Abbs v. Sullivan, 90-C-470-C.
| Decision Date | 28 December 1990 |
| Docket Number | No. 90-C-470-C.,90-C-470-C. |
| Citation | 756 F. Supp. 1172 |
| Parties | Dr. James H. ABBS and Board of Regents of the University of Wisconsin System, as the governing body of the University of Wisconsin System, Plaintiffs, v. Louis SULLIVAN, Secretary of Department of Health and Human Services; National Institutes of Health; William Raub, Acting Director of National Institutes of Health; The Office of Scientific Integrity; Dr. Jules V. Hallum, director of Office of Scientific Integrity, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
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Carl E. Gulbrandsen, Waltraud A. Arts, Asst. Atty. Gen., Madison, Wis., for plaintiffs.
Marsha Edney, Dept. of Justice, Fed. Programs Branch, Washington, D.C., for defendants.
This is a civil action brought pursuant to 28 U.S.C. §§ 1331 and 1346, in which the plaintiffs seek declaratory and injunctive relief. Plaintiffs contend that their rights to due process and equal protection have been or will be violated if defendants are allowed to continue their investigation into plaintiff Abbs's alleged scientific misconduct. They contend also that the policies and procedures defendants are following are invalid.
Jurisdiction is present. The action arises under the laws and Constitution of the United States. 28 U.S.C. § 1331.
Presently before the court are plaintiffs' motions for a preliminary injunction and for partial summary judgment, and defendants' cross-motion for summary judgment. Also pending is defendants' motion to strike two articles attached as exhibits to an affidavit of Richard Bolton, one of plaintiffs' attorneys. I conclude that plaintiff Board of Regents has standing to challenge the procedures defendants are following; that neither of the plaintiffs has a legally cognizable liberty or property interest that implicates the due process clause; and that defendants are conducting their investigation of plaintiff Abbs under policies and procedures that are invalid because they were not promulgated in accordance with the requirements of the Administrative Procedure Act, to which they are subject. I conclude that the doctrine of administrative res judicata does not bar defendants from proceeding against plaintiff Abbs once they enact valid procedures. Accordingly, I will grant plaintiffs' motion for partial summary judgment with respect to the claim that the procedures followed by defendants in their investigation of plaintiff Abbs are invalid. I will grant defendants' motion for summary judgment on plaintiffs' claims that they are being denied due process and equal protection of the law by the investigation of plaintiff Abbs and that defendants are barred by administrative res judicata from investigating Abbs. With the resolution of the case on the merits, plaintiffs' motion for preliminary injunction becomes moot. Finally, I will grant defendants' motion to strike the exhibits attached to Bolton's affidavit because neither of the articles is admissible evidence.
From the parties' proposed findings of fact and supporting affidavits and documents, I find that there is no genuine issue with respect to the following material facts.
Plaintiff James H. Abbs is a professor of neurology and neurophysiology at the University of Wisconsin-Madison and is involved in research and related activities funded by the Public Health Service, a division of the United States Department of Health and Human Services.
Plaintiff Board of Regents of the University of Wisconsin System is a body corporate and agency of the State of Wisconsin. The Board is the governing entity of the institutions in the University of Wisconsin System including the University of Wisconsin-Madison and is the legal entity that applies for research grants.
Defendant National Institutes of Health is an agency within the Public Health Service. Its responsibilities include the coordination of the development and implementation of policies and procedures for dealing with misconduct in research and related scientific activities that are funded, conducted or regulated by the Public Health Service.
Defendant Louis Sullivan is the Secretary of the United States Department of Health and Human Services, a federal executive agency. He is responsible for overseeing, directing, implementing and administering the activities of NIH.
Defendant William Raub is the acting director of NIH. Defendant Jules V. Hallum is the director of the Office of Scientific Inquiry, which is an office within the Office of the Director of the NIH that oversees the implementation of all Public Health Service policies and procedures related to scientific misconduct, monitors individual investigations into alleged or suspected scientific misconduct by institutes that receive Public Health Service funds for biomedical and behavioral research projects, and conducts investigations as necessary.
In 1987, a committee of the University of Wisconsin-Madison conducted an inquiry into allegations that plaintiff Abbs had engaged in scientific misconduct, specifically, that he had published certain curves in the journal Neurology that were traced from curves he had published previously, rather than being from two different patients as plaintiff represented. The university committee determined there was no need for a formal investigation into the allegations of scientific misconduct against Abbs and so advised NIH's Office of Extramural Research, in June 1987. (Before March 1989, the Office of Extramural Research of NIH carried out functions similar to those activities that are now the responsibility of the Office of Scientific Inquiry.) The Office of Extramural Research conducted additional inquiries into the Abbs matter and obtained a report from a panel of experts questioning the University of Wisconsin-Madison's prior determination that the allegations against Abbs did not warrant a formal investigation.
On January 12, 1990, the Acting Director of the Office of Scientific Inquiry advised plaintiff Abbs that his name and the fact that he was the subject of an investigation had been entered in the Public Health Service ALERT system, which serves to communicate information about investigations and final determinations of misconduct to all Public Health Service agencies.
On February 2, 1990, the Acting Director of the Office of Scientific Inquiry advised plaintiff Abbs that it was pursuing a formal investigation to determine whether he had engaged in scientific misconduct. As part of the investigation of plaintiff Abbs's alleged misconduct, a fact-gathering Office of Scientific Inquiry team met with Abbs to conduct an interview and afford him an opportunity to present additional information. On the advice of counsel, Abbs terminated the interview when he was informed he would not be allowed to be present during interviews of other witnesses and would not have complete access to the Office of Scientific Inquiry investigatory file.
Under the Interim Procedures promulgated by the Public Health Service in 1986, an investigation by the Office of Scientific Inquiry into alleged misconduct may consist of a combination of activities, including a review of documents in the funding agency's possession; a review of documents at the awardee institution or elsewhere; a review of the investigative procedures followed by the awardee institution; inspection of laboratory or clinical facilities at the awardee institution; and interviews of those parties involved with or knowledgeable about the case.
A subject of an investigation has the opportunity to be interviewed by an Office of Scientific Inquiry team and to ask questions of the team; to review and comment on the transcript of his interview; and review and comment on the findings of the Office of Scientific Inquiry investigation and any proposed sanctions.
Prior to the completion of an investigation, the Public Health Service may take certain administrative actions including total or partial suspension of an award; suspension of eligibility for financial grants or contracts; restriction of certain research activities; requirement of special certification; more restrictive requirements for prior approval; deferral of a noncompeting grant; delay of a grant or contract award; and restriction or suspension of the use of the individual under investigation as an adviser or consultant to the agency.
If the investigation confirms misconduct, the Office of Scientific Inquiry team may recommend imposing sanctions that range in severity. "Group I sanctions" include issuing a letter of reprimand; imposing a requirement for special approval of activities as a condition of an award; or requiring supervision or oversight of scientific activities. Group II sanctions are more severe. They include placing restrictions for a specified time period on activities under an active award; requiring special reviews of requests for funding; and prohibiting for a specified period of time participation on peer review committees, advisory groups, or other related Public Health Service activities. Group III sanctions, the most severe, may include immediate suspension or termination of an active award; withholding specific future non-competing grants or contracts; and debarment or suspension of the individual for a specified period of time, in other words, declaring the person ineligible for participation in Public Health Service grants, cooperative agreements or contracts. Any of these sanctions may be imposed at the discretion of the Public Health Service with the exception of debarment or suspension, for which a recommendation is forwarded to the Deputy Assistant Secretary for Procurement, Assistance, and Logistics, Department of Health and Human Services.
Persons receiving notice of proposed debarment or suspension have an opportunity to submit information and arguments in...
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...delineate when participation in a particular grant proposal may or may not be protected by the Due Process Clause. In Abbs v. Sullivan, 756 F.Supp. 1172 (W.D.Wis.1990), vacated on other grounds, 963 F.2d 918 (7th Cir.1992), a case concerning a professor merely accused of scientific miscondu......
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Abbs v. Sullivan
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