Animal rights group gets suit OK
Court gives go-ahead for bid to recover federal money

Howard Fischer
Capitol Media Services
Apr. 27, 2006 12:00 AM

A federal appeals court has given the go-ahead for an animal rights group to try to recover federal grant funds paid to a researcher and Valley hospital for research on beagles and what the group contends is fraud against the government.

In a unanimous ruling, the 9th U.S. Circuit Court of Appeals concluded that Patricia Haight, regional director of In Defense of Animals, was legally entitled to bring her action under a century-old federal law that rewards people who discover misuse of federal funds.

That law allows people to file suit on behalf of federal taxpayers. If they are successful, they get to keep some of whatever is recovered.

The decision overturns a ruling by U.S. District Court Judge Frederick Martone, who said Haight had no standing to file this kind of lawsuit because she had gotten her information about the research through the federal Freedom of Information Act.

Judge Betty Fletcher, writing for the three-judge appeals panel, said there are circumstances where discovery of information through FOIA bars the use of that information to sue.

But Fletcher said that limit applies if the person got the information by requesting public disclosure of government documents, audits or reports, or if the facts were learned from the media.

In this case, she wrote, Haight got her documents, including the original grant application, in FOIA requests directly to Barrow Neurological Institute and Arizona State University.

The ruling does not guarantee that Haight will be able to recover anything from Barrow and Michael Berens, who was doing research on beagles at the institute.

Suzanne Pfister, spokeswoman for Catholic Healthcare West, which owns Barrow, said that no decision has been made yet on whether to appeal the ruling.

Pfister said Berens has not worked at the hospital for several years.

Court records show that Berens got a $700,000 grant from the National Institutes of Health to continue his work to use beagles to research a form of brain cancer.

The process involved injecting cancer cells into canine fetuses, before the immune system could reject the cells, with the aim of causing tumors after the puppies were born.

Haight filed suit, contending that the NIH grant application had fraudulent or misleading statements about the success of the project.

Her organization said the result was "needless destruction" of the dogs' lives as well as depriving more worthy projects of grant money.

The lawsuit stalled after Martone said Haight's information was obtained through the FOIA, making her ineligible to file a qui tam action.

That law, more formally known as the False Claims Act, was enacted during the Civil War after congressional hearings about suppliers providing inferior products and price gouging to the Union Army. It encouraged the lawsuits by giving the plaintiff half of whatever was recovered.

That was amended in 1943 to cut that percentage.

That change also said people could not bring these actions if the government was aware of the allegations.

That limit was loosened a bit in 1986.

Fletcher said this balance goes to the heart of the question of whether Haight was developing original material or simply suing by using government documents and information.

The case is United States and Haight vs. Catholic Healthcare West (03-16937).