Researcher found by ORI to have committed misconduct earns back right to apply for Federal grants

Philippe Bois

A former researcher at St. Jude Children’s Research Hospital in  Memphis has won back the right to apply for Federal research funding despite a 2011 finding against him by the Office of Research Integrity (ORI).

Philippe Bois, a cancer researcher now working at the Scripps Research Institute in Florida, argued that the alleged misconduct in the ORI findings — which led to a three-year ban on applying for funding — was actually honest error. As Bois’s attorneys explained last year:

When research scientists are accused of scientific misconduct by the Office of Research Integrity (ORI), they have a legal right to appeal and seek an adjudicatory hearing before an Administrative Law Judge (ALJ) of the Department of Health and Human Services (HHS) to clear their name. Since 2005, ALJs have, without exception, denied every such hearing request by a scientist. That may now change as a result of a recent decision by a federal judge in Washington, D.C. in a lawsuit involving a research scientist represented by Donoghue Barrett & Singal’s Litigation Department.

On March 2, 2012, United States District Court Judge Amy Berman Jackson issued a written opinion and order vacating a Debarment Order imposed by HHS on Dr. Philippe Bois, Ph.D., and remanding the case back to HHS for a hearing on the merits (the full text of the opinion can be found here. ORI sought to debar Dr. Bois because it claimed he had committed research misconduct. Under HHS regulations, Dr. Bois challenged the debarment and requested a formal adjudicatory hearing. However, the ALJ denied his request for a hearing and HHS thereafter issued a formal Debarment Order which prohibited Dr. Bois from receiving any further federal funding for any of his research. Dr. Bois sued HHS in US District Court, asking a federal judge to overturn its Debarment Order, and to require HHS to hold a hearing at which Dr. Bois could defend himself against the allegations and try to clear his name.

In a settlement of that suit, announced yesterday in the Federal Register,

…Bois denied that he committed research misconduct but he agreed not to further appeal ORI’s findings of research misconduct…

Bois agreed to three years of supervision for any Federally funded research, and to not serve on any NIH committees for the same length of time..

In a statement released to The Scientist — which was first to report the settlement — Bois said:

I have been fighting to clear my name for almost 7 years, and I am glad to be able to put this matter behind and to move on with my career in science. ORI’s decision to cease seeking a debarment is a clear signal to me that its findings would not have been sustained by a judge and that its proposed punishment, a three-year debarment, was excessive and unreasonable.

One paper, in the Journal of Cell Biology, was retracted in 2007, and another, in Molecular and Cellular Biology, was corrected that year. The MCB paper has been cited 43 times, according to Thomson Scientific’s Web of Knowledge.

14 thoughts on “Researcher found by ORI to have committed misconduct earns back right to apply for Federal grants”

  1. It’s pretty sad when the people who are supposed to be in charge of ensuring ethical behavior in research cannot themselves behave ethically. The is no place for kangaroo courts in science, and especially not in scientific ethics. The ORI should really get their $hit together if they are to be respected and integrity in science is to be valued. I hate to say it, but I applaud this guy for taking his case to a real fair, and I applaud the federal judge for actually taking the case and rendering a fair and just verdict. Hopefully, this will be a wakeup call to the HHS/ORI.

    1. There is no finding that the the ORI acted unethically – aside from the claim of the attorney for Dr Bois. A federal court judge found that an administrative judge erred when they declined to grant Dr Bois an administrative tribunal hearing.

      Dr Bois has subsequently decided to waive his right to a hearing in return for having the remaining 14 months ban on applying for federal funding lifted and agreeing to additional (ie starting from March 2013) 3 years period of supervision and the details of that supervision to be decided in conjunction with the ORI, and an additional 3 years of debarment from serving on committees and an additional 3 years of requiring any institution that employs him will have to certify the validity of his results.

      Its not precisely an exoneration – if he felt so strongly about his innocence he could have taken the hearing with the only possible penalty of having to sit out the rest of the 14 months.

      1. From HHS policy: “(a) The ALJ must grant a respondent’s hearing request if the ALJ determines there is a genuine dispute over facts material to the findings of research misconduct or proposed administrative actions, including any debarment or suspension action.”

        Judge Berman ruled in favor for Dr. Bois because she found that HHS acted “arbitrarily and capriciously” when there was clearly a genuine dispute of facts. I argue that for a judge to rule “arbitrarily” is to act unethically and one should always err on the side offering a trial before a conviction.

        For specific information, you can read Judge Berman’s scathing opinion below for yourself:

        I do not mean to imply that I believe that Dr. Bois was innocent. I have no idea. But he, like every other accused in America has rights to a fair and impartial hearing. He should not have had to hire an attorney and sue HHS to regain those rights.

        There is a chance that he was in fact unfairly convicted in the first place, and took this opportunity for a plea bargain to something that he could live with, recognizing that in the very least he made an honest mistake, and that the risks of being found falsely guilty would greatly outweigh rewards of exoneration at this point. It’s not like no one has ever taken a plea bargain in America because the risk of a bad outcome at trail was too great.

  2. I don’t understand. Why has no hearing ever been held by an administrative law judge? Isn’t having a hearing part of the process? If a scientist demands a hearing, why don’t they just give him one? Is the only result of this process supposed to be a settlement which depends really on the money behind the defendant’s lawyers rather than any issue of fact or law?

    1. To get a ALJ to grant a hearing, the party found by an institution and ORI to have falsified or fabricated research in violation of the standards of the scientific community, must document issues of material fact that would justify a hearing – none of the appellants has met this ALJ requirement under the federal-HHS regulations at 42 CFR Part 93 since there establishment in 2005. Thus, no hearings have been held by ALJs since then

    1. Yes, very good.
      There is a tell-tale spot upper left of the 10 min + cGMP in the upper panel that convinces me. My initial reaction was they look similar but how can one be sure?

    2. [corrosive cynicism]In general scientific fraud is far less damaging to a scientific career than whistleblowing[/corrosive cynicism]

    3. As a self-proclaimed amateur-non-expert on spotting gel manipulations I concur. It could however, just be a simple error.

      An honest mistake?

    4. And compare 2C and 9D upper left in the same paper as pointed out by fernando pessoa.

      EMBO J. 2003 Mar 3;22(5):1147-57.
      FKHR (FOXO1a) is required for myotube fusion of primary mouse myoblasts.
      Bois PR, Grosveld GC.
      PMID: 12606579

      Compare 4D FKHR lanes with 7B IRES-GFP a-FKHR lanes. There is some another recycling going, albeit similar conditions, such as 2A and 5A.

  3. OK, I get the part about not being able to document issues of material fact. But, question two still stands: this guy got a settlement because he had an expensive lawyer, right? Not because of an “honest error”, i.e. the similar appearances of the blots in figures 5A and 5D was not discussed in the legal papers.
    I think that just demonstrates that “justice” can be bought.

  4. Addendum: I just read the opinion (the one remanding the case in March 2012.) It is interesting to read. Dr Bois doesn’t come out too well in it (as far as the plausibility and relevance of his arguments in particular), yet somehow he still gets to assert his Fifth Amendment (fair trial, due process, right to silence, etc.) rights and wins a remand back for reconsideration by the Administrative Law Judge. I don’t understand the exact reasoning for the remand; the assertions Dr Bois makes are not helpful.

    It sounds like his lawyer proclaims a partial victory and tells him to take a plea bargain because he’s run out of money to litigate with.
    The plea bargain is three years of supervision. We can only hope that he fails to get any grants funded due to the sequester.

    1. The reason for the remand was that he presented a case that, although not particularly compelling, on the second count should have been given a day in court, so to speak, and the ALJ failed to discuss why she granted summary judgement (and, clearly shouldn’t have).

      Remember, for the HHS to be granted a summary judgement and avoid a hearing, they must have such a strong case that the evidence or explanation offered by the defense would NOT change the outcome of the hearing, even if it were to be believed. See the first count (where the ALJ concludes that even if his story was believed, the recklessness would warrant misconduct even if the affirmative defense of carelessness was believed and the appeals judge concurs). In the second count, he had a story, that, if true, could have changed things.

      As you read the end of the opinion, it becomes quite clear that the ALJ basically used the summary judgement to say that the his story wouldn’t meet the burden of proof for the affirmative defense, while the HHS had met the burden of proof already, thus using the motion as a de facto hearing: not ethical, and just plain lazy.

      I also think that his lawyer probably told him to take the deal because, on count one, he was a dead duck, and probably on count two as well. But you never know, and everyone deserves their day in court.

      As far as the sanctions, I wonder if they actually matter: do people sitting on study sections actually score folks with retractions well? Wouldn’t most people, after checking out a PI’s pubmed and seeing a pair of retractions that don’t fit the “model retraction” (investigator initiated, well explained, unforeseen technical glitch) simply run enough 7, 8 and 9’s across the score sheet to doom the grant?

      1. The original sanction barred him from receiving any federal funding, so, yeah, the sanctions matter. Second go `round he just gets supervised.

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