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Imminent Irreparable Harm[index]

The final question discussed by Judge Posner is whether the NIH ALERT system creates a form of blacklist which would amount to irreparable injury to anyone placed on it. The U.S. Supreme Court has recognized that a blacklist can inflict the sort of harm that entitles people to maintain a suit in federal court. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951). In that case, the plaintiffs had been labeled communists, lost tax exemptions, supporters, licenses, members, and even places where they could hold their meetings. The issue was not the adequacy of alternative remedies (there were none), but whether plaintiffs had suffered the kind and amount of harm necessary to satisfy Article III.

Did Professor Abbs suffer a similar harm--irreparable because the harm would not be removed even by ultimate vindication years later--by having his name placed in the ALERT system? If so, he could maintain his suit because the alternative judicial remedy would be inadequate, and the requirements of section 10(c) of the APA satisfied.

The simplest answer is that, according to the opinion authored by Judge Posner, Dr. Abbs's complaint did not even allege any such harm or seek, as part of the relief requested, that his name be removed from the ALERT system. While it seems unlikely that the complaint did not request "whatever relief to which plaintiff is justly entitled," courts expect plaintiffs to spell out the relief they are requesting.

Nevertheless, Judge Posner discussed the potential effects of the ALERT system as a blacklist. He explicitly recognized the necessity for Professor Abbs to maintain his grants and reputation: "Put [Abbs] back in the classroom [teaching neurology], having stripped away his scientific standing and access to grant funds by condemning him for research fraud, and you exclude him from his occupation." Judge Posner recognized that much less might be required for Professor Abbs to challenge the placement of his name in the ALERT system: "It would be quite enough ..., if by reason of placement in the ALERT system Abbs were in serious danger of having his grant money reduced."

However, there was no indication that Abbs suffered any harm as a consequence of having his name placed in the ALERT system for five years. Professor Abbs lost no grants and his funding was undiminished. In fact, there was no indication that Abbs even attempted to remove his name from the ALERT system even after Judge Crabb invalidated the investigative procedures being used by the OSI. Nor was there any indication that Professor Abbs was likely to suffer any harm in the future unless the OSI should recommend sanctions.

While no one likes to be accused of misconduct, the ALERT system is not the Draconian measure research professionals make it out to be. An entry in the ALERT system is confidential and available to other Public Health Service ("PHS") components on a "need to know" basis. The peer review of Professor Abbs's grant application was conducted by individuals who had not been informed of the OSI investigation. Thus, Judge Posner concluded that the ALERT system issue "adds nothing to the case for immediate judicial review."

Next - The Effect of Abbs -- No Subject Matter Jurisdiction
Previous - No Other Adequate Judicial Remedy


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