Researchers will have to challenge grant terminations in federal claims court.
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Hope is fading that federally funded researchers whose grants were terminated by the National Institutes of Health earlier this year will be able to resume their work as planned.
On Thursday, the United States Supreme Court ruled 5 to 4 that any legal challenges to the grant terminations should be litigated in the Court of Federal Claims, not the federal district court system they’ve been moving through for months.
It’s the latest twist in federally funded researchers’ legal fight to claw back nearly $800 million in medical research grants—though accounting for the multiyear grants that the NIH is refusing to fulfill puts that figure closer to $2 billion—the NIH terminated for running afoul of the Trump administration’s ideological priorities. Many of the grants funded programs that advanced diversity, equity and inclusion initiatives and research projects focused on topics such as LGBTQ+ health, vaccine hesitancy and racial disparities.
Researchers sued the NIH in April and got a win in June when a federal district court judge in Massachusetts ordered the agency to reinstate the grants immediately. Although the NIH has since reinstated many of those grants, Scott Delaney, an epidemiologist at Harvard University and former lawyer who’s been tracking grant cancellations, told Inside Higher Ed that after Thursday’s ruling those reinstated grants will “almost certainly” be re-terminated. If that happens, “I don’t think they’ll get their money back.”
That’s in part because the Supreme Court said researchers will have to re-file their lawsuits in federal claims court, which generally doesn’t have the power to issue injunctive relief that could keep grant money flowing during the litigation process. And it could take months or even years for the claims court to decide if researchers are owed damages.
“Nobody has that kind of time. The nature of research is that you can’t just stop and restart it many months later,” said Delaney. “Folks have already had to do that once and many aren’t able to—they’ve had to lay off staff and lost contact with study participants. This additional delay probably renders the research unviable going forward.”
Trump ‘Always Wins’
Delaney is among numerous experts and advocates who say the decision is both a blow to the scientific research enterprise and the latest evidence that the Supreme Court is inclined to interpret the law to favor the Trump administration’s whims.
“Make no mistake: This was a decision critical to the future of the nation, and the Supreme Court made the wrong choice,” the Association of American Medical Colleges said in a statement. “History will look upon these mass NIH research grant terminations with shame. The Court has turned a blind eye to this grievous attack on science and medicine, and we call upon Congress to take action to restore the rule of law at NIH.”
Jeremy Berg, who served as director of the National Institute of General Medical Sciences from 2003 to 2011, said in an email to Inside Higher Ed that while “many (but not all) grants from the lawsuits that had been terminated have been reinstated at this point,” the big question the Supreme Court’s ruling raises now “is whether NIH will start to re-terminate them.”
Although a 5-4 majority did agree on Thursday that the district can review NIH’s reasoning for the terminations and kept in place a court order blocking the guidance that prompted the cancellations, Berg said the mixed ruling is “potentially very damaging” because redirecting the case to a different court means “the stay blocking the required reinstatements could go into effect.”
He added that Justice Ketanji Brown Jackson’s dissent sums up his interpretation of the ruling’s implications. “This is Calvinball jurisprudence with a twist,” Jackson wrote. “Calvinball has only one rule: There are no fixed rules. We seem to have two: That one, and this Administration always wins.”
That’s how Samuel Bagenstos, a professor of law and public policy at the University of Michigan and former general counsel to the Department of Health and Human Services, interpreted the decision, too.
“The message the courts sent yesterday is very strong that they are going to let the Trump administration shut down the grants right now and remit grantees to the really uncertain process of going to the Court of Federal Claims and potentially getting damages in the future,” he said in an interview with Inside Higher Ed Friday.
“But that’s really cold comfort for the grantees,” Bagenstos added. “If they can’t get the grants restarted right now, they probably can’t continue their research projects, and the prospect of maybe getting damages in the future doesn’t keep those research projects alive. It’s a bad sign for the entire research community.”
The NIH is far from the only federal agency that has canceled federal research grants that don’t align with the Trump administration’s ideologies. The National Science Foundation, the Education Department and the National Endowment for the Humanities are all facing legal challenges in federal district courts after freezing or canceling grants.
And the Supreme Court’s ruling on the NIH’s terminations has implications for those cases, as well.
“The message seems to be pretty clear that if you have an ongoing grant that’s been terminated and you want to go to court to keep the money flowing, you’re out of luck,” Bagenstos said. “It’s got very bleak implications for all researchers who are depending on continuing the flow of federal grants.”
