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Brodie v. Burwell

United States District Court, District of Columbia

June 13, 2016

SCOTT J. BRODIE, Plaintiff,
SYLVIA MATHEWS BURWELL, et al., Defendants.


          JAMES E. BOASBERG United States District Judge.

         The number three has long enjoyed an almost mythical role in our understanding of success. Some say the expression "third time lucky" - and its American variant, "third time's the charm" - dates back to Shakespeare's The Merry Wives of Windsor, published circa 1602: "Pr'ythee, no more prattling: go. I'll hold: this is the third time; I hope good luck lies in odd numbers . . . ." In modern society, the idea that a person is entitled to three chances at success has surfaced in contexts ranging from our criminal-justice system to the game of baseball; while the number of balls required to walk has fluctuated - nine at one point, four presently - the game has always afforded three strikes before "you're out." See Alexander J. Cartwright, Rules and Regulations of the Knickerbocker Base Ball Club (1845), available at: Perhaps it is for this reason that Plaintiff Scott Brodie, a biomedical researcher, believes that this, his third lawsuit seeking to overturn his debarment from receiving federal research funds, might succeed.

         Unfortunately for him, federal courts, unlike many other great American institutions, do not afford a person three chances at success. Instead, courts are limited by the doctrines of res judicata and collateral estoppel, under which a person may litigate his claim or issue only once; after it has been adversely decided, the litigant may not raise the same claim or issue against the same defendants a second or a third time. Brodie's first unsuccessful lawsuit challenging his debarment named the Department of Health and Human Services and its various officials as defendants and was decided by this Court, on the merits, in 2011. His second lawsuit raising the same challenge named the same defendants and was again dismissed - this time, by another judge in this district - on the basis of res judicata in 2013. Undeterred, Brodie has brought yet another action on the identical topic, once again suing HHS and its officials. They, too, have followed the same playbook and have again moved to dismiss the suit.

         Notwithstanding Brodie's blithe assertion that "[t]he issues raised in [the earlier] complaint[s] are not being raised herein, " Compl., ¶ 39, Defendants are correct that all the claims or issues Plaintiff asserts in this Complaint either have or could have been brought in his earlier lawsuits. They are, accordingly, barred by res judicata and collateral estoppel. The Court will thus grant Defendants' Motion, thereby rendering unsuccessful Plaintiff's third attempt to dislodge his debarment.

         I. Background

         Because what happened in court before heavily informs the ruling here, the Court will set forth not only the facts alleged in this Complaint, but also the details of Plaintiff's prior litigation.

         A. Debarment

         1. UW Investigation

         Plaintiff, a molecular pathologist, worked as a biomedical researcher at the University of Washington from 1999-2002. See Compl. at 2; id., ¶ 8 (explaining that, while at UW, Plaintiff was a Research Assistant Professor in the Department of Laboratory Medicine and Director of the Retrovirus Pathogenesis and Molecular Virology Laboratories, in which capacity he studied human herpesvirus and retrovirus pathogenesis); Opp., Attach. 1 (Affidavit of Dr. Scott J. Brodie), ¶¶ 1-14 (describing Brodie's qualifications and employment history with UW). In September 2002, UW initiated an inquiry into several allegations of research misconduct against Brodie - namely, that he had falsified or fabricated data and images in manuscripts, grant applications, and presentations. See Compl., ¶ 10.

         During their inquiry, UW investigators "seized and sequestered over 50 computers and hard drives allegedly relating to Brodie's laboratory, offices, and homes, " but "three particular computers" eventually became the focus of the investigation. Id., ¶¶ 15-16. These were "SB Home, " a desktop computer seized from Brodie's home on the first day of the investigation in September 2002, see id., ¶¶ 17-19; "SB Laptop, " which Brodie alleges he had used to transport data and documents between his various computers but which was "never recovered, " id., ¶ 20; and "SB Residence, " a Dell desktop computer normally kept at Brodie's residence, which is the subject of this lawsuit. Id., ¶ 21.

         According to Brodie, he "informed UW investigators that SB Residence was his principal computer on which he organized and archived all of his raw data . . . verifying the rigor of his published research, " and that computer stored his draft presentations, manuscripts, and other publications. Id., ¶ 22. He told them that he was the "sole and exclusive" user of SB Residence until he took it to UW's computer-repair services, where it remained "in UW's possession at the time UW investigators had sequestered and secured the computers and hard drives in this case." Id. Brodie told investigators that images and data obtained from SB Home, a loaner computer, and from the other sequestered computers "could not be ascribed" to him because they were shared with other researchers and lab technicians. Id., ¶¶ 18, 23. SB Residence was, therefore, especially important to his defense, as he believed that it would "show that he did not make any alterations in the data or images allegedly found on the other computers examined by UW." Id., ¶ 24. Nevertheless, neither SB Residence nor its contents were ever returned to Brodie; he alleges that he "repeatedly requested, and was repeatedly denied, access to all of his data that were on all of the computers he used at his home." Id.

         In December 2003, UW concluded that Brodie had committed fifteen instances of research misconduct and, based on those findings, "banned him from future employment at the [U]niversity." Id., ¶ 27. UW then sent its final investigative report to the Office of Research Integrity (ORI), part of HHS, for purposes of that office's parallel investigation. Id., ¶ 28.

         2. Debarment Proceedings

         On September 17, 2008, ORI filed a charge letter against Brodie asserting that he had engaged in research misconduct and notifying him that it intended to debar him from conducting research supported by federal funds for seven years. Id., ¶ 32. As evidence of such misconduct, ORI identified fifteen images published by Brodie that it contended were based on or reflected false data. Id. Seeking to challenge those charges, Brodie requested an evidentiary hearing, and the dispute was assigned to an Administrative Law Judge (ALJ). Id., ¶ 33. Following discovery, ORI moved for summary disposition of the matter.

         On January 12, 2010, the ALJ issued his "Recommended Decision" granting summary disposition to ORI. See Mot., Exh. 1 (Debarment Decision of January 12, 2010) at 1 (AR 00081). 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 Case 1:15-cv-00322-JEB Document 30 Filed 06/13/16 Page 5 of 30 material to the research that he performed." Id. at 6 (AR 00086). The ALJ's decision made clear that the images were false, a finding Brodie has never disputed during the course of this litigation. See id. at 2 (AR 00082) (noting that nowhere in his very lengthy filings before the ALJ did Brodie "come to grips with ORI's precise allegations that certain [15 specified] figures . . . published or submitted by [Brodie] were materially false"). The ALJ's decision noted that the "numerous instances of misconduct during a relatively short time frame establish a pattern of misconduct . . . on a grand scale" and recommended debarment for seven years as a penalty for this "extremely serious case of misconduct" by "an individual who is manifestly untrustworthy to receive, utilize, or distribute federal funds." Id. at 27 (AR 000107).

         On March 18, 2010, Defendant Nancy Gunderson, then HHS's Debarring Official, notified Brodie that she had accepted the ALJ's recommendations and would debar him from receiving federal grants and contracts for seven years. See Compl., ¶ 37.

         B. Prior Litigation

         1. Brodie I

         In April 2010, Plaintiff filed a Complaint in this district against HHS and its Secretary, the Director of ORI, and the Deputy Assistant Secretary of HHS (Gunderson) seeking to enjoin the agency from implementing the debarment. See id., ¶ 38. A little over a year later, on July 12, 2011, this Court granted summary judgment for Defendants. See Brodie v. U.S. Dep't of Health and Human Servs. (Brodie I), 796 F.Supp.2d 145, 148 (D.D.C. 2011). It held that the ALJ's debarment decision properly interpreted applicable regulations and was supported by sufficient evidence; it was not, therefore, arbitrary and capricious. See id. at 151-56. The Court further rejected Plaintiff's constitutional challenges to his debarment - specifically, that HHS violated his due-process rights by denying him a hearing to challenge ORI's findings and by employing a preponderance-of-the-evidence standard of proof instead of a clear-and-convincing standard, and that Defendants violated his Fourth Amendment rights when they searched his premises and computer (presumably, SB Home) during the 2002 UW investigation. See id. at 156-57.

         2. Brodie II

         Four months after his first suit was dismissed, Brodie, not content to let well enough alone, filed a petition asking the ALJ to reopen the debarment proceedings on the ground that ORI had violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide him access to "SB Laptop, " the computer on which he had transported data between his lab and his home computers. See Compl., ¶ 40. Brodie claimed that an ORI attorney had "inadvertently admitted at a compliance conference that ORI had had access to SB Laptop during its investigation, even though it had never provided access to the computer or its contents to Dr. Brodie." Id. The ALJ rejected Brodie's petition to reopen the proceedings, and Gunderson also denied the request. Id., ¶ 41; see also ECF No. 25, Attach. 3 (Exhibits to Brodie Declaration) at 67-69 (2012 Letter from Nancy Gunderson to Scott J. Brodie Re: Request to Reconsider Debarment) (finding "incredible" Brodie's claim that he did not pursue evidence on SB Laptop that he now asserts is crucial because he believed it to be lost and concluding that "[e]vidence purportedly on the alleged Laptop is not material such that reconsideration of Dr. Brodie's Debarment is warranted").

         In July 2012, about a year after his first case was dismissed, Brodie filed his second lawsuit in this district, again naming the Secretary and Deputy Assistant Secretary of HHS and the Director of ORI, challenging HHS's decision not to reopen his debarment proceedings. See Compl., ¶ 42. On June 27, 2013, Judge Rosemary Collyer granted summary judgment to HHS, ruling that the second suit was barred by res judicata and collateral estoppel, and that, in any event, Brady did not apply to Brodie's debarment proceedings. Brodie v. Dep't of Health and Human Servs. (Brodie II), 951 F.Supp.2d 108, 109-10 (D.D.C. 2013). The D.C. Circuit summarily affirmed that decision in January 2014. See Brodie v. U.S. Dep't of Health & Human Servs., No. 13-5227, 2014 WL 211222 (D.C. Cir. Jan. 10, 2014).

         C. Present Lawsuit

         Beginning in 2008, Brodie made public-records requests under the Washington State Public Records Act for information contained in UW's file on his debarment proceedings. See Compl., ¶ 43. Although many of these requests were denied, one yielded a batch of documents produced by the University's Office of Public Records in April 2013. Id., ¶¶ 44-46. According to Brodie, those materials, which include "emails and other documents, establish[] that researchers and lab technicians affiliated with Dr. Brodie's competitors had knowingly deleted data on the SB Residence computer . . . during the pendency of UW's investigation." Id., ¶ 46. Brodie alleges that the released documents revealed that UW investigators knew SB Residence was Brodie's primary home computer and had been used solely and exclusively by him, that they were aware SB Residence was in the University's possession during the investigation, and that a UW technician informed a UW attorney via email that he "deleted most of [Dr. Brodie's] files" stored on SB Residence during the investigation. Id., ¶ 47. He further alleges that the documents demonstrate that UW officials knew that SB Residence and its contents were not returned to Brodie and also knew that most of his research and data were stored on its hard drive. Id. In short, Brodie believes the 2013 public-records releases reveal a "spoliation of the evidence by UW employees, " which he insists "severely prejudiced [his] case at all stages of the proceedings against him." Id., ¶ 51.

         Based on this "newly available discovery of evidence spoliation by UW and of UW's and ORI's failure to obtain Dr. Brodie's original data, " Brodie filed a second motion to reopen the debarment proceedings in May 2014. Id., ¶¶ 55-56. He argued that his earlier debarment proceedings were arbitrary and capricious because ORI's findings of misconduct "were based on inaccurate and incomplete evidence." Id., ¶ 55. On May 15, 2014, however, Gunderson denied Brodie's request. Id., ¶ 57. She reaffirmed this denial in a letter dated August 5, 2014. Id. Plaintiff's debarment remains in effect until March 17, 2017, and he alleges that it precludes him from "securing research-related employment both domestically and internationally." Id., ¶ 58.

         On March 4, 2015, Brodie filed the instant lawsuit. See ECF No. 1. His Complaint asserts that HHS's conduct in his debarment proceedings - in particular, Gunderson's decision not to reopen them in 2014 to explore the "spoliation of evidence" and other questions surrounding SB Residence - violated (1) the Administrative Procedure Act; (2) various Public Health Service and HHS regulations; and (3) his Fifth Amendment due-process rights. See Compl., ¶¶ 59-86 (setting out these violations in three separate counts). He requests a number of forms of relief, including an immediate stay of his debarment pending this Court's review, an order reopening the debarment proceedings, an order reversing the order of debarment, an order granting "preliminary and permanent injunctive relief, " and attorney fees and costs. Id. at 26.

         Defendants - the same individuals and entities named in both prior lawsuits - have now filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, arguing that all three counts in the Complaint are barred by res judicata and collateral estoppel. That Motion is presently before the Court.

         II. ...

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