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.
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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