STATUS QUO IN 1991

In 1991 there was still a great deal of turmoil in policies regarding misconduct in research as the COSEPUP Panel on Scientific Responsibility and the Conduct of Research completed its report. The Office of Scientific Integrity (OSI), whose creation in 1989 by then National Institutes of Health (NIH) Director James Wyngaarden was instigated by Representative John Dingell’s inquiries, was assaulted by charges of incompetence and illegitimacy. OSI suffered a “scientific backlash” (Hamilton, 1991, p. 1084) that criticized it as too “zealous” (Davis, 1991, p. 12) and staffed by investigators reminiscent of the “Keystone Cops” (Wheeler, 1991, p. A5).

While testifying before Dingell’s Oversight Subcommittee the subsequent NIH director, Bernadine Healy, expressed her doubts about “due process, confidentiality, fairness and objectivity” at OSI. Dingell countered that Healy had “made a mockery of the OSI’s alleged independence in dealing with misconduct allegations” (Greenberg, 1991, p. 5).

A suit filed by James Abbs, a neurophysiologist at the University of Wisconsin and the subject of an investigation by OSI, asked the court to halt the investigation, charging that OSI failed to provide due process and to promulgate its procedures under the requirements of the Administrative Procedures Act (APA). Abbs argued that he had a property stake in his grant, his academic position, and his reputation and that OSI had deprived him of this property without due process of law under the Fifth and Fourteenth Amendments to the U.S. Constitution. The government argued that no such property rights exist and that, even if they did, OSI provided due process. The government also argued that OSI was not required to fulfill any requirements of public notice for its internal procedures. The district judge decided in Abbs’s favor, invalidating OSI’s internal policies and procedures in the Western District of Wisconsin. The judge decided the due process claim, however, in favor of the government, declaring that the invalid procedures did, in fact, provide sufficient due process. Both parties appealed the split decision, and the Seventh Circuit Court vacated the district court’s ruling, validating OSI’s claim under APA as well as its due process claim. Abbs and ORI ultimately accepted a settlement imposing special conditions on federal research funding. The case focused a great deal of scrutiny on OSI; however, many commentators misinterpreted the district court’s opinion as substantively critical of OSI (Guston, 2000).

ORI AND THE DEPARTMENTAL APPEALS BOARD

Despite the validation of OSI by the circuit court, on February 1992, then Assistant Secretary of Health James Mason forwarded to then Secre-



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