Articles on Law, Science, and Engineering

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

Equal Protection and Liberty Interests

Professor Abbs asserted that he was denied the equal protection of the laws because he, as an NIH researcher, was subject to different rules than researchers working under grants from other federal agencies. The court preemptorly rejected this claim. It ruled that Professor Abbs failed to show that he was treated differently than other, similarly situated researchers, i.e., other researchers working under NIH grants.

Professor Abbs and the Board next asserted that the investigatory process and the posting of Professor Abbs' name in the ALERT system violated their liberty interests. A liberty interest is a general term used for government imposed changes in a person's legal status that interferes with the person's constitutionally protected freedoms:

"Plaintiffs devote the major portion of their arguments to what they characterize as plaintiff Abbs's liberty interest in continued funding, in continued good standing as a researcher of national renown, and in maintaining his personal and scientific reputation. Their arguments leave no doubt that the proceedings are having a significant impact upon Abbs, but they do not establish that the proceedings are depriving him of a liberty interest as that term has been defined and narrowed by the United States Supreme Court."

"Plaintiffs assert that plaintiff Abbs faces labeling that will stigmatize him professionally and will result in his being effectively precluded from participation in professional activities critical for career advancement, such as membership on professional committees, performing peer reviews and reviews of manuscripts, nomination for and receipt of awards. They assert as well that funding for research projects will not be available for a scientist found to have engaged in misconduct, and that without such funding, a scientist would be unable to function effectively."

". . . The stumbling block for plaintiff Abbs is his failure to show that he will be excluded from his profession by defendants' actions. He does not allege that his university employment is at risk; he does not face the likelihood of termination from his job. If he were declared ineligible for future federal funding, he might be prevented from carrying out the essential functions of his job as it is presently constituted. If that were to be recommended, however, he would be entitled to a full hearing. Under the applicable NIH procedures, defendants can not bar plaintiff Abbs from future funding without providing him with a hearing that comports with due process."

"Plaintiffs have not shown that Abbs is suffering or will suffer an alteration in any status secured by state or federal law. His ability to serve on committees, to review journal articles, to participate in peer review, to conduct his research without supervision or special reporting obligations is not a right that is protected by law. Thus, any interference with that ability does not amount to an alteration of a legal status. . . . [For example,] potential loss of hospital staff membership constituted curtailment, but not loss, of occupational liberty where psychologists retained their licenses to practice as well as hospital privileges . . . defamatory remarks made about tax lawyer by IRS to lawyer's clients did not implicate liberty interest because they did not foreclose lawyer from practicing law, although they may have made him less attractive to clients."

"I conclude that plaintiff Abbs does not have a constitutionally protected liberty interest at stake in the investigation of his alleged misconduct."

"The Board argues that an institution's liberty interests are implicated by governmental action that deprives the institution of the freedom to engage in an important activity such as conducting research and competing for funding on the merits of its research applications and renewal requests with other applicants. The Board contends that defendants took actions affecting the Board's liberty interests when they put the Board at risk for placement in the "PHS ALERT" system without giving the Board an opportunity to contest the allegations that give rise to such placement."

"I conclude, nonetheless, that the Board has failed to establish that its important interest in continuing to engage in federally funded scientific research is at risk in the investigation of Abbs. . . . [T]he Board is entitled to full due process protections if the results of the Abbs investigation lead to a recommendation of suspension of current funding or preclusion of the Board from future funding."

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