Cuccinelli’s Civil Investigative Demand (a subpoena in all but name) has been set aside. However, it’s not a clear and convincing enough victory that Cuccinelli can’t try the same thing again with a better worded CID. For the most part, however, this ruling is a major setback to Cuccinelli’s anti-science crusade.
The one sentence summary is that although the current CID is severely deficient, a new CID filed that only pertains to funds spent after Jan. 1, 2003 on the single internal UVa grant that seeks specific information relating to that grant might be valid if a specific allegation of fraud can be stated. The Judge Peatross’s decision hinges on the answer to six questions and most of his answers contain a “but” that Cuccinelli can use to file again. Details under the cut:
- Does the AG need an objective reason to believe that a FATA violation occurred? Yes. The attorney general is not empowered to go on a fishing expedition on a merest whim. The court has the authority to review any demand and must have some objective evidence that a specific violation might have occurred. (This point goes wholly to UVa and anyone who cares about civil liberties in general.)
- Has the attorney general stated the nature of the allegedly fraudulent conduct? Nope. It’s not stated directly in the CID and a 15 page screed on global warming science controversies doesn’t count. Cuccinelli failed to clearly state what was “misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia.” (Hooray for a voice of reason! However, this is one of those things that Cuccinelli could potentially fix in a future filing.)
- Is UVa a person? Yes, so UVa and it’s employees are a legitimate target under the CID. End of story. (I definitely called this one. I think the reason UVa tried this approach, even though it was unlikely to be recognized, was that it would have prevented all future harassment of scientists working at state universities under the Fraud Against the Taxpayer Act)
- Do the CIDs infringe academic freedom? Judge Peatross deftly sidesteps the question of academic freedom itself, but quotes the statement that any intrusion on academic speech “must be carefully limited” (citing the Dow Chem Co. v Allen case noted by UVa and the amicus brief). Instead, he notes the overly broad scope of the CID in that the AG has no authority to investigate grants that were federal in nature, nor the state grant if no funding was administered after the effective date of FATA. (This is one defense UVa didn’t try, but if they produce evidence that no funding was paid after the effective date of FATA, this case automatically goes away. Either the information is not readily available or UVa has the information but is saving it for an appeal or UVa has the information and knows is goes against their case)
- Does federal funding magically become state funding if it touches the University of Virginia? A most emphatic no. (This clearly restricts the case to the one internal UVa grant from 2001.)
- What is the scope of the inquiry? Cuccinelli isn’t entitled to the kitchen sink, he’s only entitled to the information related to application for the 2001 grant and information about payments from that grant after 2003. (So Cucinelli could write a narrower CID that might be approved. However, UVa could potentially narrow this even further since most internal grant applications don’t reference the applicants past work, but rather what future work they intend to do with the grant. This reasoning might be another defense that UVa is keeping in their back pocket in case Cuccinelli appeals or re-files.)
So again in summary, Cuccinelli gets smacked down pretty badly, but not for reasons of academic freedom. The door is still open for him to try again, but the door is now substantially smaller. Given his history of politically motived frivolous court filings, I would bet that he tried again.