A new lawsuit seeks to challenge the National Institutes of Health’s (NIH’s) decisions to abruptly terminate hundreds of grants, totaling more than $2.4 billion, over the past month. Today, a handful of NIH-funded researchers and organizations representing other such scientists filed a lawsuit in Massachusetts’s federal district court arguing that the agency and its parent agency, the Department of Health and Human Services (HHS), failed to follow proper procedure when canceling those research grants. The suit also alleges that the reason NIH has given most researchers or their institutions for the termination—that a grant does not support agency priorities—is arbitrary and capricious, and therefore illegal.
“There are ways that an NIH grant can be terminated,” says Lisa Mankofsky, director of litigation at the Center for Science in the Public Interest, one of the organizations that filed the suit alongside the American Civil Liberties Union and nonprofit group Protect Democracy. “These terminations did not follow those rules,” she says. “That’s why they’re illegal.”
Some legal observers think there’s a solid chance the plaintiffs could win. “I think it is a very, very substantial lawsuit,” says Samuel Bagenstos, a law professor at the University of Michigan and former general counsel at HHS during former President Joe Biden’s administration. He says President Donald Trump’s administration has been canceling grants simply because it dislikes their objectives, which had already been approved by NIH’s review boards and, in some cases, mandated by Congress. “It’s kind of a textbook case of arbitrary and capricious.”
The lawsuit includes four individual researchers: two who’ve lost NIH funding for grants related to transgender health and one who had consulted on a terminated project involving HIV preventative drugs. The fourth is a scientist who says her application for a grant focused on the Alzheimer’s disease research field was not considered because “the program is designed to help diversify the profession.”
“It just feels as if the courts are our next hope,” says Brittany Charlton, an epidemiologist at Harvard University who is a named plaintiff on the suit. Five NIH grants studying reproductive health in LGBTQ adolescents on which Charlton was a principal investigator have been canceled, throwing her newly launched LGBTQ Health Center of Excellence into jeopardy.
Other plaintiffs include three organizations: the American Public Health Association (APHA), whose journal is funded by NIH and whose scientist members have had grants canceled; and the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), which represents many U.S. graduate students, postdocs, and other academic workers whose grants were terminated. A third plaintiff, the research organization Ibis Reproductive Health, lost an NIH grant to study diverse populations. Mankofsky says that for now, the suit is only seeking relief for the named plaintiffs, including the researchers represented by the organizations, but that they may add others if the lawyers amend the suit.
Bagenstos notes that because UAW and APHA represent so many researchers, a ruling in their favor could benefit a lot of people. Moreover, he says, such a decision would set a strong precedent for future suits.
Most, but not all, of the terminated NIH grants have aligned closely with topics the Trump administration doesn’t want to fund, including transgender health, environmental health, vaccine hesitancy, workforce diversity, and work studying COVID-19. Many termination letters were issued shortly after Trump issued executive orders banning medical treatment for transgender youth and efforts to promote diversity, equity, and inclusion. Several of these orders have been blocked by judges ruling on Trump administration actions. Documents seen by Science instruct NIH program officers not to mention the executive orders in communications with researchers, which sources at the agency say is an attempt to get around the judges’ orders.
The complaint letter filed today as part of the suit focuses on the Administrative Procedure Act, which covers all federal grants, among other government functions, and requires “reasoned decision-making” when deciding whether to terminate a federal grant. The lawsuit alleges that the affected researchers weren’t given any information about the decisions nor provided with evidence that they had violated the terms of their grants. They were also not given the chance to amend their projects, they say. The letter adds that by not dispersing grants, NIH and HHS have violated congressional mandates instructing the agencies to fund certain areas, including efforts to study diverse populations that explicitly include LGBTQ groups. As a result of the agencies’ actions, the suit says, “scientific advancement will be delayed, human health will be compromised, and lives will be lost.”
The letter says the vague wording used in NIH’s termination letters also violated the Fifth Amendment, which guarantees due process in legal proceedings. “No one really knows what they mean,” Mankofsky says. Most termination letters have said the research project “no longer effectuates agency priorities,” which the suit alleges fails to tell the researchers what exactly is prohibited. “The sole legal basis that NIH cited for its authority to terminate the grants is inapplicable,” the complaint letter reads. “It has not highlighted any genuine concerns with the rigor of projects; it has just declared them ‘unscientific.’”
Krystal Toups, director of contracts and grant administration at the Washington, D.C.–based advocacy group COGR, says her organization has long been concerned about the “agency priorities” language, which was added to the Office of Management and Budget’s regulations in 2020 as a way to allow the government to end grants. “Today we’re seeing it being applied in this really nontraditional way to terminate projects,” she says. Toups says many were concerned about the language during Trump’s first administration; in a March 2020 letter, COGR wrote that the amendment “provides an arbitrary mechanism for agency officials to terminate an award.”
In an email to Science, HHS spokesperson Andrew Nixon said the agency does not comment on litigation.
The new lawsuit isn’t the first seeking to reverse NIH grant terminations. Last month, the American Association of University Professors (AAUP) filed a lawsuit on behalf of members who are also faculty at Columbia University, which is poised to lose $400 million in funding, including more than $250 million in NIH grants, but may recover those funds if it meets certain demands made by the Trump administration. Unlike the new suit, the AAUP suit is based on the idea that the administration’s actions violated the First Amendment protecting free speech, along with administrative procedure. That case has not yet received a hearing, but any decision on it is unlikely to affect the terminated grants of other institutions.
More: https://www.science.org/content/article/lawsuit-aims-broadly-overturn-nih-s-grant-terminations
