This morning, in a case appealed from the Merit Systems Protection Board, the Federal Circuit issued a precedential order denying both a petition for panel rehearing and a petition for rehearing en banc. Judges Newman and O’Malley wrote opinions dissenting from the denial of the petition for rehearing en banc. Here is text from the order and the introductions to both dissenting opinions.
Braun v. Department of Health and Human Services (Precedential Order)
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 thereafter 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.
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.