German v. Rubin, et al. (Lawyers Weekly No. 12-117-17)
David Lopes Ca 1 rdozo and President & Fellows of Harvard College COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION NO. 16-01640 GUSTAVO GERMAN vs. LEE L. RUBIN & others1 MEMORANDUM OF DECISION AND ORDER ON PRESIDENT & FELLOWS OF HARVARD COLLEGE’S MOTION FOR RECONSIDERATION OF ITS REQUEST FOR A STAY PENDING APPEAL INTRODUCTION On May 31, 2017, this court issued an order allowing the pro se plaintiff, Gustavo German’s (“German”), motion to add President & Fellows of Harvard College (“Harvard”) as a party and directing Harvard to comply with this court’s December 5, 2016 order. On June 19, 2017, this court issued an amended Revised Order directing Harvard to provide German with “full access” to “the Bauer Building (located in the basement of the Sherman-Fairchild Building where the Rubin Lab is located)” and to “the BRI facility inside the Bio Lab Building” where German houses and conducts research with a specialized mouse colony. Counsel for Harvard sought a stay of the court’s orders pending appeal in open court, which was denied. This court stated that it would reconsider its ruling if Harvard submitted evidence concerning the laws and regulations governing animal research at Harvard. Harvard filed a notice of appeal on June 21, 2017, seeking appellate review of this court’s May 31, 2017 order and its June 19, 2017 Revised Amended Order. 2 Before this court is Harvard’s Motion for Reconsideration of its Request for a Stay of both orders pending appeal (“Motion”). After hearing and careful review of the submissions of the parties, the Motion is ALLOWED in part and DENIED in part. Before this court is Harvard’s Motion for Reconsideration of its Request for a Stay of both orders pending appeal (“Motion”). After hearing and careful review of the submissions of the parties, the Motion is ALLOWED in part and DENIED in part. BACKGROUND On June 20, 2017, following this court’s invitation to submit additional evidence, Harvard submitted the affidavit of Steven Niemi, which addressed various federal and local regulations governing animal research at Harvard. The affidavit also explained that because German has been withdrawn as a graduate student at Harvard, he is no longer eligible to use or access any regulated animals located in any Harvard facility for any purpose. On June 29, 2017, this court conducted an evidentiary hearing where Harvard offered the testimony of Dr. Ara Tahmassian, its Chief Research Compliance Officer, concerning the role of Harvard’s Institutional Animal Care and Use Committee (“IACUC”), which revoked German’s access to the BRI facility. Dr. Tahmassian guided this court through the federal regulations that establish the IACUC as an oversight body that is independent of Harvard. He explained that under those regulations Harvard cannot overrule […]
German v. Rubin, et al. (Lawyers Weekly No. 12-118-17)
COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION NO. 16-01640 GUSTAVO GERMAN vs. LEE L. RUBIN & others1 MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S EMERGENCY MOTION FOR AN ORDER DISALLOWING ADMINISTRATIVE PROCEEDINGS INTRODUCTION The pro se plaintiff, Gustavo German (“German”), obtained a harassment prevention order, pursuant to G.L. c. 258E, on August 25, 2016. The most recent revision of that order was issued on December 5, 2016. See Paper No. 78. Before this court is German’s Emergency Motion for an Order Disallowing Lee L. Rubin and/or Any Employee at Harvard Corporation to Initiate Administrative Proceedings Against Plaintiff without Leave of Court (“Motion”). For the reasons below, the Motion is ALLOWED nunc pro tunc to May 4, 2017. PROCEDURAL BACKGROUND The Motion was filed on an emergency basis on May 4, 2017, after German was put on notice that administrative proceedings were underway, which could lead to his ultimate removal from Harvard as a Ph.D. candidate. President & Fellows of Harvard College (“Harvard”) and Lee L. Rubin (“Rubin”) filed a response and opposition to the Motion on May 11, 2017. Harvard filed a written request for hearing, but did not call the court to obtain a hearing on an expedited basis. A flurry of additional motions and oppositions were filed in the two weeks following May 10, 2017 David Lopes Cardozo and President & Fellows of Harvard College This court relies not only on the facts recited in the Motion, but also those al 2 leged in German’s Verified Complaint for Civil Contempt (Paper No. 124). 2 related to Harvard’s withdrawal of German, and a hearing was held on all such motions on May 30, 2017. As concerns the instant Motion, following the hearing, this court declined to act, writing a margin order that states, “This Court was first alerted by the RAJ on 5/30/17 to participate in the hearing scheduled for 5/30/17, by which time Harvard had already acted. No action taken at this time.” The action to which the order referred was Harvard’s withdrawal of German from the university on May 16, 2017. This court now takes up German’s Motion. FACTUAL BACKGROUND2 On December 5, 2016, this court issued its most recent revision of the harassment prevention order in this case. See Paper No. 78 (“Order”). It provided, in relevant part, that German was to “immediately be fully restored to and remain in his position and research in the Rubin Lab,” and that “German shall remain working in the Rubin Lab, supervised by [] Dr. Rubin.” See id. at pars. 2, 3. On March 2, 2017, German’s program advisors requested that German hold a Dissertation Advisory Committee (“DAC”) meeting. On March 3, 2017, German agreed to hold […]
German v. Rubin, et al. (Lawyers Weekly No. 12-119-17)
David Lopes Ca 1 rdozo and President & Fellows of Harvard College COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION NO. 16-01640 GUSTAVO GERMAN vs. LEE L. RUBIN & others1 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS RUBIN AND PRESIDENT & FELLOWS OF HARVARD COLLEGE’S MOTIONS TO DISMISS INTRODUCTION Pursuant to Mass. R. Civ. P. 65.3, the pro se plaintiff, Gustavo German (“German”) then a fifth-year doctoral candidate at Harvard, filed a Verified Complaint for Civil Contempt (“Complaint”) on June 14, 2017. German previously obtained a harassment prevention order issued pursuant to G.L. c. 258E against Dr. Lee L. Rubin (“Rubin”) on August 25, 2016, in which this court directed that German be fully restored to the position he occupied in Rubin’s lab (“the Rubin Lab”) as of March 10, 2016, before the harassment began. That order was amended on September 9, October 4 and14, and December 5, 2016, after repeated requests by defendants Rubin and President & Fellows of Harvard College (“Harvard,” together with Rubin, “the defendants” ). German’s Complaint alleges, generally, that the defendants violated several directives contained in the most recent Revised Order dated December 5, 2016 (“Order”), and as a result (1) The harassment included, among other things, that German was forcibly seized 2 and hospitalized for a mental health evaluation on June 4, 2016, based upon fabricated concerns about German’s mental health that Rubin provided to Dr. Ayse A. Atasoylu, a physician from Harvard University Health Services. 2 German has not yet been restored to the position he was in prior to the harassment, (2) he has been prevented from completing his research and thesis, and (3) he has now been forcibly withdrawn as a student. Before the court are Rubin’s and Harvard’s separate motions to dismiss the Complaint. After hearing and careful review of the parties’ submissions, both motions are ALLOWED in part and DENIED in part. PROCEDURAL HISTORY On August 25, 2016, German obtained a harassment prevention2 order against Rubin following German’s report of Rubin’s research misconduct, i.e., his knowing publication of fabricated data. Rubin is a tenured professor at Harvard and the primary investigator (“P.I.”) of the Rubin Lab, the facility in which German works while pursuing his Ph.D. The resulting August 25, 2016 harassment prevention order consisted of two directives. First, Rubin was to stay at least 100 feet away from German and have no contact, direct or indirect, with him. Second, German was “to immediately be fully restored to his position and research in the Rubin Lab with all the assistance, equipment, and supplies he had on March 10, 2016.” See Paper No. 19, p. 27. Both Rubin and Harvard filed motions seeking to vacate or modify the Order […]