Fraudster loses third attempt to remove 7-year debarment

court caseA U.S. judge has denied a virology researcher’s third attempt to overturn a seven-year debarment from receiving federal funds, following a 2010 decision by the U.S. Office of Research Integrity.

The ORI banned Scott Brodie for seven years after concluding he had committed 15 acts of misconduct at the University of Washington. The deception affected grant applications, published papers, manuscripts, and presentations. Since then, Brodie has tried multiple times to reverse the ruling in court.

In the latest decision, dated June 13, United States District Judge James E. Boasberg writes:

Brodie’s first unsuccessful lawsuit challenging his debarment named the Department of Health and Human Services [HHS] 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…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…The Court will thus grant Defendants’ Motion, thereby rendering unsuccessful Plaintiff’s third attempt to dislodge his debarment.

In 2007, the Seattle Times detailed the findings of an earlier investigation at UW, after the publication won a court case to obtain the documents. It reported:

The UW’s Investigation Committee Report concluded that Brodie had committed scientific misconduct in many ways, including falsifying a figure in a paper submitted for publication. In a series of increasingly sharp rebukes, the investigators found that “Dr. Brodie falsified this figure and also that he did so knowingly and purposefully. Honest error was not involved.”

The investigators said Brodie deliberately manipulated an image of a single cell into “two distinct images presented as different types of cells” in order to make a point in a paper.

According to the publication, Brodie worked at UW between 1996 and 2003.

In 2008, the ORI informed Brodie it was planning to issue a debarment against him; in response, he requested an evidentiary hearing. The Administrative Law Judge (ALJ):

determined that “[t]he only reasonable inference that I can draw from the undisputed facts of this case is that [Plaintiff] knowingly and intentionally, and on a massive scale, published or attempted to publish false or fabricated information that was material to the research that he performed.” The ALJ’s decision made clear that the images were false, a finding Brodie has never disputed during the course of this litigation.

What’s more:

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.”

In March, 2010, the ORI issued its initial ruling on the case (before we’d begun covering misconduct); in April, Brodie filed a complaint against HHS and its Secretary, the Director of ORI, and the Deputy Assistant Secretary of HHS, seeking to stop the debarment. The judge ruled against Brodie and upheld the ALJ’s decision, noting it “properly interpreted applicable regulations and was supported by sufficient evidence.”

Four months later, Brodie filed a petition asking the ALJ to reopen the debarment case, arguing the ORI had violated precedent by not giving him access to a laptop with data. A judge rejected that petition.

The present case originated after Brodie filed requests from Washington state for information about his debarment proceedings, and received documents in 2013 that caught his interest.

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.”

When HHS denied this request to reopen the debarment proceedings, Brodie filed another lawsuit, arguing that the decision, and HHS’s conduct, violated his Fifth-Amendment due process rights, among other issues.

The court, however, disagreed, noting within its lengthy explanation:

In sum, all of the contentions Brodie claims the spoliation of evidence prevented him from making rely on legal or factual issues that have already been litigated and decided in the agency’s favor; as a result, the Court must conclude that he is collaterally estopped from raising such issues again.

And it concludes:

Although Brodie remains discontented with his debarment, which the Court does not doubt has had a real and significant impact on his life and career, “[i]n the final analysis, it is also important to note that [Brodie] is not the only party with interests at stake in these cases; rather, . . . [D]efendant[s] 30 in both lawsuits[] ha[ve] a right of protection from ‘repetitious litigation involving the same causes of action.’” Alford, 60 F. Supp. 3d at 130 (quoting Jenson v. Huerta, 828 F. Supp. 2d 174, 179 (D.D.C. 2011)). In this case, then, the third time is not the charm, and dismissal with prejudice of Brodie’s Complaint is warranted.

According to the ORI, Brodie’s seven-year debarment began in March, 2010, so it set to lift in less than a year.

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