Two Dissenters Push Back on Federal Circuit’s Denial of Braun v. HHS Rehearing
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 December 21, 2020 opinion in Braun v. HHS, a case where the appeals court found that HHS could utilize its generic “for cause” procedures to terminate tenured scientists for at least some performance-based reasons, despite the existence of a performance process requiring additional process for “de-tenuring” prior to termination.
That opinion conditioned use of the “for cause” procedures, rather than the de-tenuring process, on circumstances where the performance-based cause was more than a routine performance failure. In Braun, the appeals court found that the scientist’s performance negligence was “over a long period of time” and constituted “dramatic and disturbing” performance failures, rather than mere routine performance failures that would require use of performance-based de-tenuring process.
The scientist petitioned for rehearing by the panel and the full slate of active judges at the court (known as en banc rehearing), arguing that the agency committed harmful procedural error when it violated its own policy mandating that tenured scientists first be de-tenured before they could be subjected to a “performance-based action.” The appeals court requested a response from HHS. On June 4, 2021, after briefing by both parties, the appeals court denied the scientist’s petition for rehearing.
However, the order denying rehearing was accompanied by two individual dissents. The first dissent was penned by Judge Newman, who was a member of the original panel. Judge Newman’s dissent focused on the policy reasons for requiring compliance with de-tenuring procedures outlined in an amicus curiae brief filed by the Committee of Scientists Concerned About Tenure. The amicus brief outlined three “noxious side-effects” of “undermining the tenure system” described as follows: (1) it “will dissuade senior NIH scientists from remaining there;” (2) it “will impede NIH’s ability to recruit qualified scientists to replace ones who leave;” and (3) the reduced ability to recruit and retain top scientists “will render NIH less able to protect the Nation’s safety and health.”
The second dissent was authored by Judge O’Malley, who was not on the original panel. Judge O’Malley focused on historical precedent, from the Supreme Court of the United States, federal appellate courts, and the Federal Circuit itself, holding that “[a]n agency must follow its own procedures,” even “where its procedures are more generous to beneficiaries or more onerous on the agency than required by statute.” Judge O’Malley wrote that “[t]he majority seems to understand that its holding would eviscerate the [tenure protections],” and dismissed the conditions the majority placed on utilizing generic “for cause” provisions for performance-based actions at NIH as an attempt to “ameliorate” the harmful effects of the opinion. Judge O’Malley wrote that the majority’s distinction, that “for cause” provisions could only be used for “non-routine performance failures,” was completely absent from “the language of the policy.”
Unlike Judge Newman, Judge O’Malley “express[ed] no opinion on the policy implications of tenure protections.” She also “pass[ed] no judgment on the severity of [the scientist’s] conduct.” Instead, Judge O’Malley wrote that “[t]his court is only called on to determine if NIH’s policies require a de-tenuring process before removal of [scientist tenure], regardless of the reasons.” The dissent formulated the case as a simple question – “whether NIH must be held to its own unambiguous procedures.” Judge O’Malley wrote: “I believe it must.”
Read the full order denying the scientist’s petition for rehearing: Braun v. HHS.
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