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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ________________________________________________ Dr. SCOTT J. BRODIE, ) ) Plaintiff, ) ) Civil Action No. 1:12-cv-1136 v. ) ) UNITED STATES DEPARTMENT OF HEALTH ) AND HUMAN SERVICES, et al., ) ) Defendants. ) ________________________________________________) PLAINTIFFS REPLY TO DEFENDANTS REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO CROSS-MOTION FOR SUMMARY JUDGMENT Dr. Scott J. Brodie submits this Reply to Defendants Reply in Support of Motion for Summary Judgment and Opposition to Cross-Motion for Summary Judgment (Document No.17). Dr. Brodie challenges the failure of the Defendant, Office of Research Integrity (ORI), to produce, after repeated discovery requests, his research records, specifically his laptop computer. This case raises the constitutional issue of whether an administrative agency may debar a research scientist for alleged misconduct when it fails to produce the electronic research records (a laptop computer), which would explain his actions and exculpate him from wrongdoing. The failure of ORI to produce Dr. Brodies laptop violates the Administrative Procedure Act because it is contrary to the Constitution and ORIs own regulations. These claims could not have been brought any sooner than after Dr. Brodie discovered that ORI had not requested his electronic research records from the University of Washington. Accordingly, his present claims are not precluded for the uncontroverted reasons set forth in Dr. Brodies earlier memorandum to the Court.

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I. DISCUSSION A. The Requirements of Brady Parallels the Agencys Own Regulations Regarding the Obligatory Production of Documents. The government ignores the basic fact that ORIs regulations require the disclosures directed by Brady, which were not followed in this case. Under ORI rules, a research record in a misconduct investigation means 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 (emphasis added). Under ORIs rules, an institution has an obligation to ensure that it maintains adequate records for a research misconduct proceeding. Id. at 93.305. As part of this obligation, 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 . . . [and] [w]here appropriate, give the respondent copies of, or reasonable, supervised access to the research records. Id. at 93.305(a). During an investigation [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. Id. at 93.307(b); see also, Id. at 93.310(d) (obligation of institution to obtain all research records). ORI is authorized to request . . . research records or evidence from an institution . Id at 92. 400(b). The government ignores these rules, claiming that ORI had no affirmative obligation to locate and produce an alleged laptop computer that was never in its possession. Defendants Motion to Dismiss or Alternatively for Summary Judgment at 2 (Document No. 13). ORIs rules
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for the handling of research records provide just such an affirmative obligation to locate the laptop. Finally, the institution 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. Id. at 93.313(h). All records relevant to the inquiry must be maintained for seven years. Id. at 93.317(d). HHS regulations on research misconduct proceedings parallel the requirements of Brady. The research record material to this case is Dr. Brodies laptop, as it is the only computer that was sequestered as part of the investigation to which he had exclusive access. This laptop was not produced. See Declaration of Dr. Scott J. Brodie, attached to the Petition to Reopen

Administrative Proceedings (Brodie Decl.) 7; AR(2)00052. The information on that laptop is the only pure record of Dr. Brodies research and his conduct concerning publication of the disputed images, in contrast to the jumble of files gleaned from dozens of common-use lab computers that ORI originally received from the Institution on 16 CDs. See Declaration of John Dahlberg 3; AR(2) 00402. ORIs instructs its investigators that, among other things, [a]uthentication of a scientific image requires access to the original data . See Office of Research Integrity, ORI "Forensic Images Samples" for the quick examination of scientific images, available at

http://ori.hhs.gov/samples (last visited Jan. 29, 2013) (emphasis added). It is inexplicable that ORI failed to request and obtain the full research record for Dr. Brodie to prepare his defense, which includes his laptop, especially considering that Dr. Brodie specifically requested access to that information. Under Kyles v. Whitley, 514 U.S. 419 (1995), the prosecutor has a duty to

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learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. Whitley, 514 U.S. at 437. In this case, the government concedes the fact that ORI did not request the laptop from the University of Washington, despite Dr. Brodies discovery requests, ORIs regulations and Brady. Declaration of ORIs Director of Division of Investigative Oversight, John Dahlberg 3, 6,; AR(2) 001145-46. B. Brady Applies Where a Persons Profession is at Stake. The Debarring Official denied Dr. Brodies administrative claims by asserting that Brady and its progeny have only been found to apply to those rare civil matters where the consequences of an adverse finding equal or exceed those of most criminal convictions or the government's litigation tactics have been egregious or designed to make the case virtually impossible to defend. Gunderson Letter (May 30, 2012); (citing United States v. Project on Governmental Oversight, et al., 839 F.Supp.2d 330, 342-43 (D.D.C. 2012)); AR(2)00457. The Debarring Official continued that such principles do not apply where, as here, merely money or damage to reputation is at stake. Id. The government continues this line of arguments in its memoranda before this Court. To the contrary, as this Circuit observed in Gonzalez v. Freeman, 334 F.2d 570, 578 (D.C. Cir. 1964)), debarment has serious lasting consequences that go beyond money or reputation. The Court noted in Gonzales the findings of the Attorney General's Committee on Administrative Procedure in 1939, which declared, the penalty of black-listing is so severe that its imposition may destroy a going business, [and] appears to be even more valid under present day conditions. As such, the power of debarment is tantamount to one of life or death over a business. Gonzales, 334 F.3d at 574 n.5 (internal citations omitted). Dr. Brodies debarment

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has ended his career, as this Court has recognized may be a consequence. He has been unable to secure employment in his chosen profession since the penalty was first made public in the beginning of 2010, almost three years ago. Outside experts have found that research misconduct actions are reported in the Federal Register, and most likely will have a significant and permanent impact on an investigators career. Truth Telling: ORI Officials Offer Details on Case Settlements, Oversight Reviews, Report on Research Compliance (Atlantic Information Services, Inc., Washington, DC), Oct. 2012, at 2, available at http://www.reportonresearchcompliance.com/rrc1012_reprint.pdf. This is not merely a situation where money or reputation is at risk. The damage caused by debarment is permanent, especially in the context of scientific research. The governments position presents an overly simplified view of the precedent that Dr. Brodie identified, in which Brady principles were found to apply to civil proceedings. See Plaintiffs Combined Opposition to the Defendants Motion to Dismiss, or Alternatively for Summary Judgment, and Plaintiffs Cross-Motion for Summary Judgment (Pls Cross-Motion) at 7-9. (Document No. 14). For example, the Court in EEOC v. Los Alamos Constructors, Inc., 382 F. Supp. 1373, 1374 (D.N.M. 1974) is particularly instructive in its finding that that Brady orders that exculpatory information must be furnished a defendant in a criminal case. A defendant in a civil case brought by the government should be afforded no less due process of law. Los Alamos, 382 F. Supp at 1383 n.5. While the government dismisses other case law as not being directly on point, see Def. Reply at 4-5, and argues that debarment does not equate to a criminal prosecution, the government fails to address why, if Brady is not necessary to preserve due process rights in a civil context, have numerous United States agencies, including the Securities and Exchange Commission, the Bureau of Consumer Financial Protection, the

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Commodities Futures Trading Commission and the Federal Energy Regulatory Commission, among others, explicitly adopted Brady principles for non-criminal proceedings. See Pls CrossMotion at 9-10. The governments argument, moreover, ignores that ORIs regulations,

discussed above, include obligations that track Bradys constitutional mandate. C. Contrary to the Governments Assertions, the Laptop Contains Critical Material Evidence as Part of the Research Record. Dr. Brodies case falls well within the boundaries in which the discovery of critical evidence was suppressed, and raises the reasonable probability that the result would have been different. See Strickler v. Greene, 527 U.S. 263, 280 (1999). The governments contention that Dr. Brodies claims fail because his laptop does not contain material evidence is simply wrong. See Def. Reply at 2-3. As Dr. Brodie has argued throughout these proceedings, the laptop contains the final versions of the articles and grant applications that he produced if he had emailed those manuscripts to a colleague for a final round of edits, and that individual switched out various images without informing Dr. Brodie, then culpability for the publication of any of those images cannot be placed on Dr. Brodie, but on the person who made those final changes. Most notably, ORI relies on statements by Dr. Mullins or another researcher who had the last look at a manuscript. Dr. Brodie emailed images to Dr. Mullins and other researchers that were labeled as a placeholder or as simulated data if another researcher took that simulated data, altered the label and placed it in a final manuscript, then Dr. Brodie can hardly be held accountable for its publication in that manner. See Declaration of Dr. Scott J. Brodie, attached to the Petition to Reopen Administrative Proceedings (Brodie Decl.) 35(b); AR(2) 00058-59. These materials are contained on the laptop which includes the final versions of each

manuscript, article or application as it left Dr. Brodies hands, which do not necessarily match the versions that were actually published. Yet, Dr. Brodie was held culpable for these
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publications, notably to the exclusion of everyone else, despite each paper having numerous authors. The governments recitation of the ORI findings ##1-15, Def. Reply 21-25, totally misses the point that Dr. Brodie denies any culpability for knowingly publishing false images. His laptop would confirm Dr. Brodies claim. D. The Government Does Not Address Dr. Brodies Culpability. The crux of this case turns on Dr. Brodies culpability and, therefore, his innocence, for allegedly publishing falsified images. See In re Sealed Case No 99-3096 (Brady Obligations), 185 F.3d 887, 893, 337 U.S. App. D.C. 332, 338 (D.C. Cir 1999) (materials use as affirmative evidence of innocence). The governments arguments fail to establish anything other than images that appeared to be false appeared in various articles and publications. To support a finding of research misconduct, a researcher must have been found to commit the acts knowingly and intentionally. This finding was the basis for the action in Brodie I. See generally, Brodie v. U.S. Dept of Health and Human Servs. , 796 F. Supp. 2d 145 (D.D.C. 2011). Upon further examination of these proceedings in the current context, however, the government has backed off its earlier findings, leaving serious doubt about the basis for the agency decision. The government contends that for most of the findings of research misconduct, the record establishes the Brodie published the falsified data and provided the false images to his colleagues. Def. Reply at 25 (emphasis added). It is notable, as an initial matter, that the government argues that most, but not all, of the research misconduct findings are supported by the Record, especially in light of the fact that the ALJ mentions numerous times throughout the Recommended Decision that the sheer volume of false information in Dr. Brodies case provided support for his decision that Dr. Brodie submitted the images either knowingly or with reckless disregard of the truth. Rec. Decision at 6, A.R. 3757. The ALJ even noted that I might

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rule differently if this case involved only one or a handful of false items, perhaps infer[ring] from evidence of only a few false items that [Dr. Brodie]s submission and publication of them was arguably simple negligence. Rec. Decision at 9; A.R. 3760. If the government is now backing off its contention that all of ORIs allegations were, indeed, true, then the entire basis for the ALJs decision must now be questioned. It is also important to note in this case that the magnitude of Dr. Brodies penalty exceeds that of any other researcher accused of misconduct. As an example, a recent case of misconduct, in which the researcher was accused of falsifying or fabricating over 18 figures in four grant applications and six publications, resulting in the retraction of all six publications, resulted in only a three-year debarment. See Office of Research Integrity, Case Summary: Elton, Terry S. available at http://ori.hhs.gov/content/case-summary-elton-terry-s (last visited Jan. 29, 2013). In contrast, the allegations against Dr. Brodie, which involved only 15 figures found in nine grant applications and several manuscripts and other presentations, and from which not a single article was recommended for retraction by ORI, resulted in a debarment period of more than twice that of Dr. Eltons. See generally ORI Charge Letter; AR 2055 et seq. II. CONCLUSION

For the foregoing reasons, we request that the Court grant summary judgment in favor of the Dr. Brodie and remand the proceeding to the agency so that the laptop evidence may be recovered, and Dr. Brodie may present his defense to the agencys allegations of misconduct.

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February 5, 2013

Respectfully submitted, /s/ John Hardin Young John Hardin Young, D.C. Bar No. 190553 Sandler, Reiff, Young & Lamb, P.C. 1025 Vermont Ave, NW Suite 300 Washington, DC 20005 Tel: 202.479.1111 young@sandlerreiff.com Counsel to Plaintiff Dr. Scott J. Brodie