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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