Braun v. Hhs ( 2020 )

Case: 19-1949 Document: 49 Page: 1 Filed: 12/21/2020
United States Court of Appeals
for the Federal Circuit
______________________
ALLEN R. BRAUN,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2019-1949
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-16-0743-I-2.
______________________
Decided: December 21, 2020
______________________
GEORGE CHUZI, Kalijarvi, Chuzi, Newman & Fitch, PC,
Washington, DC, argued for petitioner.
TANYA KOENIG, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
JEFFREY B. CLARK, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
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2 BRAUN v. HHS
Opinion for the court filed by Circuit Judge TARANTO.
Dissenting opinion by Circuit Judge NEWMAN.
TARANTO, Circuit Judge.
Dr. Allen Braun worked at the National Institutes of
Health (NIH) for almost 32 years as a research doctor with
a specialty in neurological disorders, and he had tenured
status since 2003. In 2016, the NIH, which is located
within the U.S. Department of Health and Human Ser-
vices, removed Dr. Braun from his position after an audit
revealed that his records were incomplete for all but 9% of
the human subjects who had participated in his research
over the course of six years. Dr. Braun challenged that de-
cision before the Merit Systems Protection Board (Board),
arguing that an NIH policy required de-tenuring of tenured
scientists (which NIH had not done in his case) before they
could be removed for performance-related reasons and that
the NIH committed certain other errors. The Board ruled
that Dr. Braun’s removal was proper under a provision of
the cited NIH policy that allows removal “for cause” with-
out de-tenuring, and it also rejected Dr. Braun’s other chal-
lenges. Braun v. Dep’t of Health & Human Servs., No. DC-
0752-16-0743-I-2, 2019 WL 1047556 (M.S.P.B. Feb. 28,
2019). We affirm.
I
A
Having worked as a research doctor at the NIH since
the mid-1980s, Dr. Braun in 2003 became a tenured Senior
Investigator for the National Institute on Deafness &
Other Communication Disorders (Deafness Institute), a
branch of the NIH. See J.A. 69–71 (describing “The Tenure
Process”). He was the principal investigator for protocol
study 92-DC-0178, which studied the effect of trauma on
speech and language. Study participants were subjected to
speech and language tests (by interview and by computer),
hearing tests, electroencephalography, magnetoencephalo-
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BRAUN v. HHS 3
graphy, electromyography, and magnetic resonance imag-
ing (MRI).
Because his research involved human subjects, Dr.
Braun submitted a standard research protocol to an NIH
Institutional Review Board (IRB), a body operating with
considerable independence from management and having
as its primary purpose the protection of human subjects of
study. J.A. 186; see also J.A. 172–75, 198. As approved by
the IRB, Dr. Braun’s protocol for screening subjects of the
92-DC-0178 study required an informed-consent form, a re-
quirement to take a medical history from and conduct a
physical examination of each subject, and an eligibility-
screening questionnaire. See J.A. 156. The informed-con-
sent form provided subjects with an overview of the study’s
risks, which were designated as minimal to none, apart
from the MRIs. J.A. 158. The consent form explained that
MRIs are associated with risks for subjects with pacemak-
ers and electrical-device implants and that “[i]t is not
known” whether MRIs are “completely safe for a develop-
ing fetus.” Id. Accordingly, Dr. Braun’s protocol also re-
quired female subjects within a specified age range to
receive a pregnancy test. Id.In March 2015, Dr. Braun notified his clinical director
at the Deafness Institute that a deviation from the protocol
had resulted in the running of an MRI scan on the wrong
patient. After some initial reviews, the Deafness Institute
retained an independent company to conduct an audit of
Dr. Braun’s records. The IRB—which had begun its own
review of Dr. Braun’s records—postponed its review until
completion of the audit commissioned by the Deafness In-
stitute.
The audit was completed in February 2016. J.A. 129.
The auditors reviewed records from 424 subjects included
in Dr. Braun’s study (going back to 2009) to determine
whether Dr. Braun had met the protocol’s requirements for
each one. J.A. 131 n.1. The results indicated that 14
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4 BRAUN v. HHS
subjects (3%) had either no informed-consent form (2 sub-
jects) or an unacceptable consent form on file. J.A. 143. In
addition, only about half (213 of the 424 subjects) of the
participants had acceptable medical-history and physical-
exam documentation: For some, there was no record that
they had undergone history and physical screening, while
for others the records were not signed by Dr. Braun (as re-
quired by the protocol). J.A. 144. Only 55% of the subjects
had eligibility-screening questionnaires on file; and of
those, only 26% had completed questionnaires. J.A. 145.
Overall, complete records existed for only 38 of the 424 sub-
jects—less than 9% of the participants whose records were
reviewed. J.A. 147.
Given the audit results, the IRB determined that Dr.
Braun’s deviations from protocol constituted “serious, con-
tinuing non-compliance,” and it suspended the study, while
noting that the study could resume after “appropriate re-
mediation.” J.A. 84–85. The IRB permitted Dr. Braun to
submit a plan for remediation, which he did on May 12,
2016. J.A. 86.
The following day, Dr. Braun received from Dr. Andrew
Griffith, the Deafness Institute’s Scientific Director, a Pro-
posal to Remove him from his position at the NIH. J.A. 27–
31 (Removal Proposal). The Proposal charged Dr. Braun
with “[n]egligence in the performance of [his] duties” based
on the audit results, which “demonstrated a pattern of re-
peated deviations from the requirements of [Dr. Braun’s]
approved protocol, NIH medical records policy, and ac-
cepted standards of medical practice.” J.A. 28. The Pro-
posal further explained that Dr. Braun’s deviations from
protocol—including having complete records for less than
9% of his subjects—“indicate[d] a consistent and continu-
ous pattern o[f] gross negligence” and “could have exposed
subjects to unnecessary harm and impacted the integrity
of the research being conducted.” J.A. 29. Those deviations
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BRAUN v. HHS 5
“ma[de] it impossible for [Dr. Braun’s] supervisors to trust”
him to carry out his duties. Id.On the same day (May 13, 2016) that he received the
Proposal, Dr. Braun (through counsel) contacted Timothy
Wheeles, Executive Officer for the Deafness Institute, who
was to make the final removal decision. J.A. 39–40. He
argued that the NIH had failed to follow its own policy in
sending the Removal Proposal—specifically, the NIH Pol-
icy on Performance Management, Disciplinary Actions and
Administrative Removals for Title 42 Employees (NIH Pol-
icy). J.A. 62–73. Critically for present purposes, that Pol-
icy provides that “[t]enured scientists must undergo the de-
tenuring process before a performance-based action may be
taken against them,” NIH Policy § H(1), while permitting
the agency to forgo the de-tenuring process when it re-
moves tenured employees “for cause, e.g., personal or sci-
entific misconduct,” NIH Policy § L(1). J.A. 67, 71. After
receiving no response, Dr. Braun submitted his Written
Reply to the Removal Proposal on June 3, 2016.
Ten days later, Mr. Wheeles announced his Decision on
Proposed Removal, removing Dr. Braun for negligence in
the performance of his duties. J.A. 32–38 (Removal Deci-
sion). He noted that the decision to remove Dr. Braun was
based on the information set forth in the Removal Proposal,
including its supporting documentation (i.e., the NIH Pol-
icy, the NIH Table of Penalties, which recommends appro-
priate penalties for employee misconduct, and the
independent audit results), as well as Dr. Braun’s Written
Reply. J.A. 32–35. Mr. Wheeles also conducted a penalty
analysis in accordance with Douglas v. Veterans Admin-
istration, 5 M.S.P.R. 280 (1981). Although he found that
Dr. Braun’s length of tenure and lack of previous employ-
ment problems were mitigating factors, he ultimately re-
jected Dr. Braun’s argument that deviations from his
protocol did not increase the risks to his patients, stating
that, because of the magnitude of the protocol violations,
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6 BRAUN v. HHS
“there is no way to prove the validity and reliability of your
research”; “you repeatedly failed to follow the requirements
of the protocol, which is in place for the safety of the pa-
tients and the credibility of the research”; and “[t]his mis-
conduct could tarnish the reputation of the [Deafness
Institute] and the NIH.” J.A. 35. Mr. Wheeles concluded:
“Based on the serious, continuing non-compliance with
your study protocols for at least the past six years, I have
no confidence or trust in you to lead and manage a research
study and staff, to publish with integrity, or to represent
the [Deafness Institute] and NIH.” Id. (emphasis omitted).
The Removal Decision, dated June 13, 2016, stated that re-
moval would not become effective until June 25, 2016. J.A.
33.
Knowing that Dr. Braun was defending a removal ac-
tion before the NIH, the IRB contacted the Deafness Insti-
tute to inquire about Dr. Braun’s employment status. On
June 13, 2016, after Mr. Wheeles notified Dr. Braun of the
decision to remove him, the Deafness Institute’s Dr. Carter
VanWaes contacted the IRB’s Dr. Barbara Karp and asked
her to call him. J.A. 94. That same day, Dr. Karp issued a
memorandum stating: the IRB had been informed that Dr.
Braun “will no longer be an NIH employee at the time of
the planned IRB review” of Dr. Braun’s remediation at an
IRB meeting on June 15, 2016; “[t]he Institute plans to
close the protocol”; and the matter was being removed from
the IRB agenda. J.A. 95. It is undisputed that the NIH did
not inform the IRB that Dr. Braun’s removal would not be-
come effective until June 25, 2016, ten days after the sched-
uled IRB meeting.
B
Dr. Braun appealed the Removal Decision to the Merit
Systems Protection Board on July 19, 2016. The Board re-
filed his appeal about a year later. On February 28, 2019,
an administrative judge issued an Initial Decision affirm-
ing the NIH’s action, and the Initial Decision, under 5
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BRAUN v. HHS 7
C.F.R. § 1201.111(b)(5), became the final Board decision on
April 4, 2019. J.A. 1–26.
The Board first determined that there was ample evi-
dence of such pervasive protocol violations as to undermine
the ability to be sure of the study’s validity, and it therefore
sustained the NIH’s charge of negligence in the perfor-
mance of duties. J.A. 1–9. The Board next rejected Dr.
Braun’s contention that his due-process rights were vio-
lated by the Removal Decision’s reliance, to support re-
moval as the penalty, on his “‘violation of recognized
professional or agency standards of medical ethics or pa-
tient care,’” J.A. 10 (quoting J.A. 35), a premise Dr. Braun
said did not appear in the Removal Proposal. The Board
concluded that the Removal Proposal, though using differ-
ent words, gave adequate notice of that premise. J.A. 10–
11. The Board then concluded that, contrary to Dr. Braun’s
contention, the conduct at issue came within the NIH Pol-
icy’s § L(1) on “for cause” removal and hence was a proper
basis for removal without de-tenuring. J.A. 12–14. The
Board also determined that the Deafness Institute commit-
ted no “harmful error” when it informed the IRB of Dr.
Braun’s removal but did not say that the removal would
not take effect for twelve days. J.A. 14–16.
After addressing and rejecting Dr. Braun’s charges of
age discrimination and Equal Employment Opportunity
retaliation, J.A. 16–23—charges that Dr. Braun has aban-
doned—the Board upheld the penalty of removal, conclud-
ing that Mr. Wheeles had properly considered the Douglas
factors and had reached a decision within the bounds of
reasonableness. J.A. 23–26. Despite Dr. Braun’s long ser-
vice without prior discipline, the Board concluded, the evi-
dence permitted the deciding official to adopt the penalty
of removal given the duration of the protocol violations and
“the serious impact of [Dr. Braun’s] pattern of negligent
conduct, both for the potential safety of research partici-
pants, and for the ability of the agency to trust in the in-
tegrity of the scientific research itself.” J.A. 24. The Board
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8 BRAUN v. HHS
also pointed to the statements of both Mr. Wheeles and the
scientific director of the Deafness Institute that they had
lost trust in Dr. Braun to carry out NIH research properly.
J.A. 25. Finally, the Board rejected Dr. Braun’s contention
that the penalty decision reflected disparate treatment:
Although it is undisputed that the agency has
not previously removed a Senior or Principal Inves-
tigator, such as [Dr. Braun], based on negligence in
the performance of duties, the record indicates that
this circumstance is owing to the fact that other in-
stances involving conduct of similar scope, that is,
serious, continuing non-compliance with protocol
requirements, resulted in the responsible scientists
leaving the agency of their own accord, either for
another job, or via retirement, during the course of
pre-decisional negotiations of the type, indeed, that
took place in this case as well, thereby obviating
the need for any formal discipline. [J.A. 238–43]
(Testimony of Dr. Michael Gottesman); [J.A. 258–
64] (Testimony of Dr. Andrew Griffith). There is
therefore no basis, on this record, for finding that
the agency engaged in disparate treatment in
bringing the present action.
J.A. 25–26.
Dr. Braun filed his appeal on May 29, 2019, within 60
days of April 4, 2019 (when the Initial Decision became the
final Board decision), as permitted by 5 U.S.C.
§ 7703(b)(1)(A). We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
II
We will affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
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BRAUN v. HHS 9
§ 7703(c). We review legal determinations, “such as statu-
tory interpretation, de novo.” Stephenson v. Office of Per-
sonnel Mgmt., 705 F.3d 1323, 1326 (Fed. Cir. 2013). An
abuse of discretion is, for example, “an erroneous interpre-
tation of law or unreasonable judgment in weighing rele-
vant factors.” Robinson v. Dep’t of Veterans Affairs,
923 F.3d 1004, 1010 (Fed. Cir. 2019). “Substantial evi-
dence is ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id.(quoting Frederick v. Dep’t of Justice, 73 F.3d 349, 352 (Fed.
Cir. 1996)).
A
Dr. Braun’s primary argument on appeal is that, be-
cause the conduct for 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 process that the NIH did not follow). Dr. Braun’s
argument is a categorical one—that all job-performance-
based removals are governed by § H(1) of the Policy, for
which de-tenuring is required, and not by § L(1), for which
de-tenuring is not required. Pet. Op. Br. 19–32. Like the
Board, we reject Dr. Braun’s contention. We conclude that
it is clear that Section L(1)’s provision allowing removal
“for cause”―on its own terms, and read in the context of the
NIH Policy as a whole and in light of the closely related law
of 5 U.S.C. chs. 43 and 75―neither requires de-tenuring nor
excludes all job-performance-based removals. And once Dr.
Braun’s categorical argument is rejected, there is no basis
for overturning the determination of the Board that the “for
cause” provision was properly applied to this particular
case.
1
As a matter of unambiguous meaning, de-tenuring is
not required under the NIH Policy for a termination that
comes within § L(1). Section L(1) of the NIH Policy states:
“Appointments may be terminated before the expiration
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10 BRAUN v. HHS
date for cause, e.g., personal or scientific misconduct.” J.A.
71. No provision requires de-tenuring for the application
of that provision to a tenured scientist. And the absence of
any such requirement is reinforced by the NIH Policy’s ex-
press inclusion of de-tenuring requirements for two other
bases of removal.
First, § L(1) itself, in the sentence immediately follow-
ing the “for cause” sentence, goes on to authorize termina-
tions “for administrative reasons” (in “certain rare and
extraordinary circumstances”). Id. Two sentences later,
the provision then states that “a tenured scientist may not
be terminated for administrative reasons without going
through the de-tenuring process.” Id. The express imposi-
tion of that restriction for administrative-reason termina-
tions in the paragraph that begins with the “for cause”
sentence confirms that no such restriction applies to “for
cause” removals.
Second, § H(1) of the NIH Policy provision addresses
“Termination for Unacceptable Performance,” J.A. 67—
which is a termination tied to unsatisfactory results re-
garding identified “critical elements” after the employee
has been given an opportunity to improve through a “per-
formance improvement plan” as prescribed by § G, J.A. 66.
See also §§ E, F, J.A. 64–66. A termination under § H(1) is
one in which the “employee has demonstrated Unaccepta-
ble performance, based on the results of the opportunity
given to improve performance and other relevant infor-
mation.” J.A. 67. As to that kind of termination, § H(1)
states: “Tenured scientists must undergo the de-tenuring
process before a performance-based action may be taken
against them.” J.A. 67. There is no counterpart to that
requirement for “for cause” removals under § L(1).
2
We likewise conclude that § L(1)’s “for cause” provision
unambiguously contradicts Dr. Braun’s central contention,
which is that the provision is inapplicable to any removal
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BRAUN v. HHS 11
that is based on conduct in performing the job. Such a
reading is precluded by § L(1)’s express coverage of re-
moval for “scientific misconduct,” which the Board and the
parties agree means “research misconduct” as set forth in
42 C.F.R. § 93.103. 1 J.A. 13; see NIH Intramural Research
Program Policies & Procedures for Research Misconduct
Proceedings (Aug. 3, 2010), J.A. 126. Research misconduct
refers to “fabrication, falsification, or plagiarism in propos-
ing, performing, or reviewing research, or in reporting re-
search results.” 42 C.F.R. § 93.103. That conduct, defined
as particular severe forms of misconduct in research, will
ordinarily be conduct in the performance of the job (of re-
search). See HRPP Standard Operating Procedure/Policy
Approval & Implementation ¶ 19.3.1 (revised March 8,
2016), J.A. 165 (defining an “investigator”—like Dr.
Braun—as someone who is “conducting human subjects re-
search (HSR) studies”). The language of § L(1) itself thus
makes unambiguously clear that the same conduct can con-
stitute deficient job performance and a form of misconduct
within the “for cause” provision.
This conclusion is compellingly reinforced by the fact
that just such an overlap has long been recognized under
the statutory scheme that the NIH Policy’s own structure
clearly echoes, with its separate provisions for removals
based on unacceptable results under performance plans
keyed to critical elements of the job, i.e., § H(1), J.A. 67, and
for removals “for cause” (or for administrative reasons), i.e.,
§ L(1), J.A. 71. The parallel statutory provisions are found
in title 5 of the United States Code. There, chapter 43 pro-
vides for federal agencies to develop performance-appraisal
systems that, among other things, set performance
1 The Board found—and the NIH does not dispute—
that Dr. Braun’s conduct did not come within the narrow
definition of “scientific misconduct.” See J.A. 13; Response
Br. 15.
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12 BRAUN v. HHS
standards, provide for performance-improvement plans
based on critical elements of the job, and allow for “remov-
ing employees who continue to have unacceptable perfor-
mance but only after an opportunity to demonstrate
acceptable performance,” 5 U.S.C. § 4302(c). See also 5
U.S.C. § 4303(a) (authorizing removal “for unacceptable
performance”); 5 U.S.C. § 4301(3) (“‘unacceptable perfor-
mance’ means performance of an employee which fails to
meet established performance standards in one or more
critical elements of such employee’s position”). At the same
time, chapter 75 provides that an agency may remove an
employee (or take certain other adverse actions) “for such
cause as will promote the efficiency of the service.” 5 U.S.C.
§ 7513(a). The Supreme Court and this court have referred
to the latter as a “for cause” provision. See, e.g., Dep’t of
Navy v. Egan, 484 U.S. 518, 525, 530 (1988); Dyer v. Dep’t
of Air Force, 971 F.3d 1377, 1383–84 (Fed. Cir. 2020);
Kaplan v. Conyers, 733 F.3d 1148, 1154 (Fed. Cir. 2013) (en
banc); Cheney v. Dep’t of Health & Human Services, 479
F.3d 1343, 1350 (Fed. Cir. 2007); Lovshin v. Dept. of Navy,
767 F.2d 826, 842–43 (Fed. Cir. 1985) (en banc). “Miscon-
duct,” we have long held, is “cause” even without “intent”
on the employee’s part, as long as it has a “nexus” to the
efficiency of the service. King v. Frazier, 77 F.3d 1361,
1363–64 (Fed. Cir. 1996).
In Lovshin, this court elaborated on the relationship
between chapter 43 and chapter 75 (which have not
changed since Lovshin in ways material to the point at is-
sue here). We explained that, despite the different stand-
ards articulated in chapter 43 (removal or demotion
appropriate only for “unacceptable performance”) and
chapter 75 (adverse employment actions appropriate “only
for such cause as will promote the efficiency of the service”),
nothing in the statute precludes agencies from invoking
chapter 75 to remove employees (or discipline them in
other specified ways) for performance-related reasons.
Lovshin, 767 F.2d at 843. Chapter 43, we held, cannot be
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BRAUN v. HHS 13
read to “implicitly eliminat[e] removal or demotion actions
for performance reasons under Chapter 75.” Id. (emphasis
omitted).
That holding confirms our conclusion about the NIH
Policy given the evident significant parallels in structure
and language between the statute and the Policy. We
therefore conclude that conduct that is performance-re-
lated, and might therefore be a basis for a removal under
§ H(1), can also be a basis of a “for cause” removal under
§ L(1).
3
Given the difference in procedural protections (partic-
ularly for tenured scientists) accompanying the two re-
moval provisions, respect for the structure of the NIH
Policy requires that the “for cause” standard of § L(1) not
be so expansively applied as to cover routine performance
deficiencies that could justify removal under § H(1) or oth-
erwise to substantially supersede § H(1). We recognized
the same imperative in Lovshin when describing the over-
lap between chapters 43 and 75 of Title 5. 767 F.2d at 842–
43. “For cause” is not limited to “personal or scientific mis-
conduct”—two forms of misconduct identified by the “e.g.”
language of § L(1) only as examples. Here, we have no oc-
casion to attempt to define the outer boundaries of “for
cause.” The “for cause” provision encompasses misconduct
of the form present in this case, which involved serious de-
ficiencies in a researcher’s job performance that supported
an agency determination of loss of trust in the researcher’s
ability to carry out NIH research in accordance with fun-
damental NIH policies. The NIH’s application of § L(1) in
such circumstances accords with what we conclude is the
fairest interpretation of the NIH Policy, and we therefore
uphold it even without giving deference to the NIH’s inter-
pretation (which the NIH does not ask us to give).
Our decision in the statutory-counterpart context in
Fairall v. Veterans Admin., 844 F.2d 775 (Fed. Cir. 1987),
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14 BRAUN v. HHS
is importantly instructive. There, we upheld an agency’s
removal of a medical technologist for negligent perfor-
mance, where the technologist made several errors record-
ing blood test results in a lab notebook that was used
primarily for internal lab purposes and sometimes con-
sulted by treating physicians. Id. at 775. We explained
that removal was proper under chapter 75—without an op-
portunity for the employee to improve her performance—
given that the technologist’s actions demonstrated “a pen-
chant for negligence” that might “destroy the confidence of
doctors and staff in the reliability of laboratory reports.”
Id. at 776. We concluded: “Where the record, as here,
clearly indicates levels of negligence, whether gross or oth-
erwise, it is not a case of performance deficiency simpliciter
but rather is one also of misconduct, neglect of duty, or mal-
feasance.” Id.
The facts here are analogous. The evidence permitted
the conclusions that Dr. Braun, “over a long period of time,”
J.A. 34, failed to a “dramatic and disturbing” degree, J.A.
33, to comply with protocol requirements that exist “for the
safety of the patients and the credibility of the research,”
J.A. 35. Moreover, given the “the extended breadth and
seriousness” of the misconduct, the agency’s executive of-
ficer Mr. Wheeles reasonably no longer had “confidence or
trust in [Dr. Braun] to lead and manage a research study
and staff, to publish with integrity, or to represent” the
Deafness Institute or the NIH. J.A. 35. The scientific di-
rector testified to much the same loss of trust in Dr. Braun
to carry out NIH research properly. See J.A. 25. These are
graver and firmer conclusions, resting on an ample basis,
than those for which the relatively brief performance-im-
provement-plan process is designed.
For those reasons, we conclude that Dr. Braun’s re-
moval came within the “for cause” provision of § L(1) of the
NIH Policy.
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BRAUN v. HHS 15
B
Dr. Braun next argues that the NIH violated his due-
process rights by listing negligent performance as the sole
cause for removal in the Removal Proposal, but then, in the
Removal Decision, relying on the Table of Penalties recom-
mendation for disciplining “violation[s] of recognized pro-
fessional or agency standards of medical ethics or patient
care” Pet. Op. Br. 32–37. Like the Board, we reject this
argument. We conclude that there has been no denial of
due process.
Due process requires “notice and an opportunity to be
heard.” Do v. Dep’t of Housing & Urban Dev., 913 F.3d
1089, 1093 (Fed. Cir. 2019) (citing Cleveland Bd. of Ed. v.
Loudermill, 470 U.S. 532, 546 (1985)) (internal quotation
marks omitted). The right to due process may be violated
if, as to any basis for the ultimate removal decision, the
notice of proposed removal did not “fully inform the em-
ployee of the grounds” so as to provide “an opportunity to
make an informed response before the agency” on that ba-
sis. Id. at 1094. As to any basis ultimately relied on, a
notice of removal must set forth the “nature of the charges
‘in sufficient detail to allow the employee to make an in-
formed reply.’” Brook v. Corrado, 999 F.2d 523, 526 (Fed.
Cir. 1993) (quoting Brewer v. U.S. Postal Service, 647 F.2d
1093, 1097 (Ct. Cl. 1981)); see also Do, 913 F.3d at 1094
(“[I]n the civil service system, ‘[o]nly the charge and speci-
fications set out in the Notice may be used to justify pun-
ishment.’” (quoting O’Keefe v. U.S. Postal Serv., 318 F.3d
1310, 1315 (Fed. Cir. 2002)).
In this case, as to the violation of professional or agency
standards, Dr. Braun had “enough information to permit
preparation of an informed reply” on this point. Brook, 999
F.2d at 527. 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. And, as
the Board stated, “[t]he contention that [Dr. Braun’s]
Case: 19-1949 Document: 49 Page: 16 Filed: 12/21/2020
16 BRAUN v. HHS
conduct violated agency and medical standards related to
the safety and care of his research subjects is plainly in-
cluded in the language” of the Removal Proposal. J.A. 11;
see J.A. 28–29 (Dr. Braun’s actions “demonstrated a pat-
tern of repeated deviations from . . . accepted standards of
medical practice,” which “exposed subjects to unnecessary
harm and impacted the integrity of the research”; invoking
needed “consent procedures” and protection of “the rights,
safety, and welfare of the research participants”).
This court’s Do decision involved materially different
facts. There, the charge was that the employee (Do) vio-
lated an agency bar on hiring someone without a college
degree, but when it turned out that no such rule applied at
the relevant time, the deciding official removed Do for neg-
ligence in investigating whether the applicant was quali-
fied for the position based on specified accounting
credentials. Do, 913 F.3d at 1095. Do lacked notice that
accounting credentials were at issue. Id. Here, in contrast,
the Removal Proposal gave notice of the fact that the pro-
tocol violations involved departures from professional and
agency standards relating to patient safety and medical
ethics. See id. at 1097 n. 4 (listing cases where no due pro-
cess violation was found where there were insignificant dif-
ferences between the charge and the decision).
Dr. Braun also refers to the fact that the Removal De-
cision described his conduct as “misconduct,” J.A. 35,
whereas that word is absent from the Removal Proposal.
Pet. Op. Br. 38–42. But this contention adds nothing to the
contention about the professional or agency standards. Dr.
Braun identifies no concrete way in which that word played
any role beyond aptly labeling the serious, long-term de-
partures from standards of which he had adequate notice.
He identifies no argument or evidence that he would have
presented had the word “misconduct” been included in the
Removal Proposal. It is the substance of the charges, of
which he had ample notice, that brought the conduct
within the “for cause” provision of the NIH Policy’s § L(1).
Case: 19-1949 Document: 49 Page: 17 Filed: 12/21/2020
BRAUN v. HHS 17
Thus, we affirm the Board’s determination that there
was no denial of due process.
C
Dr. Braun argues that the NIH—by misrepresenting
the timing of his removal to the IRB—caused his remedia-
tion meeting with the IRB to be cancelled, and thus pre-
vented him from making his case to continue his research.
Like the Board, we conclude that the misstatement does
not amount to harmful procedural error.
Harmful error from the misstatement would require (a)
that the IRB would have gone ahead with the June 15
meeting on remediation even knowing that the removal of
Dr. Braun, the head of the study, was to take effect ten
days later and (b) that the IRB would have taken some ac-
tion that would, in turn, have led the Deafness Institute’s
leadership to alter the removal decision. But the Board
had evidence to reject this chain of reasoning. J.A. 14–16.
The IRB’s Dr. Karp, who handled Dr. Braun’s review before
the IRB, testified that the IRB and employment authorities
proceed on their own courses, reflecting the deliberate in-
dependence of the IRB. See J.A. 196, 201, 203. And Dr.
Michael Gottesman, the NIH’s Director for Intramural
Clinical Research, testified that he and the NIH viewed Dr.
Braun’s conduct as “serious enough to lead to termination,”
even if the IRB determined independently that remedia-
tion would be appropriate. J.A. 249. Moreover, the Board
credited Dr. Karp’s testimony that even if she had been
aware that Dr. Braun would not depart until June 25,
2016, she would have sought guidance that likely would
have confirmed her suspicion that the remediation meeting
was no longer necessary. J.A. 16. Therefore, any misstate-
ment by the NIH to the Board was harmless.
D
In his reply brief, Dr. Braun briefly challenges the pen-
alty of removal on the ground that the NIH had not
Case: 19-1949 Document: 49 Page: 18 Filed: 12/21/2020
18 BRAUN v. HHS
removed any other researchers who committed serious and
continuing protocol violations. Pet. Reply Br. 27–28. Dr.
Braun made this argument to the Board, which rejected it.
J.A. 25–26. But he has forfeited the argument in this court.
For reasons of fairness to appellees and of judicial effi-
ciency, we generally refuse to consider an appellant’s chal-
lenge to particular rulings in a decision under review
unless the challenge was raised and properly developed in
the appellant’s opening brief—for which the reply brief and
oral argument are not adequate substitutes. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312,
1319–20 (Fed. Cir. 2006); see also Agile Defense, Inc. v.
United States, 959 F.3d 1379, 1383 n.* (Fed. Cir. 2020); Im-
pax Labs. Inc. v. Lannett Holdings Inc., 893 F.3d 1372,
1377 (Fed. Cir. 2018); Kao Corp. v. Unilever U.S., Inc., 441
F.3d 963, 973 n.4 (Fed. Cir. 2006); Becton Dickinson & Co.
v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed. Cir. 1990). In
his opening brief, Dr. Braun did not clearly set forth a dis-
parate-treatment argument, let alone develop it, in the
statement of issues, in the headings, or in the body of his
argument. He did not even cite, much less discuss, in his
opening brief the essential evidentiary basis for his reply
brief’s disparate-treatment argument—NIH’s response to
a discovery request asking about “determinations of seri-
ous and/or continuing non-compliance by any NIH IRB
within the past 20 years.” J.A. 97–100. Nor did Dr. Braun
discuss the Board’s specific finding that the evidence did
not show disparate treatment. J.A. 25–26. Seeing no basis
for an exception to the forfeiture rule in this case, we do not
address this contention.
III
The decision of the Merit Systems Protection Board is
affirmed.
The parties shall bear their own costs.
AFFIRMED
Case: 19-1949 Document: 49 Page: 19 Filed: 12/21/2020
United States Court of Appeals
for the Federal Circuit
______________________
ALLEN R. BRAUN,
Petitioner
v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
Respondent
______________________
2019-1949
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-16-0743-I-2.
______________________
NEWMAN, Circuit Judge, dissenting.
The National Institutes of Health (“NIH”), a division of
the Department of Health and Human Services (“HHS”),
has a “tenure” system for its research scientists, governed
by a complex of rules and procedures including, as relevant
here, the “NIH Policy on Performance Management, Disci-
plinary Actions and Administrative Removals for Title 42
Employees” (“Policy Manual”) and the Performance Man-
agement Appraisal Program Handbook (“PMAP Hand-
book”). PMAP Handbook,
https://hr.nih.gov/sites/default/files/public/documents/
workforce/performance-management/pdf/hhspmaphand-
book.pdf. This appeal concerns the failure and refusal of
Case: 19-1949 Document: 49 Page: 20 Filed: 12/21/2020
2 BRAUN v. HHS
the NIH to apply these required provisions to the removal
of tenured scientist Dr. Allen Braun.
Dr. Braun came to NIH employ in 1984 and was
awarded tenure in 2003. He is a medical doctor, board cer-
tified in neurology and nuclear medicine. His research at
NIH produced over 125 publications, which have been cited
in the scientific literature about 14,000 times, and he is de-
scribed in the record as a world-recognized expert in the
neural bases of language, sleep, and motor functions. At
the time of his removal from employ at NIH, his position
was Chief of the Voice, Speech, and Language Branch; and
Senior Investigator, Division of Intramural Research, Na-
tional Institute of Deafness and Other Communication Dis-
orders (“NIDCD”).
Based on an issue that arose concerning a multi-year
study of the effect of trauma on speech and language, of
which he was Principal Investigator, he was removed from
NIH employ. In effecting this removal, he was not accorded
the procedural safeguards for tenured scientists as set
forth in the NIH Policy Manual and PMAP Handbook.
This court now affirms the NIH removal procedure, and
holds that these provisions need not be applied. Thus the
court affirms elimination of critical aspects of the NIH ten-
ure system.
I write in dissent, not only because of the errors and
inequities that affect Dr. Braun, but because of the loss to
NIH of the benefits of a viable system of tenure.
DISCUSSION
The event that culminated in Dr. Braun’s termination
is summarized in the HHS brief as follows: in connection
with his study of the effect of trauma on speech and lan-
guage, Dr. Braun reported that he “had erroneously or-
dered a Magnetic Resonance Imaging (MRI) scan for the
wrong patient under his protocol . . . [and that] he failed to
review the medical record of the volunteer and that she did
Case: 19-1949 Document: 49 Page: 21 Filed: 12/21/2020
BRAUN v. HHS 3
not receive a history and physical [“H&P”] or pregnancy
test prior to the MRI, nor was her eligibility for the study
reported in the medical record.” HHS Br. 5. An audit was
conducted, and the auditor reported additional violations
of patient protocols in this study. On review of the audit,
the NIH Institutional Review Board (“IRB”) suspended the
study and asked Dr. Braun to submit a Remediation Plan,
stating that “the study could continue if there is appropri-
ate remediation.” J.A. 84. Dr. Braun submitted the Reme-
diation Plan, but before it was reviewed, the NIH
terminated his employment, on the ground of “negligence
in the performance of your duties.” Proposal to Remove,
May 13, 2016.
The termination did not include the procedures for ten-
ured scientists as set forth in the NIH Policy Manual and
the PMAP Handbook, such as the required period for per-
formance improvement and the requirement for de-ten-
uring by the Central Tenure Committee. This court now
sustains the NIH’s disregard of its procedures for tenured
scientists.
The System of Tenure
The system of tenure derives from traditional practices
in academic institutions, and is designed to impart quality,
stability, and intellectual independence, and thereby to aid
in recruitment and retention of scientists of the highest
quality. The NIH states the Objective as follows:
The NIH tenure-track has been created to provide
an unambiguous, uniform, and equitable mecha-
nism for identifying and promoting outstanding
scientists to the ranks of permanent intramural re-
searchers. The goal of this system is to provide all
necessary resources and encouragement to tenure-
track scientists, thus giving them a fair oppor-
tunity to demonstrate their creativity and produc-
tivity as independent scientists.
Case: 19-1949 Document: 49 Page: 22 Filed: 12/21/2020
4 BRAUN v. HHS
Nat’l Insts. of Health, Off. of Intramural Res., Tenure-
Track Overview, https://oir.nih.gov/sourcebook/tenure-nih-
intramural-research-program/tenure-track-overview (last
updated March 17, 2015). The NIH summarizes the pur-
pose:
[T]o ensure the highest attainable quality in the
scientific staff engaged in intramural research and
related medical care.
Nat. Insts. of Health, Off. of Intramural Res., Tenure in the
NIH Intramural Research Program,
https://oir.nih.gov/sourcebook/tenure-nih-intramural-re-
search-program (March 17, 2015).
The system is elaborated in the Policy Manual; follow-
ing are some Manual provisions relevant to this case:
G. Performance Problems:
1. If at any time during the rating period an em-
ployee’s performance is deemed to be Unacceptable
in one or more critical elements, the employee will
be given a documented performance improvement
plan by his/her supervisor and an opportunity to
demonstrate Acceptable performance. Employees
must be under a performance plan for 120 days be-
fore performance can be determined to be Unac-
ceptable, placed on a performance improvement
plan, and possibly removed. The length of the doc-
umented opportunity to improve may vary depend-
ing on the employee’s position, type of work, etc.
2. . . . [T]he employee must be informed in writing
that his/her performance is Unacceptable; the ele-
ment(s) on which that rating is based and how the
employee's performance was Unacceptable; what
the employee must do to reach the Acceptable level
of performance; the specific assistance that will be
provided to help the employee; the time by which
the performance must reach the Acceptable level;
Case: 19-1949 Document: 49 Page: 23 Filed: 12/21/2020
BRAUN v. HHS 5
and the action that may be initiated if the perfor-
mance does not improve to the Acceptable level.
3. . . . When the employee is a tenured or tenure-
track scientist, specific policies and procedures de-
veloped for these positions will apply. See the Of-
fice of Intramural Research Sourcebook . . . .
J.A. 66. The PMAP Handbook also describes actions, “at a
minimum" for scientists who have been evaluated as
"achieving unsatisfactory results”:
If performance on any critical element is deter-
mined to be at the Achieved Unsatisfactory Results
level at any time during the rating period, the su-
pervisor will provide assistance to help the em-
ployee improve performance to the minimally
acceptable level of Partially Achieved Expected Re-
sults, or better. The supervisor must, at a mini-
mum, give written notice to the employee of his/her
failure to demonstrate acceptable performance and
provide the employee an opportunity to demon-
strate acceptable performance under a PIP. The
written notification must include:
• The specific elements on which the em-
ployee’s performance is determined to
be Achieved Unsatisfactory Results, in-
cluding specific examples of how the
employee’s performance is unsatisfac-
tory.
• The performance requirements that
must be met.
• The specific assistance that will be pro-
vided and the meeting schedule for
feedback, assistance, and coaching that
will be established to help the employee
improve performance.
Case: 19-1949 Document: 49 Page: 24 Filed: 12/21/2020
6 BRAUN v. HHS
• The specific period of time the em-
ployee will be given to demonstrate ac-
ceptable performance.
• Notification that actions may be initi-
ated to reassign, reduce in grade, or re-
move the employee if performance does
not improve to at least the Partially
Achieved Expected Results level.
The employee must be given a reasonable period of
time in which to demonstrate a Partially Achieved
Expected Results level of performance. The length
of this reasonable opportunity period is not dic-
tated by regulation nor Departmental guidance.
The reasonable period of time to improve will be
determined by management and may vary based
on the requirements of the individual position and
the amount of time and effort previously devoted to
correcting the employee’s performance deficien-
cies. . . . An employee who fails to improve under a
PIP may be removed from federal service.
Supervisors must promptly contact and consult
with the LER [Labor Employment Relations] office
for assistance in dealing with unacceptable perfor-
mance and/or employee misconduct concerns.
PMAP Handbook, 19–20. None of these procedures were
made available to Dr. Braun.
The Policy Manual flags special procedures that apply
to tenured scientists:
H. Termination For Unacceptable Performance
and Reductions in Pay (for employee[]s not serving
a trial period):
1. Termination for Unacceptable Performance
When an employee has demonstrated Unaccepta-
ble performance, based on the results of the
Case: 19-1949 Document: 49 Page: 25 Filed: 12/21/2020
BRAUN v. HHS 7
opportunity given to improve performance and
other relevant information, the employee’s super-
visor or other designated official will prepare a rec-
ommendation for termination and a justification in
support of that recommendation. . . . Tenured sci-
entists must undergo the de-tenuring process be-
fore a performance-based action may be taken
against them. See section K.3. below.
J.A. 66–67. This required de-tenuring process is a focus of
this appeal, for it was denied to Dr. Braun. Its conduct is
detailed in the Policy Manual:
K. The Tenure Process
***
3. Removal of tenure is a rare event and only oc-
curs after thorough review by the IC [Institute and
Center] and the Central Tenure Committee
(CTC) . . . First, a package that presents the case
for de-tenuring should be submitted by the IC
where the individual has tenure to the CTC. In this
package, the Scientific Director from the IC de-
scribes in a cover memo the reasons why the IC no
longer has a vote of confidence in the achievements
and potential of the investigator, as it had when
tenure was conferred. The investigator must re-
ceive a copy of this memorandum and has the op-
portunity to respond in writing. . . . At a meeting
with the CTC, the Scientific Director should pre-
sent the case for de-tenuring and answer questions
from the CTC members. . . . The presentation
should include evidence of an inability to function
as a productive member of the scientific community
(e.g., a serious, long-term decline in the person’s
productivity, qualifications, and fulfillment of ex-
pectations). After answering all questions from the
CTC, the Scientific Director should leave and the
DDIR [Deputy Director for Intramural Research]
Case: 19-1949 Document: 49 Page: 26 Filed: 12/21/2020
8 BRAUN v. HHS
should ask for general CTC discussion. Then there
should normally be a motion, followed by a secret
written vote. The DDIR makes the final de-ten-
uring decision, taking into consideration the CTC’s
recommendation.
J.A. 69–70.
The de-tenuring procedure was refused, despite Dr.
Braun's requests. And the NIH did not allow Dr. Braun
the opportunity of performance improvement, as set forth
in paragraph G.1, supra.
The Policy Manual also recognizes other possible
grounds for termination:
L. Terminations for Cause or Administrative Rea-
sons and Disciplinary Suspensions (for employee[]s
not serving a trial period):
1. Terminations for Cause or Administrative Rea-
sons
Appointments may be terminated before the expi-
ration date for cause, e.g., personal or scientific
misconduct. Under certain rare and extraordinary
circumstances appointments may be terminated [ ]
for administrative reasons. . . . However, a ten-
ured scientist may not be terminated for adminis-
trative reasons without going through the de-
tenuring process.
J.A. 71.
The NIH Removal Action
As recited ante, during his study of the effects of
trauma on speech and language, Dr. Braun reported to the
NIDCD Clinical Director that he (Dr. Braun) had violated
a protocol that he had established for this study. After an
informal review, an independent third party audit was or-
dered, and the audit reported numerous protocol
Case: 19-1949 Document: 49 Page: 27 Filed: 12/21/2020
BRAUN v. HHS 9
violations. After review of the audit, the IRB “determined
that the study could continue if there is appropriate reme-
diation,” and asked Dr. Braun to submit a Remediation
Plan. IRB Decision, May 2, 2016. Dr. Braun submitted a
Remediation Plan on May 12, 2016, and the IRB scheduled
a review meeting for June 15, 2016.
On May 13, 2016, the NIDCD Scientific Director issued
a Proposal to Remove Dr. Braun on the ground of “negli-
gence in the performance of your duties.” Dr. Braun re-
sponded, and also pointed to the required de-tenuring by
the Central Tenure Committee, the required period for im-
provement, and the Institutional Review Board review of
his Remediation Plan scheduled for June 15, 2016. The
record shows no reply to Dr. Braun.
The NIH issued its Decision on Proposed Removal on
June 13, 2016, with immediate administrative leave and
effective date of termination of June 25, 2016. Dr. Braun
was removed on the charge of negligence in performance,
as the Notice to Remove stated repeatedly: at page 1, “The
reason for this proposed removal is based on the following
charge: Negligence in the performance of your duties.” At
page 2, the caption is “Charge: Negligence in the perfor-
mance of your duties.” At page 3, the conclusion is “Based
on your negligence in the performance of your duties as
outlined above, I am proposing your removal from your cur-
rent position and from the Federal Service.”
On June 13, 2016, the Chair of the Institutional Review
Board wrote to the Board members: “The IRB Chair was
informed today that Dr. Alan Braun, PI of this protocol,
will no longer be an NIH employee at the time of the
planned IRB review . . . for this protocol on Wednesday,
June 15, 2016.” The scheduled review of the Remediation
Plan was cancelled.
The NIH Decision of Removal stated that Dr. Braun
“violat[ed] recognized professional or agency standards of
medical ethics or patient care,” and also mentions
Case: 19-1949 Document: 49 Page: 28 Filed: 12/21/2020
10 BRAUN v. HHS
“misconduct,” although there had been no charge of such
violations. The Decision stated that removal would “pro-
mote the efficiency of the Federal service” and that “[t]his
misconduct could tarnish the reputation of the NIDCD and
the NIH.” J.A. 35.
The Decision was implemented without the obligatory
performance improvement period and de-tenuring proce-
dure. These procedural omissions, without more, consti-
tute harmful error, for federal agencies are bound by their
announced procedures. See Doe v. Dep’t of Justice, 113
M.S.P.R. 128, 135 (2010) (“An 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,
regulations, policies, and collective bargaining agree-
ments.”); Campbell v. U.S. Postal Serv., 75 M.S.P.R. 273,
279 (1997) (an agency is required to follow its own proce-
dures).
Dr. Braun appealed to the Merit Systems Protection
Board (“MSPB”), in accordance with Lal v. Merit Systems
Protection Board, 821 F.3d 1376 (Fed. Cir. 2016).
Appeal to the Merit Systems Protection Board
The MSPB administrative judge sustained the agency’s
Decision of Removal, finding that “the appellant’s failure
to ensure that H&P examinations were performed for these
107 subjects, as prescribed under the research protocol he
himself designed, constituted negligence in the perfor-
mance of his duties, a circumstance sufficient to sustain
the present charge, standing alone.” Braun v. Dep’t of
Health & Human Servs., 2019 WL 1047556 (M.S.P.B. Feb.
28, 2019) (“Board Op.”) at 5–6.
At the MSPB, HHS argued that Dr. Braun had com-
mitted “misconduct” and violations of medical ethics and
patient care, and that these infractions were not subject to
the procedural protections for tenured scientists. However,
the Proposal to Remove did not charge Dr. Braun with
Case: 19-1949 Document: 49 Page: 29 Filed: 12/21/2020
BRAUN v. HHS 11
these violations. Precedent precludes removal on grounds
not in the notice of proposed removal. See Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 546 (1985) (“The ten-
ured public employee is entitled to oral or written notice of
the charges against him, an explanation of the employer’s
evidence, and an opportunity to present his side of the
story.”); Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368,
1378 (Fed. Cir. 1999) (“Public employees are, of course, en-
titled to whatever other procedural protections are afforded
them by statute, regulation, or agency procedure which is
in addition to the protections afforded by the Constitu-
tion.”). However, in response to Dr. Braun’s argument that
he was not made aware of the charges to which he should
respond, the administrative judge stated that “the essen-
tial nature or gravamen of this penalty consideration was
communicated to the appellant with sufficient detail as to
enable him to respond to it is supplied by the fact that he
did, in fact, so respond.” Board Op. at 11.
Responding to Dr. Braun’s argument that he had been
deprived of the procedures required to be accorded to ten-
ured scientists, the MSPB held that these procedures need
not be followed, stating that “[Dr. Braun] has not estab-
lished that it was harmful error for the agency to remove
the appellant for cause, without first engaging in the de-
tenuring process.” Board Op. at 14.
At the MSPB hearing, Dr. Braun also sought to defend
his actions. An array of experts, including seven MRI ex-
perts at NIH, testified that Dr. Braun’s procedures did not
violate any safety standard or ethical concept or present
any medical risk. There was no contrary evidence. Indeed,
HHS dropped its argument of possible patient risk when it
was pointed out that MRI does not use radiation:
Unlike X-ray, CT, and PET scans, MRIs do not use
radiation and is considered a non-invasive proce-
dure.
Case: 19-1949 Document: 49 Page: 30 Filed: 12/21/2020
12 BRAUN v. HHS
Braun Reply Br. 18 (quoting Harv. Univ., Dystonia &
Speech Motor Control Laboratory, Is MRI Invasive and
Does It Use Radiation?, https://simonyanlab.hms.har-
vard.edu/faq/mri-invasive-and-does-it-use-radiation).
Several experts on medical ethics and patient care tes-
tified concerning the charged misconduct, placing it in the
context of the subject matter under investigation. They
stated that in a study of speech and language, a full physi-
cal examination may not be necessary. An expert in re-
search ethics and integrity testified: “I don’t believe they
[the research subjects] were put in . . . any additional risk
as a result of the protocol violations. . . . [T]hey were pri-
marily procedural protocol violations that needed to be
remedied.” Reply Br. 21 (quoting Test. Dr. Steneck (June
27, 2018) at 479:22–480:4).
A professor of medical ethics testified that the protocol
violations that Dr. Braun reported to the IRB were not “vi-
olations of medical or ethical standards” Id. at 22 (Test.
Dr. Moreno (June 27, 2018) at 518).
A director of a MRI research facility testified: “not only
does Georgetown University not require an H&P at the
time of an MRI, but he is unaware of any other institution
that does, other than NIH” and that “Dr. Braun’s failure to
take an H&P prior to the MRI absolutely does not create
an increased risk to the individual, and the American Col-
lege of Radiology does not require one.” Id. at 23–24 (citing
Test. Dr. Van Meter (June 27, 2018) at 546–50).
A leading national MRI expert testified:
[G]iven the use of the standard ACR-based MRI
pre-screening questionnaire and the MR-related
standard safety features available and in routine
use at the NIH, non-contrast MRI remained and
continues to be a minimal risk procedure through-
out these studies (as defined by the FDA). An ad-
ditional history and physical performed
Case: 19-1949 Document: 49 Page: 31 Filed: 12/21/2020
BRAUN v. HHS 13
immediately prior to the scans would not be ex-
pected to modify or decrease this risk . . . there is
no recommendation to my knowledge by the Amer-
ican College of Radiology or any other organization
or society that publishes on or regulates safe MR
practices who does mandate a “routine history and
physical” as opposed to the MR-specific pre-screen-
ing described above . . . many, if not most, aca-
demic research centers in which non-contrast MRI
studies are performed in healthy volunteers do not
require that a history and physical examination be
performed as long as the ACR-based screening pro-
cess is applied and adhered to).
Id. at 24–25 (omissions in original) (Aff. Dr. Kanal (June 8,
2018) at 3).
There was no contrary evidence.
The Chair of the Institutional Review Board testified
that “I’m not aware of anybody other than Dr. Braun who’s
been fired for non-compliance” with a protocol. J.A. 104.
This aspect is relevant to application of the Douglas fac-
tors. See Douglas v. Veterans Admin., 5 M.S.P.B. 313, 5
M.S.P.R. 280 (1981).
Nonetheless, the NIH argued, and the MSPB found,
that Dr. Braun “violated medical ethics” and committed
“personal or scientific misconduct.” The MSPB ignored
that the only Notice charge was “negligence in the perfor-
mance of your duties.” The issue of “misconduct” came to
dominate the appeal to the Federal Circuit, as reflected in
the majority opinion hereof.
The Federal Circuit’s Finding of Misconduct
My colleagues on this panel find that Dr. Braun’s neg-
ligence in compliance with patient protocols is “personal or
scientific misconduct.” Maj. Op. at 10. Although there was
no charge of misconduct, the court finds misconduct in the
negligent performance of protocols, and on this ground the
Case: 19-1949 Document: 49 Page: 32 Filed: 12/21/2020
14 BRAUN v. HHS
court reasons that this removal is “for cause” and is not
subject to tenure protection or the other NIH procedures
related to performance.
“Misconduct” charges in science are extremely serious.
“Research misconduct” is defined as “fabrication, falsifica-
tion, or plagiarism in proposing, performing, or reviewing
research, or in reporting research results.” 42 C.F.R. §
93.103. “Personal misconduct” is not amenable to simple
classification, but its legal definition requires intentional
wrongful behavior rather than negligence:
Legal Definition of misconduct: intentional or wan-
ton wrongful but usually not criminal behavior: as
a: deliberate or wanton violation of standards of
conduct by a government official, b: wrongful be-
havior (as adultery) by a spouse that leads to the
dissolution of the marriage. . . .
Merriam-Webster Dictionary, https://www.merriam-web-
ster.com/dictionary/misconduct.
The Policy Manual distinguishes negligent perfor-
mance (Policy Manual § H Terminations for Unacceptable
Performance) from personal or scientific misconduct (Pol-
icy Manual § L Terminations for Cause). The PMAP Hand-
book further distinguishes performance issues from
misconduct issues:
Unsatisfactory Performance vs. Misconduct
It is important to note the distinction between per-
formance at the Achieved Unsatisfactory Results
level and employee misconduct. . . . [I]t is im-
portant to recognize the difference between the two
and to take prompt and appropriate actions accord-
ingly.
Performance at the Achieved Unsatisfactory Re-
sults level is failure of the employee to perform the
Case: 19-1949 Document: 49 Page: 33 Filed: 12/21/2020
BRAUN v. HHS 15
job at the required minimum retention level of Par-
tially Achieved Expected Results.
Misconduct is failure to follow a workplace rule,
code, or behavior, whether written or unwritten.
Examples of misconduct include tardiness, absen-
teeism, unprofessional or discourteous conduct,
damaging or destroying government property, or
falsification.
PMAP Handbook, 20. The PMAP Handbook makes evident
that Level 1: Achieved Unsatisfactory Results is distin-
guished from a charge of misconduct. PMAP Manual, 13.
Examples of “Achieved Unsatisfactory Results” include:
• Consistently fails to meet assigned deadlines.
• Work assignments often require major revi-
sions.
• Fails to apply adequate technical knowledge to
completion of work assignments.
• Frequently fails to adhere to required proce-
dures, instructions, and/or formats in complet-
ing work assignments.
• Frequently fails to adapt to changes in priori-
ties, procedures, or program direction.
Id. My colleagues err in promoting “misconduct” into a
general category that includes negligence, whereby the
court classifies all such performance actions as “cause” for
removal, thereby avoiding the safeguards for tenured sci-
entists and other announced NIH procedures.
It should be beyond debate that “[o]nly the charge and
specifications set out in the Notice may be used to justify
punishment because due process requires that an employee
be given notice of the charges against him in sufficient de-
tail to allow the employee to make an informed reply.”
O'Keefe v. U.S. Postal Serv., 318 F.3d 1310, 1315 (Fed. Cir.
Case: 19-1949 Document: 49 Page: 34 Filed: 12/21/2020
16 BRAUN v. HHS
2002). Here, the Proposal to Remove made no mention of
personal or scientific misconduct.
The threshold question before the court is whether Dr.
Braun is entitled to the procedures for tenured scientists
stated in the NIH Policy Manual and PMAP Handbook.
The record provides no justification for the refusal to per-
mit any opportunity to improve, the withholding of review
by the Central Tenure Committee, and elimination of the
remediation process at the Institutional Review Board.
The court now sustains the NIH’s refusal to follow its
announced procedures, the court holding that “NIH Policy
as a whole . . . neither requires de-tenuring nor excludes all
job-performance-based removals.” Maj. Op. at 9. The court
rules that “the same conduct can constitute deficient job
performance and a form of misconduct within the ‘for cause’
provision,” confirming removal of the distinction between
negligent performance and misconduct. Maj. Op. at 11.
And the court accepts that negligence is “misconduct” de-
spite the contrary definition in the PMAP Handbook.
The court's removal of “negligence in performance”
from the procedural safeguards in the NIH policy docu-
ments not only is an injustice to Dr. Braun, but diminishes
the stature of HHS as an employer of scientists, for little,
if anything, remains of the system of tenure.
I respectfully dissent.