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Appellate Court Jurisdiction

Abbs's Appeal[index]

One year ago, an article in this series discussed the constitutional rights of research professionals charged with misconduct by the National Institutes of Health ("NIH") [IEEE ENGINEERING IN MEDICINE AND BIOLOGY MAGAZINE, 11(1):73-75, March 1992]. The article was based on the opinion authored by the trial court judge in Abbs v. Sullivan, 756 F.Supp. 1172 (W.D.Wis. 1990), Barbara Crabb. To briefly recap, the NIH Office of Scientific Integrity ("OSI") initiated a misconduct investigation of Dr. Abbs, a professor of neurology at the University of Wisconsin. Dr. Abbs and the University brought a lawsuit contesting the investigatory procedures of the OSI and its policy of prospectively identifying scientists as potential wrongdoers by placing them on a national alert list ("ALERT").

Judge Crabb held that the government's investigative procedures for scientific misconduct were invalid because the notice and comment requirements of the Administrative Procedure Act ("APA") were not followed when the government adopted its policies and procedures for dealing with possible misconduct in extramural research. Abbs v. Sullivan, at 1189. This halted the investigation of Dr. Abbs and forced the NIH to re-promulgate it's rules on the investigation of scientific misconduct.

Dissatisfied with victory, Dr. Abbs wanted more. In an unusual step for the winner in a lawsuit, Dr. Abbs appealed a portion of Judge Crabb's opinion suggesting that the government's investigatory rules might not violate the due process clause of the Fifth Amendment. In response, the government appealed the judge's holding that the rules were invalid due to inadequate notice and opportunity for comment. The appeals court opinion was written by Circuit Judge Posner. Abbs v. Sullivan, 963 F.2d 918 (7th Cir. 1992).

In order to understand the appeals court opinion, it is necessary to understand that, whenever possible, courts resolve issues on the narrowest grounds available. The reason for this is that court opinions are precedent that will be applied to different facts in future cases. Applying precedents based on narrow grounds to new facts is fairer and far more accurate than trying to use broad analogies.

A discussion of issues not necessary to the narrow one actually determined by a court is called dictum. Thus, dicta are not part of the determination actually made by a court, and they are not binding on lower courts as precedents applicable to cases in the future. Dicta are valuable because they reveal a court's thinking; they may be used as argument in future cases; and, sometimes, judges use dicta to give lawyers advice on how to present future cases to gain a favorable hearing. Dicta can also be mischievous if they stray from the facts or law at issue in a case.

Thus, as Judge Posner took pains to point out, Judge Crabb's comments about the constitutionality of the rules were mere dicta. (Judge Posner, a law professor before being appointed to the bench, also used dicta freely in his opinion.) The law does not permit Professor Abbs to appeal his favorable judgment (finding the rules invalid) merely because there are passages in the court's opinion that displease him. Clearly, it would have been better to win big, but that's not what happened. If Professor Abbs wanted a ruling on the constitutionality of the rules, he should not have hedged his bets with arguments based on procedural defects.

Nor may Professor Abbs appeal his judgment because there is dicta in the court's opinion that may come back to haunt him in a future case. Judge Crabb's holding leaves the government free to remedy the technical defects (by providing sufficient notice and opportunity for comment), and then re-enact exactly the same rules. Then, Judge Crabb's dicta may find receptive ears in a future case and be used to deny relief on constitutional grounds. Or, when required to face the constitutional issue squarely, other arguments or facts may lead to a different result. In any event, the constitutionality of the NIH rules Professor Abbs objected to was not decided in the Abbs case.

Next - The Government's Appeal


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