Brodie is suing the Department of Health and Human Services over its decision to debar him from receiving federal research funding based on findings that he committed research misconduct. Brodie claims that newly discovered evidence shows evidence was manipulated, destroyed, and concealed during the University of Washington's investigation into the allegations against him, and this new evidence was not considered by HHS. This new evidence calls into question the fairness of the proceedings against him and requires reopening the case to consider this evidence.

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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”
1
See 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”)2
and a Dell desktop computer (“SB Residence”).3
2
Brodie Aff. ¶¶5, 9, 18, and See SJB 00162-00164,fn4-6; and SJB 00170.
3
Brodie 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.4
The 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
4
Brodie 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
5
The 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.
6
See 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.9
Brodie 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.10
Brodie 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
7
Brodie Aff. ¶20. See SJB 00259-00260, ¶1.
8
Brodie Aff. ¶¶13, 31.
9
Brodie Aff. ¶71 (re “SB Residence”).
10
Brodie Aff. ¶22.
11
Brodie Aff. ¶25.
12
Brodie Aff. ¶23 & 24. See also SJB 00259-00260, 00263-00264.

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requests.13
While 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.15
In 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
13
Brodie Aff. ¶25-27.
14
Brodie Aff. ¶105; Ex. SJB 00193 (Dr. John Clark email of 4/3/03).
15
Brodie Aff. ¶27; and See SJB 00263-00264; 00312,¶2, 00225,¶6.
16
Brodie Aff. ¶25; and See SJB 00224 ¶8.
17
Brodie 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.”18
UW
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
18
Brodie Aff. ¶45. See also (Mittler email of 4/27/03 to SJB 00249).
19
See 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).
20
Brodie 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.
21
Brodie Aff. ¶34; and See SJB 00273 ¶2.

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“traced back” to Mullins’s computer.22
This 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
22
See SJB 00266, 00273, 00280-283.
23
Brodie Aff. ¶39; See AR3 00052, ¶¶90, 99, 100. See SJB 00731-00732. Cf. SJB 00196-
00198.
24
Brodie Aff. ¶26. See also SJB 00261,¶1.
25
See 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).
26
See Brodie Aff. ¶51.
27
See 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.28
After 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.”31
A 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”).
28
Brodie Aff. ¶¶31-32. See also SJB 00280-283.
29
Brodie Aff. ¶33; See SJB 00290 ¶2; 00302 ¶2; 00234 ¶5. See also UW Tr. 17 (Fine,
7/18/03).
30
See SJB 00251 (Diem email of 12/3/03 to Keller).
31
See id.
32
See 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.”33
That 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.35
Brodie 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
33
See SJB 00286, 00006-00019.
34
Brodie Aff. ¶39. See also SJB 00196-00198.
35
UW’s inquiry investigators had decided that one of Mullins 10 figures constituted
two misconduct allegations.
36
Brodie 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
38
See Brodie Aff. ¶53. See also SJB 00522 ¶2.
39
See SJB 00193, 00585, 00514.
40
Brodie 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
42
Apparently, 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.
43
Brodie Aff. ¶39, 100(d).
44
Brodie 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.45
In
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.46
These emails also show that Brodie had not in fact been provided access to his raw
data and computer files;47
that some of the relevant hard drives had been only belatedly
processed by a forensic processing firm;48
and that UW attorneys and administrators well
understood that access to the raw data and computer files were critical to the integrity and
45
See 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”).
47
See 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.
48
See 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”).

18. -18-
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
49
See 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”).
50
See 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”).

19. -19-
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
52
Brodie Aff. ¶66. See Ex. SJB 00190-00191 (UWIC Report, p.20, ¶1)
53
See 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

20. -20-
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).
54
See SJB 00731-00732. Cf. SJB 00196-00198.
55
See 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.
56
See Brodie Aff. ¶73. See also SJB 00193, 00585, 00524, 00250-00252.

21. -21-
(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.
59
The 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.”

22. -22-
since.”60
It 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
60
See 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.

23. -23-
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.61
On 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
61
See Brodie Aff.¶66 (SBHome). See also SJB 00250-00252, 00190-00191, 00162-00164
n.7.
62
AR3 00082, 00090-91, 00108.
63
AR3 00090-91.

24. -24-
• 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
64
AR3 00090.
65
See ALJ decision at 27, ¶2. See also SJB 00707-00708 (Corey, 11/1/05, PR 2012-
00583).
66
See SJB ___ (Letter from Gunderson to Brodie at 2).

25. -25-
“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.”67
The 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
67
See Opposition to Petitioner's Petition to Reopen Research Misconduct
Administrative Proceeding, November 22, 2011, p. 2.

26. -26-
(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.”68
The government argues that the lawsuit should be dismissed
on two grounds (1) res judicata, “because Brodie presumably knew the contents of the SB
68
Govt. Mot to Dismiss at 6 (Dkt. ###).

27. -27-
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)

28. -28-
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.

29. -29-
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
69
UW 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.”)

30. -30-
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

31. -31-
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

36. -36-
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

37. -37-
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