Cell Associates, Inc. v. National Institutes of Health, Dept. of Health, Ed. and Welfare

Decision Date11 August 1978
Docket NumberNo. 76-1978,76-1978
Citation579 F.2d 1155
Parties4 Media L. Rep. 1543 CELL ASSOCIATES, INC., a California Corporation, and Leonard Hayflick, an Individual, Plaintiffs-Appellants, v. NATIONAL INSTITUTES OF HEALTH, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, and Donald Fredrickson, Director of National Institutes of Health, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

William A. Fenwick of Davis, Stafford, Kellman & Fenwick, Palo Alto, Cal., for plaintiffs-appellants.

Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY, CUMMINGS, * and SNEED, Circuit Judges.

DUNIWAY, Circuit Judge:

Hayflick and Cell Associates brought suit under the Privacy Act of 1974, 5 U.S.C. § 552a (1976), seeking to enjoin the government from releasing two investigative reports prepared by the National Institutes of Health (NIH). The district court denied a motion for a preliminary injunction and this appeal followed. We have jurisdiction under 28 U.S.C. § 1292(a)(1). We affirm the order as to Hayflick and remand with directions to dismiss Cell Associates, Inc., as a plaintiff for lack of standing.


The two reports which are the subject of this appeal summarize the results of an investigation conducted by NIH into Hayflick's activities as a biological researcher working under contract with NIH at Stanford University between 1968 and 1975. The reports, which were completed and presented to the Director of NIH on January 30, 1976, are entitled "Investigation of Activities Relating to the Storage, Distribution and Sale of Human Diploid Cell Strains, WI-38 and WI-26" ("Cell Report") and "Investigation of Activities Relating to the Charging of Test Fees Under Contracts Awarded to Stanford University by the National Cancer Institute" ("Mycoplasma Report").

The Cell Report charges Hayflick with committing serious improprieties in his role as principal investigator under an NIH contract providing for the production and distribution of certain human cell cultures which are widely used in vaccine manufacture and medical research. Specifically, the report alleges that Hayflick (1) sold cell cultures developed and produced at government expense for personal gain; (2) violated an agreement with the government by transferring cell cultures from Philadelphia's Wistar Institute to Stanford University without authorization; (3) distributed cell cultures which he knew to be contaminated; (4) intentionally mislabelled cell cultures; (5) maintained inadequate records; and (6) lost, stole or squandered cell cultures which were in his possession when he commenced research at Stanford in 1968. The Cell Report concludes with recommendations that "a claim be established against Dr. Hayflick for the proceeds from the sales of Government property" and that "consideration be given to removing Dr. Hayflick as principal investigator or other key participant in NIH supported projects."

The Mycoplasma Report deals with Hayflick's activities as principal investigator under a separate NIH contract providing for the establishment and operation of a mycoplasma diagnostic laboratory at Stanford. It alleges that Hayflick improperly charged fees for mycoplasma testing conducted at government expense and then deposited the proceeds in personal accounts and accounts maintained by Stanford University or by Cell Associates, a corporation wholly owned by the Hayflick family. The Mycoplasma Report concludes with recommendations that all such fees, plus interest, be recovered by NIH and that "the practice of charging fees for mycoplasma tests and charging the costs to NIH research agreements . . . be discontinued."

Hayflick received copies of the reports shortly after their completion in January, 1976. He asked for and was given an opportunity On the morning of March 25, Hayflick and Cell Associates brought this action under the Privacy Act, seeking (1) preliminary and permanent injunctions barring release of the reports; (2) a temporary restraining order; (3) a declaration that Hayflick was entitled to "all proceeds collected to date . . . for the sale of human diploid cell material and the sale of mycoplasma testing services;" and (4) damages.

to respond to the allegations in writing with a deadline of April 1 within which to do so. On March 17, before Hayflick had submitted his rebuttal, NIH received two requests for the reports under the Freedom of Information Act. Eventually five requests were received, four from publications, including the New York Times, and one from an individual who used the cells produced in Hayflick's laboratory in his research. NIH concluded that it was required under the Freedom of Information Act to release the reports. Before doing so, however, it told Hayflick of the requests and that it intended to honor them on March 25 unless a court order prohibiting disclosure were issued by that date.

The district court denied the application for a temporary stay on the afternoon of March 25. NIH released the reports to the press that same evening. Through the New York Times Service and various scientific publications, summaries of the reports were widely disseminated. NIH is continuing to release the reports to anyone who asks for them and continues to maintain that it is required to do so.

On April 30 the district court denied the motion for an injunction against disclosure, stating:

. . . I have extreme doubts about the jurisdiction of the Court to issue such an injunction.

If I do have jurisdiction to do so, I find no basis in the record to compel or suggest that the Court should do so. On the balancing of the equities, I would find that the interests of the public and the medical community as a whole is far better served by a free distribution of information that raises questions about the validity of materials that have been put into the scientific community and in general I have extreme doubts about the likelihood of the plaintiffs prevailing in this action and for those reasons, the preliminary injunction will be denied.


Subsection (g)(1), "Civil remedies," of the Privacy Act, 5 U.S.C. § 552a(g) (1) (1976), creates federal claims for relief for enumerated violations of the Act's substantive provisions and refers throughout only to actions brought by an "individual." Subsection (a)(2) defines an "individual" as "a citizen of the United States or an alien lawfully admitted for permanent residence." It is clear that Cell Associates, a corporation formed in 1974, is not an "individual" within the meaning of the statute. We therefore remand, with directions to dismiss Cell Associates, Inc., as a plaintiff for lack of standing under the Privacy Act.


The parties do not argue the question of whether the case is moot, but we feel obliged to consider it. It could be argued that because the reports have been distributed to the four newspapers and to some individuals, and widely commented upon in the press, the horse is out of the barn and nothing can be accomplished now by locking the door. However, we reject this argument. NIH still has the reports, and is still willing to permit anyone who asks for them to see and obtain copies of them. Each time that this happens can add to Hayflick's damages. Under these circumstances, the action is not moot.

A. The Statutory Scheme.

The "Civil remedies" section of the Privacy Act, subsection (g) of 5 U.S.C § 552a, links particular violations of the Act to particular remedies in a specific and detailed manner. It lists four types of agency misconduct that give rise to civil remedies and it then states the civil remedies applicable to each. The scheme can best be seen if the violations and remedies are set out side by side:

Hayflick claims that NIH has failed to comply with subsection (b). Thus his claim for relief arises under subsection (g)(1)(D) and the applicable civil enforcement action is the one authorized in subsection (g)(4). It provides for damages, costs, and attorney fees, where the agency acted in a manner that was intentional or willful. It does not provide for an injunction. There is a further remedy for willfully disclosing material, knowing that disclosure of it is prohibited, a criminal penalty prescribed in subsection (i)(1).

It thus appears on the face of the Act that Congress carefully described particular violations and provided particular procedures and remedies for each of them. In two instances, it provided for injunctive types of relief. See subsections (g)(1)(A) and (2) and (g)(1)(B) and (3), Supra. In the other two instances, it provided for damages, but not for injunctive relief. See subsections (g)(1)(C) and (D) and (g)(4), Supra.

Presumably, Congress intended to do what it did. This points to a conclusion that Congress did not intend to authorize the issuance of injunctions prohibiting disclosures of protected materials.

(W)hen legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. "When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode." Botany Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 73 L.Ed. 379 (1929). This principle of statutory construction reflects an ancient maxim Expressio unius est exclusio alterius.

National Railroad Passenger Corp. v. National Association of Railroad Passengers, 1974, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646. See also Switchmen's Union v. National Mediation Board, 1943, 320 U.S. 297, 301, 64 S.Ct. 95, 88 L.Ed. 61; United States v. Babcock, 1919, 250 U.S. 328, 330, 39 S.Ct. 464, 63 L.Ed. 1011. Were Hayflick correct in his contention that injunctive relief is available for violation of any of the Act's provisions, the detailed remedial...

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