Even Feds With Lifetime Tenure Can Be Fired for Cause, Court Rules

Federal employees who earn lifetime job appointments do not receive special treatment when being fired for cause, a federal court affirmed in a recent precedent-setting ruling.

The U.S. Court of Appeals for the Federal Circuit finalized that decision when it declined to review an earlier ruling before its full panel on a case related to a former National Institutes of Health scientist. It involved Allen Braun, a research doctor for more than 30 years at NIH, who won tenure status in 2003. NIH eventually fired Braun, who unsuccessfully argued the agency failed to properly consider his tenure status. 

In 2015, Braun admitted to a supervisor he had deviated from established protocol by failing to complete records for all patients in a study he was running. The mistake led to the wrong patient receiving an MRI. NIH conducted a full audit of Braun’s records and found he had followed requirements in just 9% of cases over a six-year span. The agency’s review board suspended the study and Braun’s supervisor proposed his removal the next day, citing “negligence in the performance of his duties.” 

Braun first appealed to the Merit Systems Protection Board, arguing NIH did not follow its tenure procedures. The agency had to go through a special process to “de-tenure” him before it could fire him, Braun argued. The administrative judge ruled, however, that because Braun was removed for cause, the agency could remove him through the normal process. Upon appeal to the federal circuit, the majority of judges on the panel ruled de-tenuring was unnecessary in cases of scientific misconduct. Braun suggested that his tenure status protected him from removal based on job performance, but the court found that NIH demonstrating scientists were fired “for cause” preempted that protection. 

Braun made a final effort to have the full appeals court hear the case, but the judges again rejected his effort. Circuit Judge Pauline Newman dissented, arguing the majority ruling went against law and precedent, and that protecting NIH’s tenure program “has implications for the public interest in preserving NIH as a premier research institution.” She noted that disrupting the tenure system would dissuade NIH scientists from remaining at the agency, impede its ability to recruit qualified scientists and restrict its ability to protect the nation’s health. 

“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,” Newman wrote. 

Circuit Judge Kathleen O’Malley also dissented, arguing more simply that NIH violated its own procedures.