Retraction Watch

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Can universities claim immunity in misconduct lawsuits? What a recent ruling suggests

with 8 comments

Callan Stein

Callan Stein

Last week, George Washington University (GWU), a private institution in Washington DC, settled a case with scientist Rakesh Kumar, who had claimed breach of contract and emotional distress following a misconduct investigation against him. But earlier this year, a judge dismissed another one of the scientist’s claims, after GWU argued it had the same “official immunity” the government enjoyed, since it also conducts research misconduct investigations. Does the ruling set a precedent? We spoke to Callan Stein, a lawyer who represents U.S. researchers in misconduct cases, who has discussed the implications on his law firm’s site.

Retraction Watch: Can you explain more about this “official immunity” the government has regarding research misconduct, and why the judge thought this applied to GWU, as well?

Callan Stein: “Official Immunity” operates to prevent certain types of lawsuits against government officials for performing their official duties. “Official Immunity” exists primarily to prevent the disruption of governmental functions by providing protection to government officials so they can perform their government jobs and exercise discretion in doing so without fear of being subject to litigation. In this case, the Court found that “Official Immunity” should apply to GWU because by investigating Dr. Kumar’s misconduct in the course of federally funded research GWU was performing a “governmental function” and should, therefore, be entitled to the same protections as actual governmental entities/officials.

RW: You said that it was somewhat of a surprise that the court agreed that GWU should have some degree of official immunity — why?

CS: As the name suggests, “Official Immunity” typically applies only to prevent lawsuits brought against governmental entities and individuals, and not against a private institution like GWU. As the Court itself noted, this case raised the “novel” question of whether a private research institution performed a “governmental function” by investigating research misconduct under a federal statute (the Public Health Services Act), and whether that should entitle it to “Official Immunity” notwithstanding its non-governmental status. In essence, GWU sought an exception to the fundamental principle of “Official Immunity” that it does not apply to private entities/individuals, and the Court granted such an exception for the first time in the context of a research misconduct investigation.

RW: Why was one part of the case against GWU covered by official immunity, but not the other?

CS: “Official Immunity,” even when applicable, does not operate to prohibit all types of legal claims. First, the U.S. Supreme Court has made clear that “Official Immunity” does not apply to contract claims. Thus, Dr. Kumar’s breach of contract claims against GWU (alleging that GWU breached its internal policies, which he claimed constituted a contract) were not subject to dismissal on “Official Immunity” grounds. Second, “Official Immunity” also only applies to conduct that is within the scope of the “official” duty in question. In Dr. Kumar’s case, the Court found that some of the disciplinary action GWU imposed on Dr. Kumar exceeded the scope of the research misconduct investigation, and it, therefore, declined to dismiss the claim based on that conduct.

RW: Does that ruling set a precedent in your mind? Do you expect other private institutions may try to fight off lawsuits brought against them by claiming official immunity?

CS: Because the decision came from a federal District Court as opposed to a Circuit Court of Appeals or the U.S. Supreme Court, its precedential value is limited, especially outside of the Washington D.C. District. Nonetheless, I would absolutely expect other private institutions facing similar lawsuits to argue for the application of “Official Immunity” as GWU did, and to cite this case as “persuasive” (as opposed to “binding”) authority. Given the legal precedent that does exist concerning “Official Immunity” in general, it would not surprise me if other courts made similar rulings in similar factual circumstances.

RW: Does the ruling of official immunity have any bearing on the relationship between the Office of Research Integrity and institutions when conducting research misconduct investigations?

CS: On its face, the ruling does not appear to have any direct impact on the relationship between institutions and ORI. However, because future claims of “Official Immunity” by private institutions will likely be based on their performance of an “official” function entirely within ORI’s purview (namely, investigating research misconduct involving federal grant money), private institutions would be wise to take extra steps to ensure strict compliance with the federal regulations and with ORI policies as a means of preserving the argument that they are truly performing an “official” function.

Callan Stein is a litigation associate at Donoghue Barrett & Singal, P.C. in Boston, Massachusetts. He has represented researchers all over the United States in research misconduct proceedings at the institutional and ORI levels. In addition to research misconduct cases, Stein’s practice primarily focuses on white-collar criminal defense, and civil and whistleblower litigation. He wrote for us last year about eight surprising aspects of misconduct proceedings.

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Written by Alison McCook

August 3rd, 2016 at 2:00 pm

Comments
  • Jimy August 3, 2016 at 4:14 pm

    Interesting to see the defense attorney frame this as an “exception,” when more accurately it was an affirmation that GWU was performing a governmental function. There is nothing in the language of the Federal Tort Claims Act that specifically states that qualified immunity can never be extended to private entities, hence the reason the courts are deciding the matter presently. The intent of such immunity protections is to protect the taxpayer from costs associated with defending suits against the government; but given the role of the institution in the misconduct process, it would seem improper for the Federal government to impose rules unevenly. I would presume the Research Integrity Officers at NIH Intramural facilities are protected by this doctrine as Federal employees doing their government work — why not the Integrity Offices at all institutions?

  • John Krueger August 3, 2016 at 4:58 pm

    Does an institution have show there is Federal jurisdiction in order for them to assert Official Immunity?

    The specific context of my question is that [ORI’s] request for institutional fact-finding requires two elements: 1) [PHS] definitional “authority” (i.e., fabrication, falsification, or plagiarism), and 2) and [PHS] funding “jurisdiction” (i.e., proposing, performing, or reviewing research, or in reporting research results). [NSF,DOE,DOD, etc?] The first element is easier to determine than the second. For example, “reviewing of research” was imported from the OSTP definition, but with little understanding as to what that meant operationally.)

    Would clarity in an institution’s policies and procedures might ‘cover’ them in this ambiguity?

  • fernandopessoa August 4, 2016 at 2:45 am

    The corproate state. What do you expect?

  • fernandopessoa August 4, 2016 at 2:45 am

    corporate

  • PJTV August 4, 2016 at 5:58 am

    An other interesting aspect is, whether a misconduct investigation by a private institution is confidential. According to the number 6 of the “eight surprising aspects of misconduct proceedings” also by Callen Stein: ” there is nothing constraining the [private] institution from disclosing confidential information related to its own internal corrective action.” So a private institution must be and can be transparent about misconduct in R+D execution.

    • Jimy August 4, 2016 at 9:16 am

      Can you please explain why you believe that “nothing constraining” disclosure equates to a requirement that an institution _must_ disclose?

  • PJTV August 5, 2016 at 2:12 am

    In the first part of the sentence, “must” was used in terms of ‘ought to’ or as it should be in a university R+D environment. In the second part, the “can be” refers to the fact that such institution is not constrained.

    • Jimy August 5, 2016 at 3:17 pm

      Thanks. It wasn’t clear that “must” was only your opinion. It’s certainly not in the law.

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