.C. § 1292(a)(1), but has not been appealed. An order granting or denying summary judgment in whole or part is not itself a judgment; it is an interlocutory ruling, and is unappealable. Soo Line R.R. v. Escanaba & Lake Superior R.R., 840 F.2d 546, 549 (7th Cir.19...