Petition for Writ of Certiorari — Cohen v. President of Harvard University

8 4 = 9 9 Office “Supreme Court, U.S.

FILED

No. JUL 19 1984

ALEXANDER L. STE Vas,

CLERK

IN THE meee _

Supreme Court of the United States

October Term 1984

PHIN COHEN,

Petitioner,

Vv.

PRESIDENT AND FELLOWS OF HARVARD UNIVERSITY,

HOwaRD H. HIATT AND FREDERICK J. STARE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

NATHAN LEWIN

(Counsel of Record)

Davip O. STEWART

MILcer, CassipDy, LARROCA &

LEWIN

2555 M Street, N.W., Suite 500

Washington, D.C. 20037

(202) 293-6400

Attorneys for Petitioner

OF COUNSEL:

ALBERT F. CULLEN JR.

ROBERT V. CARR

CULLEN & WALL

141 Tremont Street

7th Floor

Boston, MA ©2111

(617) 482-8650

PANDICK WASHINGTON, D.C.—1801 N. OAK STREET, ARLINGTON, VA 22209—(703)522-6000

QUESTIONS PRESENTED

1. Whether this Court should resolve the conflict among

the Circuits as to whether an appellant may assert legal

arguments that were not presented to the district court to

reverse a judgment issued prior to trial if (a) the issues are

purely legal, (b) the failure to assert them below is excusable,

and (c) no new questions of fact are presented.

2. Whether this Court’s recent decision in Dixson v. United

States, 104 S.Ct. 1172 (1984) establishes that a scientific

researcher administering federal grant funds is a person holding

a “trust or place of confidence under the United Staies” and is

therefore protected by 42 U.S.C. § 1985(1)

il

TABLE OF CONTENTS

QUESTIONS PRESENTED ............cccecceeeseeeeeseetentesetnnnees

TABLE OF AUTHORITIES .............cccccceeeeesenneceeseeeeeeteees

OPINIONS BELOW ......... ccc cccecceeeeeeeeesseeeneeeeeeseneneeeeeennees

JURISDICTION .......... ccc ccccccceeseeee eee eeseeesseeceneneenenenenenenens

STATUTES INVOLVED ..............::::ceeeeeeeeeeeeeeeeeeeeeeeneeeees

STA TEMEN T ..............cccccsecccccccccscccecssensesseceseussscscneesesennes

l.

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3.

4.

The Complaint ..................sscccccesesserceressesssneeeseenees

The District Court Decision ..............cccccceeeeeeeeeeees

In the Court of Appealls......................ssseeeeeeeeeeneneees

The Court of Appeals Decision...............::::::es00009

REASONS FOR GRANTING THE WRIT.................- ;

l.

There is substantial conflict among the Circuit

Courts as to whether to permit new legal argu-

ments to be made by an appellant when no new

facts are alleged and the case has not been tried .

On the basis of this Court’s recent decision in

CONCLUSION ..........cccscsscssscsscssscssccessesesscsossscscscsscsomensnens

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12

—

iil

TABLE OF AUTHORITIES

Page

CASES:

Blum v. Yaretsky, 457 U.S. 991 (1982) .ooccccccccceeeeee 4

California Bankers Association v. Shultz, 416 U.S. 21

aes adie dich coddanheiphaaddiaianadasnnabonnundnnane 7

Capital Cities Cable, Inc. v. Crisp, 52 U.S.L.W. 4803

cA cabnbaliaaaabminenentinns 8

Commissioner v. Gordon, 391 U.S. 83 (1968) ......00...... )

Commodity Futures Trading Commission v. Co Petro

Marketing Group, Inc., 680 F.2d 573 (9th Cir.

SEER SES DS AR Re 8

Dixson v. United States, 104 S.Ct. 1172 (1984) ......... passim

Martinez v. Mathews, 544 F.2d 1233 (Sth Cir. 1976). 8

Monell v. Department of Social Services, 436 US.

aia iti aicdahatineshannishannénsuennscenahaassens 11

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) ........0..... 4

Roofing & Sheet Metal Services, Inc. v. La Quinta

Motor Inns, Inc., 689 F.2d 982 (11th Cir. 1982) .....

Singleton v. Wulff, 428 U.S. 106 (1976) woo...

Southard v. Southard, 305 F.2d 730 (2d Cir. 1962)... 7

Vance v. Terrazas, 444 U.S. 252 (1980) oo... 8,9

Vintero Corp. v. Corporacion Venezolana de Fomento,

te ee a te as WEED ccncicinssnccascccasvecacvmicccesene 8

Youakim v. Miller, 425 U.S. 231 (1976) voce 8

STATUTES AND REGULATIONS:

ss sasuunntannnsnanrennigdis 910,11

i clea casicshnksaniinnannunnsnanin 5

saad cicniicthahannncesbsennanchoninassiens 2

ic cessannenisenuannnbnakonne 2,5,6

ssi cincusencanbuansancannenen 4

oa cosacahhnnnbuunshnharuneinieraneernndennsnansia 2,5,10,11

I Me EGA © BPI Dicncxcncacienencnansnacsssncasacessacesscnnssans 3

LEGISLATIVE MATERIALS:

Cong. Globe, 42d Cong., Ist Sess. 317 ..........:::esceesee

MISCELLANEOUS:

NIH, “Grants for Research Projects: Policy State-

qrremes,”” ( Jeaby 1, UDT2Z ) ......cccerreccecercrsrerenssccesancesennnes

“Harvard to Repay Government $4.6M,” Boston

Gabbe (CGR. JD, UGGS ) ..ccsenscnessnnecseranesscccesrecesssnsecssnses

“Harvard to Pay Up Record Amount,” 306 Nature

BOG C Pee. 06, 1SGDS ) ...c.cccecsnrcciccsccccsccccccccecccnsssennenssans

“U.S. To Ask Harvard To Return More Grant Mon-

ey,” Boston Globe ( Feb. 19, 1984) ...........:esseseeeeeees

Page

10

IN THE

Supreme Court of the United States

October Term 1984

No.

PHIN COHEN,

Petitioner.

Vv.

PRESIDENT AND FELLOWS OF HARVARD UNIVERSITY.

HOWARD H. HIATT AND FREDERICK J. STARE.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Dr. Phin Cohen hereby petitions for issuance of a writ of

certiorari to review the decision and judgment of the Court of

Appeals for the First Circuit in Cohen v. President and Fellows

of Harvard University, et al., No. 83-1670.

OPINIONS BELOW

The decision of the court of appeals (Pet. App. A, pp. la-

3a, infra), is not yet reported. The opinion of the district court

is reported at 568 F. Supp. 658 (Pet. App. B, pp. 5a-10a,

infra).

2

JURISDICTION

The decision of the court of appeals was issued on March

13, 1984. On April 20, 1984, the court of appeals denied a

timely petition for rehearing and suggestion for rehearing en

banc (Pet. App. C, p. lla, infra). The jurisdiction of this Court

rests on 28 U.S.C. § 1254( 1).

STATUTES INVOLVED

Section 1653 of the Judicial Code, 28 U.S.C. § 1653,

provides as follows:

Defective allegations of jurisdiction may be

amended, upon terms, in the trial or appellate courts.

Section 1985( 1) of Title 42, enacted as part of the Civil

Rights Act of 1871, provides in pertinent part:

(1) If two or more persons in any State or Territory

conspire to prevent, by force, intimidation, or threat,

any person from accepting or holding any office, trust

or place of confidence under the United States, or

from discharging any duties thereof; ... or to injure

him in his person or property on account of his lawful

discharge of the duties of his office, or while engaged

in the lawful discharge thereof, or to injure his

property so as to molest, interrupt, hinder, or impede

him in the discharge of his official duties; . . .

* * *

[I]n any case of conspiracy set forth in this section, if

one or more persons engaged therein do, or cause to

be done, any act in furtherance of the object of such

conspiracy, whereby another is injured in his person

or property, or deprived of having and exercising any

right or privilege of a citizen of the United States, the

party so injured may have an action for the recovery

of damages occasioned by such injury or deprivation,

against any one or more of the conspirators.

3

STATEMENT

Petitioner served for six years on the faculty of the Harvard

School of Public Health (“HSPH”), until he began com-

plaining that Harvard was mishandling federal grant funds, at

which time his faculty appointment was not renewed. The

federal government investigated the charges petitioner had

made and, as a result of a broadened inquiry, it recovered from

Harvard almost $5 million of research funds that were improp-

erly managed. See “ Harvard to Repay Government $4.6 M,”

Boston Globe (Oct. 29, 1983): “U.S. To Ask Harvard To

Return More Grant Money,” Boston Globe (Feb. 19, 1984)

(Pet. App. D, pp. 12a-13a, infra). Federal auditors have stated

that this recovery from Harvard is the “largest single repayment

from a university” under federal grant programs. See “Har-

vard to Pay Up Record Amount,” 306 Nature 108 (Nov. 10,

1983).

1. The Complaint

Dr. Cohen filed this lawsuit on April 1, 1977, alleging that.

as retribution for his complaints of mismanagement and to

intimidate him from further reporting Harvard’s misuse of

federal funds, Harvard failed to honor its commitment to

reappoint him to the HSPH faculty. During his years at

Harvard, Dr. Cohen had been the “pi:ncipal investigator” for

research projects on which Harvard was the “grantee.” Under

federal regulations, Dr. Cohen was responsible for the “scien-

tific and technical direction” of the federally-financed research,

while Harvard was “the responsible legal entity for the grant.”

42 C.F.R. § 52.2 (1976). Harvard was bound to comply with

the federal requirements for financia: management, including

the charging of allowable costs. Both Dr. Cohen and Harvard

were required to sign the federal grant applications and certify

their willingness to comply with federal regulations. Both Dr.

Cohen and Harvard were named in the grant awards, and both,

according to the National Institutes of Health (NIH), were

responsible for proper administration of the federal funds.

NIH, “Grants for Research Projects: Policy Statement,” p. 5

(July 1, 1972). Dr. Cohen’s amended complaint alleged that

4

the financial connections between Harvard and the federal

government made available to petitioner a constitutional rem-

edy directly against Harvard for the deprivation of his First and

Fifth Amendment rights related to the failure to reappoint him.

2. The District Court Decision

After substantial discovery, Harvard filed a motion for

summary judgment in July 1982, arguing that there was

insufficient government involvement in Dr. Cohen’s appoint-

ment to permit a federal constitutiona! remedy against Har-

vard. Petitioner also filed a motion in /imine seeking resolution

of that question. Just three days before Dr. Cohen’s motion

was filed, this Court handed down two decisions limiting the

circumstances in which “state action” may be found unaer 42

U.S.C. § 1983. See Blum v. Yaretsky, 457 U.S. 991 (1982):

Rendell-Baker v. Kohn, 457 U.S. 830 (1982).

The district court granted Harvard’s motion for summary

judgment, describing the “key factual issue” as “whether the

challenged activity of Harvard and the other defendants can be

considered actions of the federal government.” Pet. App. B,

p. 6a, infra. After noting that the test for “federal action” is the

same as the “state action” standards under 42 U.S.C. § 1983,

the district court applied the Blum and Rendell-Baker decisions.

The district court concluded that Harvard’s failure to reappoint

Dr. Cohen was not “compelled or influenced by the govern-

ment,” and that the federal government and Harvard were not

so intertwined that Harvard’s actions might be attributed to the

government. Pet. App. B, p. 8a, infra. The district court also

held that funding of scientific research was not traditionally the

“exclusive domain of government,” so that Harvard’s actions

need not be seen as federal action. Pet. App. B, p. 10a, infra.

3. In the Court of Appeals

Petitioner sought to overcome this Court’s then-recent

rulings in Blum and Rendell-Baker on his appeal. Without

disturbing any of the extensive factual allegations of his

nm

amended complaint, petitioner’s appellate counsel presented

three arguments for federal jurisdiction to the court of appeals:

First, petitioner argued that the district court failed to

recognize that Harvard’s non-renewal of Dr. Cohen's

appointment was federal action because it had the neces-

sary consequence of cutting off federal funds which had

been earmarked by a federal agency for his scientific

research. Although Dr. Cohen could attempt to gain

renewed federal funding through a new application from a

different grantee institution, Harvard’s unilateral control

over his ability to continue existing federal funding

relationships turned Harvard's actions into the de facto

action of a federal agency.

Second, Dr. Cohen argued that he may recover dam-

ages from Harvard under Section 2 of the Civil Rights Act

of 1871, 42 U.S.C. § 1985( 1), which protects those who

hold a federal “trust or place of confidence under the

United States” against conspiranes to inumidate them

from discharging their duties. Under this theory, Harvard

and its officers conspired to prevent Dr. Cohen from

executing obligations he held under federal regulations as

a “principal investigator.”

Third, Dr. Cohen maintained that he had an implied

civil cause of action under federal criminal statutes protect-

ing witnesses in potential federal proceedings against

private punishment and intimidation. See 18 U.S.C.

§ 1512. Under this theory, the defendants were taking

action to prevent him from providing information in

federal administrative proceedings.

In presenting these arguments, petitioner stressed that

Section 1€53 of Title 28 U.S.C. directs that “[dJefective

allegations of jurisdiction may be amended, upon terms, in the

trial or appellate courts” and cited numerous authorities hold-

ing that purely legal arguments may be heard for the first time

on appeal when it is in the interest of justice to do so.

6

4. The Court of Appeals Decision

In a four-paragraph opinion, the court of appeals affirmed

the district court, rejecting summarily the issues argued on

appeal without even addressing 28 U.S.C. § 1653 or the case

law cited by petitioner. After stating that it did not believe

‘that a new game could be started at this date,” the court of

appeals said it had looked at petitioner’s arguments “to see

whether they are so compelling that to foreclose their consid-

eration would abet a gross miscarriage of justice.” Pet. App. A,

p. 3a, infra. The court of appeals then dismissed in a single

sentence each of petitioner’s legal arguments, coricluding,

‘Each theory would face an uphill battle. None can be said to

be compelling.” Jd.

REASONS FOR GRANTING THE WRIT

1. There is substantial conflict among the Circuit Courts as

to whether to permit new legal arguments to be made by

an appellant when no new facts are alleged and the case

has not been tried.

This case presents an important issue that always arises, in

the first instance, in a court of appeals: May an appellant obtain

reversal of a district court judgment issued prior to trial on a

pure issue of law which he has not presented to the district court

but which involves no new facts and which has been fully

briefed and argued in the court of appeals? Although it may

appear unfair to a district judge to reverse his decision on a

question of law that has never been presented to him, the

personal feelings of the trial judge are not the criterion by

which to determine legal rights. Particularly when—as is true

in this case—the failure to present alternative legal arguments

in the trial court is understandable and excusable in light of the

then-current state of the law, no reason of judicial economy

warrants closing the door to a legal contention simply because it

was not urged in the trial court.

wee

Ble Reider tonne ae

The decision below places the First Circuit at one extreme

among the Circuit Courts which have considered when it is

appropriate to consider a new legal argument first made in the

appellate court by an appellant. The court below acknowl-

edged that there was an explanation for petitioner’s exclusive

reliance on the legal theory initially asserted—i.e., that the

particular legal theory was, at the time the complaint was filed,

“arguable” in light of then-ongoing litigation. See Pet. App. A,

p. 2a, infra. Although the original theory was not foreclosed

until five years after the suit was filed, petitioner is now barred

from raising alternative legal theories in federal court because

he understandably relied on a legal proposition that then

appeared to be tenable.

Other Circuits, as well as this Court, have permitted new

legal arguments to be asserted by an appellant to reverse a

judgment below ' with far less justification than existed here for

the failure to present those arguments to the district court. In

Roofing & Sheet Metal Services, Inc. y. La Quinta Motor Inns,

Inc., 689 F.2d 982 (11th Cir. 1982), for example, summary

judgment was reversed on a legal argument not presented to

the trial court. The court of appeals indicated that it would

hear a new argument “‘if it involves a pure question of law, and

if refusal to consider it would result in a miscarriage of justice.”

689 F.2d at 990. The court went on to observe that “[a]ny

wrong result resting on the erroneous application of legal

principles is a miscarriage of justice in some degree,” and it

heid that since “[r]Jemand after reversal of summary judgment

does not seriously impz r judicial economy,” it would ordinarily

consider an appeilant’s new légal arguments attacking the grant

of summary judgment. The decision of the district court in this

case granted summary judgment to the defendants. Con-

sequently, the decision below conflicts squarely with that of the

Fifth Circuit.

'The unfairness of the First Circuit’s rule is further demonstrated by

comparing the right of an appellee to assert any argument—whether or not

made below—to sustain the judgment of a district court. See, e.g., California

Bankers Ass’n v. Shultz, 416 U.S. 21, 71 (1974); Southard v. Southard, 305

F.2d 730, 732 (2d Cir. 1962).

8

Similar policies have been adopted by several other Cir-

cuits. See Commodity Futures Trading Commission v. Co Petro

Marketing Group, Inc., 680 F.2d 573, 581 (9th Cir. 1982) (“It

is well-settled in this circuit that where the new issue is purely a

legal one, the injection of which would not have caused the

parties to develop new or different facts, it is proper to resolve it

on appeal”); Vintero Corp. v. Corporacion Venezolana de

Fomento, 675 F.2d 513, 515 (2d Cir. 1982) (“Arguments made

on appeal need not be identicai to those made below, however,

if the elements of the claim were set forth and additional

findings of fact are not required’’); Martinez v. Mathews, 544

F.2d 1233, 1237 (Sth Cir. 1976) ( reviewing issue raised for first

time On appeal since it involves “‘a pure question of law” and

refusal to consider it ““would result in a miscarriage of justice”’).

The practice in this Court has also conflicted with the

attitude of the First Circuit. As recently as June 18, 1984, this

Court ruled that it is justifiable to consider legal issues, even if

not argued below, if the factual predicates for the new claims

have been established. In Capital Cities Cable, Inc. v. Crisp, 52

U.S.L.W. 4803, 4805 (1984), this Court said (citations

omitted ):

Although we do not ordinarily consider ques-

tions not specifically passed upon by the lower court,

this rule is not inflexible, particularly in cases coming,

as this one does, from the federal courts. Here, the

conflict between Oklahoma and federal law was

plainly raised in petitioner’s complaint, it was ac-

knowledged by both the District Court and the Court

of Appeals, the District Court made findings on all

factual issues necessary to resolve this question, and

the parties have briefed and argued the question

pursuant to our order. Under these circumstances,

we see no reason to refrain from addressing the

question whether the Oklahoma bar as applied here

so conflicts with the federal regulatory framework

that it is pre-empted.

See also Youakim v. Miller, 425 U.S. 231, 234 (1976); Single-

ton v. Wulff, 428 U.S. 106, 121 (1976); Vance v. Terrazas, 444

se

eS ee ne nS ee a

9

U.S. 252, 259, n.5 (1980); Commissioner v. Gordon, 391 U.S.

83, 95, n.8 (1968).

The rule should be the same in all Circuits and should

follow this Court’s recent course in the Capital Cities case.

When a complaint is dismissed prior to trial or when summary

judgment is granted, pure questions of law should be present-

able in the appellate courts on behaif of both parties, so long as

there is no effect on the factual record. It is not fair that

petitioner’s legal arguments were only grudgingly and fleetingly

considered against a “compelling” and “gross miscarriage of

justice” standard because his lawsuit was against Harvard and

was heard by the First Circuit when the same arguments would

have received full consideration had the claim been against

Tulane University and heard in the Fifth Circuit.

The procedural issue presented by this petition concerning

the authority of courts of appeals is, therefore, more significant

than might appear from an examination of the underlying

substantive claim. It is important that the Circuits have a

uniform standard under which to consider legal claims that

have not been argued to the lower courts. Only this Court is in

a position to prescribe criteria that the courts of appeals will be

obliged to follow.

2. On the basis of this Court’s recent decision in Dixson vy.

United States, petitioner has a federal claim.

Nine days after the oral argument below, this Court

announced its decision in Dixson v. United States, 104 S. Ct.

1172 (1984). Petitioner advised the court of appeals of the

Dixson opinion by letter, but the court’s decision evinced no

consideration of Dixson. The decision below is contrary to the

decision rendered in Dixson, and the judgment of the court of

appeals should be reversed on the authority of that case.

Dixson held that two officials of a private, nonprofit

corporation who administered federal grant funds could be

prosecuted as “public officials” under the federal bribery

statute. 18 U.S.C. § 201(a). Petitioner has claimed in this case

10

that by terminating his relationship with the HSPH, respond-

ents attempted to prevent him from performing duties as a

“principal investigator” on federal grants to supervise ongoing

research and to be responsible to report Harvard’s mishandling

of federal funds. That interference violates 42 U.S.C.

§ 1985(1), which provides a private right of action for “any

person... holding any office, trust or place of confidence under

the United States” against those who conspire to prevent that

person from performing his official duties.

Petitioner’s argument that he held a “trust or place of

confidence” under Section 1985(1) follows closely the reasoa-

ing in Dixson. In Dixson, Section 201(a) applied to any

“person acting for or on behalf of the United States,” while in

this case Section 1985( 1) applies to persons holding a “trust or

place of confidence under the United States.” But this Court

noted in Dixson that the language of Section 201(a) was

inserted during a recodification to replace the words “person

holding any place of public trust or profit, or discharging any

official function under” the United States. 104 S. Ct. at 1178,

n.l1. The language of Section 1985(1) is, therefore, equivalent

to the Dixson language.

Dixson also reviewed the 1962 legislative history of the

bribery statute and emphasized that the broad definition of

“public official” was maintained despite attempted narrowing

in earlier versions of the bill. 104 S. Ct. at 1178. The same

observation applies to Section 1985(1). As initially proposed,

the provision would have proscribed only conspiracies to resist

federal “officers in the discharge of official duty.”’ Cong. Globe,

42d Cong., Ist Sess. 317. A subsequent version, however,

applied to conspiracies against persons holding any “office of

trust or place of confidence under the United States.” Jd. at 477.

The final language reached conspiracies against those “holding

any Office or trust or place of confidence under the United

States.” Id. at 724. Thus, Section 1985(1) should be given an

expansive definition, as was the language of Section 201(a) in

Dixson.

11

Moreover, policy considerations strongly support a broad

construction of Section 1985(1). As in Dixson, the “federal

government has a strong and legitimate interest” in permitting

redress against those who “misuse... government funds” or

obstruct individuals who act on behalf of the government. 104

S. Ct. at 1182. Moreover, in this civil case there is no concern

that the rule of lenity requires a narrow statutory construc-

tion—a concern which was noted by the Dixson Court in

interpreting the criminal bribery law. 104 S. Ct. at 1177.

Indeed, Section 1985(1) is part of this nation’s civil rights laws,

and, as such, should be given a broad construction by the

courts. See Monell v. Department of Social Services, 436 U.S.

658, 683-687 (1978).

Finally, it is striking that when Dixson described responsi-

bilities of the grant administrators in that case, the Court used

terms singularly descriptive of petitioner’s claim under Section

1985(1). Dixson states that “the proper inquiry” is “whether

the person occupies a position of public trust with official federal

responsibilities.” 104 S. Ct. at 1180 (emphasis added ).? And

Dixson concludes that the officials in that case “held a position

of public trust with official federal responsibilities: allocating

federal resources, pursuant to complex statutory and regulatory

guidelines ....” 104S. Ct. at 1181.

Dr. Cohen was in the same position as the Officials in

Dixson. As a “principal investigator,” he held a position of

public trust with official federal responsibilities to manage

research done with federal grant funds. Dr. Cohen was

individually named and selected by federal officials, he was

obligated to comply with complex statutory and regulatory

guidelines, and his performance was subject to audit by federal

investigators. Because Dixson means that Dr. Cohen and other

principal investigators are “public officials” who may be crimi-

nally prosecuted under 18 U.S.C. § 201(a), it also means that

they are entitled to the protection of 42 U.S.C. § 1985(1).

2 The Court later stated: ““To be a public official under Section 201(a),

an individual must possess some degree of official responsibility for carrying

out a federal program or policy.” 104 S. Ct. at 1182 (emphasis added).

12

CONCLUSION

There is a serious conflict among the courts of appeals on

the proper treatment of purely legal arguments first raised on

appeal that do not require any change in the factual record.

Moreover, the Dixson decision should be enforced in this case.

Consequently, the writ of certiorari should be granted and the

judgment of the court of appeals should be reversed.

Respectfully submitted,

NATHAN LEWIN

(Counsel of Record)

Davip O. STEWART

MILLER, CASSIDY, LARROCA &

LEWIN

2555 M Street, N.W., Suite 500

Washington, D.C. 20037

(202) 293-6400

Attorneys for Petitioner

OF COUNSEL:

ALBERT F. CULLEN JR.

ROBERT V. CARR

CULLEN & WALL

141 Tremont Street

7th Floor

Boston, MA 02111

(617) 482-8650

July 19, 1984

la

APPENDIX A

UNITED STATES COURT OF APPE4<cS

FOR THE FIRST CIRC™UT

No. 83-1670

PHIN COHEN, M.D.

Plaintiff, Appellant,

V.

PRESIDENT AND FELLOWS OF HARVARD COLLEGE, et al.

Defendants, Appellees.

APPEAL FROM THE UNITED

STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge |

Before

Coffin, Circuit Judge

Gignoux,* Senior District Judge,

and Zobel,** District Judge

Nathan Lewin, with whom David O. Stewart, Miller, Cassidy,

Larroca & Lewin, Albert F. Cullen, Jr.. Robert V. Carr, and

Cullen & Wall were on brief, for appellant.

George Marshall Moriarty, with whom Elizabeth Goddard, and

Ropes & Gray were on brief, for appellees.

March 13, 1984

PER CURIAM. Appellant, a former assistant professor of

nutrition at the Harvard School of Public Health, brought suit

almost seven years ago, alleging that Harvard violated his First

and Fifth Amendment rights by failing to renew his appoint-

* Of the District of Maine, sitting by designation.

** Of the District of Massachusetts, sitting by designation.

ieee

oF

za

ment as an assistant professor in retaliation for his complaints

about the expenditure of federal grant monies at the Harvard

School of Public Health. The next five years were devoted to

considerable discovery, after which an amended complaint was

filed, adding two state law claims. The parties then joined in a

stipulation of facts and submitted to the district court the

question of whether there was sufficient federal involvement in

the decision not to renew plaintiffs appointment to constitute

government action. The court granted defendants’ motion for

summary judgiment and dismissed the complaint. Cohen v.

President and Fellows of Harvard College, 568 F. Supp. 658 (D.

Mass. 1983).

This appeal, after the attenuated proceedings below, illus-

trates the pertinency of the maxim: “Time makes ancient good

uncouth.” To which we add that time does rot necessarily

render recent revelation cognizably couth. What has happened

here is a changing of the issues with a changing of the guard.

Able counsel aggressively represented plaintiff in the district

court on a theory of federal involvement based on the receipt

by Harvard of federal monies and an alleged connection

between plaintiffs complaints about the supposed misuse of

such funds and the termination of his employment. However

arguable this theory might have been at the outset of this

litigation in 1977, it has been clearly foreclosed by such cases as

Blum v. Yaretsky, 457 U.S. 991 (1982), Rendeli-Baker v. Kohn,

457 U.S. 830 (1982), and Gerena v. Puerto Rico Legal Services,

Inc., 697 F.2d 447 (Ist Cir. 1983). Now come able new

counsel on appeal, asserting the claims that today seem most

viable.

With notable understatement, present counsel explain that

“the principal grounds asserted by trial counsel... have been

affected by recent Supreme Court rulings. Other grounds were

not emphasized below but are now presented in this appeal.”

They are (1) a private claim for damages implied from a

federal criminal statute prohibiting obstruction of justice, 18

U.S.C. § 1510; (2) a civil rights claim under 42 U.S.C.

§ 1985(1) which protects those who hold a federal “trust or

place of confidence”; and (3) First and Fifth Amendment

3a

claims, Harvard’s decision to terminate plaintiffs appointment

now being described as the critical factor in cutting off plain-

tiffs federal funding and thus as constituting the necessary

government action.

None of these theories, claims, or statutes were pleaded,

argued, or briefed during the six and one half years when this

case lodged in the district court. It is difficult for us to imagine

why, in the light of Johnston v. Holiday Inns, Inc., 595 F.2d 890

(Ist Cir. 1979), and our consistent practice before and since,

appellant could feel that a new game could be started at this

date.

In fairness to appellant, however, we have read, listened

to, and pondered over his new arguments to see whether they

are so compelling that to foreclose their consideration would

abet a gross miscarriage of justice. The implied “obstruction of

justice” right of action for civil damages springs from a single

case, involving a different statute, the doctrine having been

unenthusiastically noted by the Supreme Court. The civil rights

cause of action is predicated on an unusual and expansive

reading of “trust or place of confidence.” And the “termination

of appointment equals termination of federal funding” argu-

ment for federal action confronts more than arguably inconsis-

tent stipulations of fact. Each theory would face un uphill

battle. None can be said to be compelling.

Affirmed.

da

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 83-1670

PHIN COHEN, M.D.

Plaintiff, Appellant,

Ws

PRESIDENT AND FELLOWS OF HARVARD COLLEGE, ef al.

Defendants, Appellees.

JUDGMENT

Entered: March 13, 1984

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts and was

argued by counsel.

Upon consideration whereof, it is now here ordered,

adjudged and decreed as follows: The judgment of the district

court is affirmed.

By the Court:

FRANCIS P. SCIGLIANO

Clerk

tl

Sa

APPENDIX B

PHIN COHEN, M.D.

Plaintiff,

Ve

PRESIDENT AND FELLOWS OF HARVARD COLLEGE, ef ai.

Defendants,

Civ. A. No. 77-945-T

United States District Court

D. Massachusetts

[568 F.Supp. 658 ]

August 4, 1983

MEMORANDUM

The plaintiff, Phin Cohen, is a former assistant professor of

nutrition at the Harvard School of Public Health (HSPH). He

alleges that Harvard and HSPH violated his rights under the

First and Fifth Amendments to the United States Constitution

by failing to renew his appointment as an assistant professor.

Cohen asserts that his appointment was not renewed in retali-

ation for his allegations that federal funds were being improp-

erly allocated at Harvard. In addition to Harvard and HSPH,

the other named defendants are Howard Hiatt, dean of HSPH,

and Frederick Stare, chairman of the department of nutrition at

HSPH. In addition to his constitutional claims, Cohen also

alleges state law claims in tort and contract.

Defendants have moved for summary ju¢gment on the

ground that the decision not to renew Cohen’s appointment is

not gcevernmental action and, therefore, is not subject to the

First and Fifth Amendments. Cohen has moved in limine for a

determination of the same issue. For the purposes of these

motions, the parties have filed a stipulation of facts.

$a

The First and Fifth Amendments apply to actions of the

federal government, not those of private individuals. See

Gerena v. Puerto Rican Legal Services, 697 F.2d 447, 449 ( Ist

Cir. 1983). Cohen argues that there is a nexus between the

federal government and the defendants sufficient to subject

their actions to First and Fifth Amendment scrutiny. Cohen’s

theory is essentially twofold: (1) Harvard and HSPH were

private parties acting under color of federal law, and (2) the

connection between Harvard and the federal government is so

close that Harvard can be considered as an Officer or agent of

the federal government.

Il.

Cohen’s first theory has no legal basis. Although a claim

for deprivation of constitutional rights may be made against

private parties acting under color of state law, 42 U.S.C. § 1983,

there is no analogous cause of action against private parties

acting under color of federal law. Keliey v. Action for Boston

Community Development, 419 F.Supp. 511, 525 (D. Mass.

1976).

This leaves Cohen’s contention that Harvard and HSPH

were acting as arms of the federal government in deciding not

to reappoint him. The key factual issue, then, is whether the

challenged activity of Harvard and the other defendants can be

considered actions of the federa! government.

The question of whether federal action exists is determined

by applying the same standards that are used in determining

whether state action exists so as to trigger Fourteenth Amend-

ment rights. Gerena, supra, at 449. The First Circuit in Gerena

identified three tests for determining whether a termination of

ee

Ta

employment can be fairly attributed to the federal govern-

ment.' First, the government may be held responsible if there is

a sufficiently close nexus between the challenged action and the

federal government. Jackson v. Metropolitan Edison Co., 419

U.S. 345, 351, 95 S.Ct. 449, 453-52, 42 L.Ed.2d 477 (1974). As

interpreted by the Supreme Court and the First Circuit, this

means that there must be a “specific act or actions of the

government which in fact motivated the private action.” Ge-

rena, supra, at 450. The second analysis is the symbiotic

relationship test. The actions of a private actor may be

attributed to the government, if the government “has so far

insinuated itself into a position of interdependence with [the

private entity] that it must be recognized as a joint participant

in the challenged activity.”” Burton v. Wilmington Park Author-

ity, 365 U.S. 715, 725, 81 S.Ct. 856, 861-62, 6 L.Ed.2d 45

(1961 ).? Finally, the public function test provides that private

activity is attributable to the government if the private entity

exercises “powers traditionally exclusively reserved to the [ gov-

ernment ].” Jackson, supra, 419 U.S. at 352, 95 S.Ct. at 454.

Cohen argues that Harvard = action in not renewing his

appointment may be considered government action under each

of these tests. He bases this assertion on (a) the volume of

federal funds received by HSPH, (b) the fact that Cohen’s

position and research were federally Sinded, and (c) the

contention that, traditionally, scientific research has been

funded exclusively by the federal government.

1 These tests were developed by the U.S. Supreme Court in several cases,

particularly Lugar v. Edmonson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73

L.Ed.2d 482 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73

L.Ed.2d 418 (1982); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73

L.Ed.2d $34 (1982); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95

S.Ct. 449, 42 L.Ed.2d 477 (1974); Burton v. Wilmington Parking Authority,

365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

2In Burton, a private restaurant that discriminated against blacks was

located in a public facility, paid rent to the public facility, and its profits were

indispensable to the financial success of the government agency. On those

facts, the discrimination practiced by the restaurant was attributed to the

government.

eee we

enced

8a

Cohen became an assistant professor of nutrition on

September |, 1969. His initial appointment and later reap-

pointment were conditioned on his ability to raise funds from

outside sources. These funds were raised primarily from the

federal government.

Cohen contends thai this funding arrangement establishes

a nexus between Harvard and the government. Both the First

Circuit and the Supreme Court have recently stated, however,

that “receipt of government funds does not render the govern-

ment responsible for a private entity’s decisions concerning the

use of those funds.” Gerena, supra, at 450. See Rendell-Baker

v. Kohn, 457 U.S. 830, 839-40, 102 S.Ct. 2764, 2770-71, 23

L.Ed.2d 418 (1982); Blum v. Yaretsky, 457 U.S. 991, 1010, 102

S.Ct. 2777, 2789, 73 L.Ed.2d 534 (1982). Cohen attempts to

distinguish these cases by pointing out that in the present case,

he secured his own federal funding, rather than having the

private entity secure the federal funding and use it to hire him.

This distinction, however, is simply not relevant to the nexus

analysis. The above-cited cases focus on whether the chal-

lenged action of the private entity was compelled or influenced

by the government. There is no evidence that Cohen’s employ-

ment termination was influenced by the government. ‘the

parties’ stipulation of facts states:

Neither the United States of America, nor any

department, agency, officer, or employee thereof,

took any part in any of the foregoing decisions

[relating to Dr. Cohen’s employment and non-

renewal by HSPH], nor in any other decision made

by Harvard with respect to Dr. Cohen’s employment.

Specifically, except for the general equal opportunity

and nondiscrimination provisions just referred to, the

federal government did not impose, and Harvard did

not agree to, any restriction on its freedom of choice

with respect to decisions or procedures on faculty

9a

employment in connection with any of the projects on

which Dr. Cohen worked while at Harvard.

Stipulation at pp. 5-6.

The stipulation establishes that the federal government did

not dictaie or take part in Harvard’s decision not to renew

Cohen’s appointment. Under the nexus test, however, Har-

vard’s action cannot be attributed to the goverment.

Moreover, the funding arrangement between the govern-

ment, Cohen and Harvard contemplates two independent deci-

sions. First, the federal government decides whether to fund

Cohen’s grant proposal. Second, Harvard decides whether to

appoint or reappoint Cohen. If the federal government had

decided to cut Cohen’s funds and, for that reason, Harvard had

terminated him, then one might be able to argue that the

termination was dictated by federal action. In the present case,

however, Harvard’s decision was not based on any cut-off of

federal funds. Indeed, the government is authorized to con-

tinue funding Cohen at a different institution. Cohen, there-

fore, is unable to point to any specific “actions of the govern-

raent which in fact motivated the private action.”’ Gerena,

supra, at 450.

Cohen also argues that there is such interdependence

between him, the government and Harvard that it constitutes a

“symbiotic relationship,” under which Harvard’s action could

be attributed to the government. As the First Circuit made

clear in Gerena, the symbiotic relationship category is very

narrow. Gerena, supra, at 451. There, as here, the affairs of the

private entity were unconnected with the financial success of the

government or any government agency. That fact distinguishes

the situation here from the symbiotic relationship found by the

Supreme Court in Burton, supra. Moreover, the government

insinuation into a position of interdependence with the private

entity that was found in Burton is absent here. The funding

arrangment involved in this case, therefore, lacks the elements

necessary to establish a symbiotic relationsnip. See Gerena at

451; Blum v. Yaretsky, supra, at 4789.

3 See Stipulation of Facts at p. 6: “*. . . if a principal investigator moves to

a different institution, he may obtain the approval of the appropriate federal

authorities to a continuation of the grant or contract at his new institution.”

10a

Cohen’s contention that Harvard’s action should be attrib-

uted to the government because Harvard “exercises powers

traditionally exclusively reserved to the [government],” Jack-

son, supra, 419 U.S. at 352, 95 S.Ct. at 454, is equally without

merit. While it is true that the federal government has engaged

in substantial funding of scientific research, such research is by

no means within the exclusive domain of government. Further,

the mere fact that Cohen worked at Harvard on research in

which the public might be interested does not transmute

Harvard’s employment decision into federal government action.

Because Harvard’s action cannot be attributed to the

federal government, Cohen has no cause of action under the

First .nd Fifth Amendments. Counts I and II of his amended

co.nplaint must, therefore, be dismissed.

IV.

Counts III and IV of Dr. Cohen’s amended complaint

allege state law causes of action pendent to the federal claims.

Under some circumstances, the court may have the discretion to

retain pendent state law claims even though all federal claims

are dismissed. See Rosado v. Wyman, 397 U.S. 397, 404-5, 90

S.Ct. 1207, 1213-14, 25 L.Ed.2d 442 (1969). There is no

compelling reason to do so in this case, however.4

Counts III and [IV of Cohen’s amended complaint, alleging contract

and tort causes of action, were first brought in the amendment to the original

complaint allowed by the court on February 14, 1983. They have involved

little of the court’s time and so their retention would not serve the interests of

judicial economy. Under these circumstances, dismissal of the pendent claims

is appropriate. See Jones v. Taibbi, 508 F. Supp. 1069, 1074 (D. Mass. ), cert.

denied, 454 U.S. 1085, 102 S.Ct. 643, 70 L.Ed.2d 620 (1981).

lla

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 83-1670

PHIN COHEN, M.D.

Plaintiff, Appellant,

wi

PRESIDENT AND FELLOWS OF HARVARD COLLEGE, ef al.

Defendants, Appellees.

Before Coffin, Circuit Judge,

Gignoux, Senior District Judge,

and Zobel, District Judge

ORDER OF COURT

Entered: April 20, 1984

Upon consideration of “petition for Rehearing and Sugges-

tion for Rehearing En Banc” which document was submitted to

the members of the panel and to the judges of the Court who

are in regular active service; and

The judges of the panel having Voted to deny the petition

for rehearing, and the judges of the Court who are in regular

active service having Voted against rehearing en banc.

It is ordered that said application for hearing en banc is

hereby denied.

By the Court:

Francis P. Scigliano

Clerk

12a

APPENDIX D

Boston Globe, October 29, 1983

Harvard to repay

government $4.6m

Harvard University yesterday agreed to re

pay $4.6 million to the federal government in

settlement of charges that research funds were

mismanaged by the Medical School and the

School of Public Health.

The settlement. concluding a longstanding

audit dispute between Harvard anc the US De

partment of Health and Human Services (HHS).

Covers the $850.6 million in grants received by

Harvard over the past 10 years and wipes out

#1] past claims against the university as well.

Harvard plans to repay $1 million to the fed-

eral Treasury immediately and will settle the

balance by excusing $5.6 million in debts it is

owed by HHS. &@ university spokesman said.

The federal audit uncovered no evidence of

fraud or abuse. said Thonus O'Brien. Harvard

vice president for nance. U Brien seid tie au-

dit centered on findings that professors control-

lng several grants incorrectly transferred re

search funds from one project to another with-

oul proper documentation.

“Repayment was necessary even though

there was no finding by the audits that the

funds were diverted from legitimate research

purposes.’ O'Brien said, adding. “our faculties

have met their responsibilities to the -

ment with a high level of integrity.”

As part of the settlement. HHS ptans to re

view the cost-acrounting improvements the unt-

versily said it had initiated in the wake of the

audils.

HHS also ts auditing reseach grants received

by 38 other universities across the country.

- NICK KING

® BEST AVAILABLE COPY

l3a

©42 The Boston +: day Globe February 19, 1984

US to ask Harvard

to return more

grant money

By Gino Del Guercio

United Press International

The US Health and Human Ser-

vices Department will ask Harvard

University to return an additional

$400.000 to $500,000 in federal

gfants in connection with a seven-

year investigation into the school's

management of research grants,

regional officials said.

HHS officials said the money,

which now totals close to $5 mil-

lion, is the largest request for re-

payment from a university in the

history of the agency.

This part of the request, which

was separated from the original

settlement for $4.6 million, came

from an audit of the University's

Schocl of Public Health.

Edward Parijian, director of the

HHS New England audit division,

said the request must still be nego-

tiated with the university, but that

he expected it to be resolved by the

Feb. 28 deadline for repayment of

the entire request.

Thomas O'Brien, Harvard's vice

president of finance, and his assis-

tant, A. Simone Reagor, who has

been following the case, said they

knew nothing of the additional re-

quest.

During the HHS investigation of

the School of Public Health and

Harvard Medical School, auditors

found funds were routinely trans-

ferred from one project to another

to cover cost overrruns and to en-

sure that all available gran! money

was spent, officials said.

Audits found evidence of $3.8

million in improper charges as well

as tens of millions of dollars in

charges that could not be verified

because of inadequate documenta-

tion, they said.

Charges of misuse of university

funds were first leveled in 1975 by

Dr. Phin Cohen, formerly an assis-

tant proiessor of nutrition at the

School of Public Health. He accused

the school of diverting funds from

his National Institutes of Health

grant to other unrelated projects.

The National Institutes of Health

are a division of the HHS.

Institute auditors confirmed Co-

hen's accusations. Harvard was re-

quired to return $132,000. The con-

troversy stimulated the full-scale

HHS audit.

Cohen said he was fired from

his position a year later for expos-

ing the grant mismanagement.

O'Brien and Reagor down-

played the request’s significance.

“This is an old issue,"’ said

O'Brier:

Reagor, Hervarc’: director for

research administration, said the

dispute is simply “a disagreement

over what !s required in the way of

documentation. !n general the gov-

ernment requires a high level of de-

tail of documentation. Nowhere ts

there any indication of any mis-

spending of funds.

Reagor said that although the

settlement was large. the actual

percentage was very low. “As I re-

member, it worked out to be as if

you had $100 to spend over 10

years and you were unable to docu-

ment 50 cents.” she said.

“As far as we're concerned we

don't owe them anything.” she

said.

Cohen said, “The result of this

audit confirms my original allega-

tions of grants mismanagement by

Harvard University.