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“Official Immunity” for Private Research Institutions: How a recent federal court decision impacts civil tort lawsuits arising out of research misconduct inquiries / investigations.

On March 31, 2016, the United States District Court for the District of Columbia released a decision in the case of Rakesh Kumar v. George Washington University that, for the first time, examined whether a private research institution can enjoy immunity from civil tort claims arising out of a research misconduct inquiry or investigation.

Dr. Kumar’s suit against George Washington followed the familiar pattern of several other recent high-profile lawsuits arising out of institutional research misconduct proceedings: after being found guilty of research misconduct involving federally funded research during the institutional inquiry and investigation, Dr. Kumar sued the school alleging an unfair process and violations of the University’s research misconduct policy and Washington D.C. law. In response, George Washington filed two motions to dismiss, including one that offered the novel argument that it should be immune from tort liability under the doctrine of “official immunity” because federal regulations required it to conduct its research misconduct proceedings thereby rendering them “governmental functions” to which “official immunity” attaches.

The Court, somewhat surprisingly, agreed with George Washington, and it dismissed one of Dr. Kumar’s tort claims on “official immunity” grounds. Although the Court did not dismiss Dr. Kumar’s suit in its entirety, the decision is still an important one for research institutions and researchers who are, or could potentially become, embroiled in civil litigation arising from research misconduct proceedings. As these types of lawsuits have recently become more common, there are at least two very important lessons that both sets of potential parties can and should draw from this case.

Lesson 1: Institutional inquiries and investigations that concern federally funded research will likely qualify as “official functions” for immunity purposes.

Based on its name alone, one would expect that the doctrine of “official immunity” could not be applied to private (i.e., non-government) entities like most research institutions. However, the legal history of the doctrine makes clear that this is not the case. While the “official immunity” doctrine came into being to prevent the threat of litigation from disrupting the government’s performance of “official” functions, the U.S. Supreme Court has made clear that the immunity attaches to the function and not the governmental office. Thus, when the government delegates an “official” function to a private party (as it is permitted to do), the same interest in preventing the threat of litigation from disrupting the performance of that function arises, and the private entity should be entitled to the same immunity from civil tort liability.

The Kumar decision represents the first examination of that legal principle in the context of the research misconduct setting. In its motion, George Washington argued that it was entitled to “official immunity” for conducting the research misconduct inquiry and investigation out of which Dr. Kumar’s tort claims arose because it was performing an “official function” that had been delegated to it by the federal government. Specifically, George Washington pointed to the Public Health Service (“PHS”) Act and its implementing regulations that it claimed expressly delegated the responsibility for investigating allegations of research misconduct to the private research institution at which the potentially fraudulent research was conducted.

The Court agreed with this analysis, and cited numerous sections of the Act and the PHS regulations that it held make clear that PHS delegated the responsibility for investigating research misconduct to the Office of Research Integrity (“ORI”) who, in turn, delegated it to the private institutions. Based on the litany of detailed PHS regulations (which are found in 42 C.F.R parts 50 and 93) requiring institutions to investigate research misconduct and report the results of those investigations to ORI, the Court concluded that “[i]t is hard to see this regulatory scheme as anything less than the deputizing of research institutions to serve ‘as adjuncts to the government…in investigating research misconduct on behalf of ORI and by extension HHS.”

Due to the limited precedential value of a District Court opinion, it is difficult to predict the impact this holding will have. However, the legal reasoning employed by the Court is objectively persuasive, and it would not be surprising to see other courts follow its lead. Moreover, given that the same regulatory scheme applies to all PHS-funded research, there is little (if anything) to prevent every future private research institution sued under a theory of tort liability from asserting an identical “official immunity” defense.

Lesson 2: Although research misconduct inquiries/investigations may qualify as “official functions,” immunity may not attach to the imposition of disciplinary action.

Although the Court set forth a compelling holding that institutional inquiries/investigations are “official functions” to which “official immunity” should attach, it also made clear that a private institution may not enjoy immunity for every action it takes after the conclusion of those processes.

In his suit, Dr. Kumar alleged two categories of tort claims against George Washington representing two different types of disciplinary action the school imposed on him after finding him guilty of misconduct. The first category is his tortious interference claim that alleges that the school’s relinquishment of his grants was improper because it made him a less desirable candidate to be hired by another institution. The second category is his tortious invasion of privacy claims that allege that the school improperly disassociated him from one of his student’s dissertation and that it humiliated him publicly by having a security guard escort him out of his lab. After examining both categories of discipline, the Court found that only the first category was entitled to “official immunity.”

According to the U.S. Supreme Court, once an entity is found to be eligible for “official immunity” (by virtue of it having performed an “official function”) there is a two-pronged test for determining whether the immunity bars the tort actually alleged. To satisfy the first prong, the entity’s actions must be within the scope of the “official function.” According to the Supreme Court, this is not “particularly demanding” as the action must only bear some reasonable relation to and connection with the “official function.” Here, the Court found that both categories of discipline imposed by George Washington satisfied this prong because each was reasonably related to the school’s federally imposed duty to respond to findings of research misconduct.

It was with respect to the second prong that the Court’s view of the two categories of discipline began to diverge. To satisfy the second prong, the entity’s action must be “discretionary.” As the Supreme Court instructs, the first step in making this determination is determining whether there was a statute, regulation, or policy that specifically proscribed the course of action George Washington was required to take vis-à-vis Dr. Kumar once he was found to have committed research misconduct. The Court found no such statute, regulation, or policy existed, so it proceeded to the second step which was to determine whether George Washington’s actions implicated policy considerations. It is in answering this question that the Court drew a line between the two categories of discipline imposed by George Washington.

With respect to the conduct underlying Dr. Kumar’s tortious interference claim (i.e., George Washington’s relinquishment of his federal grant), the Court found that it was sufficiently grounded in policy considerations to enjoy immunity. Specifically, the Court drew a direct line between George Washington’s decision to relinquish Dr. Kumar’s grant and what it identified as one of the principal purposes of the federal research misconduct regulations, namely, conserving public funds. Based on this, the Court found that George Washington’s “assessment of how to treat federal grants implicated in a finding of research misconduct is grounded in the very essence of the regulatory regime,” and was, thus, entitled to immunity.

However, the Court found the opposite with respect to the conduct underlying Dr. Kumar’s invasion of privacy claims (i.e., George Washington disassociating him from his student’s thesis and publicly humiliating him by escorting him from his lab). Critically, the Court found that neither action by George Washington was “fraught with public policy considerations.” Although the Court acknowledged that George Washington acted in a discretionary manner toward Dr. Kumar, these discretionary choices did “not implicate the necessary ‘social, economic, or political goals’ to qualify for official immunity,” nor did they “further effective governance as necessary to justify granting immunity.”

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