Attorneys are often asked, “Do you think I’ll win?” In answer, they could cite a June 4, 2013, court of appeal ruling to show that even members of Congress, at a hearing I attended five years before, predicted the outcome incorrectly.   

Dr. Victor Yu was chief of infectious disease and Dr. Janet Stout a researcher and director of the Special Pathogens Laboratory (SPL) at the Veterans Affair Pittsburgh Health Care System (VAPHS). Their research using a collection of specimens was instrumental in finding the cause of Legionnaires‘ disease, and they were justly celebrated.

In July 2006, the new director of the hospital said thatYu’s lab was “acting beyond its intended scope,” announced that the SPL was being closed, and ordered all testing to be stopped. On Dec. 4, 2006, reportedly the day before it was to be transferred to the University of Pittsburgh, the collection of over 8,000 specimens was thrown out.

At a Sept. 9, 2008, hearing of the House Science and Technology Subcommittee on Investigations and Oversight that I was covering,  subcommittee members expressed great sympathy for what had happened to Yu and castigated the VAPHS officials who testified about the incident.

Subcommittee chair Rep. Brad Miller (D-NC), describing himself as a “recovering lawyer,” told Yu, “You have been wronged professionally. Have you seen an attorney?”

Yu did see an attorney, who filed a 24-count complaint in the U.S. District Court for the Western District of Pennsylvania against the United States, with claims challenging the defendants' conduct under the Privacy Act, 5 U.S.C. §552a(g)(1)(C), the Administrative Procedures Act, 5 U.S.C. §704, and the First and Fifth Amendments to the Constitution.

On July 5, 2011, the court dismissed Yu’s complaint for lack of subject matter jurisdiction because his claims were governed by the Civil Service Reform Act (CSRA), 5 U.S.C. §7101, which does not provide for judicial review of the type of employment-related issues alleged by Yu. His remedy, if any, lay within the CSRA administrative procedures, the court wrote.

On July 26, 2013, the U.S. Court of Appeals for the Third Circuit affirmed the district court’s ruling.

It might have looked like a slam-dunk to Rep. Miller, but then it moved to another arena where the rules were different.

Meanwhile, the Centers for Disease Control and Prevention determined that 21 veterans in the VAPHS were stricken with Legionnaires‘ disease and five died between 2011 and 2012 under the VAPHS management that had closed Yu’s lab. The House Committee on Veterans Affairs has scheduled a hearing on infectious disease outbreaks in VA hospitals for Sept. 9, 2013, and is holding it in Pittsburgh.