\n<\/p>\n
Several hundred feet from the White House, down a concrete path and across a quiet brick courtyard adorned with historical markers lie the doors to a small courthouse.<\/p>\n
Inside, etched into the stone wall, is a quote from Abraham Lincoln: \u201cIt is as much the duty of government to render prompt justice against itself, in favor of citizens, as it is to administer the same, between private individuals.\u201d<\/p>\n
It\u2019s apt for what\u2019s in this building: the Court of Federal Claims, a legal venue where the U.S. government is always the one being sued. The building is now poised to be the site of fights over droves of terminated research grants.<\/p>\n
Although it\u2019s the latest iteration of a court that\u2019s existed since 1855, predating Lincoln\u2019s election, it\u2019s not a well-known institution. It\u2019s not the subject of on-screen, steamy legal dramas. But the U.S. Supreme Court\u2019s preliminary rulings last year have elevated its importance for higher ed.<\/p>\n
A majority of justices say this 16-judge court likely has jurisdiction over lawsuits regarding thousands of National Institutes of Health federal research grants that the Trump administration has tried to terminate, as well as other fights concerning canceled grants. If the Supreme Court sticks by its current thinking in final rulings, the Court of Federal Claims could be handling fights over countless grants that the Trump administration and future higher ed-targeting presidencies may try to cancel in the future.<\/p>\n
One catch: This court doesn\u2019t have the authority to actually restore the grants. It can award money for canceled ones, but experienced lawyers who practice before it disagree on whether it will provide compensation even approaching what the grants were worth\u2014they can be for millions of dollars apiece.<\/p>\n
Attorneys also say that researchers likely won\u2019t have the right in this court to challenge their grant terminations; they\u2019ll have to rely on their universities to sue on their behalf because the institutions are the legal parties to research grants. Overall, it\u2019s generally unclear how a research grant-related case would turn out in this court.<\/p>\n
\u201cThis is\u2014I think esoteric is probably an understatement,\u201d said Bob Wagman, president of the Court of Federal Claims Bar Association and a lawyer before the court for 25 years.<\/p>\n
Lobby of the United States\u00a0Court of Federal Claims\u00a0building.<\/p>\n
Ryan Quinn\/Inside Higher Ed<\/p>\n
As far as Wagman knows, the court has yet to say what level of monetary damages plaintiffs could win from the court over research grant terminations. He said that\u2019s just one of a number of \u201cthreshold\u201d issues judges will have to\u00a0decide on regarding\u00a0how these cases will work.\u00a0<\/p>\n
\u201cIt\u2019s just been sort of an avalanche and people are trying to figure out what makes the most sense,\u201d Wagman said.<\/p>\n
Ted Waters, the managing partner at Feldesman LLP and a George Washington University Law School adjunct professor, said \u201cit\u2019s all a mess because nobody knows what the rules are.\u201d<\/p>\n
He contends that plaintiffs before this court couldn\u2019t win back the full value of their grants but instead only \u201cout-of-pocket termination costs,\u201d such as the expense of giving two weeks\u2019 severance pay to employees a university hired in expectation of receiving the grant. He said Congress didn\u2019t create the Court of Federal Claims and the special appeals court that\u2019s over it to deal with federal grants; it\u2019s meant for contracts, such as when the government purchases items from companies.<\/p>\n
\u201cThis is all new stuff, and none of the kinks have been worked out,\u201d said Waters, who\u2019s been working in the federal grants field since 1992.<\/p>\n
Heather Pierce, senior director of science policy for the Association of American Medical Colleges, said thousands of terminated NIH grant cases going to the Court of Federal Claims \u201cwould clog the court immediately.\u201d Elizabeth Hecker, a senior counsel with specialty in higher ed for Crowell & Moring LLP, echoed that.<\/p>\n
\u201cThere\u2019s gonna be a tremendous backup\u00a0\u2026 and these are gonna take years and years and years to decide,\u201d Hecker said. \u201cWhereas, if you go to federal district court, you can get a preliminary injunction.\u201d<\/p>\n
But Waters doubts there will be a flood of cases. He said there\u2019s little to fight over because researchers can\u2019t get the relief they want from the court.<\/p>\n
The [Supreme] Court grapples with none of these complexities before sending plaintiffs through the labyrinth it has created.\u201d <\/p>\n
Justice Ketanji Brown Jackson<\/p>\n
Anuj Vohra, a partner at Crowell & Moring LLP, who began his career in Washington working for the Justice Department before the court, said \u201cthe court does not have equitable powers to reinstate grants, and I think that is, in large part, why the government is trying to move much of this litigation to the court.\u201d<\/p>\n
He said plaintiffs will have to expend resources to win in this court and, while \u201cwe don\u2019t know exactly how the Department of Justice is going to defend these grant terminations,\u00a0\u2026 I assume they\u2019re going to argue that the researchers are entitled to something less than the entire amount of the grant.\u201d<\/p>\n
Still, Vohra said he doesn\u2019t think going to the court would be pointless.<\/p>\n
\u201cGrant terminations have not historically been litigated in the Court of Federal Claims, and so the challenges we\u2019re seeing now are kind of charting a new course in terms of damages, theories and entitlement,\u201d he said. \u201cBut I certainly don\u2019t think it\u2019s a fool\u2019s errand to come to the court, and I think we\u2019re going to see a lot more litigation over grant terminations this year.\u201d<\/p>\n
Courtyard of the U.S. Court of Federal Claims building. Lincoln\u2019s secretary of state lived and was almost assassinated at this site.<\/p>\n
Ryan Quinn\/Inside Higher Ed<\/p>\n
Not all the Supreme Court justices thought this was a good idea.<\/p>\n
The conservative majority, absent Chief Justice John Roberts, first mentioned the Court of Federal Claims last year in one line in a roughly two-page preliminary ruling in April.<\/p>\n
\u201cThe Tucker Act grants the Court of Federal Claims jurisdiction over suits based on \u2018any express or implied contract with the United States,\u2019\u201d the majority wrote, reasoning that canceled Education Department K-12 teacher training grants in that case were contracts.<\/p>\n
There was only one justice, and that\u2019s Amy Coney Barrett, who thought that that was the right outcome.\u201d<\/p>\n
Elizabeth Hecker, senior counsel with Crowell & Moring LLP<\/p>\n
Then, in August, in ongoing litigation over the Trump administration\u2019s termination of thousands of NIH research grants, Justice Amy Coney Barrett was the deciding vote. In a five-page preliminary opinion, she said a regular federal district court \u201clikely lacked jurisdiction to hear challenges to the grant terminations, which belong in the Court of Federal Claims.\u201d In a partial concurrence with Barrett, Justice Neil Gorsuch criticized the lower court judge\u2014who had ruled the grants should be reinstated while the case continued\u2014for not following the conservative majority\u2019s earlier (also preliminary) ruling in the Education Department lawsuit.<\/p>\n
\u201cLower court judges may sometimes disagree with this Court\u2019s decisions, but they are never free to defy them,\u201d Gorsuch wrote. He said that, even though the decision in the Education Department case wasn\u2019t a final judgment, \u201cwhen this Court issues a decision, it constitutes a precedent that commands respect in lower courts.\u201d<\/p>\n
Justice Ketanji Brown Jackson countered in a 20-page dissent that \u201cthe Court of Federal Claims is authorized to award only money damages for contract breaches, not reinstatement of grant funding improperly terminated in violation of federal law.\u201d She defended the district court\u2019s decision.<\/p>\n
\u201cHaving struck down unlawful agency action, the District Court \u2018also had the authority to grant the complete relief\u2019 that followed,\u201d Jackson wrote, quoting precedent. \u201cUnder the rule the Court announces today, however, no<\/em> court can reinstate the plaintiffs\u2019 grants.\u201d In a footnote, she added that \u201cthe Court grapples with none of these complexities before sending plaintiffs through the labyrinth it has created.\u201d<\/p>\n A plaque outside the United States Court of Federal Claims building.<\/p>\n Ryan Quinn\/Inside Higher Ed<\/p>\n Barrett concluded in her August decision that the district court did likely have the right to void the NIH guidance upon which the agency based its terminations, even though it likely didn\u2019t have the right to restore the grants. But four of Barrett\u2019s colleagues said the district court was likely wrong on both issues, while the other four said the district court was likely right on both.<\/p>\n That meant Barrett was the deciding vote on a split order that allowed universities, researchers and other organizations to challenge the guidance in district court, but said they had to challenge the actual grant terminations in the Court of Federal Claims.<\/p>\n \u201cThere was only one justice, and that\u2019s Amy Coney Barrett, who thought that that was the right outcome,\u201d said Hecker, of Crowell & Moring LLP. She said \u201cit\u2019s a very unusual and seemingly inefficient way to go about doing things.\u201d<\/p>\n Hecker said one way to avoid this dual-track litigation would be for plaintiffs challenging grant terminations to use constitutional arguments\u2014such as claiming that grant cancellations violate the First Amendment\u2014rather than the Administrative Procedure Act, a law cited in the NIH grants case that invited the counter-argument from the government that the cases belonged in the Court of Federal Claims.<\/p>\n Waters, of Feldesman LLP, said the ramifications of sending grant cases to the Court of Federal Claims extend far beyond higher ed, to highways, green technology and more.<\/p>\n \u201cThe importance of grant programs\u2014I don\u2019t think people realized until now,\u201d he said, adding that they \u201ctouch the whole fabric of American society.\u201d<\/p>\n Wagman, the president for the court\u2019s bar association, said he thinks that, given the uncertainty of how claims for money before the court will turn out, most people would just prefer their grants be reinstated.<\/p>\n \u201cBut if that\u2019s all you got,\u201d he said, \u201cthat\u2019s all you got.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":" Several hundred feet from the White House, down a concrete path and across a quiet brick courtyard adorned with historical markers lie the doors to a small courthouse. Inside, etched into the stone wall, is a quote from Abraham Lincoln: \u201cIt is as much the duty of government to render prompt justice against itself, in<\/p>\n","protected":false},"author":1,"featured_media":41564,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[57],"tags":[160,2017,8716,14922,5265],"class_list":{"0":"post-41563","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-education","8":"tag-court","9":"tag-forced","10":"tag-obscure","11":"tag-rely","12":"tag-researchers"},"_links":{"self":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/posts\/41563","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=41563"}],"version-history":[{"count":0,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/posts\/41563\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=\/wp\/v2\/media\/41564"}],"wp:attachment":[{"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=41563"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=41563"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/naijaglobalnews.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=41563"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}