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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

________________________________________________ Dr. SCOTT J. BRODIE ) Plaintiff, ) ) v. ) CA No. 15-322 (JEB) ) UNITED STATES DEP’T OF ) HEALTH AND HUMAN SERVICES ) Defendants. ) ________________________________________________

PLAINTIFF’S MEMORANDUM IN OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

Respectfully submitted, /s/Michael R. Schneider Michael R. Schneider MA Bar No. 446475 Good Schneider Cormier 83 Atlantic Avenue Boston, MA 02110 617.523-5933 ms@gscboston.com /s/John Hardin Young John Hardin Young, D.C. Bar No. 190553 Sandler Reiff 1025 Vermont Avenue, N.W. Suite 300 Washington, DC 20005 202.479.1111 202.479.1115 fax young@sandlerreiff.com

Counsel for Plaintiff Dr. Scott J. Brodie

March 14, 2016

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Table of Contents

I. Introduction

II. Overview of allegations

A. Background.

B. Brodie’s recent acquisition through state public records requests of newly discovered evidence showing evidence manipulation, spoliation, withholding, and concealment throughout the UW and HHS investigations. C. UW’s investigation and its failure to sequester and secure the relevant computers and hard drives. D. ORI’s investigation, the ALJ’s denial of a hearing, and HHS’s debarment order. E. Prior federal litigation. F. New evidence of spoliation of key evidence and the failure of UW researchers to reveal this information to UW’s Investigative Committee, ORI investigators, the ALJ, and Brodie. G. Brodie’s motion to re-open the agency proceedings based on the newly discovered evidence of manipulation, spoliation, concealment, and withholding of critical evidence.

III. Argument A. Introduction. B. The standards governing Rule 12(b)(6) motions to dismiss. C. The standards governing Rule 56 motions for summary judgment. D. The law governing UW’s and ORI’s obligation to secure, maintain, and review a complete and accurate research record. E. The law governing the right of a scientist accused of research misconduct to

judicial review of agency decisions tainted by spoliation, manipulation, concealment, and withholding of critical evidence.

F. The law governing res judicata, collateral estoppel, and the misrepresentation,

manipulation, spoliation, and concealment of evidence.

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G. Here, res judicata and collateral estoppel do not bar the instant lawsuit since

the prior proceedings raised qualitatively different claims and issues and since the institution and agency findings were so thoroughly pervaded by manipulation, spoliation, concealment, and withholding of critical evidence that the agency’s refusal to re-open the proceedings was arbitrary and capricious in violation of Brodie’s administrative and due-process rights and should be set aside.

4. Conclusion

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I. Introduction.

In his complaint, plaintiff Dr. Scott J. Brodie presents newly discovered and previously

unavailable evidence1 that reveals for the first time that during the course of the University of

Washington’s (“UW”) 2002-03 federally regulated scientific-research-misconduct investigation,

critical evidence in Brodie’s own files was deleted or otherwise destroyed by UW lab

technicians associated with Brodie’s accusers. This new evidence also shows that Brodie’s

accuser and UW administrators manipulated the original images, raw data, and metadata that

formed the basis for the accusations against Brodie. All of these acts were concealed from

Brodie, UW’s official Investigating Committee (“UWIC”), and the Office of Research Integrity

(“ORI”) at the Department of Health and Human Services (“HHS”). It is clear that UW

investigators and administrators were fully aware of this evidence spoliation, manipulation, and

concealment but knowingly and fraudulently withheld this information from Brodie, from the

UWIC, UW’s deciding official, government investigators ORI at HHS, the Administrative Law

Judge (“ALJ”) HHS’s debarring official, and the federal courts in Brodie’s previously filed

lawsuits. As will be shown below, this evidence is new and material and, at the very least,

requires that the agency’s decision be set aside as “arbitrary and capricious” and that Brodie be

given a new hearing on the new and material evidence surrounding the destroyed data on his

real home computer (herein “SB Residence”) and the other relevant evidence of manipulation,

spoliation, and concealment that had previously been withheld from ORI and the ALJ.

Before, the ALJ, Brodie claimed that he had been denied access to his original data,

notes, and computer files and that these data would help explain the images used. The ALJ

expressly rejected Brodie’s claim that he had been “hamstrung in his ability to construct a valid

defense to the allegation of misconduct” and found that these assertions were a “red herring”

1See infra at Section II(B).

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and were “untrue.” (AR3 00090). The newly discovered evidence discussed below, however,

shows that the data on Brodie’s SB Residence computer was deleted, that his assertions before

the ALJ about having been deprived of the materials needed to defend himself were true, and

that he was, in fact, hamstrung in his ability to defend himself. This new evidence of evidence

manipulation, spoliation, and concealment was not before the ALJ, the agency, or the courts,

and requires that the agency’s decision be set aside and that Brodie be given a new hearing.

Since this proof of evidence spoliation, manipulation, concealment, and withholding

was previously unavailable, the government’s claims that the complaint should be dismissed on

res judicata and collateral estoppel does not withstand scrutiny. The complaint, supported by

the attached affidavits and exhibits, raises qualitatively new and different issues than those

previously decided by this Court.

For all of the reasons presented below, the Court should deny the defendants’ motion

to dismiss and for summary judgment. The Court should defer any ruling on that motion

pursuant to Rule 56(d) until discovery has taken place and the underlying facts amply

developed.

II. Overview of the allegations& UW’s inquiry and investigation.

A. Background.

Brodie joined UW in 1996. From 2000 to 2002, he served as a Research Assistant

Professor in UW’s Department of Laboratory Medicine where he conducted research in the

areas of human herpesvirus and retrovirus (HIV/AIDS) pathogenesis. Since the lab had no

personal office or storage space, UW required Brodie to maintain an office at his home. UW

provided him with a laptop (“SB Laptop”)2and a Dell desktop computer (“SB Residence”).3

2Brodie Aff. ¶¶5, 9, 18, and See SJB 00162-00164,fn4-6; and SJB 00170. 3Brodie Aff. ¶¶5, 9, 13, and See SJB 000250 (email between UW administrators showing that SB Residence (Lab Med tags 1193702 and 30021731, and Dell Service tag

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Brodie’s research involved taking samples from HIV-infected tissues that came from

lymph nodes and various lymphoid organs. The tissues were processed and thin sections were

stained with antibodies and/or molecular probes (DNA/RNA). The tissues were then placed

under a high-powered compound microscope with a film camera to take non-digital

photographs. Multiple photographs of the same image were usually taken so that manual

adjustments could be made to the microscope and to the camera. Lab technicians would

transpose onto the cardboard borders of the films the date, the patient’s identification, the

anatomic origin of the sample, and the nature of the procedure. Information and data

pertaining to Brodie’s research programs and grants were stored on the computer kept at

Brodie’s home office, SB Residence, and appropriately backed-up to data storage media so that

none of the original data could be cross-contaminated with the data from his competitors and

the six PI’s that shared the lab. Any data of Brodie’s that made it onto the various lab

computers was no longer protected and was vulnerable to corruption

In August 2000, Brodie was appointed Research Assistant Professor. His professional

obligations dictated that he spend half his time researching herpesviruses, and the other half

continuing to work on HIV. In February 2001 and June 2002, Brodie obtained two NIH

grants, one to study the herpesvirus HHV-8 in patients with HIV (1 RO1 DE014149-0l,

Brodie, and Corey), and one to study HIV in the oral cavity (1 RO1 DE014827-01, s Brodie,

Mullins, and Coombs).

In the spring of 2001, the Drs. Corey’s and Mullins’ laboratories began moving to the

newly renovated three-story Rosen building in North Seattle. After the move to the Rosen

number and invoice no’s J7B6701 and 472378892 was purchased for Brodie’s exclusive home use in November 2000 (See SJB 00162-00164,fn3). See also SJB 00250 (email from UW Attorney Keller and UW administrator Gail Schmitz on 12/1/03 showing that UW investigators became aware that this was Brodie’s actual home computer)

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building, Brodie was given his own office (Rm. 122) where he kept two computers, one from

the former Retrovirus Laboratory (which UW called “SBOffice/Apple”) and one that was

recently purchased for the new Rosen lab (which UW called “SBOffice/Dell). Brodie

continued to use the SB Residence computer at his home office as his main repository for

storing the data he used in his manuscripts, grant applications, and PowerPoint presentations.

When necessary he would store images and work from the SB Office computer on his laptop

computer for downloading on the SB Residence computer. The SB Residence computer was

thus the primary and most complete library of Brodie’s work and contained details of each

investigation of images, grants and article on which he worked.

B. Brodie’s recent acquisition through state public records requests of newly

discovered evidence showing evidence manipulation, spoliation, withholding, and concealment throughout the UW and HHS investigations.

The newly discovered information presented below was first made available to Brodie

beginning in April 2013 when the UW’s Office of Public Records (“UWOPR”) began

responding to Brodie’s public records requests, although most of this evidence were not

produced until the following year. Brodie had begun filing public records requests in June

2003 after he had been forced to resign from UW because he believed that UW had failed to

provide him the necessary resources to defend himself. These requests included written and

electronic copies of relevant internal correspondence amongst UW’s administrator, attorneys,

and investigators.4The results of these requests revealed new evidence of UW’s concealment,

withholding, and cover-up of critical information and evidence began as early as the fall of

2002.

In September 2008, after ORI issued its Charge Letter holding Brodie responsible for

15 counts of research misconduct, Brodie resumed filing public requests, specifically

4Brodie Aff. ¶¶28,70. See SJB 0000174-000176, 00719.

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requesting that UWOPR provide him with “all electronic and written correspondence”

amongst UW attorneys, administrators and investigators that related to UW’s investigation of

him. As will be noted throughout this statement of facts, the newly discovered evidence

demonstrates that; (i) UW investigators and administrators engaged in a pattern of evidence

manipulation, spoliation, concealment, and withholding, of critical facts about the sources of

the questionable images at issue; (ii) data on his home computer, SB Residence, was deleted

during the pendency of the investigation; and (iii) all of this information was withheld from

Brodie and from ORI and the ALJ.5

C. The University of Washington’s (“UW”) investigation and its failure to sequester and secure the relevant computers and hard drives.

InSeptember2002, UW began a research misconduct inquiry pursuant to UW Executive

Order 61 and the PHS regulations. On September 5, 2002, Dr. John Slattery, UW’s Director of

its Office of Scholarly Integrity (“UWOSI”). notified Brodie that he had been accused of

falsifying or fabricating data in an NIH grant application (1 RO1 DE014827-01) on which Dr.

Mullins had been a co-Primary Investigator (“PI”) and in a related manuscript entitled

“Evidence for replenishment of HIV among nonactive and nondividing memory T

lymphocytes during potent antiretroviral therapy” on which Dr. Mullins had been listed as a co-

author.6

On September 5 and 9, 2002, Slattery and his investigators seized and sequestered as

many as 60 boxes of materials, including several thousand tissue samples, microscope slides,

photographic films, Kodachrome slides, lab and study notebooks, and paper files. The

5The terms “newly discovered evidence” and “new evidence” will be used herein to refer to evidence that was produced by UWOPR starting in April 2013.. In his attached affidavit, Brodie has used the original bates numbers provided by UWOPR to document the dates that the documents were first disclosed. See SJB 00171-00173 as an example. 6See SJB 00259 ¶1,

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investigators also seized from the lab a number of hard drives and nine or ten computers, most

of which were in common use by other researchers.7

Amongst the computers seized from the Rosen lab were two of the lab desktop

computers (which UW called “SBOffice/Apple” and “SBOffice/Dell”) that were regularly

used by Brodie and other members of the lab. Also seized was Brodie’s laptop (“SB Laptop”)

that had been purchased by UW for him in December 2000.8

At the time Brodie told Slattery that the primary computer that he was using for the

previous two years was a Dell desktop computer (SB Residence), which UW had purchased in

November 2000 for Brodie’s exclusive home use.9Brodie explained that that SB Residence

contained virtually all of his raw data, original image files, draft manuscripts, grant applications,

and communications with other researchers and NIH funders.10Brodie told Slattery and the

other investigators that SB Residence was at the UW Health Sciences Building being repaired 11

and that he had borrowed a desktop computer from the lab and taken it home — which UW

investigators later labeled as “SB Home.”

On September 9, 2002, Brodie asked Slattery and other UW investigators for the return

of his computers and hard drives, and they assured him this would be done promptly after they

had been imaged.12 He also asked for an inventory of all items, images, and files seized, but as

is documented below and in Brodie’s annexed affidavit, UW’s inventorying of the materials

seized was deeply flawed, and a complete and accurate inventory of the items originally seized

was never turned over to Brodie during the course of UW’s investigation despite his repeated

7Brodie Aff. ¶20. See SJB 00259-00260, ¶1. 8Brodie Aff. ¶¶13, 31. 9Brodie Aff. ¶71 (re “SB Residence”). 10Brodie Aff. ¶22. 11Brodie Aff. ¶25. 12Brodie Aff. ¶23 & 24. See also SJB 00259-00260, 00263-00264.

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requests.13While UW provided Brodie with a report that indicated a single effort to image

some of the hard drives seized in September, it never provided Brodie with a complete and

accurate inventory of what it had seized nor did it ever specifically inform him if and when his

office or home computers had been imaged. Indeed, what little information UW did provide

suggested that UW had imaged the computer that he had regularly been using at his residence

(SB Residence).

The loss of the data on Brodie’s SB Residence is highly significant because UW

colleagues of Brodie agreed that Brodie had been “very thorough” in his archiving and had

“kept nearly everything he ever did all the way back to his [1985] thesis.”14

On September 6 and 13, 2002, Brodie spoke with Slattery’s assistant and asked her to

tell Slattery that the SB Laptop and SB Residence computers had not been returned or that the

files reinstalled and made accessible to him.15In a separate communication, Brodie reminded

Slattery that SB Laptop and SB Residence had not been returned to him and asked him whether

the investigators had retrieved SB Residence from the IT shop.16 Slattery responded that he did

not have documentation of what had been seized, copied, and returned, but that he would

follow up with Cindy Jenkins, UW’s Security Engineer.

On September 27, 2002, Brodie provided Slattery with his initial written responses to

the allegations, stating that he had been forced to work from memory because he was being

directed to respond to a tremendous amount of material without access to any of his computer

files or physical data.17

13Brodie Aff. ¶25-27. 14 Brodie Aff. ¶105; Ex. SJB 00193 (Dr. John Clark email of 4/3/03). 15Brodie Aff. ¶27; and See SJB 00263-00264; 00312,¶2, 00225,¶6. 16Brodie Aff. ¶25; and See SJB 00224 ¶8.

17Brodie Aff. ¶29.

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The newly discovered evidence obtained by Brodie after April 2013, reveals that after

Slattery’s September seizure of materials from Brodie’s lab and home, lab technician Kurt Diem,

who worked for Corey, Mullins, Mittler, and Coombs and who was paid from their grants,

began conducting his “ own investigation into Scott Brodie’s papers and grants.”18UW

administrators and a UW attorney gave Diem and, an MD Fellow, Andrew Johnson, who also

worked for Corey, access to a “secured location “containing Brodie’s “sequestered material”

from which they removed some of “Brodie’s samples,” including “paraffin embedded

tissues.”19

Sometime in mid-October, Slattery was “removed” from the case and was replaced by

UW Attorney and Assistant Vice-Provost Cheryl Cameron. According to the new evidence, in

late October or early November 2002, Mullins approached Cameron and provided her with a

“compilation CD” with “voluminous information,” including ten new “questionable” images

that came directly from Mullins’s own computer (“MULLINS”) and from “other” unspecified

sources.20\Mullins informed Cameron that his files had “Microsoft annotations” and metadata

that could be “traced” back to him, and told her that the CD was “NOT to be given to Scott

[Brodie] and his lawyer.”21 In compliance with Mullins’s request, Cameron “cut and paste[d]

images [and] renamed the pdf article files,” “created a new PowerPoint,” and made the CD’s

contents into “read-only files” so that that the image files and the file structure could not be

18Brodie Aff. ¶45. See also (Mittler email of 4/27/03 to SJB 00249). 19See Brodie Aff. ¶63. See SJB 00692-695 (Bracy email of 11/25/03 to Davis, stating, “Re: Brodie samples… paraffin embedded tissues Kurt removed from sequestered materials…” “I didn't realize we needed permission. I thought we only had to notify you”); SJB 00692 (Mullins SJB 0692 email of 11/25/03, stating that “we have been struggling to find the truth about these samples, since the “problem” [Brodie] came to our attention (almost 2 years!))” (emphasis added). 20Brodie Aff. ¶43; Mullins’s principal computer (“MULLINS”) was not the same computer that UW investigators later labeled MULLENS, which was a lab computer in common use. See SJB 00161, and compare to 00162-00164. 21Brodie Aff. ¶34; and See SJB 00273 ¶2.

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“traced back” to Mullins’s computer.22This newly discovered information that UW

administrators had joined Mullins in manipulating the data and images that were provided to

Brodie, was never revealed to Brodie, the UWIC, UW’s deciding official, ORI, the HHS ALJ,

the HHS debarring official or the federal courts in the prior lawsuit Mullins also managed to

persuade UW investigators not to sequester any of his “computers or other sources” that

would have been directly relevant to the investigation.23

On November 15, 2002, Cameron phoned Brodie and asked him to rewrite his

previous responses to investigators. Brodie told Cameron that SB Laptop and SB Residence

had still not been returned and that if UW expected him to provide more details, UW would

need to give him access to these computers and to his original data and image files.24 Later that

month, even though the formal UW investigation had not yet commenced, UW administrators

informed Brodie’s colleagues and their staff to cease all communications with him and

consequently Brodie’s name was removed from grants and manuscripts.25

Newly discovered evidence reveals that in late November 2002, a meeting was

convened at which a “Plan of Action” was developed to pin the blame on Brodie and to protect

Mullins and Corey from damage that might result from UW’s investigation into Brodie.26 This

plan involved “tak[ing] [Brodie] off” the grants; giving his HHV grant to Corey, and, apparently,

protecting Mullins’s multimillion-dollar grant from a federally mandated investigation because

that grant was “important” and “need[ed] to go through.”27

22See SJB 00266, 00273, 00280-283. 23Brodie Aff. ¶39; See AR3 00052, ¶¶90, 99, 100. See SJB 00731-00732. Cf. SJB 00196-00198. 24Brodie Aff. ¶26. See also SJB 00261,¶1. 25See Tr. Ex. 38 Mullins UW interview; SJB 00234 ¶1 (Declaration of Dr. Dufton Mwaengo). See also SJB 00288-00290,¶2 (Parrish letter of 12/13/02). 26See Brodie Aff. ¶51. 27See Ex. SJB 00269-00271 (handwritten notes, with type-written transcription, of meeting of 11/26/02, entitled #S. Brodie mtg.” and “Plan of Action,” stating UW researchers

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On December 6, 2002, Cameron asked Brodie to meet with “individuals Assisting with

Inquiry Process” and, without prior notice, produced a CD containing the “new images of

concern” that had been provided by Mullins, although Brodie was not informed that Mullins

was the source of the images. When asked about the images, Brodie informed those present

that he was unfamiliar with them and had no idea where they came from.28After the meeting,

Brodie’s office was draped in crime scene tape, his identification and key cards were confiscated,

and he was given the business cards of psychiatrists, before being escorted off the premises by

the campus police.29

According to newly discovered emails between Diem and UW Attorney and

Investigation and Resolution Specialist Michael Keller, sometime in December, while Brodie

was barred from campus, the SB Residence computer (which Diem correctly identified as

having Lab Med tags 1193702 and 30021731) was returned to the Rosen lab.30 Diem — who

was aware that a research misconduct investigation against Brodie was pending —

acknowledged that he “deleted most of Scott’s files” and was “using it [SB Residence] for

general Office software purposes.”31A second newly discovered email confirms that the SB

Residence computer had, indeed, “mysteriously appear[ed] in the [Rosen] lab after the

investigation started and is currently in use here.”32 This information, that the SB Residence

computer had “mysteriously appeared,” that Diem had knowingly deleted the files on it, AND

identified in the UW and ORI investigations would “explain the slides & allegations”; that they “believe[d] that only 4 articles [were] in play” and that the “2 grants where SB [Scott Brodie] is PI; no issue”; that under their “Plan of Action,” “JM’s [James Mullins’s] grant is important & need to go through”’ that with respect to “SB grant take him out as PI”; and that Brodie’s “HHV grant is important & LC [Lawrence Corey] would take over on PI”). 28Brodie Aff. ¶¶31-32. See also SJB 00280-283. 29Brodie Aff. ¶33; See SJB 00290 ¶2; 00302 ¶2; 00234 ¶5. See also UW Tr. 17 (Fine, 7/18/03).

30See SJB 00251 (Diem email of 12/3/03 to Keller). 31See id. 32See SJB 00252 (email of Laurence Stensland, another lab technician in the Mullins-Mittler-Corey lab complex of 12/5/03 to Keller).

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that UW attorneys and administrators were aware of the spoliation was never revealed to

Brodie, the UWIC, UW’s deciding official, ORI, the HHS ALJ, the HHS debarring official, or

the federal courts in the prior lawsuits.

On December 21, 2002, Mullins submitted a multimillion-dollar grant application to

NIH (PHS P01-AI057005), using some of the very same images and figures that he had

previously given Cameron and claimed were “questionable.”33That grant, which NIH

eventually funded in the amount of $9,018,545.00, included funds budgeted for Diem.34

On December 26, 2002, Brodie sent Cameron a letter responding to the 10 new

images and the 11 new allegations.35Brodie again pointed out that UW had “asked him to

review and respond to a tremendous amount of material without access to [his]computer files

or the physical data,” and that, subject to “these severe limitations,” he did his best to respond

from memory.36

On January 24, 2003, Brodie’s attorney sent UW administrators another letter stating

that “the University made no attempt to inventory what they removed from Dr. Brodie's

office, either before or after the seizure” [and demanding access to Brodie’s original source

materials and computer files].37 On February 13, 2003, Brodie appeared before the UWIC for

his one and only meeting with them. Brodie explained that he could not respond without

access to his raw data and electronic files. The UWIC directed Keller to provide Brodie with

copies of the electronic data in its possession, but Keller never complied with this directive.

A number of the images that formed the basis for seven of the 14 UW allegations

(ORI nos. 1, 3, 4, 7, 9, 12, and 14) were based on images of “double labeled” microscope

33See SJB 00286, 00006-00019. 34Brodie Aff. ¶39. See also SJB 00196-00198. 35UW’s inquiry investigators had decided that one of Mullins 10 figures constituted two misconduct allegations. 36Brodie Aff. ¶42. See SJB 00292,¶3.

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slides contained in the files on Dr. Mullins’ compilation CD. The double labeled slides used

two bio-labeling techniques, combining the use of monoclonal antibodies with molecular

probes that would allow for the simultaneous detection of a specific cell type, such as a

lymphocyte versus a macrophage, and the presence of HIV DNA or RNA. For example, the

antibodies could be used to stain lymphocytes red and macrophages brown, and radioactive

RNA probes could be used to show the relative amounts of HIV being produced inside the

lymphocyte versus the macrophage. The newly discovered evidence shows that even though

UW Attorney Nyrop and the inquiry panel had obtained and reviewed Brodie’s double labeled

slides during the inquiry phase, the double-labeled slides had apparently been returned to the

Rosen lab while the investigation was pending,38 and that by the time the UWIC began its

investigation, the double-labeled slides, like much of Brodie’s original source materials, had

gone “missing.”39 Even though Brodie’s counsel again sent another letter to UWIC attorneys

on April 22, 2003, asking for access to all of the raw data and computer files, UWIC

investigators never informed Brodie that his slides and original source materials had

disappeared.40

On April 25, 2003, the UWIC interviewed Mullins. The newly discovered evidence

shows that before the meeting, Cameron gave Mullins copies of Brodie’s confidential

responses to the 11 new allegations.41 During the interview, neither Mullins nor Cameron

informed the UWIC that Mullins had filed the original accusations against Brodie; that the ten

38See Brodie Aff. ¶53. See also SJB 00522 ¶2.

39See SJB 00193, 00585, 00514. 40Brodie Aff. ¶50.

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“questionable” images being examined by the UWIC were from a “compilation CD” that

came from Mullins’s computer (“MULLINS”).42

On May 14, 2003, UW Attorney Karen Nyrop sent Brodie a letter notifying him that

two new allegations had been added to the then-existing list of 14 allegations. The new

evidence shows that these new allegations were based on two new images provided to UW by

Mullins and Mittler. Mullins and Mittler clearly did not believe that the images were fraudulent

since they used them as part of two new NIH grant applications which they submitted under

their signatures as being “true, complete, and accurate” (1 PO1 AI057005-01, PI Mullins and 1

RO1 HL072631-01, PI Mittler).43

On June 6, 2003, Brodie sent Albert Berger, UW’s Associate Dean of Research,

another letter stating that UW continued to withhold all of his original data and computer files;

that without all of his “professional resources,” he could not provide “a detailed and

substantive response to [the] new and additional allegations,” nor could he provide “the

location of, all primary source data, underlying relevant data, or the closest thing to source data

(such as a Kodachrome slide of a stained slide or a digital picture of an experiment, original

tissues, slide sections, or laboratory notebooks) for each illustration, figure, or data mentioned

in any of the 16 allegations.”44

The newly discovered evidence shows that in early June 2003, UW attorneys had

become concerned that UW administrators had not properly secured Brodie’s data and

computers and that Brodie was repeatedly demanding access to his data and computer files.

Over a two-week period, UW attorneys and administrators exchanged private emails indicating

42Apparently, an Apple computer dubbed by UW administrators as “MULLEN” was inadvertently assumed by the Committee to be Mullins’s principal computer (“MULLINS”). The new evidence shows that the MULLEN desktop, was, in fact, the computer belonging to Mullins’ technician David Nickle. 43Brodie Aff. ¶39, 100(d). 44Brodie Aff. ¶54 ,60.

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that Brodie’s materials had not been adequately sequestered pursuant to UW and PHS

regulations and confirming that his raw data and files had not been provided to him.45In

particular, these newly discovered emails show that UW investigators expressed “confusion

about whether Dr. Brodie's computers were returned to him” and stated that it was now

“critical that the University trace the physical return of the hard drives back to Dr.

Brodie.46These emails also show that Brodie had not in fact been provided access to his raw

data and computer files;47that some of the relevant hard drives had been only belatedly

processed by a forensic processing firm;48and that UW attorneys and administrators well

understood that access to the raw data and computer files were critical to the integrity and

45See Brodie Aff. ¶23. See also SJB 00542-00548 (email thread of 6/5 through 6/18/03 amongst UW’s Attorney Nyrop, Attorney William Nicholson, Slattery, Jenkins, Nyrop, Cameron and Corn). See SJB 00524 (Cameron email of 5/7/03 stating that, “Mike Keller found in meeting w/ Kurt Diem that Brodie’s office hard drive is not among those in OSI possession!” and that “Cindy Jenkins verified 5/7/03 that she did not image the computers in Scott Brodie’s office”). 46 See SJB 00543.See also SJB 00544 (Nicholson email to UW Security Engineer Jenkins with cc to Attorney Nyrop, stating that “[t]here is a question whether SB’s computers were returned to him,” that “SB says no,” that “Slattery’s recollection is that you made copies and returned the hard drives to SB”; and that “[g]iven SB’s position ... it is critical that the University trace the physical return of the hard drives back to SB (if that happened)”; and that he “need[ed] to know if [she] ha[d] documentation”). 47See SJB 00556. See also SJB 00559 (Keller email of 6/18/03 asking, “What would it cost for us to make a copy of all the hard drives to provide for Brodie that he would be able to use on his own”’); SJB 00547-00548 (UW Attorney Michael Corn email to UW administrators and attorneys stating that, “With respect to SJB's home computer (the hard drive is labeled or referred to as “SBHOME”), I have been told by someone else (can't remember who) that this computer is in fact located in SJB's former office in Rosen”; that “[i]f we really felt we needed to, it would be a simple task for someone to inspect that computer”; and that “on page four of Cindy's [Jenkins’s] original SIT Forensics Report… it states that ‘Scott's home PC was also returned on 9/9/2002 to the Rosen building lab”). While Jenkins, UW’s computer forensics and security expert, reported that at some point during the investigation, she had “wrote down the drive… serial numbers, makers, etc” of all sequestered computers, see SJB 00546, no document was ever produced reporting this information for SB Residence. 48See SJB 00559 (email of Forensic IT Specialist Finnie to Keller of 6/20/03, stating “I would encourage copying them [all 13 hard drives] ... If [Brodie] wants to be able to examine ALL the data on the hard drive, …so that he will get the entire data area, including unused space where file remnants and deleted files can be found”).

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accuracy of the investigation.49 The new evidence also shows that before the UWIC issued its

final report, UW Attorney Keller had specifically asked about SB Residence and was

specifically made aware by UW administrator Gail Schmitz in December 2003 that UW had

purchased, a Dell Desktop computer on November 30, 2000for Brodie’s sole and exclusive

home use, and that Keller and other UW investigators were thus well aware of the difference

between SB Residence and SB Home.50

The newly discovered evidence also shows that in an apparent effort to avoid “the

need to nail down the original data” — which they now realized had been deleted,

manipulated, or had gone missing — UW Attorney Keller redirected UW’s investigation away

from the raw data and Brodie’s original computer files to the digitized images that had been

provided by Mullins.51

On December 12, 2003, UWIC issued a final report finding that Brodie had

committed 15 instances of research misconduct and, based on these findings, UW banned him

from future employment at UW. In its report, UWIC identified three of the nine (or ten)

sequestered computers as the source of the problematic images: (1) SB Home, which the

UWIC erroneously believed was Brodie’s real home computer; (2) a computer kept in Room

49See SJB 00542 (Nicholson email of 6/17/03, stating that “[g]iven SB’s position ... it is critical that the University trace the physical return of the hard drives back to SB (if that happened”). See SJB 00193, 0585, 00516 (emails of UW Professor John Clark of 3/2/03, 4/28/03, 9/16/03, stating that “[i]f the original data exists then the ORI complaints [regarding allegations 2 and 3] are invalid, in my opinion”; that “finding original data is proving a challenge”; that “[k]ey notebooks have been misplaced”; and that “[a]t this time there has been nothing to confirm that the results in the JEM fig 2 were falsified”; and that the “orig lab results have not been found”). 50See Brodie Aff. ¶76(h). See SJB 00250 (Schmitz email of 12/1/03 to Keller). See also SJB 00251 (Diem email of 12/3/03 to Keller, stating that “The computer with the lab Med tags 1193702 and 30021731 was ordered specifically for use by Scott Brodie at home”); SJB 00162-00164 n.3 (Table 2); SJB 00169 & 12/23/01 document (stating, “RE: dell service request 846816394” for “Dell order number 472378892” confirming the “Service tag number is J7B6701” for “Dell Dimension XPS B933” purchased on “11/30/2000” and shipped to “BRODIE SCOTT” at “UNIV OF WASHINGTON”).

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154A of the Rosen lab (“Room 154A”); and (3) a computer dedicated to the lab’s compound

microscope (“Microscope”), which was accessible to everyone in the Mullins-Corey-Mittler lab

complex.52

Even though the UWIC had not been able to review most of the original source

materials, which had gone missing, and even though UW investigators had withheld from the

UWIC critical information that, while Mullins claimed Brodie had provided him some of the

questionable images, it now appears that most of the questionable images all came from

Mullins’s compilation CD and his MULLINS computer and that Brodie’s SB Residence files

had deleted by a lab technician linked to Mullins, the UWIC concluded that Brodie, and Brodie

alone, was responsible for 15 instances of falsifying or fabricating data. As discussed further

below, these findings were to become, in large part the basis for ORI’s very similar findings set

forth in its Charge Letter.

C. ORI’s investigation, the ALJ’s Denial of a hearing, and HHS’s debarment order.

Sometime in early 2004, ORI received UW’s report and began its required oversight

review of UW’s evidence and findings. During the pendency of UW’s investigation, ORI

advised UW officials that it was required to retain copies of all of the records and materials

relating to its investigation of Brodie. The PHS Regulations then in effect required that the

university produce “upon request all relevant research records and records of the institution's

research misconduct proceeding, including results of all interviews and the transcripts or

recordings of such interviews,” and that they maintain all relevant records for seven years.53

52Brodie Aff. ¶66. See Ex. SJB 00190-00191 (UWIC Report, p.20, ¶1) 53See 42 C.F.R. §§93.313(h) & 93.317(d) (emphasis added). The new PHS regulations that came into effect on May 17, 2005, see 70 Fed. Reg. 28,370, made a number of significant changes, including expansion of the mens rea required to include recklessness. The 2005 Regulations also provided that with regard to matters pending at the time the new rules came into effect, the new procedural requirements would be “applicable to the institution’s

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On September 17, 2008, ORI filed a Charge Letter notifying Brodie that it was charging

him with having engaged in 15 instances of research misconduct and that ORI had

recommended his debarment for seven years. ORI’s 15 findings were, with minor exception,

very similar to the allegations as to which UW made its findings.54

The newly discovered evidence shows that ORI’s findings were based on a number of

inaccurate but critical assumptions, including that UW had properly secured “ten computer

hard drives, disks…” in September and December 2002 and that “[t]h[e] physical evidence was

inventoried, copied, and maintained in a secure manner.”55 At the time it made the statement,

ORI did not know that SB Residence contained virtually all of Brodie original source materials,

that it had not been properly secured, and that Diem had deleted most of the files on it; that

the image files that formed the basis of many of the findings came from Mullins’s personal

computer (MULLINS) and that all metadata had been stripped from those image files; and

that UW attorneys had expressed concerns that the relevant evidence had not been properly

secured. ORI also did not know that the UWIC was never made aware of these problems

before issuing its final report.56

Aside from ORI’s fundamental misunderstandings about the underlying science and

the procedures used in the lab, which are addressed in Brodie’s attached affidavit, it is now

clear that had Brodie’s files on the SB Residence computer been properly secured and imaged,

and had the newly discovered UW communications been produced Brodie could have shown

that most of the images relating to ORI’s Findings came from SB Home or one of the

commonly shared lab computers and not from SB Residence where much of the raw data

subsequent steps in that proceeding,” but that “the definition of research misconduct that was in effect at the time the misconduct occurred would apply.” 70 Fed. Reg. 28370, 28380 (2005). 54See SJB 00731-00732. Cf. SJB 00196-00198. 55See Ex. AR3 00045,¶¶32-33 (ORI Charge Letter, p. 6). As noted below, ORI continued to maintain this position before the ALJ and in the prior civil proceedings. 56See Brodie Aff. ¶73. See also SJB 00193, 00585, 00524, 00250-00252.

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(tissue slides, Kodachrome slides, numerical data) were stored in their original form. These

data would establish that Brodie validated many of the images generated by others and with his

collaborators before publishing them.57

On October 14, 2008, Brodie filed an initial request for discovery before the ALJ,

specifically demanding copies of or access to “all source data including but not limited to

copies of computer hard drive(s), computer ID number(s) (asset tag number) and physical

location of computer(s), all external storage/transfer media or copies of (DVD’s, ZIP disks,

writable CD’s), glass slides, 35mm color reversal film slides (labeled and unlabeled), notes,

notebooks, electronic and written communications from PI and technicians, and all

interviews taken” with regard to each grant application, PowerPoint presentation, manuscript

and journal publication in which ORI had identified suspect images. (AR3 00027 ). ORI

rejected Brodie’s request on the grounds that UW had provided Brodie with “all of the record

that UW and ORI are relying on.”58 Despite Brodie’s requests, ORI never provided Brodie

with an inventory of the sequestered research materials and hard drives, nor did it produce

any documentation as to when the drives were imaged, forensically processed, and

purportedly returned to Brodie.59

On November 14, 2008, ORI represented to the ALJ that, “[a]t the time of the UW

investigation, when the records the respondent describes were gathered… [Brodie] most

certainly did have access to the investigation records at the time they were amassed and

57 See Brodie Aff. ¶82, for a detailed discussion of some of the relevant the defects in ORI’s Findings. 58 See also SJB 00683 at 64. 59The PHS Regulations provided that upon request, ORI was required to provide a respondent with a full and fair evidentiary hearing before an ALJ of the Departmental Appeals Board (“DAB”). The regulations also provided that respondents were entitled to discovery of “documents or other tangible items ... that are relevant and material to the issues identified in the charge letter and in the respondent's request for hearing.”

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since.”60It is now clear that ORI’s representation were incorrect in light of the newly

discovered evidence of the destruction of the data on Brodie’s SB Residence computer.

On November 25, 2008, ORI moved to dismiss Brodie’s request for a hearing,

stating that he had not denied the allegations with sufficient specificity. (AR300082) On

December 8, 2008, Brodie filed a Request for Production of Documents that included the

following:

• “[a]ll source documents for the relevant figures;” • “[a]ny and all documents and dates of the inventories takes during each sequestration

of evidence by ORI;” • “[a]ny and all statements, documents that support the findings related to the following

grants which appear in the ORI Charge Letter but do not appear in the Institutional Investigation Report . . . ;”

• “[a]ny and all documentation for portable/travel or desktop home computers used by Scott Brodie;”

• “[a]ny and all documentation, source data, reports and correspondence in hard copy and electronically associated with the following grant applications . . . [and] publications, posters, PowerPoints and manuscripts . . .;”

• “[a]ny and all documentation and correspondence in hard copy and electronically of Institutional police ‘pertaining to the storage and retention of primary data’” supporting a particular finding; and

• “[a]ny and all documentation, source data and correspondence in hard copy and electronically of all primary source data and the closest thing to source data viewed, but not used . . .” relating to another finding. (See AR 02879-96). On January 12, 2009, the ALJ ruled that Brodie had failed to provide research records

adequately documenting the questioned research; that his claims that he “lack[ed] sufficient

information to respond” were not credible; that Brodie had failed to deny the allegations with

sufficient specificity; that all of the images in question had been falsified or fabricated; and

that Brodie was responsible for publishing the images; and that Brodie’s claim that the images

60See AR ____(ORI’s Opposition to Respondent's Motion to Supplement Hearing p.7 Request). See also SJB 00683 (email of ORI official John Dahlberg to UW Attorney Cameron stating that “[i]t appears that the respondent received all of the record that UW and ORI are relying on”): SJB 00541-00546.

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he published were not false or fabricated, the judge concluded “that [Brodie’s] assertion was

false” and was “in fact, untrue.” (AR3 00082, 00090).

On February 17, 2009, in response to Brodie’s discovery requests, ORI produced a

single external hard drive from the computer that UW had labeled “SB Home” and that

inaccurately claimed was subject to Brodie’s exclusive home use.61On March 24, 2009, the ALJ

ruled that Brodie was entitled to offer evidence to show that “he did not willfully manipulate

images or other information so as to produce false or misleading findings.”

On January 12, 2010, the ALJ — unaware of the spoliation, manipulation, and

withholding of critical evidence from Brodie — rejected Brodie’s claims that he “lack[ed]

sufficient information to respond,” that he had been “denied access to the administrative

record of the investigation that led up to ORI’s charge letter,” concluded that Brodie had

“not made any showing that there exists exculpatory evidence to which he has been denied

access,” and rejected Brodie’s claim that Brodie had been “the innocent victim of a witch

hunt by UW and ORI… that involved numerous researchers other than him.”62 Based on the

newly discovered evidence, it is now clear that the ALJ’s ruling of January 12, 2010, was

infected by an overriding conclusion that Brodie’s assertions were almost all incredible. In

light of the newly discovered evidence, it should now be clear that the ALJ’s findings and

conclusions were fundamentally erroneous, including his findings and conclusions:

• that Brodie’s “assertions” that “SBHome” was not the real computer he had been

using at home to store his data were “untrue”;63

61See Brodie Aff.¶66 (SBHome). See also SJB 00250-00252, 00190-00191, 00162-00164 n.7. 62AR3 00082, 00090-91, 00108. 63AR3 00090-91.

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• that Brodie’s assertion that he “repeatedly requested access to original data and notes

from his actual experiments to determine if an image was inappropriately manipulated

and by whom and that he has never been granted such access” and that he has thus

“been hamstrung in his ability to construct a valid defense” were “false” and a “red

herring”;64

• that Brodie’s assertion that “all of the false data was added to the computer at his

home after the publication of the various articles or submission of the various grant

applications that are at issue here” was “implausibl[e]” (AR3 00087);

• that Brodie’s assertion that he “was always of the belief that the

images...[were]‘reflective of the actual results obtained from the experiments’”; and

• that Brodie’s “[c]olleagues… were compromised by their receipt of and use of false

material that he [Dr. Brodie] had furnished to them,” even though the newly

discovered evidence shows that Brodie’s colleagues were almost certainly the source

of the problematic images and even though they admitted they “all went through the

pictures with Scott before publication.”65

On March 18, 2010, HHS debarring official Gunderson issued her ruling accepting the

ALJ’s findings and ruling that Brodie would be debarred for a period of seven years.66

In April 2010, Brodie filed a civil complaint in this Court challenging his debarment

on a number of procedural and legal grounds. Brodie v. Health & Human Services, 796 F. Supp.

145 (D.D.C. 2011) (“Brodie I”).See 70 Fed. Reg. 28370, 28380 (2005). OnJuly13, 2011, this

Court (Judge Boasberg) granted HHS’s motion for summary judgment on the grounds that

64AR3 00090.

65See ALJ decision at 27, ¶2. See also SJB 00707-00708 (Corey, 11/1/05, PR 2012-00583).

66See SJB ___ (Letter from Gunderson to Brodie at 2).

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“the ALJ did not act in an arbitrary and capricious manner,” that he “considered all of the

relevant evidence,” and that he did not otherwise violate the Administrative Procedure Actor

the PHS regulations. At the time of this ruling, however, evidence of the manipulation,

spoliation, and concealment of the data, including the deletion of files on SB Residence, was

not known to Brodie or to the Court.

On November 3, 2011, Brodie, who was still in the dark as to the evidence later

disclosed by the UWOPR, moved to reopen HHS’s debarment decision on the ground that

his laptop computer, SB Laptop, had been improperly withheld from him. In opposing

Brodie’s request to re-open the proceedings, ORI again stated that UW had properly

sequestered all the necessary hard drives, which it once again inaccurately claimed Brodie had

“maintained at his private residence.”67The ALJ held that he lacked the authority to re-open

the debarment, and the HHS debarring official Gunderson subsequently denied Brodie’s

request to reopen. (AR3 0003).

On July 10, 2012, Dr. Brodie filed a second complaint in this Court challenging

HHS’s decision not to reopen the debarment proceeding, asserting that SB Laptop had been

improperly withheld from him in violation of his constitutional rights to exculpatory evidence

under had been withheld from him in violation of Brady v. Maryland, 373 U.S. 83 (1963) and

Kyles v. Whitley, 514 U.S. 419 (1995). Brodie v. Dep’t of Health & Human Svcs., 951 F.Supp.2d 108

(D.D.C.2013), aff’d, 2014 WL 21222 (No. 13-5227) (D.C. Cir., Jan. 10, 2014).

On June 27, 2013, this Court, in a decision by Judge Rosemary M. Collyer, granted

HHS summary judgment on res judicata and collateral estoppel grounds, concluding that that

“neither party can point to any information that was derived from the laptop as the basis of

ORI’s allegations of misconduct.” Brodie v. Dep’t of Health & Human Svcs., 951 F.Supp.2d 108

67See Opposition to Petitioner's Petition to Reopen Research Misconduct Administrative Proceeding, November 22, 2011, p. 2.

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(D.D.C. 2013), sum aff’d, 2014 WL 21222 (No. 13-5227) (D.C. Cir., Jan. 10, 2014). This ruling

was subsequently affirmed by the D.C. Circuit on appeal. (AR3 000132), Brodie v. Health

&Human Services, 2014WL 21222 (No. 13-5227) (D.C. Cir., 2014); See AR3 000132

G. Brodie’s Motion to Re-open the HHS Proceedings Based on the New Evidence of Spoliation. On April 3, 2014, Brodie, having received several batches of newly discovered

evidence from UWOPR, requested that Gunderson reopen the debarment proceeding based

on the newly discovered evidence. In support of this request, Brodie pointed out that the

new evidence showed that critical evidence had been knowingly and fraudulently

manipulated, spoliated, and concealed by, and with the knowledge of, UW investigators and

administrators, but that this information had been withheld from ORI and the ALJ. (AR

00001, 00007, 0008, citing 2 C.F.R. §§ 180.875, 180.880(a)).

On May 15, 2014, Gunderson denied Brodie’s request to reopen the proceedings and

reaffirmed her ruling in another letter dated August 5, 2014.It is this decision which was the

subject of the instant complaint. Brodie v. U.S. Dep’t of Health & Human Services (Complaint

filed March 4, 2015, CV-00322-JEB, Case No. 15-0322).

Brodie’s debarment remains in effect until March 17, 2017.

III. Argument. A. Introduction. The government, in its motion to dismiss or for summary judgment, avers that “this

lawsuit is simply a new iteration of Brodie II- albeit focused on the SB Residence computer

instead of the laptop computer.”68The government argues that the lawsuit should be dismissed

on two grounds (1) res judicata, “because Brodie presumably knew the contents of the SB

68Govt. Mot to Dismiss at 6 (Dkt. ###).

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Residence computer at the time of the administrative proceedings and thus could have raised

any arguments regarding the alleged lack of production of information from that computer in

earlier proceedings” and (2) collateral estoppel, “because the ALJ based his finding of research

misconduct on Brodie's publication of false images, not the creation of those images, (AR 3

0086-88) that finding was upheld in Brodie I, and, therefore, the contents of the alleged

desktop computer (which allegedly relate to the creation not publication of data) are not

material to the research misconduct finding.” Id.

B. The standards governing Rule 12(b)(6) motions to dismiss.

To prevail on a motion to dismiss, the moving party must show that that the

complaint fails as a matter of law to state a claim upon which relief can be granted. See Fed. R.

Civ. P. 12(b)(6); Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007). In making this

determination, the court ruling on a motion to dismiss must accept the plaintiff’s allegations as

true and must draw all reasonable inferences therefrom in the plaintiff’s favor. Id.

C. The standards governing Rule 56 motions for summary judgment. To prevail on a motion for summary judgment, the moving party must show that

“there is no genuine dispute as to any material fact and [that] the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). See Talavera v. Shah, 638 F.3d 303, 308

(D.C. Cir. 2011). “A fact is material if it ‘might affect the outcome of the suit under the

governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’ ” Steele v. Schafer, 535 F.3d

689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In

making these determinations, the court must view all facts and reasonable inferences drawn

therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio, 475 U.S. 574, 587 (1986)

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The moving party has the initial burden of demonstrating the absence of a genuine

dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the

burden of persuasion at trial rests on the nonmoving party, the moving party, needs to show,

at the very least, that “there is an absence of evidence to support the nonmoving party's case.”

Id. at 325. Once the moving party has met its burden, it is up to the nonmoving party to

designate “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

See Celotex Corp., 477 U.S. at 324. To defeat a motion for summary judgment, the moving party

may satisfy its burden by providing one or more affidavits and annexed exhibits containing

specific, “nonconclusory” assertions of fact that support his claims. See Luhan v. National

Wildlife Federation, 497 U.S. 871, 888-89 (1990). In making this determination, the court must

draw all reasonable inferences in favor of the nonmoving party. Anderson, 477 U.S. at 252;

Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23–24 (D.C. Cir. 2013). Ultimately,

“[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge at summary judgment.”

Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir.2013) (citation omitted). The

court’s role in deciding a summary judgment motion is not to “determine the truth of the

matter, but instead [to] decide only whether there is a genuine issue for trial.” Id. (citation

omitted). See also Clemmons v. Acad. for Educ. Dev., 70 F. Supp. 3d 282, 293 (D.D.C. 2014). For

all of the reasons set forth herein, the agency’s decision should be set aside and Brodie should

be given a new hearing on the new and material evidence surrounding the destroyed data on

his SB Residence computer and the other relevant evidence of evidence manipulation,

spoliation, and concealment that had previously been withheld from ORI and the ALJ.

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D. The law governing UW’s and ORI’s obligation to secure, maintain, and review a complete and accurate research record. Under the PHS regulations, a university that conducts a federally mandated research

misconduct investigation has an obligation to “promptly take all reasonable and practical steps

to obtain custody of all the research records and evidence needed to conduct the research

misconduct proceeding, inventory the records and evidence, and sequester them in a secure

manner.” See 42 C.F.R. §§93.305(a), 93.307(b); UW Executive Order No. 61.69 The regulations

also require the university to protect the research records and other evidence in a federally

mandated proceeding from being altered, destroyed, concealed or removed in order to “impair

[an item’s] verity or availability” in a pending investigation or to “mislead a public servant”

conducting an investigation. See 18 U.S.C. § 1512(c). See also Rev. Code Wash. §9A.72.160

(making it a misdemeanor under Washington State law to tamper with physical evidence

during the pendency of an “official proceeding”). The university is also required to give a

respondent access to “[to] give the respondent copies of, or reasonable, supervised access to

the research records” where “appropriate,” 42 C.F.R. § 93.305(a); to conduct an “examination

of all documentation” relevant to the allegations lodged before making any findings, 42 C.F.R.

§ 50.103(d)(7); and “to ensure that it maintains adequate records” during the course of a

research misconduct investigation, 42 C.F.R. § 93.305; all with the purpose of protecting a

69UW Executive Order 61 “require[s] the university to retain and examine “the original databooks or other laboratory materials ... to ensure the accuracy of the original record”; that “[f]aculty, staff, and students are required to release to the OSI [ the Office of Scientific Integrity] and UCIRO [the University Complaint and Investigation Office] all original databooks, records, laboratory notes, and/or other materials that are determined to be necessary”; and that “[t]he OSI and UCIRO shall be responsible for the safe keeping of the records in their custody.” See also Council on Government Relations, Interagency Working Group on Digital Data, National Science and Technology Council, Office of Science and Technology Polices, Jan. 12, 2012 (“Prompt sequestration of all of the “research data” is necessary to protect the contents of the original records to be able completely address the material issues identified in an allegation.”)

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respondent’s constitutional due-process rights, see Mathews v. Eldridge, 424 U.S. 319, 344

(1976).

Early on during the institution’s inquiry, the regulations require that “[t]o the extent it

has not already done so at the allegation stage, the institution must . . . promptly take all

reasonable and practical steps to obtain custody of all the research records and evidence

needed to conduct the research misconduct proceeding, inventory the records and evidence

and sequester them in a secure manner.” 42 C.F.R. § 93.307(b). See also 42 C.F.R. § 93.310 (d)

(obligation of institution to obtain all research records). Once the institution has made its

findings, it is required to “[m]aintain and provide to ORI upon request all relevant research

records and records of the institution's research misconduct proceeding, including results of

all interviews and the transcripts or recordings of such interviews.” Since the regulations

provide that the falsification or fabrication of data, results, the research record, or reports of

data or results constitute research misconduct, 42 C.F.R. §93.103; since “[t]he destruction,

absence of, or respondent's failure to provide research records adequately documenting the

questioned research is evidence of research misconduct,” 42 C.F.R. §93.106(b); and since the

regulations broadly define the term “research record” to “mean[ ] the record of data or results

that embody the facts resulting from scientific inquiry, including but not limited to, research

proposals, laboratory records, both physical and electronic, progress reports, abstracts, theses,

oral presentations, internal reports, journal articles ....,” 42 C.F.R. § 93.224; where there is

evidence that any scientists — presumably including the respondent’s collaborators,

competitors or accusers — “intentionally, knowingly, or recklessly had research records and

destroyed them, had the opportunity to maintain the records but did not do so, or maintained

the records and failed to produce them in a timely manner, it is only fair that this conduct

should be deemed to “constitute a significant departure from accepted practices of the

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relevant research community,” see 42 C.F.R. §93.516 (b) (1), and inferences should then be

drawn in the respondent’s favor.

E. The law governing the right of a scientist accused of research misconduct to judicial review of agency decisions that were based on the spoliation, manipulation, concealment, and withholding of evidence to determine whether the scientist was provided with a fair and unbiased due-process hearing free the arbitrary and capricious actions of the agency require that the findings and sanctions against Brodie should be set aside. Under the Administrative Procedure Act, “the final decision” of an agency

official is subject to judicial review by a federal district court. 5 U.S.C. §§ 702 & 704. In

reviewing an agency decision, that decision may be “h[e]ld unlawful and set aside”

where the agency’s decision was “arbitrary and capricious,” “not in accordance with

law,” and “contrary to [a respondent’s] constitutional right” under the Fifth

Amendment to a fair due process hearing, or “without observance of procedure

required by law.” 5 U.S.C. §706(2)(A)-(D).

F. The law governing res judicata, collateral estoppel, and the misrepresentation, manipulation, spoliation, and concealment of evidence.

The doctrine of res judicata encompasses two subsidiary doctrines, “claim

preclusion” and “issue preclusion.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008). As the

Supreme Court explained in Taylor v. Sturgell;

Under the doctrine of claim preclusion, a final judgment forecloses “successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.” New Hampshire v. Maine, 532 U.S. 742, 748 (2001). Issue preclusion, in contrast, bars “successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,” even if the issue recurs in the context of a different claim. Id., at 748–749. By “preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,” these two doctrines protect against “the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147, 153–154 (1979).

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Id. at 892. Under the doctrine of claim preclusion, “a judgment on the merits in a prior suit

bars a second suit involving the same parties or their privies based on the same cause of

action,” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 (1979), cited in Drake v. F.A.A.,

291 F.3d 59, 66 (D.C. Cir. 2002) (emphasis added) so long as the issues “were or could have

been raised in that action.” Drake, 291 F.3d at 66, citing Allen v. McCurry, 449 U.S. 90, 94

(1980) (emphasis added). The doctrine of claim preclusion does not bar the second cause of

action, however, where the second or subsequent suit raises claims that are not “identical” or

that qualitatively differ from the prior action or that center on a different “nucleus of fact,” or

where the claims raised in the second suit could that not have been raised in the prior

litigation. See Drake, 291 F.3d at 66. See also, I.A.M. Nat. Pension Fund, Ben. Plan A v. Industrial

Gear Mfg. Co., 723 F.2d944 (D.C. Cir. 1983).

Under the doctrine of issue preclusion, “the general rule is that “[w]hen an

issue of fact or law is actually litigated and determined by a valid and final judgment,

and the determination is essential to the judgment, the determination is conclusive in a

subsequent action between the parties, whether on the same or a different claim.” B &

B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1303 (2015); Restatement

(Second) of Judgments § 27 at 250 (1980); see also id., § 28 at 273). For issue preclusion

to apply, the issue raised in the second or subsequent lawsuit must be “identical” to

the issue raised in the prior lawsuit. Otherson v. Department of Justice, I.N.S., 711 F.2d 267,

273 (D.C. Cir. 1983).

In both cases, the claims or issues previously raised must be “identical” and

the party against whom preclusion is sought must have had “a full and fair opportunity

to litigate” the claim or issue in the prior action. See Youngin's Auto Body v. D.C., 775 F.

Supp. 2d 1, 5 (D.D.C. 2011), citing Allen v. McCurry, 449 U.S. 90, 94 (1980). So, for

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example, where a plaintiff can show that he was misled by a defendant’s false

representation or concealment of that which caused the plaintiff to sue on less than

the entire claim in the first action, the court will not permit the defendant to rely on

claim preclusion should the plaintiff sue on the remainder of the claim in a second

action. See Restatement (Second) of Judgments § 27 (1982); Robert C. Casad & Kevin

M. Clermont, Res Judicata: A Handbook on Its Theory, Doctrine, and Practice 237 (2001).

In determining whether the defendant had a full and fair opportunity to litigate

the claim or issue in the prior action, the courts will consider whether a plaintiff

asserting res judicata had previously concealed from the defendant “information that

would materially affect the outcome of the case,” even if the defendant claims that

“the information was not concealed but rather only recently became available.”

Restatement (Second) of Judgments §28. See also Steven J. Madrid, “Annexation of the

Jury's Role in Res Judicata Disputes: The Silent Migration from Question of Fact to

Question of Law,” 98 Cornell L. Rev. 463, 468-70 (2013). This is because the doctrine

of res judicata “does not bar a litigant from doing in the present what he had no

opportunity to do in the past.” Drake v. F.A.A., 291 F.3d at 66-67

There is, moreover, “little disagreement” that an agency, itself, “has the

inherent power to order reconsideration when its initial determination was tainted by

fraud” or “misrepresent[ations],” see Daniel Bress, Note, Administrative

Reconsideration, 91 VA. L. REV. 1737 (2005) (citing Elkem Metals Co. v. United States,

193 F.Supp. 2d 1314, 1321 (Ct. Int'l Trade 2002) (for the proposition that “where the

first adjudication was tainted by misrepresentation, courts have said reconsideration is

justified to prevent fraud from being perpetrated on the agency”), and that an agency

decision that is premised on such fraud or misrepresentations can be challenged under

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the Administrative Procedure’s “substantial evidence” or “arbitrary and capricious

tests,” See Belville Ming Co. v. United States, 999 F.2d 989, 1001-02 (6th Cir. 1993); Chen v.

D.C., 839 F. Supp. 2d 7, 12-13 (D.D.C. 2011); Residential Funding Corp. v. DeGeorge Fin.

Corp., 306 F.3d 99, 107 (2d Cir. 2002), and even punitive sanctions can in some cases

be imposed on the parties. See United States v. Bunty, 617 F.Supp.2d 359 (E.D.Pa.2008).

H. Res judicata and collateral estoppel do not bar the instant lawsuit since the prior proceedings raised qualitatively different claims and issues and since the institutional and agency findings were so thoroughly pervaded by manipulation, spoliation, concealment, and withholding of critical evidence that the agency’s refusal to re-open the proceedings was arbitrary and capricious in violation of Brodie’s administrative and due-process rights and should be set aside.

Defendant Gunderson’s decision not to reopen the debarment proceedings constitutes

a “final decision” of the agency and is subject to judicial review. Brodie made Gunderson

aware both of the extensive newly discovered evidence of evidence manipulation, spoliation,

concealment, and withholding and of the fact that this caused ORI and the ALJ to issue

decisions tainted by misrepresentations that were thoroughly unreliable, and profoundly

arbitrary and capricious. In light of the new evidence— which is likely only the tip of a very

large iceberg— Gunderson’s failure to reopen the debarment proceedings was “arbitrary and

capricious,” “not in accordance with law,” “contrary to [Brodie’s] constitutional right” to due

process, and “without observance of procedure required by law, “and should thus be “h[e]ld

unlawful and set aside.” See 5 U.S.C. §706(2)(A)-(D). Gunderson’s refusal to re-open the

proceedings violated Brodie’s right to a fair and reliable administrative process based on a full,

fair, and complete research record and other evidence that has been properly sequestered and

free from tampering, and further violated the agency obligation to ensure Brodie a “fair” and

“unbiased” scientific misconduct investigation that comported with the PHS Regulations and

Brodie’s constitutional due-process rights.

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The defendants contend that Brodie is barred from bring the instant action as the

lawsuit is barred by principles of claim and issue preclusion because Brodie was at fault for not

having previously pointed to SB Residence’s “exculpatory content” and for not having used

“due diligence during the administrative process” to obtain information he believed to be

exculpatory, and because the SB Residence claims is really just another variant of the SB

Laptop claim. (Def. Br. at 26-07). But this is wrong for several reasons.

First, as the above evidence indicates, Brodie repeatedly requested access to SB

Residence throughout the process, starting days after the raid on his lab when he explained to

UW administrators that his real home computer was in the repair shop; to the various stages

of UW’s inquiry and investigative process when he repeatedly requested the return of his raw

data, original source materials, and computer files; through ORI’s oversight review process

when he made similar demands for his data and computer files; and finally before the ALJ,

when Brodie’s counsel moved for discovery of all data and computer files, including all films,

slides, notebooks, inventories, documentation of computers and hard drives seized from

Brodie and the lab, and other all source documents for the images and figures at issue. While

the defendants fault Brodie for failing to file a motion to compel discovery, in light of the

newly discovered evidence, it is now clear that Brodie’s efforts to obtain discovery were futile

since files on SB Residence had been deleted and much of the critical raw data had gone

missing. Under the circumstances, HHS should be estopped from faulting Brodie for any

technical deficiencies in his pleadings given what appears to be a pattern of concealment,

withholding, and inaccurate representations by UW administrators and HHS officials.

Second, Brodie’s claims are not, as the defendants suggest, focused exclusively on

UW’s and ORI’s failure to provide Brodie access to SB Residence. Rather, Brodie in this

lawsuit is equally focused on all of the newly discovered evidence previously unavailable

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showing that Brodie’s accuser, Mullins, provided UW with images from his own computer

and from lab computers to which many others had access; that UW administrators

collaborated with Mullins in stripping this critical source material of metadata needed to

authenticate the allegations against Brodie and withheld that fact from the inquiry panel, the

UWIC, ORI and the ALJ, which formed the basis for all of the UWIC’s, ORI’s, and the ALJ’s

findings against Brodie; that UW failed to sequester and image Brodie’s own files on SB

Residence on which he kept all of his raw and processed data, publication records, and

communications, permitted its files to be deleted while the investigation was still pending, and

misplaced tissue samples, microscopic slides, photographic prints, Kodachrome slides, lab and

study notebooks, many of which simply “disappeared” during the investigation; that the

computer files that the UWIC had ordered UW administrators to produce were never

provided to Brodie; and that UW administrators withheld all of this critical information from

UWIC members and subsequently from ORI and HHS. Access to the raw data along with his

computer files would have afforded Brodie the chance to show that he or his staff performed

all of the experiments he claimed to have performed; that he, personally, maintained a

coherent and professional labeling and archiving system; and that the tissue samples and

microscopic slides actually supported the claims made in his PowerPoint presentations, grant

applications, and manuscripts.

The defendants also contend that the claims and issues raised herein are precluded

because the district court had previously concluded in Brodie II that the ALJ had found it

“irrelevant that “others may have shared computers or actually done the manipulations that

[Brodie] falsely represented as products of his research”; that even if it were “assum[ed] that

[Brodie] personally created none of the false images and data,” he “was the person who

published the false information” and “[e]ither... published information that he knew to be

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false or fabricated, or he published it with indifference to the truth of its contents.” AR3 0087-

91. The government further claims that “The existence or nonexistence of information from

other computers (which pertained to the issue of creation, not publication), therefore, had no

bearing on the research misconduct finding.” Id. But in light of the newly discovered

evidence, the government’s claim misses the mark.

First, it is quite clear that the ALJ himself was left completely unaware of the nature

and extent of the evidence manipulation, spoliation, and concealment that had taken place

throughout the UWIC and ORI investigative processes.

Second, as a result of the concealment and withholding of critical evidence, the ALJ

repeatedly found Brodie to be lying when he averred that UW and ORI had denied him access

to data and information critical to his defense and erroneously discredited Brodie’s claims in

total, even though the newly discovered evidence now shows that Brodie was not lying at all.

It is hard to imagine that the ALJ’s erroneous, wholesale discrediting of Brodie and his

corresponding crediting of UW attorneys, investigators, and administrators did not completely

taint every aspect of his ultimate ruling.

Third, the ALJ’s findings would have had to have been completely different had he

learned not only what was on SB Residence, but had he also been informed, as the newly

discovered evidence now convincingly demonstrates, that UW investigators never secured,

sequestered, or imaged, SB Residence, Brodie’s principal computer with all of his raw data and

images and notes; that the files on SB Residence’s hard drive were knowingly deleted during

the course of UW’s investigation by lab technicians affiliated with Brodie’s accusers, Mullins,

Mittler, and Corey; that the original electronic images that formed the basis for ORI’s findings

against Brodie were provided on a compilation CD by Mullins from his own computer and

from the lab computer which many others in the lab used regularly; that Mullins, with the

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complicity of UW administrators, stripped the images of their metadata before providing them

to Brodie, UW administrators, and presumably to ORI; that, during UW’s investigation, many

of the underlying source materials (tissue samples, microscopic slides, photographs and

Kodachrome slides, lab and study books, and paper files had gone missing, preventing the

UWIC, ORI, and the ALJ from reviewing them; that information about evidence

manipulation and spoliation was concealed and withheld from the UWIC, ORI, and, perhaps

most significantly, the ALJ. Had the ALJ been informed that UW administrators involved in

the investigation had thus engaged in a process that was sleazy if not fraudulent, he could not

have reliably concluded that the images published by Brodie had been intentionally,

knowingly, or recklessly falsified or fabricated by anybody.

Fourth, had the original data been made available, it could have shown that Brodie’s

own work was all correctly labeled and that if there were any labeling problems, they might

well have been due to systematic mistakes made by Mullins, Mittler, Corey, or their lab

technicians, all of whom had a financial stake in Brodie’s ouster from UW, his surrendering of

the funded NIH grants, UW’s retention of all his data, and his loss of authorial credit on the

manuscripts. Given that the lymphoid tissues at issue here, when photographed at high levels

of magnification, cannot be visually distinguished from one another, the ALJ simply would

not have been in a position to have affirmed ORI’s findings that Brodie knowingly,

intentionally, or recklessly published the images in question, without affording Brodie a fair

due-process hearing to get at the truth. As an experienced ORI investigator has explained, to

determine whether published papers constitute evidence of research misconduct, a fact finder

“would need direct access to the original data, and a fact-finding process that would require a

fuller review by the institution.” See SJB 00080, 00150.

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Fifth, information about the evidence manipulation, spoliation, and concealment

would have been directly relevant, at the very least, to the issue of Brodie’s mens rea and

culpability — i.e., whether any misconduct by him was intentional, knowing, or reckless, or

whether any mistakes were, in fact, simply the result of “honest error or honest differences in

interpretation or judgments of data” which does not constitute research misconduct. 42

C.F.R. § 50.102. While scientists like Brodie should certainly do their best to check and

recheck the work of collaborators and those they hire to assist them, “researchers need to be

able to trust the reports of other researchers, else they’d have to build all the knowledge

themselves.” Janet D. Stemwedel, “Building Knowledge in Science Requires Trust and

Accountability,” Forbes, Jun 25, 2015. Few if any PI’s can and do review every single image

and data point provided them by students, postdocs, lab technicians, and collaborators.

Sixth, even if Brodie was responsible for negligently or even recklessly failing to spot

the mistakes of others, this would have been directly relevant to the sanctions imposed on him,

both formal and informal, and were not immaterial. As District of Columbia Circuit Court of

Appeals has recognized, “debarment is a form of punishment which stigmatizes the target,”

Fischer v. Resolution Trust Corp., 59 F.3d 1344, 1349 (D.C. Cir. 1995) (citing Old Dominion Dairy

Products, Inc. v. Secretary of Defense, 631 F.2d 953, 962-63 (D.C. Cir. 1980)), and delivers “a blow”

to the individual’s “protected ‘liberty’ interest, which, of course, triggers an inquiry as to

whether the process it has been afforded is adequate.” Fischer v. Resolution Trust Corp., 59 F.3d

at1349;Trifax v. Corp. v. District of Columbia, 314 F.3d 641, 643 (D.C. Cir. 2003). See also, United

States v. Edwards, 777 F. Supp. 2d 985, 998 (E.D.N.C. 2011); Nguyen v. Wash. Dept. of Health Med.

Quality Assurance Comm., 29 P.3d 689, 694 (Wash. 2001) (citation omitted). Here, the agency’s

decision to sanction Brodie so harshly with a seven-year debarment, coupled with the public

dissemination of information so injurious to Brodie’s personal and professional reputation,

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has been severely stigmatizing to him and has caused him irreparable injury to his scientific

career, his livelihood, and his personal reputation. Given the shameful lack of adequate

process, in this case, the defendants’ motion to dismiss or for summary judgment should be

rejected and discovery allowed to proceed.

IV. Conclusion For all of the above-stated reasons, this Court should deny the defendant’s motion to

dismiss or for summary judgment and should, at the very least, grant the plaintiff’s motion to

defer ruling on summary judgment until after discovery is completed.

Respectfully submitted, /s/Michael R. Schneider Michael R. Schneider MA Bar No. 446475 Good Schneider Cormier 83 Atlantic Avenue Boston, MA 02110 617.523-5933 ms@gscboston.com /s/ John Hardin Young John Hardin Young, D.C. Bar No. 190553 Sandler Reiff 1025 Vermont Avenue, N.W. Suite 300 Washington, DC 20005 202.479.1111 202.479.1115 fax young@sandlerreiff.com

Counsel to Plaintiff Dr. Scott J. Dr. Brodie

Certificate of Service I, John Hardin Young, hereby certify that I have served the foregoing motion on all counsel of record by electronic filing via this Court’s ECF/CM system. /s/ John Hardin Young John Hardin Young March 14, 2016