New Cases and Developments

NACUA's Legal Resources staff summarizes current higher education cases and developments and provides the full text of selected cases to members. New cases and developments are archived here for up to 12 months.  Cases provided by Fastcase, Inc.

Selected Topics: Research
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Research; Freedom of Information & Public Record Laws; Practice of Higher Education Law

Uhr v. University of Minnesota (Minn. App. Jan. 16, 2018)

Unpublished Opinion affirming Respondent’s Motion to Dismiss. Appellant brought claims under the Minnesota Government Data Practices Act to obtain training materials, recruiting materials, and the identity of participants in Respondent’s research on illegal alcohol sales to intoxicated individuals. The court found that Respondent was required under its grant application to the U.S. Secretary of Health and Human Services, as consistent with federal regulations, to keep individually identifying data of participants confidential. The court further found that training and recruiting materials requested by Appellant were protected as trade secret information because they had “independent economic value.”

Research; False Claims Act

Klee v. McHenry County College (N.D. Ill. July 26, 2017)

Order denying McHenry County College’s Motion to Dismiss. The College terminated Plaintiff, the former Director of the Office of Financial Aid and Veteran Services, for the misuse of the College’s computer systems when he deleted his social security number from his employee records and caused the system to crash. Claiming instead that he was fired in retaliation for reporting that the College was making fraudulent financial aid claims, Plaintiff filed suit alleging violations of the False Claims Act (FCA) and state law. The court found Plaintiff’s reports of financial impropriety sufficient to qualify as a protected activity. Additionally, construing the allegations in the light most favorable to Plaintiff, the court declined to conclude that Plaintiff was a “fraud-alert” employee held to a higher notice standard for informing his employer of potential fraudulent activity. Although Plaintiff was responsible for reporting on matters related to financial aid, none of his alleged duties included fraud detection or investigation. Therefore, Plaintiff sufficiently alleged that the College knew of his protected activity. Finally, Plaintiff provided adequate evidence indicating that the College retaliated at least in part due to his protected activity, which was enough to allow his FCA retaliation claim to survive a Motion to Dismiss. 

Government Relations; Authorizations & Regulations; Research

Comments by Higher Education Organizations on Reducing Regulation and Controlling Regulatory Costs of the Department of Energy

Comments submitted by the Association of American Universities (AAU), the Council on Governmental Relations (COGR), and the Association of Public and Land-grant Universities (APLU) to the U.S. Department of Energy regarding of the agency’s implementation of Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs.” The comments include a series of recommendations from member institutions of each organization on how to carry out the Executive Order’s objectives in the context of Department-sponsored research. Recommendations include standardizing and simplifying certain documents, clarifying solicitations, eliminating or streamlining certain requirements, and providing specific answers to frequently asked questions.

False Claims Act; Research

United States ex rel. Cain v. Salish Kootenai College, Inc. (9th Cir. July 10, 2017)

Opinion reversing the district court’s judgment and remanding for further proceedings. Three former employees of Salish Kootenai College (SKC), a Native American tribal college, filed a qui tam action against the College, the Salish Kootenai College Foundation, and eight of the College’s board members, claiming that Defendants submitted to the federal government false student progress reports in order to continue qualifying for grants from the Department of Health and Human Services and the Indian Health Service. The district court dismissed the Complaint against SKC and its Foundation, holding that the College, as an arm of the Confederated Salish Kootenai Tribes, was entitled to the Tribes’ sovereign immunity. On appeal by SKC, the Ninth Circuit panel divided the relevant inquiry into two questions, asking first whether the Tribe is a “person” under the FCA and second whether SKC is an arm of the Tribe. It answered the former question in the negative and remanded the case for further fact-finding on the second question under the standard articulated in White v. University of California.

Patents; Intellectual Property; Research

Ali v. Carnegie Institution of Washington (Fed. Cir. Apr. 12, 2017)

Per curiam Opinion affirming the lower courts’ dismissals of Plaintiff’s claims. Plaintiff was employed in a laboratory at the University of Massachusetts (UMass), where he worked with two researchers listed as inventors on several patents co-owned by UMass and the Carnegie Institution of Washington (Carnegie). Claiming that the two researchers wrongly omitted him as a co-inventor on these patents, Plaintiff filed suit seeking to be added as a named inventor and to recover damages from UMass for any money derived from the patents. The Oregon district court concluded that the Eleventh Amendment provided UMass with sovereign immunity and that UMass had not waived this immunity by accepting funds from the federal government under the Bayh-Dole Act, since no provision in the Act supported Plaintiff’s theory that the receipt of funds was conditioned upon a waiver of sovereign immunity. The DC district court—to which Plaintiff’s case was transferred—concluded that UMass was a necessary party because Plaintiff’s claim jeopardized UMass’s ownership interest in the invention, that UMass could not be joined due to its sovereign immunity, and that UMass would be financially prejudiced if Carnegie were left to defend against the claims on its own. On appeal of these decisions and the DC court’s subsequent denial of Plaintiff’s Motion to remove UMass as a co-defendant, the Federal Circuit affirmed.

Research; False Claims Act

United States ex rel. Doughty v. Oregon Health and Sciences University (D. Or. Apr. 11, 2017)

Opinion and Order granting Oregon Health and Sciences University’s (OHSU) Motion to Dismiss and granting Plaintiffs leave to file an amended complaint. Plaintiff-Relator filed a qui tam action against OHSU alleging that the University had violated the False Claims Act (FCA) by applying improper reimbursement rates to certain federally-sponsored projects. The United States intervened on behalf of Plaintiff-Relator. Citing Oregon Supreme Court precedent, the court found that OHSU is an arm of the state and thus not a “person” subject to FCA liability. Additionally, the court rejected Plaintiff-Relators’ claim that the United States may nonetheless bring an FCA action against OHSU, noting that although a Supreme Court concurring opinion in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765 (2000), supports that position, the court was obliged to follow the majority opinion, which relied on the “longstanding interpretive presumption that ‘person’ does not include the sovereign.”

Financial Aid; Students; Grants, Contracts and Sponsored Research; Research

Letter from Higher Education Associations on Fiscal Year 2017 Appropriations (Apr. 5, 2017)

Letter to congressional leaders from thirty-five higher education associations urging members to bundle the remaining appropriations bills with the defense funding bill that the House of Representatives has passed. These appropriations bills include measures related to student financial aid and scientific research. Bundling the remaining bills, the letter explains, will help Congress finalize work on the Fiscal Year 2017 appropriations process “in the most expedient and least disruptive way” possible. The associations warn that uncertainty and further delay in the process will force millions of students to find additional funding for their education or forego it entirely, and could lead to the abandonment of promising research efforts at institutions. 

False Claims Act; Sex Discrimination; Research; Race and National Origin Discrimination; Retaliation; Discrimination, Accommodation, & Diversity

Salagh v. Virginia International University (E.D. Va. Mar. 13, 2017)

Memorandum Opinion and Order granting Virginia International University’s Motion to Dismiss on all claims. Plaintiff, a naturalized American citizen of Arab descent, claimed that she was demoted from her position as director to a full-time instructor on account of her sex and national origin, and that her supervisor “consistently acted in a manner demonstrating disrespect for Arabs” and demonstrated an “intolerance for women over the age of 30 and strong American women in leadership positions.” She filed a Title VII suit against the University and claimed that she was demoted in retaliation for filing an Equal Employment Opportunity Commission (EEOC) complaint and for reporting various legal violations by other employees. The Court found that Plaintiff failed to plead sufficient facts to plausibly assert that her alleged demotion was based on national origin or sex discrimination, or in retaliation for her EEOC complaint. Similarly, Plaintiff’s whistleblower claim failed because she did not identify any whistleblower cause of action or statute, nor did she allege conduct that could reasonably lead to a viable False Claims Act action.