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Scott J. Brodie v. United States Department of Health and Human

July 12, 2011

SCOTT J. BRODIE,
PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

In January 2010, Defendant United States Department of Health and Human Services determined that Plaintiff Scott Brodie had committed research misconduct. For his actions, HHS barred him from participating in projects funded by the federal government for seven years. Plaintiff then filed this suit challenging his debarment under the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq., and the United States Constitution. He claims that the Administrative Law Judge erred in determining both that he had acted improperly and that a seven-year debarment was appropriate. Having reviewed both sides' Cross-Motions for Summary Judgment, the Court finds Defendants carry the day.

I.Background

Plaintiff is a molecular pathologist and board-certified anatomic pathologist. Compl., Exh. 1 (Recommended Decision Granting Summary Disposition to the Office of Research Integrity) at 1. From 1999 to 2002 -- the time period relevant to this litigation -- he was employed by the University of Washington as a Research Assistant Professor and Director of the Retrovirus Pathogenesis and Molecular Virology Laboratories. Id. at 1-2. In these roles, Plaintiff submitted grant applications, published scientific articles, and conducted presentations. In 2002, the University initiated an investigation into whether Plaintiff had submitted false or fabricated images in his grant applications, articles, and presentations. Id. The University later concluded that Brodie had submitted or presented materials that contained images that he had knowingly and intentionally falsified or fabricated. Id. As a result, the University notified Plaintiff that he was "banned from future employment at UW." Compl., ¶ 16.

On September 17, 2008, the Office of Research Integrity (ORI), part of HHS, filed a charge letter against Brodie asserting that he had engaged in 15 instances of research misconduct and notifying him that it intended to debar him from conducting research supported by federal funds for seven years. Id., ¶ 17. On October 16, Plaintiff informed ORI that he would contest its findings and requested a hearing before an ALJ. Id., ¶ 18. ORI opposed Plaintiff's request, arguing that he had not offered any evidence to dispute the allegations. ALJ Rec. at 2.

The ALJ issued a ruling in January 2009, finding that Plaintiff had raised triable issues concerning his culpability for the false information and the reasonableness of the seven-year debarment proposed by ORI and therefore granting a hearing on such issues. Compl., ¶ 29. In the same order, the ALJ held that Plaintiff "did not raise triable issues challenging ORI's findings that the publication, presentations, grant applications, and other materials published by [Plaintiff] and cited in the charge letter contained materially false statements, images, and data." Id. The ALJ scheduled the hearing for February 11, 2010. Id., ¶ 30. In the meantime, the parties proceeded with discovery and filed pre-hearing exchanges of proposed evidence pursuant to the ALJ's pre-hearing order. ALJ Rec. at 2. Before the hearing, on November 10, 2009, however, ORI moved for summary disposition, which Plaintiff opposed. Id.

On January 12, 2010, the ALJ issued his Recommended Decision Granting Summary Disposition to the Office of Research Integrity. See ALJ Rec. at 1. In his Recommendation, the ALJ determined that "[t]he only reasonable inference that I can draw from the undisputed facts of this case is that [Plaintiff] knowingly and intentionally, and on a massive scale, published or attempted to publish false or fabricated information that was material to the research that he performed." Id. at 6. The ALJ's decision further recommended debarment for seven years based on the amount of falsified information. Id. at 27. The HHS Debarring Official accepted the ALJ's recommendation and issued a final notice on March 18, 2010, debarring Plaintiff from procurement and nonprocurement transactions with the federal government for seven years. Compl., ¶ 54. In doing so, she rejected Plaintiff's request for an oral hearing on the debarment issue.

On April 2, 2010, Plaintiff filed suit in this District challenging his debarment and seeking a preliminary injunction enjoining the Agency from such action. Judge Paul Friedman, to whom this case was previously assigned, denied Plaintiff's Motion for Preliminary Injunction on June 4, 2010, finding that Plaintiff had neither demonstrated a likelihood of success on any of his claims nor an irreparable injury. Following that ruling, the parties briefed the issues in the Cross-Motions now before the Court.*fn1

II.Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). The mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. Liberty Lobby, 477 U.S. at 248. To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier of fact could find for the non-moving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").

Although styled Motions for Summary Judgment, the pleadings in this case more accurately seek the Court's review of an administrative decision. The standard set forth in Rule 56(c), therefore, does not apply because of the limited role of a court in reviewing the administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006) (citing National Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, at *7 (D.D.C. 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), amended on other grounds, 967 F. Supp. 6 (D.D.C. 1997)). "[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Id. (internal citations omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. SeeRichards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited inBloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir. 2003).

The APA "sets forth the full extent of judicial authority to review executive agency action for procedural correctness." F.C.C. v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1810 (2009). It requires courts to "hold unlawful and set aside agency action, findings, and conclusions" that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Under this "narrow" standard of review, "a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency is nonetheless required to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Id. (internal quotation omitted). The reviewing court thus "may not supply a reasoned basis for the agency's action that the agency itself has not given." Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974) (internal quotation omitted). Nevertheless, a decision that is not fully explained may be upheld "if the agency's path may reasonably be discerned." Id. at 286. The Court should focus its review on the administrative record. See Camp v. Pitts, 411 U.S. 138, 142 (1973) ("[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.").

III.Analysis

The gravamen of Plaintiff's case is that the ALJ's decision was arbitrary and capricious for a number of reasons. As ancillary arguments, Plaintiff also claims that the ALJ's grant of summary disposition violated his due process rights under the Fifth Amendment and that the University violated his Fourth Amendment right against unreasonable searches and seizures. The Court will address each in turn.

A. Culpability Standard

Plaintiff first contends that the ALJ's decision was arbitrary and capricious because he applied an improperly low standard of "recklessness" when determining whether Brodie had committed research misconduct. Motion at 11-15. Research misconduct is defined in this manner:

Misconduct or Misconduct in Science means fabrication, falsification, plagiarism, or other practices that seriously deviate from those that are commonly accepted within the scientific community for proposing, conducting, or reporting research. It does not include honest error or honest differences in interpretations or judgments of data.

42 C.F.R. § 50.102.*fn2 As the ALJ noted, the regulation is silent on the level of intent required, except to exclude honest error. ALJ Rec. at 8. Aware of such absence, the ALJ examined a prior decision by HHS's Departmental Appeals Board on the issue of intent. Id. (discussing Dr. Rameshwar K. Sharma, 1993 WL 742551 (DAB No. 1431 (1993)). The ALJ stated, "The Board [in Sharma] drew a distinction between honest error and statements that are made with knowledge that they would mislead the reader. The latter type of statement, as opposed to mere negligence, constituted misconduct." Id. As the ORI Charge Letter ...


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