Brodie v. United States Department of Health and Human Services ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
SCOTT J. BRODIE, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-0544 (PLF)
)
UNITED STATES DEPARTMENT OF HEALTH )
AND HUMAN SERVICES, et al., )
)
Defendants. )
__________________________________________)
OPINION
In January 2010, an administrative law judge in the Department of Health and
Human Services (“HHS”) issued a decision in which he found that plaintiff Dr. Scott J. Brodie
had committed serious scientific misconduct and should be barred from participating in programs
or projects funded by the federal government for seven years. Proceeding under the
Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., Dr. Brodie has moved for a preliminary
injunction that would stay his debarment pending the ultimate outcome of this action. The Court
heard oral argument on the plaintiff’s motion on June 3, 2010. After careful consideration of the
parties’ arguments and the relevant legal standards, the Court will deny the motion for a
preliminary injunction.1
1
The papers reviewed by the Court include the following: plaintif’s complaint
(“Compl.”); plaintiff’s motion for a preliminary injunction (“Mot.”); defendant’s opposition to
the plaintiff’s motion (“Opp.”); plaintiff’s reply to defendant’s opposition (“Reply”); Mot., Ex. 1
(Recommended Decision Granting Summary Disposition to the Office of Research Integrity)
(“R.D.”); and the affidavit of Scott J. Brodie (attached to plaintiff’s motion for a preliminary
injunction) (“Brodie Affid.”).
I. BACKGROUND
A. Debarment Proceedings at HHS
The Public Health Service (“PHS”), a major division of the Department of Health
and Human Services, provides grants and other support “for biomedical [and] behavioral
research,” training, and “activities related to that research or research training.” 42 C.F.R.
§ 93.100(b) (2009). HHS regulations provide that “[r]esearch misconduct involving PHS
support is contrary to the interests of the PHS and the Federal government and to the health and
safety of the public, to the integrity of research, and to the conservation of public funds.” Id.§ 93.100(a). To facilitate the identification, sanction, and prevention of research misconduct,
HHS has promulgated regulations that require institutional recipients of PHS funding to
investigate and report allegations of misconduct by their own employees. See generally 42
C.F.R. §§ 93.100-.319 (2009); 42 C.F.R. §§ 50.101-.105 (2004).2
Institutions that receive PHS funding are required to report the results of their
investigations into alleged misconduct to the Office of Research Integrity (“ORI”), an office
within HHS. See 42 C.F.R. §§ 93.313, 93.315 (2009); 42 C.F.R. § 50.104 (2004). ORI may then
review the case and make its own independent determination as to whether misconduct occurred.
42 C.F.R. §§ 93.403-.404 (2009). If the office does conclude that a researcher committed
misconduct, it notifies the researcher by sending him a “charge letter” in which it describes the
2
HHS considerably expanded its regulations governing institutional monitoring and
reporting of internal research misconduct in 2005. See 70 Fed. Reg. 28, 370-400 (May 17,
2005). Because periods of time occurring before and after 2005 are relevant to this case,
citations to both the pre- and post-2005 sets of regulations are provided where appropriate.
Where a citation to the Code of Federal Regulations does not specify a year of publication, it
refers to the 2009 version of the Code.
2
misconduct found and the sanctions proposed, which may consist of “debarment or suspension”
— “the Government wide exclusion, whether temporary or for a set term, of a person from
eligibility for Federal grants, contracts, and cooperative agreements under the HHS regulations
[for procurement and nonprocurement].” Id. §§ 93.205, .405. The researcher may contest the
charges of misconduct by requesting a hearing before an administrative law judge (“ALJ”). See
42 C.F.R. §§ 93.501-.523.
Once the ALJ is prepared to render a decision on the merits of the misconduct
charges, he must issue a ruling in writing, which “constitutes a recommended decision to the
Assistant Secretary for Health.” 42 C.F.R. § 93.522. The Assistant Secretary may then, after
review of the decision, approve, reject, or modify it. Id. If the Assistant Secretary determines
that misconduct was committed and decides to order suspension or debarment as a sanction, his
or her decision is transmitted to a “debarring official.” Id. That “decision . . . constitute[s]
findings of fact [for] the debarring official,” who then makes a final decision regarding
debarment or suspension. Id. “The decision of the debarring official . . . is the final HHS
decision on those administrative actions.” Id.B. Dr. Brodie’s Disbarment Proceedings
From at least 1999 through 2002, Dr. Brodie performed medical and scientific
research at the University of Washington (“UW”). Compl. ¶¶ 8-9. In 2002, UW began
investigating Dr. Brodie to determine whether he had committed research misconduct between
1999 and 2001. Id. ¶ 9. In 2003, UW issued a report in which it concluded that Dr. Brodie had
3
committed misconduct; the university subsequently notified Dr. Brodie that he was “‘banned
from future employment at UW.’” Id. ¶ 16.
Although UW apparently concluded its investigation of Dr. Brodie by 2004,
several years elapsed before ORI took any action against him. On September 17, 2008, ORI sent
him a charge letter, informing him that the agency had determined that he had engaged in
research misconduct and intended to debar him from conducting research supported by PHS
funds for a period of seven years. Compl. ¶ 17. Dr. Brodie notified ORI that he would contest
the decision and requested a hearing. Id. ¶ 18. After an ALJ was assigned to the case, ORI
moved to dismiss Dr. Brodie’s hearing request. Id. ¶ 27. That motion was granted in part and
denied in part. Id. ¶ 29. Specifically, the ALJ determined that Dr. Brodie had raised no triable
objections to ORI’s charges that he had submitted grant applications, articles, and other
documents containing “materially false statements and data”; according to the ALJ, the doctor
had certainly done so. Id. The ALJ also concluded, however, that Dr. Brodie had “raised a
triable issue concerning his intent in submitting or publishing the documents and presentations
containing the false statements and data.” Id.The parties then began to prepare for a hearing on that second issue — Dr.
Brodie’s mens rea with regard to the falsifications contained in documents he had authored.
Prior to the hearing date, on November 10, 2009, ORI moved for summary disposition of Dr.
Brodie’s case, contending that the evidence gathered by the parties supported only one reasonable
inference with regard to Dr. Brodie’s state of mind: he had “intentionally, knowingly or
recklessly submitted or published or caused the submission or publication of the materially false
information” contained in the documents he had authored. Compl. ¶¶ 34, 42.
4
The ALJ agreed with ORI. He examined in detail the falsified information
contained in Dr. Brodie’s documents and concluded that “there are only two reasonable
inferences that I can draw from Respondent’s systematic publication of false or fabricated
information. Either he published information that he knew to be false or fabricated, or he
published it with indifference to the truth of its contents. The sheer volume and pattern of false
items that [Dr. Brodie] published or attempted to publish lead inescapably to my conclusion that
[he] had contempt for the truth.” R.D. at 8-9. In support of that conclusion, the ALJ examined in
detail numerous instances in which Dr. Brodie had published or submitted for publication
documents containing obviously falsified images (often called “figures”) or other data. For
example, the ALJ found that the evidence showed conclusively that, in a grant application, Dr.
Brodie had included a figure purporting to represent tissue from the “lingual tonsil.” Id. at 15.
Elsewhere in the same application appeared the exact same figure, inverted and with selected
data removed. Id. at 15-16. In that instance, the figure was labelled as “rectal mucosa” — an
entirely different source of tissue. Id. at 16. The ALJ rejected Dr. Brodie’s explanation that this
circumstance was merely the product of “error,” concluding that the contradictory uses to which
the figure was put constituted “such an obvious fabrication that [Dr. Brodie] could only have
made it deliberately or used the falsified image with reckless disregard for the truth or falseness
of what he published.” Id.The ALJ reached the same conclusion with regard to numerous other similar
circumstances: again and again, he pointed out that in one document, Dr. Brodie had labeled a
figure in a certain way, while in other documents, he had given the same figure or a slightly
altered version of it a contradictory label. See, e.g., R.D. at 13-14 (same image described as
5
representing cells at 97.7 percent purity or cells at 99.7 percent purity); id. at 15 (figure described
as “lymphoid tissue from pediatric lung” in one document, but as tissue from “lingual tonsil” in
another). Dr. Brodie’s defense as to each incident was the same. He claimed that the
inconsistent use of the images was accidental, or that someone else had altered/falsified the
image in question and given him the description of it, and that he was unaware that the
description or depiction of data was inaccurate. See, e.g., id. at 13-16. The ALJ rejected this
defense, finding that even if Dr. Brodie had not altered the images or their descriptions himself,
he was culpable for their inclusion in his papers because the images were “palpably false.” Id. at
18. Given the obvious inconsistencies in the manner in which the images appeared and were
described, Dr. Brodie must have known, at the very least, that they might have been false. With
regard to one figure, for example, the ALJ concluded that he could reach only one conclusion:
“Either [Dr. Brodie] personally altered the figure, or he submitted the figure without verifying its
truthfulness.” Id. at 14.3
Ultimately, the ALJ concluded that “[t]he undisputed facts establish this to be an
extremely serious case of misconduct” and that Dr. Brodie had “committed research misconduct
on a grand scale by publishing or attempting to publish false and fabricated images and
information in numerous documents.” Id. at 27. In light of those conclusions, the ALJ
determined that debarment for seven years was a “reasonable remedy” for Dr. Brodie’s
misconduct, and he recommended that remedy to the HHS debarring official. Id. at 27.
3
The ALJ also dismissed various other arguments by Dr. Brodie, rejecting his
claims that he had been “denied access to relevant information and evidence,” that it was unfair
for ORI to proceed against him so many years after the UW investigation, and that ORI had
failed to “produce testimony from UW investigators.” R.D. at 26.
6
Dr. Brodie initiated this lawsuit on April 2, 2010. On some unknown date, but
not later than April 19, 2010, his name was “placed in the General Services Administration’s
[Excluded Parties List System (“EPLS”)] database,” in which Dr. Brodie is identified as a person
debarred from engaging in any transactions with a federal agency for committing one or more of
a variety of forms of misconduct. Mot. at 7 & n.1. Dr. Brodie moved for a preliminary
injunction preventing his debarment and requiring the removal of his name from the EPLS
database on April 28, 2010. On May 5, 2010, a notice announcing Dr. Brodie’s debarment and
describing the fifteen specifications of research misconduct adjudicated against him was
published in the Federal Register. 75 Fed. Reg. 24,703, 24,703-704 (May 5, 2010).
II. DISCUSSION
A preliminary injunction is “an extraordinary remedy that should be granted only
when the party seeking the relief, by a clear showing, carries the burden of persuasion.”
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting
Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004)) (internal quotation marks omitted). To
warrant preliminary injunctive relief, the moving party must show: (1) that there is a substantial
likelihood that he will succeed on the merits of his claim, (2) that he will suffer irreparable injury
in the absence of an injunction, (3) that an injunction would not substantially harm the
defendants or other interested parties (balance of harms), and (4) that the public interest would be
furthered, or at least not adversely affected, by the injunction. See id.; Davis v. Pension Benefit
Guar. Corp., 571 F.3d 1288, 1291 (D.C. Cir. 2009); Serono Labs., Inc. v. Shalala, 158 F.3d 1313,
1317-18 (D.C. Cir. 1998).
7
The plaintiff is not required to prevail on each of these factors. Rather, these
factors must be viewed as a continuum, with more of one factor compensating for less of another.
Davis v. Pension Benefit Guar. Corp., 571 F.3d at 1291-92. “If the arguments for one factor are
particularly strong, an injunction may issue even if the arguments in other areas are rather weak.”
CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). An
injunction may be justified “where there is a particularly strong likelihood of success on the
merits even if there is a relatively slight showing of irreparable injury.” Id. Conversely, when
the other three factors strongly favor interim relief, a court may grant injunctive relief when the
moving party has merely made out a “substantial” case on the merits. The necessary level or
degree of likelihood of success that must be shown will vary according to the Court's assessment
of the other factors. Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d
841, 843-45 (D.C. Cir. 1977). An injunction may be issued “with either a high probability of
success and some injury, or vice versa.” Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d
972, 974 (D.C. Cir. 1985).
Despite this flexibility, however, “a movant must demonstrate at least some injury
for a preliminary injunction to issue,” and “a failure to show any irreparable harm” constitutes
grounds for denying the motion for a preliminary injunction, “even if the other three factors
entering the calculus merit such relief.” Chaplaincy of Full Gospel Churches v. England, 454
F.3d at 297 (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C.
Cir. 1995) (internal quotation marks omitted), and citing Sea Containers Ltd. v. Stena AB, 890
F.2d 1205, 1210-11 (D.C. Cir. 1989)) (emphasis added).
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A. The Merits
Dr. Brodie argues that HHS’ debarment of him was “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law” in violation of the APA, 5 U.S.C.
§ 706(2)(A), because (1) “[t]he ALJ denied [him] an opportunity for a hearing,” Mot. at 8;
(2) “the ALJ granted summary disposition to ORI, even after finding triable issues of material
fact,” id. at 10; and (3) “the ALJ applied the wrong standard for research misconduct.” Id. at 12.4
Although the third of those arguments may prove in time to have merit, at this point in these
proceedings the plaintiff has failed to convince the Court that there is a substantial likelihood that
he will prevail on the merits of his claims.
1. Opportunity for a Hearing
Dr. Brodie argues that by deciding his case by summary disposition before the
parties could present evidence at an oral hearing, the ALJ deprived him of his Fifth Amendment
due process rights. Mot. at 8-9. In support of this assertion, he cites cases that require the
government to afford contractors or other entities subject to suspension or debarment notice and
a hearing — in other words, the standard ingredients of due process. See, e.g., Commercial
Drapery Contractors, Inc. v. United States, 133 F.3d 1, 6 (D.C. Cir. 1998) (“Suspending a
contractor is a serious matter . . . An agency may not impose even a temporary suspension
without providing the ‘core requirements’ of due process: adequate notice and a meaningful
hearing.”). He also suggests that the ALJ violated HHS’ own regulations in granting summary
4
At oral argument, plaintiff’s counsel, responding to questioning from the Court,
also contended that the ALJ had failed to consider mitigating factors sufficiently when approving
a seven-year period of debarment for Dr. Brodie. Because this issue was not raised by the
plaintiff in his motion for a preliminary injunction, the Court will not consider it in this Opinion.
9
disposition in advance of an in-person hearing, pointing out that under HHS rules, “‘the ALJ
must grant a respondent[’s] hearing request if the ALJ determines that there is a genuine dispute
over facts material to the findings of research misconduct.’” Mot. at 10 (quoting 42 C.F.R.
§ 93.503).
These arguments are unconvincing in light of another HHS regulation that
expressly provides for summary disposition where there are no genuine factual disputes and in
light of the ALJ’s explicit finding that there was no “genuine dispute over facts material to the
findings of research misconduct” in Dr. Brodie’s case. See R.D. at 6 (“Summary disposition is
appropriate in this case because the undisputed material facts establish that Respondent
knowingly and intentionally published or attempted to publish information that was false or
fabricated and which was material to the research he published or attempted to publish.”). HHS
regulations specifically provide that an ALJ may dispose of a case summarily without any in-
person hearing “where there is no disputed issue of material fact.” See 42 U.S.C.
§ 93.506(b)(15). The grant of summary disposition in the absence of disputed issues of material
fact also comports with constitutional due process: “[I]f the hearing mandated by the Due Process
Clause is to serve any useful purpose, there must be some factual dispute between [the parties].”
Codd v. Velger, 429 U.S. 624, 627 (1977); see also 2 RICHARD J. PIERCE , JR., ADMINISTRATIVE
LAW TREATISE § 8.3 (4th ed. 2002) (“Even when an agency is required by statute or by the
Constitution to provide an oral evidentiary hearing, it need do so only if there exists a dispute
concerning a material fact.”). In light of these factors, the Court cannot conclude that Dr. Brodie
was deprived of any process to which he was due.
10
2. Triable Issues of Material Fact
Dr. Brodie argues that the ALJ erred in finding Dr. Brodie responsible for
misconduct without “first determining whether . . . the record creates a genuine issue of material
fact.” Mot. at 11. That claim is simply inaccurate. The ALJ specifically found that there was no
disputed issue of material fact in Dr. Brodie’s case at the summary disposition stage. See R.D. at
6. He determined that even if he assumed the truth of Dr. Brodie’s unsupported assertions that
other people had altered and/or mislabeled the inaccurate figures found in his work, the record
nevertheless supported only one reasonable inference regarding Dr. Brodie’s state of mind: Dr.
Brodie had been either knowing or reckless with regard to the falsification of information. See,
e.g., id. at 9.
Dr. Brodie argues that the ALJ’s finding at the summary disposition stage that
there were no genuine issues of material fact contradicted the ALJ’s finding at the motion to
dismiss stage that there was a triable question of fact with respect to Dr. Brodie’s state of mind.
Mot. at 11. But the ALJ’s decision at the motion to dismiss stage was based on the allegations
made in Dr. Brodie’s response to the ORI’s charge letter. See R.D. at 2. His decision regarding
the motion for summary disposition was based on the evidence subsequently submitted by the
parties to support their claims. Id. at 2, 6. The ALJ found that Dr. Brodie had failed to offer any
specific facts or evidence at the summary disposition stage that would support his claims of
blamelessness or counter ORI’s evidence. Id. at 6. He concluded that the “facts and arguments
offered by [Dr. Brodie] [were] irrelevant or simply incorrect,” while the contentions of ORI were
persuasive and well supported by the evidence. Id. Thus, there is no contradiction between the
ALJ’s rulings at the motion to dismiss stage and the summary judgment stage, just as a trial court
11
does not rule inconsistently when it grants a motion for summary judgment after earlier denying a
motion to dismiss for failure to state a claim.
3. Definition of Misconduct
Finally, Dr. Brodie asserts that the ALJ’s ruling was arbitrary, capricious, or not in
accordance with law because the ALJ applied the wrong standard of misconduct to Dr. Brodie’s
actions. See Mot. at 12. From 1989 through 2005, HHS regulations contained the following
description of misconduct:
Misconduct or Misconduct in Science means fabrication,
falsification, plagiarism, or other practices that seriously deviate
from those that are commonly accepted within the scientific
community for proposing, conducting, or reporting research. It
does not include honest error or honest differences in
interpretations or judgments of data.
42 C.F.R. § 50.102 (Oct. 1, 2003).
In 2004, HHS announced in the Federal Register that it was proposing
amendments to its existing rules in order to, among other things, “expand” the “level of intent”
associated with research misconduct “beyond an intentional and knowing standard to include
recklessness.” 69 Fed. Reg. 20, 778, 20,780 (Apr. 16, 2004). Accordingly, HHS in 2005
promulgated a final rule that refined the definition of “misconduct” as follows:
Research misconduct means fabrication, falsification, or plagiarism
in proposing, performing, or reviewing research, or in reporting
research results.
(a) Fabrication is making up data or results and recording or
reporting them.
(b) Falsification is manipulating research materials, equipment, or
processes, or changing or omitting data or results such that the
12
research is not accurately represented in the research record.
(c) Plagiarism is the appropriation of another person’s ideas,
processes, results, or words without giving appropriate credit.
(d) Research misconduct does not include honest error or
differences of opinion.
...
A finding of research misconduct made under this part requires
that —
(a) There be a significant depature from accepted practices of the
relevant research community; and
(b) The misconduct be committed intentionally, knowingly, or
recklessly; and
(c) The allegation be proven by a preponderance of the evidence.
42 C.F.R. §§ 93.103-.104. At the same time that HHS published the amended final rule in 2005,
the agency stated that while the procedures described in the new rule would be applied in all
cases going forward, “the definition of research misconduct that was in effect at the time the
misconduct occurred would apply” in pending cases. 70 Fed. Reg. 28, 380 (May 17, 2005).
Thus, the parties in this case agree that the pre-2005 definition of misconduct applies in Dr.
Brodie’s case. See Mot. at 12; Opp. at 21.
Dr. Brodie contends that the ALJ did not use the pre-2005 definition in his case,
but rather applied the amended rule. See Mot. at 13. That argument is unconvincing. The ALJ
explicitly noted that he was to apply the pre-2005 definition and concluded that Dr. Brodie’s
conduct fell within that definition. See R.D. at 8. Dr. Brodie’s more substantive argument is that
the ALJ impermissibly expanded the meaning of the pre-2005 definition to permit a finding of
13
misconduct where the falsification at issue was committed recklessly, as opposed to knowingly
or intentionally. See Mot. at 13. At this preliminary stage in these proceedings, however, Dr.
Brodie has failed to demonstrate a likelihood of success on this claim for at least two reasons.
First, it is far from clear that the pre-2005 rule excluded from its definition of
misconduct falsification that was not knowing or intentional. The text of the rule, after all,
makes no mention of a particular state of mind and, at least on its face, encompasses all
falsification and fabrication except “honest error or honest differences in interpretations or
judgments of data.” 42 C.F.R. § 50.102 (2004). The ALJ concluded that Dr. Brodie had
submitted falsified accounts of his research with either the specific knowledge that the accounts
were false or with indifference as to whether they were false. See, e.g., R.D. at 8. False data
submitted with indifference as to its truth could, on a reasonable reading of the pre-2005 rule,
easily fall within the definition of “misconduct” because such an act of falsification would not
seem to be the product of an “honest error” or honest difference in judgment. The person
committing the falsification, after all, must have consciously ignored a substantial risk of
inaccuracy.
In support of his argument that the pre-2005 rule reaches only a narrow band of
knowing or intentional falsification, Dr. Brodie makes only one rather weak argument: he says
that HHS’ commentary in the 2004 Federal Register regarding the scope of the pre-2005
definition of misconduct is “evidence of HHS policy to not consider a finding of recklessness
[sufficient] to establish ‘research misconduct’ under the” unamended regulation. Mot. at 13-14
(emphasis in original). But plaintiff’s counsel has not even attempted to explain why passing
commentary in the Federal Register published roughly fifteen years after the promulgation of the
14
pre-2005 rule — perhaps the equivalent of administrative dicta? — should trump the considered
interpretation of the rule issued by an HHS administrative law judge.
Second, even if the pre-2005 rule did reach only knowing and intentional conduct,
the plaintiff has not yet persuaded the Court that the administrative law judge failed to apply that
standard. In granting summary disposition in favor of ORI, the ALJ claimed to find that “the
undisputed material facts establish that [Dr. Brodie] knowingly and intentionally published or
attempted to publish information that was false or fabricated . . . .” R.D. at 6 (emphasis added).
The ALJ also spent considerable time exploring the pre-2005 definition of misconduct. He cited
the text of the definition and then declared: “On its face the regulation separates willful
misconduct from simple negligence or honest error. However, it does not describe in detail what
would comprise willful misconduct.” R.D. at 8. Examining a prior administrative decision
interpreting the definition, see Dr. Rameshwar K. Sharma, Dec. No. 1431, 1993 WL 742551(HHS Dept. App. Bd. Aug. 6, 1993), the ALJ stated that in that case, the administrative
decisionmaker “drew a distinction between honest error and statements that are made with the
knowledge that they would mislead the reader. The latter type of statement, as opposed to mere
negligence, constituted misconduct.” Id. He then stated:
I conclude that “intentionally” publishing false or fabricated
information subsumes both the circumstance where the scientist
publishes information that he or she knows is false and the
circumstance where the scientist publishes information with
indifference to its truth. The scientist who publishes with
indifference to the truth of what he or she publishes knows that the
published information could mislead the reader, and so, such
conduct is research misconduct.
R.D. at 8.
15
As the defendants have pointed out, the meaning of “knowingly” and
“intentionally” delineated by the ALJ is not unfamiliar to the courts. The ALJ’s description of
“[t]he scientist who publishes with indifference to the truth of what he or she publishes” may
correspond to a mens rea of extreme recklessness, which sometimes constitutes “a state of mind
closer to conscious intent than to gross negligence.” Howard v. SEC, 376 F.3d 1136, 1143 n.10
(D.C. Cir. 2004); see also A.E. Staley Mfg. Co. v. Sec’y of Labor, 295 F.3d 1341, 1351 (D.C.
Cir. 2002) (noting that “[t]he use of a state of mind like plain indifference as a substitute for
knowledge of a specific condition is well recognized” in various legal contexts). The plaintiff
has not even addressed the possibility that the level of extreme indifference identified by the ALJ
may be equivalent in nature to intent or knowledge, broadly defined.
The Court stresses that none of the above reasoning reflects a definitive ruling
regarding the meaning of the ALJ’s decision or the pre-2005 rule. This reasoning does, however,
indicate that plaintiff has not yet demonstrated a likelihood of success on the merits — let alone a
substantial likelihood — sufficient to weigh in favor of the issuance of a preliminary injunction.
B. Irreparable Harm
Dr. Brodie claims that his “debarment will and has already caused irreparable
injury to his reputation[] and his current employment and economic prospects.” Mot. at 15. He
says that his “livelihood rests exclusively on his contract term of employment with the federal
government and he is dependent on that contract for income.” Id. Furthermore, he contends that
“the stigma of having been placed on the EPLS list as someone who is unworthy of employment
16
with the federal government will likely follow him for the duration of his career.” Id. at 16. Dr.
Brodie’s claims of irreparable harm thus fall into two categories: harm to (1) reputation and
(2) career.
Although harm to reputation has been recognized repeatedly as a type of
irreparable injury, see, e.g., Alf v. Donley, 666 F.2d 60, 69 (D.D.C. 2009), Dr. Brodie’s claimed
fear of “stigma” fails to prove irreparable harm in this case because that claim is both vague and
unsupported; there is no indication in the record that Dr. Brodie’s employer or any particular
colleagues are likely to learn of the ALJ’s decision in the near future. Merely conclusory
allegations of stigma do not suffice to establish imminent injury. See, e.g., Feinerman v.
Bernardi, 558 F. Supp. 2d 36, 51 (D.D.C. 2008); Trudeau v. FTC, 384 F. Supp. 2d 281, 297
(D.D.C. 2005). The generalized risk that individuals in the scientific community may learn of
the ALJ’s findings against Dr. Brodie during the pendency of this matter is not the sort of threat
that can be neutralized by court order. A summary of the ALJ’s decision appeared in the Federal
Register on May 5, 2010, and no order of this Court can avert the risk that people in the
plaintiff’s field may discover that Federal Register entry and view him as “someone who is
unworthy of employment with the federal government.” Mot. at 16.
Dr. Brodie’s claims regarding his present employment are potentially more
serious, but they are so vague and conclusory that they are difficult to credit. Dr. Brodie avers
that his current employer — which has not been identified — “is a lower tier recipient of HHS
funding” and says that his “debarment and subsequent publication and notice of the debarment
will end [his] current employment” because he is “disqualified from employment with any entity
that has a contract with the federal government.” Brodie Affid. ¶ 16. That statement is
17
inaccurate. As the defendants point out, “[w]hether [Dr. Brodie’s] employer receives
government funds for certain projects . . . is a different issue from whether [the plaintiff] works
on those government funded projects. His debarment would preclude him from doing the latter,
but would not bar him from working for a private company on non-government funded projects.”
Opp. at 26-27. Dr. Brodie does not claim that his current employment involves working on a
federally funded project. There is no evidence that his debarment poses an imminent threat to his
ability to fulfill his responsibilities to his employer.
The defendants also note that, in a letter sent to HHS in late March of 2010, Dr.
Brodie claimed that “he was ‘neither a contractor nor subcontractor with the United States and
only tangentially involved in nonprocurement programs.’” Id. at 26 (citing Opp., Ex. D). Dr.
Brodie all but concedes that point in his reply memorandum, arguing that “even if [his] current
position is only tangentially funded with federal grants, it is still extremely likely that his
employer will decide that having an employee with limited mobility to engage in certain tasks is
not in the company’s best interest.” Reply at 12. The Court has no reason to credit that
statement, however, as it is unsupported by any specific facts. Indeed, all of Dr. Brodie’s claims
of professional injury rest only on his conclusory assertions that he is in imminent danger of
being fired. He provides no evidentiary support or even specific factual allegations that would
support those assertions. As a result, he has not established that irreparable harm is likely in the
absence of preliminary injunctive relief.
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3. Other Factors
The remaining factors to be weighed — the potential effects of the requested
injunction on the defendants and the public interest — do not support issuance of an injunction.
While each of the parties makes a half-hearted attempt to suggest that the public interest is on
their side — plaintiff says that the public interest is served when agencies are forced to follow the
law, Mot. at 17-18; defendants say that the public interest is served when research integrity is
maintained, Opp. at 30-31 — these are both very abstract kinds of harm and ultimately balance
each other out. Because the Court has no reason to believe that Dr. Brodie is currently working
on a government-funded project whose integrity he could jeopardize, the defendants do not have
a powerful immediate interest in keeping Dr. Brodie’s name in the EPLS database or maintaining
his debarment. The fact that an injunction would not cause immediate harm to the defendants,
however, is not, on its own, sufficient justification for the issuance of the injunction. Where the
plaintiff has not shown a substantial probability of success on the merits or the likelihood of
irreparable harm, and the public interest is not strongly implicated, this Court will not issue a
preliminary injunction.
III. CONCLUSION
For the foregoing reasons, the plaintiff’s motion for a preliminary injunction will
be denied. The parties shall propose to the Court a schedule for the expedited briefing of
dispositive motions. An Order consistent with this Opinion shall issue this same day.
SO ORDERED.
/s/________________________
PAUL L. FRIEDMAN
United States District Court
DATE: June 4, 2010
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