# Petition for Writ of Certiorari — Cohen v. President of Harvard University > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3154%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 874 ## Text 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. bs 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 ha + Ww W 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