Let’s See if Nemo is HIV Positive

Darrell VanDeusen
Darrell VanDeusen

I don’t often take a deep dive into the False Claims Act.  But a recent case got my attention.  That’s because I am both a (former adjunct) professor and a scuba diver.  So, when those issues converge in a lawsuit what else can I do but write about them.   United States v. Parsons-Hietikko, 19-cv-7705-RA (S.D.N.Y. Jan. 27, 2023).

First, let’s talk about what we’re talking about. The federal False Claims Act, 37 U.S.C. §3729 et seq. authorizes qui tam actions against parties who have allegedly defrauded the federal government.  If you’re not up on your Latin, qui tam is the abbreviation for the phrase “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means “Who sues on behalf of the King as well as for himself.”   You can see why they abbreviated it.

In a qui tam action, a “relator” brings a lawsuit against someone on the government’s behalf. The government, not the relator, is considered the plaintiff, and most times the government will intervene in the case.  Should the government succeed, the relator gets a share of the award.  In FCA cases, that can amount of up to 30% of the award.

The case that got my attention involves a former professor at Hunter College who got millions in AIDs research grant monies from the National Institutes of Health (NIH).  He is an internationally recognized expert in the study of HIV.  

The professor left Hunter College under less than admirable circumstances in 2019.  Those reasons were not related to the use of government funds, but the connection between the significant funds he brought to the College and the College’s alleged failure to take prompt remedial action to address other concerns raised about the professor’s misbehavior might have been related.  

In August 2019, a relator who had worked with the professor brought a lawsuit alleging that he misused some of the federal government grant money. Specifically, the claim was that the professor had spent some of the grant money on scuba trips to (among other places) Fiji, Belize and the Cayman Islands, Bonaire, Cuba and Costa Rica.  I have been fortunate enough to dive in those places as well; they are exceptionally nice.

Additional allegations stated that the professor did not “create any documents, data or records reflecting research he conducted while he was on the scuba trips . . . . Moreover, after multiple years of inactivity, Parsons also knew that he had no intention of conducting research relating to his trips. . . [and] [i]nstead, Parsons’ ‘scuba study’ became known . . . as Parsons’ personal boondoggle, a series of all expense-paid vacations that catered to Parsons’ desire to scuba in exotic locales.”

The federal government intervened and the matter was settled on January 27, 2023.  As a part of a settlement, the professor is required to pay $375,000 and Hunter College will repay the government $200,000.   The professor’s lawyer was quoted by various news sources as saying that “There was never any intent by Dr. Parsons to defraud the federal government — which is why he was never charged with a crime.  He’s settled this civil matter now and put it behind him.”

The take-away here?  Employers of course need to be cautious when addressing issues raised in the workplace, and promptly address concerns of inappropriate behavior, regardless of who alleged misbehaving employee is.  Extra scrutiny will occur when the employee alleged to have engaged in misbehavior is a high performer; someone who brings in significant money to or prestige for the business.   And, as Allen Toussaint wrote in “On Your Way Down” (as performed wonderfully by Little Feat on “Dixie Chicken”): “The same dudes that you must use on your way up, you might meet up on your way down.” 

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