This series of post is a line by line comparison and analysis of UVa’s petition for relief vs. Cuccinelli’s response. The first of each pair will be the one from UVa and the second from each pair will be the corresponding text from Cucinelli’s petition. In between will be my take on the claims.
1.) Academic freedom is essential to the mission of our Nation’s institutions of higher learning and a core First Amendment concern. As Thomas Jefferson intended, the University of Virginia (the “University”) has a long and proud tradition of embracing the “illimitable freedom of the human mind” by fully endorsing and supporting faculty research and scholarly pursuits. Out nation also has a long and proud tradition of limited government framed by enumerated powers, which Jefferson ardently believed was necessary for a civil society to endure.
1. In response to the paragraph numbered 1 of the Petition, the allegations of said paragraph are legal assertions, and therefore, do not require a response. To the extent a response is required, the same are denied. Respondent avers that neither academic freedom nor the First Amendment have ever been held to immunize a person, whether an academic or not, from civil or criminal actions for fraud, let alone immunized them from an otherwise authorized investigation. Further, Respondent avers that, based on past Freedom of Information practice, Petitioner has conceded that at least some of the documents sought by the CIDs are not privileged from dissemination.
So not much to see here. Both parties make their opening statements. UVa continues it’s long tradition of name dropping Thomas Jefferson at every possibly opportunity. Nothing much of substance on the part of either party. The last sentence of Cuccinelli’s response, however, does not seem to make sense. Cuccinelli is saying something to the effect of “UVa concedes that they ought to give us some of their documents.” I personally don’t see it, so I don’t see where he’s coming from. On to the next paragraph…..
2. The Civil Investigative Demans (“CIDs”) issued to the University by the Office of the Attorney General of Virginia (the “Attorney General”) threaten these bedrock principles. The CIDs are deficient under the Virginia Fraud Against Taxpayers Act, Va. Code 8.01-216.1 et seq. (“FATA”), and their sweeping scope is certain to send a chill through the Commonwealth’s colleges and universities. For these reasons, the Rector and Visitors of the University of Virginia, pursuant to Va. Code 8.01-216.18, respectfully petution this Court for an order setting aside the CIDs.
2. In response to the paragraph numbered 2 of the Petition of the Petition, the allegations of said paragraph are denied.
Still not much to see here, mostly introductory material. The next paragraph is where things start getting meaty.
3. The CIDs at issue appear to be unprecedented. To the University’s knowledge, this is the first time that a Virginia Attorney General has used the limited authority under FATA to issue a CID in service into scientific research conducted by a university faculty member. The CIDs identify Dr. Michael Mann, an Assistant Professor in the University’s Department of Environmental Science from 1999 to 2005, and his research on climate change, which was funded in part by four federal grants and one University grant all initially awarded between 2001 and 2003. The CIDs do not state why they identify Dr. Mann and his research, but the requests for information are sweeping in scope, seeking, among other things, all “data, materials, and communications that Dr. Mann created, presented or made in connection with or related to” the grands specified in the CIDs.
3. In response to the paragraph numbered 3 of the Petition, Respondent is without sufficient information and belief to admit the allegations pertaining to the Universities knowledge, and therefore, the same are denied. Respondent admits that the CIDs relate to the applications for and work presented by Dr. Michael Mann for 5 grants that Dr. Mann has identified on his curriculum vitae (attached as Exhibit B) as being a “U. Va award,” a “U. Va subcontract,” and/or a “U. Va. internal award.” Respondent avers that, with regard to their specific content, the CIDs speak for themselves. Regarding the remaining allegations of said paragraph, Respondent denies any and all such allegations that are not consistent with the foregoing.
Oh, snap! UVa asks WTF do the CIDs have to do with Michael Mann and Cuccinelli just responds with “Well yes they do, can’t you read?” Furthermore Cuccinelli asserts that the grants are relevant since they are listed as UVa grants. Cuccinelli shows here his ignorance of his own state. UVa is barely even connected to the state of Virginia. At last count, UVa gets about 5% of its funding from the state government, and most of that goes to pay for things like library subscriptions, printer ink, and the like. Salaries (which are what Mann’s grants pay for) almost never are paid out of state funds. So far UVa is showing a lot more legal research than the AG….
Okay, I’m starting to get bored of transcribing all of the documents, so I will only transcribe the ones with useful information. Paragraph 4 is pretty bland. UVa says that the AG’s request fails to state the nature of the fraud violation and fails to state why UVa has information about a violation of the FATA. Cuccinelli says that he does meet the requirements. No real specific facts are being debated in this paragraph, so on to number 5, which is much more interesting and worth typing out in it’s entirety.
5. The CIDs do not state the nature of the conduct that could constitute a potential FATA violation. And for good reason. None of the five identified grants appears to implicate the FATA. Four of the five grants were awarded by the federal government, not the Commonwealth. FATA extends only to allegations of false claims submitted for Commonwealth funds. The fifth grant was an internal University grant initially awarded in 2001. FATA did not become effective until 2003, see Virginia Acts 2002, c. 842 (effective date January 1, 2003), and it does not apply retroactively. Given these circumstances, there is no objective “reason to believe” that the University has information about a FATA violation.
5. In response to paragraph numbered 5 of the Petition, Respondent specifically denies that the CIDs fail to sufficiently state the nature of the conduct allegedly subject to FATA. Respondent avers that Dr. Mann’s own curriculum vitae, the grants referenced in the CIDs were all active after the passage of the FATA and all involved “awards,” “internal awards,” or “subcontracts” through the University of Virginia, making any such awards potentially susceptible to a fraud action under FATA. Respondent, having been denied access to the grant materials despite the CIDs and conversations with counsel, is unable to admit or deny the specifics of the Petitioner’s allegations pertaining to the grants, and therefore, the same are denied. Respondent denies any and all other allegations in said paragraph that are not consistent with the foregoing.
Busted. Smackdown. This is where Cuccinelli starts to get delusions of competence. Cuccinelli is called out on the fact that 4 of the 5 grants were in fact from the federal government. Cuccinelli then responds that he can’t know where the grants come from until his CIDs are answered. What a load of horse-hockey. If they were in fact state grants, there would be public record of that fact that requires no CID to find. Federal grants are also public for anyone to view. Cuccinelli is trying to backpedal on the fact that he really didn’t do much research before filing this CID….. Paragraph 6 I think is the best of the bunch:
6. Furthermore, the expansive scope of the information requested in the CIDs likewise appears untethered to any potential FATA violation. Rather, the requests seek a voluminous body of academic and scientific information, documents and correspondence related to the merits of scientific research spanning a period of more than ten years. The nexus between these broad requests and the five identified grants (or any potential FATA violation) is unexplained.
In response to the paragraph numbered 6 of the Petition, the allegations of said paragraph are denied.
Yikes. This is game, set, and match for UVa, regardless of any of the other arguments for the case. UVa points out that 10 years worth of every last detail of someone’s professional life is ridiculously overbroad for a fraud investigation. UVa asks for clarification for how any of the information is relevant. All Cuccinelli can respond with is “I say so, therefore it must be true. Lalalalalala.” Arguable, it is these paragraphs that are the most damning to Cuccinelli’s case. A simpler version: UVa says “Hey, this is a fishing expedition, that’s totally not allowed.” Cuccinelli says, “Er…. it’s not… because I say so!”