US court denies virus researcher’s latest appeal challenging 7-year funding ban

Scott Brodie has almost run out of options.

A former professor at the University of Washington, Brodie is currently involved in his third lawsuit challenging a finding of scientific misconduct and a seven-year funding ban handed down in 2010 by the U.S. Department of Health and Human Services’ Office of Research Integrity. He says that in the time since his case was heard by an administrative law judge at the ORI level, new evidence has come to light that shows he “did not have a ‘full and fair opportunity to litigate’ the issues.” His lawsuit sought a court order to have the ORI revisit its decision.

Last year, a U.S. District Court judge dismissed the case, saying it revisited old issues that had already been litigated, but Brodie appealed that decision. Now, his quest may have come to an end: On Nov. 27, the U.S. Court of Appeals for the D.C. Circuit dismissed the appeal. If he wants to continue the case, Brodie’s only remaining option is to appeal the decision to the U.S. Supreme Court.

In the court order, the panel of three judges wrote:

the appellant’s claims are “insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit” …

As the district court here noted, this case represents Brodie’s third attempt to challenge his debarment, and it presents no new legal theory that Brodie did not or could not have raised in prior litigation …

The judges agreed with the lower court that the case “simply repackages allegations rejected” in a 2013 lawsuit, and said that the issues did not warrant a published opinion.

Brodie told Retraction Watch:

I expected [this decision] … I have learned first-hand that once ORI’s [Administrative Law Judge] has ruled there is essentially nothing that can be done to overturn that ruling and there is nothing legally that can be done to force the HHS debarring official to reopen a case …

He added that he hasn’t ruled out an appeal to the Supreme Court, “for the purpose of calling out the ORI on a larger scale,” to encourage Congressional action on regulation of research misconduct, and to raise awareness among scientists.

The ban from HHS funding — which expired March 17, meaning Brodie is technically eligible to apply for receive grants again — came after ORI found Brodie guilty of 15 acts of scientific misconduct, including fabricating data submitted in federal grant applications. Brodie says he has never been allowed his day in court to submit evidence he says could help exonerate him.

Paul Thaler, an attorney at Cohen Seglias who defends scientists in misconduct investigations, told Retraction Watch prior to the U.S. Appeals Court decision that he didn’t think the Supreme Court would elect to hear Brodie’s case. Thaler added:

He has fought it at every possible level. The problem for him is that at each succeeding level, the legal standard you have to overcome gets increasingly difficult.

In the brief submitted to the U.S. Court of Appeals, Brodie said that in 2013 he discovered issues with the 2003 misconduct investigation at the University of Washington. He said a public records request revealed that the university had seized his computers but had not properly sequestered them, which led to several issues. His petition said:

neither Brodie, nor the UW inquiry panel (“UWIP”), nor the UW investigative committee (“UWIC”) were ever made aware that the data, images, and other files on which their decisions rested did not originate from Brodie’s … computer.

Brodie asked ORI to re-open the debarment proceedings, but ORI declined. He then sued, seeking a court to order the agency to revisit that decision.

We also reached out to Brodie’s lawyer, Michael Schneider of Boston firm Good Schneider Cormier & Fried.

Richard Goldstein, an attorney at Boston firm Meyer Connolly who has also defended scientists accused of misconduct, told us:

The Brodie case, in my mind, emphasizes the extraordinary importance of properly assembling and sequestering all the relevant evidence as early as possible in the process. I’ve seen this situation in many instances, where the university, for whatever reason, doesn’t adequately collect and protect all documents and computer files. Various files and laptops and data may not have been properly sequestered and made available years and years ago.

As time goes by, if those mistakes are made and you don’t vigorously assert your rights, they get baked into the cake and it gets very hard to rectify them.

Brodie told us that during his debarment he has done “consulting for private industry,” but believes he has been blacklisted from receiving federal grants in the future and doesn’t expect to return to the research world:

Too much damage has been done.

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