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Brodie v. Department Health & Human Services

United States District Court, District Circuit

June 27, 2013

SCOTT J. BRODIE, Plaintiff,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

OPINION

ROSEMARY M. COLLYER United States District Judge

Dr. Scott J. Brodie was debarred in 2010 from participating in federal contracts or grants for seven years because of his medical research misconduct between 1999 and 2001. He complains here that the Department of Health and Human Services; Kathleen Sebelius, Health and Human Services Secretary; David Wright, Director of the Office of Research Integrity; and Nancy Gunderson, Health and Human Services Deputy Assistant Secretary (collectively, “Defendants”), violated his rights. Dr. Brodie previously sued these same Defendants, challenging the decision to debar him. See Compl., Brodie v. U.S. Dep’t of Health & Human Servs. (“Brodie I & II Compl.”), Civ. No. 10-544 (D.D.C. filed April 2, 2010) [Dkt. 1]. In this case, Dr. Brodie again challenges the debarment decision, recasting his claim and arguing that the Office of Research Integrity violated Brady v. Maryland, 373 U.S. 83 (1963), by not preserving and producing his laptop during the administrative debarment proceedings. Because this suit is barred by res judicata and collateral estoppel, summary judgment will be granted to Defendants. The Court also concludes that Brady did not apply to the prior proceedings.

I. BACKGROUND

A. Plaintiff’s Claims and Facts Relevant to Instant Dispute

Dr. Brodie is a molecular pathologist who was an assistant professor in the Department of Laboratory Medicine at the University of Washington. Compl. [Dkt. 1] ¶ 8. After an investigation in September 2002, the University found that Dr. Brodie had committed fifteen instances of research misconduct in grant applications for federal Public Health Service (“PHS”) funding and in projects receiving PHS funding. Id. ¶¶ 9–10; Defs.’ Mot. Dismiss or for Summ. J. [Dkt. 13] (“Defs. Mot.”) at 7–8.[1] The University sent its final report to the Office of Research Integrity (“ORI”) at the Department of Health and Human Services (“HHS”) so that ORI could conduct its own independent investigation into the matter. Compl. ¶ 10. See generally 42 C.F.R. § 93 (setting forth PHS policies on research misconduct). ORI also concluded in September 2008 that Dr. Brodie had committed fifteen instances of research misconduct and recommended that he be debarred for seven years. Compl. ¶ 11; Defs. Mot. at 8–9. ORI’s findings were based on evidence that Dr. Brodie “intentionally and knowingly published or attempted to publish fabricated or falsified images in Public Health Service . . . grant applications, several published papers, manuscripts, and PowerPoint presentations.” Defs. Mot. at 7; see also Compl. ¶ 11.

When Dr. Brodie contested the proposed debarment, an Administrative Law Judge (“ALJ”) was assigned to hold a hearing to review ORI’s findings. Compl. ¶ 12. HHS processes call for an ALJ to make findings of fact upon which an HHS Debarring Official then relies in reaching a final decision. See 42 C.F.R. § 93.523. During discovery, before the administrative hearing, Dr. Brodie made various production requests that referenced his personal laptop computer, which the University of Washington had taken during its investigation. Compl. ¶¶ 28–30. Dr. Brodie claims that without his laptop, he “had no way to compare the original data to the images that ORI deemed suspect to make any conclusions as to whether those images were representative of the original data, and thus, were not falsified or fabricated as ORI alleged.” Id. ¶ 40. When Defendants did not produce any data from that laptop, despite Dr. Brodie’s requests, he assumed his laptop had been “lost, misplaced, or destroyed.” Id. ¶ 34. After discovery, the ALJ granted ORI’s Motion for Summary Disposition. Id. ¶ 15. Giving Dr. Brodie the “benefit of all doubt, ” and assuming that Dr. Brodie did not create any of the false images, the ALJ nonetheless found that Dr. Brodie published the false images and, thus, committed research misconduct. Defs. Mot. at 14 (quoting Administrative Record (“AR”) [Dkt. 12-1] at 3759; AR Part 2 (“AR(2)”) [Dkt. 12-2] at 8). The ALJ concluded: “The 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.” AR at 6.

The HHS Debarring Official accepted the ALJ’s recommendation in April 2010 and debarred Dr. Brodie from participating on federal contracts or grants for seven years. Dr. Brodie then filed suit in Brodie v. U.S. Department of Health & Human Services, Civil Action Number 10-544, which was assigned to the Honorable Paul Friedman and later reassigned to the Honorable James E. Boasberg of this Court. In his complaint, Dr. Brodie challenged ORI’s decision to debar him and named the same four defendants he has named here—HHS, Secretary Sebelius, ORI Director Wright, and Deputy Assistant Secretary Gunderson.

The first district court case resulted in two published opinions, one by Judge Friedman denying Dr. Brodie’s motion for preliminary injunction, Brodie I, 715 F.Supp.2d 74 (D.D.C. 2010), and the second by Judge Boasberg granting Defendants’ motion for summary judgment, Brodie II, 796 F.Supp.2d 145 (D.D.C. 2011). In the complaint at issue in Brodie I and II, Dr. Brodie claimed that his debarment violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and his Fourth and Fifth Amendment rights. Brodie I & II Compl. ¶¶ 56–84. Dr. Brodie moved for a preliminary injunction against his debarment, pending the outcome of the district court proceeding. Following a hearing, Judge Friedman denied the motion on June 4, 2010, basing his decision primarily on the conclusion that Dr. Brodie “[had] not yet demonstrated a likelihood of success on the merits—let alone a substantial likelihood— sufficient to weigh in favor of the issuance of a preliminary injunction.” See Brodie I, 715 F.Supp.2d at 84.

The case was reassigned to Judge Boasberg, who granted Defendants’ motion for summary judgment in July 2011. See Brodie II, 796 F.Supp.2d at 148. Central to Judge Boasberg’s opinion was the ALJ’s conclusion that Dr. Brodie would be liable for research misconduct, even assuming arguendo that he did not make the images himself, “because, at the very least, he published images that were false.” Id. at 154. Judge Boasberg concluded that the ALJ’s decision was not arbitrary or capricious, rejecting all of Dr. Brodie’s various arguments challenging the proceedings before the ALJ. Id. at 150–56. Judge Boasberg also granted summary judgment to Defendants on Dr. Brodie’s Fourth and Fifth Amendment claims. Id. at 156. Importantly for present purposes, in Brodie I and II, Dr. Brodie did not claim that ORI failed to produce material evidence from his personal laptop, and he did not file an appeal.

In August 2011, Dr. Brodie listened to an audio recording from an ORI research compliance conference that took place on April 22, 2010, in which the speaker, a Senior Attorney in ORI’s Office of the General Counsel, referred to Dr. Brodie’s case and referenced his “laptop computer.” Compl. ¶¶ 17–19. The Senior Attorney described how ORI was able to find Dr. Brodie’s fifteen instances of research misconduct upon which it based its debarment decision. She stated that ORI “actually had the data from his . . . laptop computer, the lab computer and alike so that we could compare the differences.” Id. ¶ 18. Knowing that no information had been produced from his laptop computer during the administrative proceedings, Dr. Brodie petitioned the ALJ to reopen his debarment decision. Id. ¶ 20. Dr. Brodie asserted that his laptop was “essential to his case” and, assuming after the ORI conference that ORI did possess the laptop but did not produce it to him, that the failure of ORI to produce his laptop in discovery amounted to a violation of Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).[2] Defs.’ Mot. at 17. ORI responded that the attorney had misspoken at the conference and that ORI had never requested or received Dr. Brodie’s laptop during the administrative debarment proceedings. Id. at 17–18; Pl. Opp. at 4. After the ALJ denied Dr. Brodie’s request to reopen the debarment proceedings, stating that he did not have the authority to do so, Dr. Brodie appealed by letter to the HHS Debarring Official. Compl. ¶ 20.

Dr. Brodie asked the Debarring Official to reopen the debarment proceedings due to the “newly discovered material evidence” that ORI had never even requested his laptop from the University of Washington. Defs. Mot. at 18–19. Dr. Brodie emphasized that “ORI revealed that it had never received the laptop or its contents from [the University of Washington] during the course of its investigation. This revelation was new and showed that material evidence had not been obtained . . . by ORI, despite Dr. Brodie’s discovery requests.” Id. The Debarring Official denied Dr. Brodie’s request for multiple reasons. First, the Official found that the transcript from the ORI conference was not enough to constitute “newly discovered evidence” that either the University of Washington or ORI possessed the laptop computer. See AR(2) at 455. The Official reasoned that Dr. Brodie did not exercise reasonable diligence during the discovery process because he never moved to compel ORI to obtain and produce the laptop. See AR(2) at 456. Second, the Official found that the laptop was not material to the finding of misconduct because the ALJ based his decision on Dr. Brodie’s publication of the falsified images, assuming that any records on the laptop would reveal that Dr. Brodie did not create the false images. Defs. Mot. at 21. Finally, the Official found that Brady did not apply. Id. The Official noted that Brady traditionally applies in criminal prosecutions and extends to civil matters only when the consequences of civil litigation are similar to those of a criminal conviction. AR(2) at 457. She thus concluded that Brady and its progeny “are inapplicable to administrative matters such as this one . . . [where] merely money or damage to reputation is at stake.” Id. When the Official denied Dr. Brodie’s request, Dr. Brodie filed the instant action.

The instant Complaint contains three counts, all based on the claim that HHS violated Brady by not securing and producing Dr. Brodie’s laptop from the University of Washington during the debarment proceedings. See Compl. ¶¶ 49 (Count I), 60 (Count II), 70 (Count III). Count I claims a violation of Dr. Brodie’s due process rights under the Fifth Amendment, Count II claims an APA vioation, and Count III is styled as a “Claim to Set Aside Judgment under [Federal Rule of Civil Procedure] 60(b).” Dr. Brodie asks the Court to vacate his debarment, set aside the Brodie I and II decisions based on the “newly-discovered material evidence” that HHS did not seek Dr. Brodie’s laptop during discovery, order ORI to obtain and produce data from Dr. Brodie’s laptop, and direct ORI to conduct another hearing on culpability.

Defendants move to dismiss or, in the alternative, for summary judgment. They argue that Dr. Brodie’s current claims are barred by res judicata because Dr. Brodie could have raised his Brady arguments in Brodie I and II. Defs. Mot. at 32–34. Defendants also contend that collateral estoppel bars Dr. Brodie’s claims because Dr. Brodie’s laptop was immaterial to ORI’s original debarment decision, upheld in Brodie II. Defs. Mot. at 30–32; see also Id . at 4 (arguing that “by contending that his alleged laptop, if located, would be material to the finding of research misconduct, Dr. Brodie is simply seeking to re-litigate an issue that already has been decided adversely to him”). In the alternative, Defendants argue that Brady does not apply to civil proceedings, except in unusual circumstances, so Dr. Brodie has not stated a cognizable claim.[3] Id.

Dr. Brodie filed an omnibus opposition to the motion to dismiss and cross-motion for summary judgment, arguing that he has conclusively established a Brady violation and that the Court should immediately remand to ORI for further proceedings. Pl. Opp. At 1, 21. Defendants have filed a reply, Dkt. 17, and surreply, Dkt. 22; Dr. Brodie has submitted a reply, Dkt. 20. The matter is fully briefed and is ripe for decision.

II. LEGAL STANDARDS

A. Summary Judgment


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