Santos v. NASA: DOJ Declines to Petition the Court for Rehearing
Disclosure: On July 7, 2020, the United States Court of Appeals for the Federal Circuit appointed Debra L. Roth as amicus curiae counsel to brief a statutory interpretation question from the position of employee-petitioner Fernando Santos. Ms. Roth, Conor D. Dirks, and James P. Garay Heelan, attorneys of Shaw Bransford & Roth P.C., briefed the issue from the employee’s position for the court. The court adopted that position in its opinion. Mr. Dirks is also the author of this case law update.
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
We previously reported on the Federal Circuit’s panel decision in Santos v. NASA, issued on March 11, 2021. That decision held that pursuant to 5 U.S.C. § 4302(c)(6), when employees challenge their PIP-based performance terminations at MSPB, federal agencies must prove that employees deserved to be put on a PIP in the first place. The case turned on the meaning of the words “continue to,” used in Section 4302(c)(6), and whether that statutory language imposed a requirement on the agency to prove pre-PIP unacceptable performance. The panel opinion said yes.
Following the Federal Circuit’s opinion, the government requested more time to consult with the Solicitor General and consider whether to petition the appeals court for rehearing by the panel or rehearing en banc, which is rehearing by all active circuit judges. The appeals court granted the government’s request, and extended the deadline to June 10, 2021. Because the government did not file any petition for rehearing by that extended deadline, the panel opinion in Santos v. NASA remains the law.
Thus, pursuant to the Federal Circuit panel opinion, it is legally required that “[u]nder the plain meaning of the statute,” federal agencies “must defend a challenged removal by establishing that the employee had unacceptable performance before the PIP and ‘continue[d] to’ do so during the PIP.”
The panel opinion held that the MSPB’s failure to consider Santos’ argument that he should never have been placed on a PIP was based on a misinterpretation of Section 4302(c)(6). The panel therefore vacated and remanded the issue for the Board to decide whether NASA established that the employee performed unacceptably prior to being placed on the PIP. Since the panel opinion is no longer subject to rehearing, the case will likely now be remanded to the Board for that determination, among others.
Read the panel opinion: Santos v. NASA.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.