Responding to the Attorney General's Brief, University Again Argues for Dismissal of CIDs

July 21, 2010 — Lawyers representing the University of Virginia filed a brief (PDF file) Tuesday in Albemarle County Circuit Court, the next step in the University's dispute with Virginia Attorney General Kenneth T. Cuccinelli over the attorney general's Civil Investigative Demands, or CIDs.

The University's filing responds strongly to arguments advanced by the attorney general in an opposition brief filed on July 13. In that document, the attorney general maintained that his inquiry – into whether a former U.Va. climate researcher obtained grants based on fraudulent data – is permitted under the Virginia Fraud Against Taxpayers Act.

In two CIDs, issued on April 23, the attorney general sought from the University extensive information relating to Michael Mann, who was an assistant professor of environmental sciences at the University from 1999 to 2005. Mann, who has since joined the faculty of The Pennsylvania State University, is known for his research on global warming.

The CIDs issued to the University request information and documents in connection with five grants as well as correspondence between Mann and nearly 40 scientists and other individuals over an 11-year period. The five grants at issue – four of them awarded by federal agencies and involving the disbursement of federal funds – totaled some $466,000.

The University's brief filed Tuesday again asks the court to set aside the CIDs, pointing out that the attorney general's actions are an "unprecedented attempt to challenge a university professor's peer-reviewed data, methodologies and conclusions." The brief argues that the Virginia Fraud Against Taxpayers Act "does not authorize the attorney general to target for government investigation those who conduct scientific research with which the attorney general disagrees."

The 10-page filing states that the "CIDs are aimed squarely at Dr. Mann's scientific conclusions," noting that more than one-third of the attorney general's opposition is "devoted to challenging and criticizing the research and conclusions" that Mann and his colleagues published while Mann was at the University of Massachusetts – not U.Va. 

Citing several cases, the brief argues that debates among researchers and scientists don't constitute fraud.

The brief also reiterates the University's position that the CIDs are unenforceable. "The attorney general offers the perfectly circular rationale that it can issue CIDs for information relevant to an 'investigation' so long as the attorney general says that it is conducting an 'investigation' to which the information is relevant," it says.

The broad request for information also undermines the CIDs, the brief says. The Virginia Fraud Against Taxpayers Act "does not give the attorney general license to sift through Dr. Mann's research data, materials, discussions, conclusions and correspondence with dozens of other academics over a period spanning more than 10 years," it says.

The brief also asserts the University's position that enforcement of the CIDs would infringe academic freedom and chill scientific debate.  It makes clear that debates and disagreements among academics – in any discipline – should not open the debate up to participation from the attorney general's office.

The parties are scheduled to appear in Albemarle County Circuit Court on Aug. 20 for oral arguments. The law firm of Hogan Lovells and its premier education practice group are representing the University in its response to the CIDs.