Articles on Law, Science, and Engineering

Scientific Misconduct: Part 2 - What are your Constitutional rights? (cont'd)

The Problem of Standing

One of the more perplexing legal theories is that of standing to sue. Simply put, standing is the right to bring a lawsuit. A potential plaintiff must convince the court that it has suffered, or may suffer a real injury that the court has the authority to review. Before the court could consider the Board's claims, it had to rule on the NIH's position that the Board was not threatened and thus did not have legal right to contest the investigation:

"Defendants dispute the Board's claim that it faces an actual or even a threatened injury. They argue that (1) only plaintiff Abbs is the subject of the current investigation, and the Board is not; (2) a finding that Abbs engaged in misconduct would not cause the Board to lose the funding for the grant on which he is the principal investigator because the Board could substitute another principal investigator with the approval of NIH; and (3) no interim actions have been taken in this case although the misconduct allegations are three years old."

"Defendants argue also that the Board's claim is not ripe for review: no action has been taken by defendants; the matter is still in the investigatory stage with no final decision having been reached; Abbs may be found innocent of any wrongdoing, in which case no sanctions will be imposed; and in the event the sanction of termination of an ongoing grant is recommended, the Board will have an opportunity for a formal evidentiary hearing.

"None of defendants' arguments is persuasive. The Board is the entity with legal and financial responsibility for the NIH funds and for the performance of the federally-funded research and training activities. It is also Abbs's employer and thus responsible for paying his salary. If Abbs has difficulty obtaining research funding, the Board will not be reimbursed for that salary, as it is now. The Board has a definite financial stake in the accuracy and fairness of the procedures used by NIH to determine misconduct by the University of Wisconsin-Madison researchers for whom the Board is to be held responsible."

". . . I conclude that the possibility that one of the Board's principal investigators will be declared to have engaged in scientific misconduct through inaccurate and unfair procedures and the consequent financial effect upon the Board are sufficient to show that the Board faces a threat of actual, redressable injury that satisfies the standing requirement. There is no evidence that Congress did not intend that grantee institutions such as the Board did not constitute a class of plaintiffs that could challenge agency disregard of the law."

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