In a case that has involved eight years of misconduct allegations, two U.S. Federal agencies, a state university, and multiple lawsuits, a former Wayne State researcher has earned a five-year ban on Federal funding.
U.S. Administrative Law Judge Keith W. Sickendick found that Christian Kreipke
recklessly caused or permitted twenty-three (23) instances of research misconduct in his three (3) grant applications, two (2) articles on which he was the first listed author, and two (2) posters on which he was the first listed author.
Those 23 instances were fewer than half of the 64 — involving image duplication, falsified data, and other issues — that the U.S. Office of Research Integrity (ORI) had said it found following a Wayne State investigation. Partly as a result, while the ORI initially proposed a ten-year ban on Federal funding, Sickendick only recommended a five-year ban. That ban went into effect on July 13, 2018, according to an ORI summary posted today.
The ruling comes a year after Kreipke and the ORI squared off in court. At the time, five of Kreipke’s papers had been retracted; a sixth was retracted last month. Kreipke has always insisted that the allegations Wayne State originally brought against him — detailed in a 2011 final investigation report we obtained through a public records request — were simply retaliation because he had raised questions about how some of Wayne State’s Federal grants were administered.
Kreipke pursued that line of reasoning in a 2012 False Claims Act lawsuit for $169 million against the university, the same year Wayne State fired him. That suit was dismissed in 2013 on procedural grounds. Meanwhile, the Department of Veterans Affairs, where Kreipke also had a position, fired him — a decision that was overturned by a judge last year. (A Wayne State attorney told Michigan Public Radio last year that the judge in that case had erred.)
In a word, it’s complicated.
What can we learn from the case?
Kreipke’s attorney did not immediately respond to a request for comment. [See update at end of post.] ORI, according to a spokesperson for its parent agency, the U.S. Department of Health and Human Services,
is thankful for the ALJ’s thoughtful decision and believes the research community is likely to find it useful and educational.
Indeed, the 126-page decision is exhaustive, and we look forward to input from attorneys familiar with such cases, and other readers who have thoughts on how the case played out. When we covered last year’s hearing, attorney Richard Goldstein, who has defended researchers accused of misconduct, said even obtaining a hearing was a significant hurdle, and that
The way they’re handling this case could be important for the way other cases are handled in the future.
Stay tuned.
Update, 0215 UTC, 8/1/18: Through his lawyer, Shereef Akeel, Kreipke issued the following statement:
I was disappointed by the ruling as to “recklessness.” But as can be seen in his ruling, The judge found that Wayne State and ORI failed to show any direct evidence of falsification or that I had any knowledge that anything was wrong and that I did not insert nor create any wrong images.
Nevertheless, in his desire to “satisfy” the government (his words) he ruled the way he did. I will continue to fight this within the boundaries of the law until I receive full exoneration. In the meantime the public can clearly see from the Judge’s ruling the incompetence of both Wayne State and ORI (stating that their own investigator had zero credibility) and can know that the government is not interested in the truth.
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Disgraceful, mere slap on the hands, should be banned for life! Go to work program to pay back the money!
I believe that an OJ Simpson attorney was asked if justice was served in the case. He responded that there are two kinds of justice: legal and moral.
After reading this decision, one might conclude that legal justice was served; moral justice, however, remains out of reach. When Kreipke or his lawyer say “In the meantime the public can clearly see from the Judge’s ruling the incompetence of both Wayne State and ORI (stating that their own investigator had zero credibility)…” this refers to what appears to be an error in case strategy/presentation by ORI’s attorney and does not IN ANY WAY remove or even diminish culpability for the obvious and extensive misconduct.
I agree. ORI has some huge issues to address here — it would appear that many of the problems with the case pointed out by the ALJ are inherent to the standard process ORI applies to all cases they handle. It’s clear the judge heavily discounted Alex Runko’s testimony based on ORI’s failure to establish his expert qualifications, wanted ORI to have been more involved with the Wright State sequestration, among other issues that may require ORI to fundamentally change their approach now that this precedent is set.
It is nice however to have some new, legally supported analysis of the nuance of the CFR regulation, especially “reckless” and “relevant research community.” Hopefully ORI will also apply this guidance going forward — I know there are many Research Integrity Officers who debate “reckless” endlessly and are loathe to make a finding based on a reckless intent due to the lack of conclusive guidance as to it’s actual meaning within the ORI regs.
To make a comment about the judge’s integrity, as Dr. Kreipke did, seems pretty risky to me. Can anyone out there with knowledge of legal proceedings comment on this issue?
Thanks.
This was not a “regular” judge. There is a moderately widespread opinion among lawyers that some administrative law judges identify too strongly with the agencies they deal with routinely. The U.S. courts of appeal (where I assume the case is headed) seem to understand that this happens in some cases. In fairness to the ALJs, its usually just a matter of being more familiar with the agency and its work than with the citizen and his work. Its difficult to avoid the effects of familiarity, particularly since most agencies are reasonably well-run. Not all ALJs are able to put that familiarity aside, all the time.
Though I’m not certain of the meaning you intended, it appears that you’re suggesting that ALJs typically side with their agencies. In this case, it’s pretty plain that the ALJ did the opposite, and cut the respondent every possible break; otherwise, from all that’s been written about Dr. Kreipke, it’s reasonable to conclude that he could have had the book thrown at him. A really BIG book.
Another question for those in the know: what was imposed on Dr. Kreipke–is that a 5-year government-wide debarment?
From the ORI notice, linked above:
“Dr. Kreipke is debarred from any contracting or subcontracting with any agency of the United States Government and from eligibility or involvement in nonprocurement programs of the United States Government referred to as “covered transactions” pursuant to HHS’ Implementation (2 C.F.R. Part 376) of Office of Management and Budget (OMB) Guidelines to Agencies on Governmentwide Debarment and Suspension (2 C.F.R. Part 180);”
Thanks.
If you search for Kreipke in HHS internal databases you see a big warning flag…
ALERT: This person has the following ORI* administrative actions:
Dates action in effect: 07/13/2018 to 07/12/2023
Action: No PHS Advisory
Dates action in effect: 07/13/2018 to 07/12/2023
Action: Debarment
Yes.
The ALJ in this case “killed two birds with one stone” so to speak. He found that Kreipke had committed 23 instances of misconduct (out of 64 charged) and debarred him for 5 years- first bird killed. Then, because Kreipke placed so much emphasis on the finding by the AJ in his case vs the VA that he was a whistleblower (and illustrating that Respondent has been vindicated of any wrongdoing the the VA issues), the ALJ actually analyzed the evidence of whistleblowing by Kreipke. This analysis by the ALJ kills the second bird, certainly an unintended and shocking outcome for Kreipke. The ALJ points out that Kreipke’s membership on a Streamlining Committee that investigated grant misuse by the University (according to Kreipke) was the reason the University retaliated against him. Unfortunately for Kreipke, the ALJ studied the time-line and actually read the Committee report, revealing several interesting facts:
1. Kreipke was reported for misconduct 21 days BEFORE the Committee was empaneled;
2. Despite claims that he reported grant fraud in the Committee report, the ALJ found in the passage claimed to have been drafted by Kreipke “no specific allegation by Kreipke of grant fraud or any misconduct related grant administration” and that “Respondent’s allegations of improprieties with grant funds reported in the June 27, 2011 task force report is simply not credible”;
3. Kreipke filed a False Claims Act case against the University, alleging grant fraud, 11 months AFTER he was accused of misconduct, prompting the ALJ to conclude “Respondent’s allegation that the charges of research misconduct leveled by WSU were in retaliation for the filing of the qui tam suit is not credible”;
4. Several email communications produced by Kreipke complaining about disallowable costs” or his refusal to sign off on an effort report “did not indicate that Respondent made an allegation of fraud to or against WSU that may have been the basis of retaliation”; and
5. Finally, the ALJ writes in what he calls a “real head scratcher” (footnote 17 on page 27) “it is difficult to rationalize why WSU appointed Respondent to the task force if at the same time it was retaliating against him for his complaints about effort reporting and disallowable costs or some other actual or perceived allegations of fraud by WSU or its researchers”. By respectfully debunking most of the findings of the AJ in Kreipke’s case vs the VA, the ALJ certainly foreshadows the certain outcome of the appeal of the VA case and puts the headstone on Kreipke’s whistleblowing grave.
James Green: thank you for that thorough analysis and concise summary. You have exposed the absurdity of many of the arguments put forward in the case(s).
A reading of your comments and the judge’s ruling raises some questions for me.
1. The judge thoroughly debunked the whistleblower claims of the accused. Since Dr. Kripke made these claims under oath (especially regarding that committee report), is that now subject to charges of perjury?
2. Can this case’s info and ruling be used by the VA to destroy a similar retaliation claim if they ever return to court with Kreipke?
3. A head scratcher for me-how could anyone analyze documents and testimony of a person like Dr. Kreipke, find more holes in it than Swiss cheese and repeatedly comment on his lack of credibility-and then decide that when data were used incorrectly, it was due to reckless mistakes rather than intent? I find this impossible to comprehend.
It seems that J. Green pointed out the obvious regarding the debunking of Kreipke’s so called whistle blower status by Judge Sickendick. Not one to let bygones be bygones, Kreipke will certainly go after his most recent court setback and claim that he was wronged by a bungled investigation by ORI. However, it seems that it was not the ORI investigation per se that was bungled but the failure of the ORI lawyer to first establish the credentials of Alex Runko as an expert witness. Once done, I am guessing that the forensics will show that Kreipke was far more than reckless in his misconduct. Kreipke seems to paint himself into a corner more tightly with each of his protestations of wrong doing against him, but an appeal of the ORI case will bring out the worst possible element for Kreipke- the truth.
An article on this fellow appeared in a publication I read as a compliance person. Apparently, Dr. Kreipke has appealed his debarment to the debarring official. The story appeared in “The Report on Research Compliance”. According to the story, “Christian Kreipke contends his governmentwide sanction is excessive and that he was not afforded the right to contest the debarment, according to the appeal letter his attorney provided to RRC.”