Academic May Pursue FCA Retaliation Claim

A post-doctoral fellow conducting research at U.Va.’s Department of Psychiatry & Neurobehavioral Sciences who alleges his appointment was not renewed because he complained about his supervisor’s fraudulent allocation of levels of effort on a particular government grant withstands summary judgment on his retaliation claim under the False Claims Act, but the Charlottesville U.S. District Court grants summary judgment on his § 1983 claim alleging violation of his First Amendment rights.

I agree with defendants’ assertion that plaintiff was speaking in the course of his official duties. The NIH policy statement for grants makes it clear that principal investigators on NIH grants are accountable not just to the NIH, but to the grantee as well. According to defendants, all grants, whether awarded by the NIH or otherwise, are awarded to the university, not to individuals such as plaintiff. The grant at issue here, the ANKK1 grant, itself corroborates this contention, for it clearly states it is awarded from the NIH to UVa. Plaintiff’s assertion that his only duties as principal investigator on the ANKK1 grant were owed solely to NIH is belied by NIH’s policies and the very language of the grant itself.

Even assuming plaintiff was not explicitly required to report suspicions regarding allocation of levels of effort by those working under the grant, the 4^th Circuit has stated that the absence of such a requirement cannot be dispositive. As a fundamental matter, it simply cannot be the case that all public employees who reveal their suspicions regarding the misappropriation of funds, but who are not employed as auditors, investigators or their equivalents, are necessarily speaking as private citizens when they come forward. While plaintiff’s employment may not have required him to submit grant proposals in which he listed himself as the principal investigator, it is clear that his decision to do so with respect to the ANKK1 grant was a means towards fulfilling the research and publication goals he was employed to pursue.

It stretches reason to label plaintiff’s discussion with the departmental chair about grant fund allocation as a contribution to the collective civic dialogue of the community in the way that, say, writing a letter to the editor, or debating politics with a co-workers plainly would be. The complaints plaintiff voiced, and which he alleges constituted the impetus for defendants’ retaliation against him, have no analogue to citizen speech. Therefore, I find that plaintiff reported his suspicions about misappropriation of grant funds in the course of his official duties and in his role as a U.Va. employee. For that reason alone, his speech cannot be insulated from discipline by the First Amendment. Even if I were to assume plaintiff spoke as a citizen and not as a government employee, I would still arrive at the same conclusion regarding his § 1983 claims, for the content of his speech did not constitute a matter of public concern for purposes of the First Amendment.

Here, to label what plaintiff’s supervisor allegedly did in manipulating the levels of effort on the  ANKK1 grant as “public corruption” over-exaggerates the severity of what plaintiff purports actually took place. I find plaintiff’s speech did not constitute a matter of public concern. It cannot be said the larger public would be truly concerned about the supervisor increasing his level of effort by 2.5 percent or about the fact that another employee, who performed tasks that benefitted essentially everybody who worked in the supervisor’s lab, was receiving more of her salary from the ANKK1 grant funds than perhaps she should have been. Plaintiff’s speech concerned allegations of level-of-effort misallocation over the course of a couple of months in the management of a single NIH grant.

Turning to plaintiff’s claim under the False Claims Act, I find there is ample evidence from which a reasonable jury could infer that defendants’ decision to issue plaintiff a nonrenewal letter was motivated, at least in part, by plaintiff’s protected activity – namely, presenting his suspicions about the fraudulent allocation of levels of effort on the ANKK1 grant. However, I cannot say defendants have affirmatively shown that they would have made the same decision irrespective of plaintiff’s protected activity. Defendants are not entitled to summary judgment  on plaintiff’s FCA retaliation claims.

Defendants are entitled to summary judgment on plaintiff’s 1983 claims, but not on his FCA claims.

Huang v. Rector & Visitors of the University of Va. (Moon) No. 3:11cv00050, Sept. 6, 2012; USDC at Charlottesville, Va. VLW 012-3-445, 45 pp.