Federal Circuit: Removal for Performance-Based Conduct Not Limited to Performance Actions
This case law update was written by Michael J. Sgarlat, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2015. Mr. Sgarlat works with federal employees to respond to proposed disciplinary and adverse actions, and has experience litigating cases before the U.S. Merit Systems Protection Board.
Dr. Allen Braun worked as a research doctor at the National Institutes of Health (NIH) for almost 32 years. In 2003, he became a tenured Senior Investigator for the National Institute on Deafness & Other Communication Disorders, a branch of NIH.
Dr. Braun was the principal investigator for a protocol study that studied the effect of trauma on speech and language. Subjects were subjected to speech and language tests, hearing tests, MRIs, and other exams. Because his research involved human subjects, Dr. Braun submitted a standard research protocol to an NIH Institutional Review Board (IRB).
In March 2015, Dr. Braun notified his clinical director that a deviation from protocol resulted in the running of an MRI scan on the wrong patient. Thereafter, the Deafness Institute retained an independent company to conduct an audit of Dr. Braun’s records. The IRB, which began its own review of Dr. Braun’s records, postponed its review until the Deafness Institute’s audit concluded.
In February 2016, the Deafness Institute completed its audit. The results indicated that 3% of human subjects had no informed-consent form or an unacceptable consent form on file, and that only half of the participants had acceptable medical and physical exam documentation. Overall, complete records existed for less than 9% of the participants whose records were reviewed.
As a result of the Deafness Institute’s audit, the IRB determined that Dr. Braun’s deviations from protocol constituted “serious continuing non-compliance,” and suspended the study pending a plan for remediation. Dr. Braun then submitted a plan for remediation on May 12, 2016. However, the next day, May 13, 2016, Dr. Andrew Griffith, the Deafness Institute’s Scientific Director, issued to Dr. Braun a proposal to remove him from his position at NIH.
The proposal charged Dr. Braun with “[n]egligence in the performance of [his] duties” based on the audit results. The proposal further stated that Dr. Braun’s deviations from protocol, including having complete records for less than 9% of his subjects, indicated a “consistent and continuous pattern o[f] gross negligence” and “could have exposed subjects to unnecessary harm and impacted the integrity of the research being conducted.”
That same day, Dr. Braun, through counsel, contacted Mr. Timothy Wheeles, Executive Officer for the Deafness Institute, who was to make the final removal decision. Dr. Braun contended that in sending the proposal, NIH failed to follow its own policy – NIH Policy on Performance Management, Disciplinary Actions and Administrative Removals for Title 42 Employees (NIH Policy). The NIH Policy provides that “[t]enured scientists must undergo the de-tenuring process before a performance-based action may be taken against them,” and permitting the agency to forgo the de-tenuring process when it removes tenured employees “for cause, e.g., personal or scientific misconduct.”
Dr. Braun received no response, and submitted to Mr. Wheeles his written reply to the proposal on June 3, 2016. Ten days later, Mr. Wheeles issued to Dr. Braun his decision, removing Dr. Braun for negligence in the performance of his duties. The removal became effective on June 25, 2016.
On July 19, 2016, Dr. Braun appealed the removal to the Merit Systems Protection Board (Board). The Board re-filed his appeal a year later, and on February 28, 2019, an administrative judge issued an Initial Decision affirming NIH’s action. Under 5 C.F.R. § 1201.111(b)(5), the Initial Decision became the final Board decision.
In the Initial Decision, the Board determined there was ample evidence of pervasive protocol violations, and sustained the charge. The Board also disagreed with Dr. Braun’s claim that NIH violated his due process rights by listing negligent performance as the sole cause for removal in the proposal and relying on the table of penalties recommendation for disciplining “violation[s] of recognized professional or agency standards or medical ethics or patient care.” Relevant here, the Board also concluded that the conduct at issue was a proper basis for removal without de-tenuring under the NIH Policy.
Dr. Braun then appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit. On appeal, Dr. Braun argued that because that the conduct in which he was removed concerned his job performance, the NIH Policy prohibited the NIH from removing him without first taking away his tenure, which involves a certain de-tenuring process that NIH did not undertake. The Federal Circuit described Dr. Braun’s argument as a “categorical one,” where all job-performance-based removals are governed by the NIH Policy and require the de-tenuring process.
The Federal Circuit highlighted that de-tenuring is not required under the NIH Policy for a termination “for cause.” Moreover, the Federal Circuit stated that the “for cause” provision contradicts Dr. Braun’s central contention – that the provision is inapplicable to any removal based on conduct in performing a job. According to the court, such a reading is precluded by the provision’s express coverage of removal for “scientific misconduct,” as defined by 42 C.F.R. § 93.103. Thus, Federal Circuit held that the same conduct that constitutes deficient job performance can constitute a form of misconduct under the “for cause” provision.
Underscoring its conclusion, the Federal Circuit elaborated on the relationship between Chapter 43 and Chapter 75 of the U.S. Code. Citing Lovshin v. Dep’t of Navy, 767 F.2d 826, 842-43 (Fed. Cir. 1985), the court stated that the different standards articulated in Chapter 43 (removal or demotion appropriate for “unacceptable performance”) and Chapter 75 (adverse employment actions appropriate for “such cause as will promote the efficiency of the service”), do not preclude agencies from invoking Chapter 75 to remove employees for performance-related reasons. The Federal Circuit stressed that Chapter 43 cannot be read to “implicitly eliminat[e] removal or demotion actions for performance reasons under Chapter 75.”
Thus, the Federal Circuit concluded that the NIH Policy’s provision allowing removal “for cause,” read in the context of the policy as a whole and in light of case law related to 5 U.S.C. Chapters 43 and 75, does not require de-tenuring or excludes all job-performance-based removals.
Dr. Braun also argued on appeal that NIH violated his due process rights by relying on the table of penalties’ recommendation for discipline “violation[s] of recognized professional or agency standards of medical ethics or patient care.” The Federal Circuit also rejected this argument.
The Federal Circuit explained that a notice of removal must set forth the “nature of the charges ‘in sufficient detail to allow the employee to make an informed reply.’” Here, the Federal Circuit found that Dr. Braun had “enough information to permit preparation of an informed reply” as to the violation of professional or agency standards. It stated that Dr. Braun was aware that his removal was based on his failure to comply with his protocol and that such noncompliance was serious and continuous.
Citing language from the Board’s decision, the Federal Circuit stated that “[t]he contention that [Dr. Braun’s] conduct violated agency and medical standards related to the safety and care of his research subjects is plainly included in the language” of the Proposal. Thus, the Federal Circuit affirmed the Board’s determination that there was no denial of due process.
The Federal Circuit affirmed the decision of the Board.
Read the full case: Braun v. HHS
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