Craine v. National Science Foundation
687 F. App'x 682
10th Cir.2017Background
- Dr. Joseph Craine, a KSU research assistant professor, emailed the journal Ecology in 2013–2014 accusing coauthors of a Konza LTER manuscript of fraud based on an alleged observer‑bias error.
- Ecology editors reviewed the manuscript; authors corrected an appendix, reanalyzed data, and concluded the error did not affect results.
- KSU initiated an Appendix O academic‑misconduct process, an Inquiry Team found no misconduct by the manuscript authors and found Craine made malicious/frivolous allegations; Provost terminated Craine in October 2014; a KSU grievance panel upheld the firing.
- Craine complained to NSF OIG alleging reprisal for notifying the journal editor; OIG investigated but did not find direct evidence of retaliatory motive.
- NSF initially issued a summary ruling denying Pilot Program protection; after remand it issued a detailed amended decision denying relief on multiple grounds.
- The Tenth Circuit reviewed NGAF’s decision under the APA and denied Craine’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether communications to an academic journal editor are to a statutorily "enumerated person or body" under 41 U.S.C. § 4712(a)(2) | Craine: editor should qualify (or be a KSU "management official") | NSF/KSU: journal editors are not listed categories and are not KSU management officials | Held: Not enumerated; NSF decision reasonable |
| Whether Craine's emails were "protected disclosures" under § 4712(a)(1) (relating to federal contracts/grants) | Craine: his report of the research error implicates NSF‑funded research and misconduct rules | NSF: emails complained of a scientific error, not gross mismanagement/waste/contract‑related violation | Held: Not a protected disclosure under the Pilot Program |
| Whether Craine "reasonably believed" his communications were protected | Craine: he believed he was reporting misconduct | NSF: objectively unreasonable because record showed authors corrected/reevaluated data and relevant info was available | Held: NSF reasonably concluded belief was not objectively reasonable |
| Whether KSU subjected Craine to prohibited reprisal and, if so, whether KSU would have fired him absent the disclosure | Craine: his contacting the editor led to discipline and firing | NSF/KSU: termination resulted from Appendix O violation (malicious/frivolous external allegations); clear & convincing evidence KSU would have fired him anyway | Held: NSF reasonably found no contributing protected disclosure and sufficient clear & convincing evidence KSU would have fired him regardless |
Key Cases Cited
- Copar Pumice Co. v. Tidwell, 603 F.3d 780 (10th Cir. 2010) (APA arbitrary-and-capricious standard and deference principles)
- WildEarth Guardians v. EPA, 770 F.3d 919 (10th Cir. 2014) (agency must consider relevant data and rationally explain decision)
- Lockheed Martin Corp. v. Admin. Review Bd., U.S. Dep’t of Labor, 717 F.3d 1121 (10th Cir. 2013) ("reasonable belief" includes subjective and objective components)
- Arizona Pub. Serv. Co. v. EPA, 562 F.3d 1116 (10th Cir. 2009) (court will not consider arguments not raised before the agency)
- St. Anthony Hosp. v. U.S. Dep’t of Health & Human Servs., 309 F.3d 680 (10th Cir. 2002) (prejudice requirement for upsetting agency procedure/due process complaints)