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Have the Center for Disease Control and the National Institute of Health ever been sued for ignoring the low life expectancy of African Americans and Native Americans, or sued to force the agencies to make changes in the future? I mean, I think the case would be strong-in the past couple decades the NIH had to step up its work on heart disease in women even though white women were dying of heart disease later in life than men were.

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    Are you exclusively asking about life expectancy and AA, or more generally any bad-outcome rates correlated with protected class? – user6726 Nov 2 '17 at 15:39
  • That's a good question, now you made me think of Native Americans as well, which I'll insert in the question. – Richard Peterson Nov 3 '17 at 1:53
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There is no central repository of suits against NIH or CDC, so a definitive answer is very unlikely. A scan of four dozen most recent suits which made it to appellate court involving NIH as a plaintiff show that the majority of them pertain to employment (Williams v. Sebelius, Poulsby v. Chase, Scambos v. Computer Management, Bonds v. Leavitt, Manns v. U. Ark. Med Ctr, Waseff v. NIH, Arthur v. Frederickson). There are other causes, such as termination of grant (Dobkin v. JHU), workplace-related (Stephenz-Frazier v. NIH, Battle v. Burwell), contract squabbles (IntraComm v. Bajaj), disposition of frozen embryoes (Doe v. Obama; Doe v. Shalala), schedule 1 classification of marijuana (Krumm v. Holder), FOIS ( PETA v. NIH, HHS), and then a number of cases, dismissed, where it’s impossible to say what the issue was (Smith v. Donahoe (no legal claim), Rivera v. FDA , Scott v. NIH (frivolous litigation). No case appears to have ever been litigated against NIH because of the scientific subject matter of NIH-funded research, nor that NIH grant-dispersal policy illegally discriminates.

There is one case very remotely related to the question, Emrit, Leal-Mendez v. NIH, where plaintiffs sued various health agencies alleging violation of ADA, negligence and intentional infliction of emotional distress stemming from alleged attempts to get treatment for “mysterious, parasitic infection”, but this was dismissed (a pro se case, plaintiffs failed to do the basic homework on suing the government – dismissed because the court lacked subject matter jurisdiction).

The outcome (life expectancy statistics) is not a basis for a successful lawsuit: nothing in the law requires a government agency to guarantee a particular outcome in its sphere of operation. If a government agency were to pursue funding policies that discriminated against an ethnic group, there could at least be the seeds for a lawsuit. For example, we know that African Americans are disproportionately affected by sickle cell disease, so if research proposals to control sickle cell were systematically turned down, one might argue that this is racially discriminatory, because of the disparate impact of the policy. However, disparate impact has not yet been admitted as a general doctrine of discrimination law. There are various federal anti-discrimination laws pertaining to housing, employment, public accommodation, education, and voter registration, but it is not clear how health-research funding would be subsumed under existing discrimination law. There is the theoretical possibility of employing the Due Process and Equal Protection clauses to arrive at the unconstitutionality of a federal policy that discriminated racially. One might also attempt to argue that such a policy is contrary to Congressional intention (in creating the agencies and funding the programs), and thus illegal. But these are basically hypothetical arguments.

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I think that what you really mean to ask, although the question isn't very artful, is whether the CDC or NIH have any legal liability for "ignoring the low life expectancy of African Americans?", which could give rise to a lawsuit that could prevail on the merits if somebody brought one.

The answer to that question is no.

The CDC (Center for Disease Control) and NIH (National Institute of Health) are government agencies entitled to the sovereign immunity of the United States and the contemplated lawsuit does not fall within any recognized exception to that sovereign immunity.

More generally, even in the absence of sovereign immunity considerations, the CDC And NIH do not have any legal duty to prioritize one area of research or another. The matters to which they devote their efforts are in the absolute discretion to the administrators of the agencies subject to Congressional direction (usually in funding bills). Absent a specific statutory mandate to investigate a particular thing, they have breached no legal duty.

Furthermore, since the "low life expectancy of African Americans" is something that is statistically true of a group of people, rather than something that is particular to any given individual, there is probably no one who would have standing to bring such a vague claim.

  • Not disagreeing with your answer, but would not a class action suit be appropriate here? Would African Americans not qualify as a class (I ask in ignorance). – sharur Nov 2 '17 at 23:52
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    @sharur In all likelihood, the suit would be dismissed for failure to state a claim for sovereign immunity and lack of duty, before the question of class certification could be reached because class certification is a more fact intensive inquiry. The problem would be showing that all members of the class were causally injured by the same alleged breach of duty which is pretty much impossible. – ohwilleke Nov 3 '17 at 15:52

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