A top federal U.S. court has confirmed a decision by the National Science Foundation (NSF) to deny federal whistleblower protection to an ecologist who was fired after accusing a colleague of fraud.
After initially forcing NSF to more clearly explain its decision, the Denver-based U.S. Court of Appeals for the 10th Circuit has agreed with the conclusions of NSF’s updated investigation, denying former Kansas State University researcher Joseph Craine’s appeal.
Attorney Paul Thaler, who has handled cases involving scientific misconduct (but was not involved with this one), told Retraction Watch that the latest decision appears to be the end of a cautionary tale of how not to report misconduct.
You have to be careful when making allegations, especially if you want certain protections.
Craine first sought protection from NSF in 2014 after being fired for accusing KSU colleagues Jesse Nippert and Zak Ratajczak of fraud in an email to editors at Ecology. Word of the email got back to Nippert, worsening an existing rift between Craine and other ecologists in the department over grassland management practices.
KSU claimed the accusation was malicious and frivolous — in violation of university policy — and sought to dismiss Craine. Since the paper Craine alleged contained fraud involved an NSF Long-Term Ecological Research site, he lodged a complaint with the NSF Office of Inspector General (OIG). However, NSF said this fact did not offer him whistleblower protection.
Craine asked for review of the NSF’s decision and scored a temporary victory in 2016 as the US appeals court (presided over by now-Supreme Court Justice Neil Gorsuch) found the agency’s reasoning opaque and ordered it to reopen the case and better explain its reasoning. In June 2016, NSF again ruled that Craine was not covered; he appealed that decision, too.
In their decision, issued April 26, the three-judge panel agreed with NSF. (You can read the whole decision here.)
Thaler explained that the court had not done its own investigation and was simply determining that NSF had not made the decision arbitrarily or capriciously:
[Craine] approached things incorrectly. There are certain processes that have been implemented to do it properly. If you don’t do that, you run the risk — and this is an example of that — that you don’t get protection and it’s not handled in the way you want it to be handled…If you want to allege misconduct, I wouldn’t advise going to a journal.
The judges noted that the law was clear about who a whistleblower should contact, enumerating seven types of people or bodies, none of which were editors. While Craine did eventually involve NSF OIG — a qualifying body per the law — it was simply too late, the decision said:
Although Dr. Craine did eventually involve OIG, a body listed under the statute, he claimed he was facing reprisal— not for contacting them — but for contacting the editor at Ecology. This failed to qualify him for relief.
Craine, however, told us that he believed the NSF has a responsibility to him and other would-be whistleblowers:
I was held accountable for not knowing about a federal statute that was NSF’s responsibility for making sure I knew about.
Richard Goldstein, a lawyer who has represented researchers in misconduct cases (but was also not involved here), told us this case was an unfortunate example of how early missteps can have consequences in a whistleblower or misconduct case.
Craine saw errors in the manuscript and did something that would normally be a very reasonable step when a manuscript was under review; he contacted the journal’s editor. However, in this case, he accused the authors of misconduct, which was a violation of university rules. The punishment for doing that was very severe. He lost his job. In addition, contacting the journal did not give him protection as a whistleblower under the law. Unfortunately, he chose the one path that left him completely vulnerable. This case shows some of the perils and the risks potential whistleblowers face when confronted by apparent misconduct.
The decision also supported NSF’s determination that reporting a “research error,” as NSF called it, wasn’t by itself enough to get federal whistleblower status.
Craine “probably has no further recourse” in the federal court system, according to Goldstein.
Nippert is still at KSU and Ratajczak is now a postdoc at the University of Wisconsin-Madison.
Since 2015, the NSF OIG has closed two other cases where researchers sought protection from reprisal under the same law. Both times, NSF concluded that the terminated researcher had not suffered retaliation, and denied their request for whistleblower protection.
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This is massive, including a ruling by a sitting SC judge no less.
If you are reporting misconduct apparently you must first go to either the institutional compliance [ethics] officer or, if it’s HHS funded to ORI.
If I understand correctly and if you go to the journal directly, you can’t claim whistleblower status.
Good to know, but I’m very concerned that most institutions when confronted with an ethics charge against one of their researchers go into full stonewalling mode to protect their assets.
Indeed, it is reasonable to expect institution’s to stonewall, as you have indicated. However that behavior may not be out of any desire to protect the accused. More often I suspect it is a knee-jerk reaction to protect the reputation of the institution, rather than the accused- especially when federal grants are involved.
It is clear an individual needs to protect themselves PRIOR to Whistleblowing. It is a new and sometimes scary experience, and the person involved will be up against very powerful organisations.
If one wishes to invoke the WB procedures and protect oneself from further legal action there are some simple steps to remember:
1. An individual needs to WRITE AN EMAIL to their Head of department or HR stating they are invoking the whistleblowing procedures. Whatever happens AFTER this point, providing the WB has a reasonable belief that the employer was in breach of a legal obligation, can be down to being a WB, irrespective of what the employer may state in their internal (often biased) procedures concerning WB. Ensure you CC the email to yourself using a non-employee email – if you are then dismissed you will no longer have this evidence as your employer will block your email access.
2. The individual can then, in good faith, inform EXTERNAL bodies to the University etc (such as funders, other collaborators etc) – this is the act of WB. This is VERY important. As reporting internally may not be WB as such.
3. At this point the individual has informed their employer they are WB and have actually done the WB act. At this point, I believe, they are protected using WB laws.
This, of course, requires the individual to be fully aware of the procedures and legal rights at some stage, but not at this initial stage.
That email will make all the difference to lawyers and court proceedings if they are THEN dismissed.
It is largely, in my experience, about what can be proven to have been communicated to invoke the WB procedure in the first instance as to whether the individual is protected.
I will give one example: An employee of under 6 months found financial irregularities at her workplace (a medical practice). She investigated and then decided she would write an email to her line manager invoking the WB process and informed external powers at large of her findings. She was then sacked. She was protected by WB laws and lawyers took her case on a no win no fee basis due to the email she sent due to the likelihood of success.
The judges spelled it out better, listing other bodies to report misconduct to.
“41 U.S.C. § 4712(a)(1). The persons or bodies to whom a protected disclosure must
be made are:
(A) A Member of Congress or a representative of a committee of Congress.
(B) An Inspector General.
(C) The Government Accountability Office.
(D) A Federal employee responsible for contract or grant oversight or management at the relevant agency.
(E) An authorized official of the Department of Justice or other law enforcement agency.
(F) A court or grand jury.
(G) A management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct.”
Or, lose any whistleblower status.
As found out by the protagonist of this RW article – report directly to the journal and you have no whistleblower status.
It would be helpful for Retraction Watch to lay out the steps that should be taken to file a legitimate report of research misconduct within the scope of whistleblower protection. Apparently, direct contact with a journal editor to point out problems can disqualify one from whistleblower protection, should one’s employer learn of the contact. This raises the question of what duty, if any, a journal owes to somebody who reports possible research misconduct? Without this information, the NSF case seems likely to have a chilling effect on future reporting in this regard.
Thanks, Jack, we did that in 2015: http://retractionwatch.com/2015/11/30/a-retraction-watch-retraction-our-2013-advice-on-reporting-misconduct-turns-out-to-have-been-wrong/
You also recommended in your LabTimes 2015 opinion-piece to post at PubPeer. But PubPeer is not on the list of seven “bodies to report misconduct to” (the list summarized by rfg in posting from 12:42pm today).
Does this mean that anyone first posting at PubPeer, before doing any of the other seven protected disclosures, looses rights for whistleblower protection?
Please advise. I know of several who first posted at PubPeer to receive expert evaluation from the community (and actually needed that expert evaluation to fully understand problems), and only then did one of the other seven protected disclosures.
That’s a question for an attorney. However, note that PubPeer allows anonymous comments, and that a court upheld their right not to disclose those commenters’ identities: http://retractionwatch.com/2016/12/07/pubpeer-wins-appeal-court-ruling-unmask-commenters/
Some part of the problem seems to be the accusation of “misconduct “; that apears to be the basis (or vaild e cuse) for the firing. If he had only reported “irregularities ” then there would not be a legally valid reason to fire him. Is this correct?
As the linked 10th Circuit Court document reports, and Retraction Watch alludes to above, is Craine’s unfortunate wording in a letter to an editor concerning a pre-publication paper:
“It pains me to say this, but I think the paper is fraudulent.”
One of the lessons learned (Paul Brookes went through this as well for hosting a website with the word fraud in it) is to tone down the level of accusation in initial forays where problematic research is apparently involved.
Point out the problems in the paper, and leave it at that. Scientific problems are problems whether there was intent behind the issue or simply errors made. Time will generally reveal when intent was part of the problem, as plenty of entries on Retraction Watch portray. Correcting problems in the scientific literature is the first important goal, whether or not intent was involved.
As Ivan Oransky points out above, he and Adam Marcus have written several opinion pieces discussing how to report problems. To their good advice I would add that when you document problems at PubPeer or wherever, enter the URL of that documentation into the Internet Archive Wayback Machine. Important entries from Science Fraud, and also recently important, Jeffrey Beall’s Lists of Suspected Predatory Publishers, are thankfully still available there.
What seems to be lost in all the hoopla, is the origin of this particular event… Word of the email got back to Nippert.
How and why? COPE guidelines are pretty clear on maintenance of confidentiality during investigations of alleged misconduct. Or was it KSU that leaked the email?
Then there’s this… KSU claimed the accusation was malicious and frivolous – in violation of university policy.
What policy? Where’s it written down? Who sets the bar for the definition of malicious and frivolous?
Overall this case seems to be a bunch of lawyers in a pissing contest, rather than establishing clear facts about how the email got into the authors’ hands, and how KSU reached a conclusion of malicious/frivolous (both?) Of course whatever keeps the legal fees coming in, with finding the truth very low on that list, so it goes.
As scientists I think we have to wise up to the WB laws and sharpish. If an individual wants legal protection for protected disclosures they MUST activate the WB laws, via written statement addressed to the employer PRIOR to WB.
Regardless of any internal WB procedure of a given employer the individual MUST then actually WB – preferably the same day as informing the employer. This MUST be in good faith and factual.
As we know timing is everything.
I would recommend this method to WB: Prepare several emails.
1. Book a days leave. On that day you may write an email to your employer stating you are going to WB giving minimal details – certainly do not state to whom you are WB to. Send this email at 4.59pm.
2. Send the actual WB emails, with specific details, of your protected disclosures to the authorities – funding bodies, local politicians – those who may investigate this further or know whom to seek to investigate these further. Send these emails at 5.01pm. These emails are not meant to be vexatious or untrue, but full of the facts you have found and how you believe your employer is in breach of a legal obligation.
3. Send an short email that evening to a local lawyer who will advise you further informing them of your actions/findings.
At this point your employer will threaten you etc or maybe make you run around like a headless chicken asking you to fill various forms, have several meetings, perhaps laiden with their “concerns” regarding your performance and use that against you to sack you or similar.
If you have done the above and the lawyer sees you have a good chance of winning, it is likely they will take you on a no win no fee basis.
But, a word of caution, if you do this, it will probably be the end of your career, so perhaps look for other employment opportunities. I would look upon this as a challenge and a fresh start rather than a burden.
The policy is from Kansas State’s University Handbook, Appendix O: “Policy on Integrity in Research and Scholarly Activity” (https://www.k-state.edu/provost/universityhb/fhxo.html).
The language apparently used to justify Craine’s termination comes from the preamble to the definition of misconduct, here’s the wording:
“It should be emphasized that reporting misconduct in scholarly work is a responsibility shared by everyone at the university.
However, frivolous, mischievous, or malicious misrepresentation in alleging misconduct cannot be tolerated. Misconduct in scholarly work may take many forms, but it does not include honest error or honest differences in interpretations or judgments of data.”
It is of course convenient that the institution writing these rules is also the institution interpreting the rules. We cannot ignore that fact that when a university investigates a complaint lodged against one of its staff, it is investigating itself. These internal investigations are therefore fraught with bias, especially when the alleged offender happens also to have tenure.
To be clear, University policy is not the Law.
To WB in good faith may well involve accusing others of misconduct or irregularities, based on facts, despite what any given employer writes and calls “policy”. If an employer uses their “policy” to sack a WB they may be acting unlawfully.
As employers or employees we must obey the law.