Braun v. Dep't of Health & Human Servs.

998 F.3d 1312 (Mem)

Allen R. BRAUN, Petitioner

v.DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent

2019-1949

United States Court of Appeals, Federal Circuit.

Filed: June 4, 2021

ON PETITION FOR REHEARING EN BANC

ORDER

Per Curiam.

Allen R. Braun filed a petition for rehearing en banc. A response to the petition was invited by the court and filed by the United States Department of Health and Human Services. A committee of scientists concerned about tenure requested leave to file a brief as amici curiae, which the court granted. The petition was first referred as a petition for rehearing to the panel that heard the appeal, and there-after the petition for rehearing en banc was referred to the circuit judges who are in regular active service. The court conducted a poll on request, and the poll failed.

Upon consideration thereof,

IT IS ORDERED THAT :

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

The mandate of the court will issue on June 11, 2021.

Newman, Circuit Judge, dissenting from denial of the petition for rehearing en banc.

The full court today denies the petition of Dr. Allen Braun for en banc review of the panel's holding that the National Institutes of Health ("NIH") need not comply with its own special procedures for tenured employees, and that these procedures will not be enforced by the court. I write to point out the concerns raised by this flawed holding, and to dissent from the court's inaction.

"[T]he primary purpose of tenure [is] serving and providing a benefit to society by the unimpeded search for truth and its exposition." Mark L. Adams, The Quest for Tenure: Job Security and Academic Freedom , 56 Cath. U. L. Rev. 67, 81 (2006) (citing Am. Ass'n of Univ. Professors, Statement of Principles on Academic Freedom and Tenure (1940), reprinted in AAUP Policy Documents and Reports 3 (9th ed. 2001)). The NIH adopted a tenure structure for its scientists, tracking the tenure principles of academia: "Rather than viewing tenure as a luxury or bonus provided to faculty without a benefit to the employer, it is more correctly described as the foundational, legitimating cornerstone of a university." Id. at 80.

The NIH describes its system of tenure as designed to attract the brightest and most gifted scientists to its employ:

to ensure the highest attainable quality in the scientific staff engaged in intramural research and related medical care.

Nat. Insts. of Health, Tenure in the NIH Intramural Research Program , https://oir.nih.gov/sourcebook/tenure-nih-intramural-research-program (March 17, 2015). The NIH system of tenure, and its contribution to stability and security in employment, serve to encourage investigation into complex and difficult problems; to support exploration of contentious scientific issues; and to facilitate independence of thought and action without fear of political or other repercussions.

Dr. Braun was a tenured scientist at NIH.¹ As relevant to this appeal, NIH has designated procedures for review of performance concerns of tenured scientists, including participation of the Central Tenure Committee, as set forth in the NIH Policy on Performance Management, Disciplinary Actions and Administrative Removals for Title 42 Employees ("NIH Policy"):

Tenured scientists must undergo the de-tenuring process before a performance-based action may be taken against them See section K-3 [The Tenure Process].

NIH Policy § H.1 (Termination for Unacceptable Performance); J.A. 67. The NIH refused to implement its designated procedures in terminating Dr. Braun, despite his requests. After his termination he appealed to the Merit Systems Protection Board, and the Board held that it would not consider NIH's non-compliance with the tenure-required procedures. This court affirmed, holding that only the procedures set forth in Title 5 for all federal employees are considered by the MSPB and the court.

I previously explained that the NIH action is contrary to law and precedent, for "[a]n agency is required to act in accordance with the procedures it adopts for itself, and the Board will enforce employee rights derived from such rules." Campbell v. U.S. Postal Serv. , 75 M.S.P.R. 273, 279 (1997) ; Stone v. FDIC , 179 F.3d 1368, 1378 (Fed. Cir. 1999) ("Public employees are, of course, entitled to whatever other procedural protections are afforded them by statute, regulation, or agency procedure which is in addition to the protections afforded by the Constitution."). See Braun v. Dep't of Health & Hum. Servs. , 983 F.3d 1295, 1306 (Fed. Cir. 2020) (Newman, J., dissenting).

This judicial refusal to require compliance with tenure-mandated protections has implications for the public interest in preserving NIH as a premier research institution. As summarized by the amici curiae, "undermining the tenure system will have three noxious side-effects" likely to manifest themselves immediately and in the long run:

First, undercutting NIH's tenure system will dissuade senior NIH scientists from remaining there; Second, undermining NIH's tenure system will impede NIH's ability to recruit qualified scientists to replace ones who leave;

Finally[,] NIH's impeded ability to retain and recruit top-notch scientists will render NIH less able to protect the Nation's safety and health.

Amici curiae Committee of Scientists Concerned About Tenure, Br. 8.

As federal judges we understand the power of our constitutional tenure to protect independence of thought and action, free of bias, pressure, and political influence. Justice Harlan in 1891 wrote:

Whoever is here clothed with a judicial office, which empowers him to judge in any case affecting the life, liberty, or property of the citizen, cannot be restrained from the fearless exercise of its duties by any apprehension of removal or suspension, in case he should come athwart the will or pleasure of the appointing power.

McAllister v. United States , 141 U.S. 174, 195, 11 S.Ct. 949, 35 L.Ed. 693 (1891). The amici curiae summarize the corresponding purposes of tenure at NIH:

[J]ust as judicial tenure (1) boosts intellectual "individualism" amongst judges, (2) inspires "public confidence" in them, and (3) fosters the attraction and retention of "well-qualified persons" to the bench, academic tenure does exactly the same three things for scholars and for institutions like NIH.

Amici curiae Br. 14. The goal is to employ the highest levels of talent, quality, and experience, to achieve at the NIH the benefits of academic tenure, in ultimate service to the nation:

[Without the] job security tenure provides ... much experiment, scholarship and intellectual risk would not be undertaken. Job security not only allows the faculty member to pursue the controversial, but also to investigate matters that present a high probability of failure, including those particular to the sciences, where failure can occur after years and even decades of research.

James. J. Fishman, Tenure and its Discontents: The Worst Form of Relationship Save All of the Others, 21 Pace L. Rev. 159, 182–83 (2000).

Today, as the nation increasingly relies on the NIH for study of the most complex problems of humanity, our ruling that NIH's tenure protections will not be enforced by the courts, warrants review en banc . From the court's denial of review, I respectfully dissent.

O'Malley, Circuit Judge, dissenting from the denial of petition for rehearing en banc.

Because the Department of Health and Human Services ("HHS") is bound by its own clear policy, I respectfully dissent from the denial of rehearing en banc. The panel majority in this case misinterpreted the HHS policy and spilled substantial ink contemplating whether Dr. Braun deserved termination. We need not have waded into those murky waters. HHS granted Dr. Braun tenure and drafted detailed procedures for the removal of tenure. It then chose not to follow those procedures. We should rehear this case en banc and require HHS to adhere to its own procedures.

BACKGROUND

In 2003, Dr. Allen Braun received tenure at the National Institutes of Health ("NIH"), an agency within HHS, pursuant to 42 U.S.C. § 209(f). Tenure at NIH grants certain benefits and job protections, including a detailed de-tenuring procedure which applies in the "rare event" of removal of tenure. NIH Policy on Performance Management, Disciplinary Actions and Administrative Removals for Title 42 Employees (NIH Policy), § K(3) (2007). Yet, when NIH removed Dr. Braun from his position in 2016, it did not follow that procedure.

THE NIH POLICY

An agency must follow its own procedures. See Fort Stewart Schs. v. Fed. Lab. Rels. Auth. , 495 U.S. 641, 654, 110 S.Ct. 2043, 109 L.Ed.2d 659 (1990). Even where its procedures are more generous to beneficiaries or more onerous on the agency than required by statute, the agency is bound to follow them. See Vitarelli v. Seaton , 359 U.S. 535, 539, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959) ; Voge v. United States , 844 F.2d 776, 779 (Fed. Cir. 1988) ("It has long been established that government officials must follow their own regulations, even if they were not compelled to have them at all ....").

NIH adopted a policy which applies to the removal of NIH employees, tenured and non-tenured: the NIH Policy on Performance Management, Disciplinary Actions and Administrative Removals for Title 42 Employees. (the "NIH Policy"). Four provisions of the NIH Policy are relevant to this case: § B, § K, § H(1), and § L(1). Section B makes clear that, while the NIH Policy covers all Title 42 employees, it provides additional benefits and protections to tenured employees. NIH Policy § B. Section K(3) makes clear that "[r]emoval of tenure ... only occurs" through the de-tenuring procedure established in that section. NIH Policy § K(3) (emphasis added). Sections H(1) and L(1) explicitly state that the de-tenuring procedure must be followed when a tenured employee is removed for unacceptable performance or administrative reasons. NIH Policy §§ H(1), K(1). I provide the...