Bennett S. Greenspan v. Department of Veterans Affairs Document 9

Court of Appeals for the Federal Circuit
Case No. 05-3302
Filed January 5, 2006

BRIEF FOR RESPONDENT, DEPARTMENT OF VETERANS AFFAIRS . BY DEPARTMENT OF VETERANS AFFAIRS (RESPONDENT ). SERVED BY MAIL ON 1/5/2006. FILED ON 1/5/2006 . (NON-CONFIDENTIAL)

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Page 1 05-
UNITED
STATES
COURT
OF
APPEALS
BENNETT
S.
FOR
THE
FEDERAL
CIRCUIT
GREENSPAN,
Petitioner,
v.
DEPARTMENT
OF
VETERANS
AFFAIRS,
Respondent.
PETITION
FOR
REVIEW
OF
IN
BRIEF
OF
THE
MERIT
SYSTEMS
PROTECTION
BOARD
CH-1221-01-0192-B-I
RESPONDENT,
DEPARTMENT
PETER
OF
D.
VETERANS
KEISLER
Assistant
DAVID
AFFAIRS
M.
Attorney
General
COHEN
Director
HAROLD
FILED
D.
LESTER,
Assistant
Of
counsel:
DANIEL
C.
KELLY
RATTRAY
of
Jeffe_:son
St.
Reqional
of
Lou:.s,
Tel:
(3[L4)
January
5,
Counsel
Veterans
Barracks
Missouri
845-
JAN
BLANK
Commercial
Departmen_
Director
Attorney
Atto_ne_c
Office
B.
JR.
U.S.COURTOF APPEALSFOR
THE FEDERALCIRCUIT
Affairs
Dr.
Civil
Litiqation
Division
Department
ii
L
of
St.,
Washinqton,
Tel:
Attorneys
Justice
N.W.
D.C.
(202)
for

353-
Respondent
Branch
5 2005
Page 2 TABLE
OF
CONTENTS
PAGE(S)
STATEMENT
OF
THE
STATEMENT
,OF THE
ISSUE
CASE
........................................

.........................................

I.
Nature
Of
The
II.
Course
Of
Proceedings
STATEMENT
SUMMARY
OF
OF
ARGUMENT
I.
II.
FACTS
Case
...................................
And
Disposition

Below
..........
............................................
ARGUMENT

..........................................

.....................................................

Standard

Of
Substantial
That
Review
..................................
Evidence
The
VA
Would
Supports
Have
Taken
The
Board's
Certain
Actions
Presumed
Against
Dr.
Greenspan
Protected
Disclosures
Meeting
.............................................
A.
Legal
So
The
It
Elements
Board
C.
The
Have
That
Reprimanded
Properly
Greenspan's
Would
Held
Dr.
At
The
March
I st Meeting
Protected
Disclosures
Board
Conduct
In The
Absence
At
The
March
Considered
Disrespectful
When
Have
Of
His
i,
..................................
Correctly
Would
Conduct
Presumed
Decision
Personnel
It
Reprimanded
At
The
March
i st Meeting
Protected
Disclosures
That
Him
Agency
For
Proved
Greenspan
For
His
Absent
Any
..................
Evidence
And
Determined
The

Of

Dr.
Inappropriate
The
His
Agency
Conduct
Absent
Any
Presumed
...........................
28
Page 3 D°
The
It
Board
Would
Rating
Conduct
Presumed
CONCLUSION
Correctly
Have
For
Held
Lowered
"Personal
Dr.
That
The
Agency
Greenspan's
Qualities"
At
The
March
I st Meeting
Protected
Disclosures
Based
Upon
His
Absent
Any
..................
...................................................
-ii-
Proved
Proficiency

34
Page 4 TABLE
OF
AUTHORITIES
CASES
PAGE(S)
Becton
Dickinson
Carrv.
Curtin
v.
Dep't
of
F.2d

(Fed.
Gerqick
Hawkins
O'Neill
v.
of
United
F.3d

1999)
......................
passim
1988)
......................
28,

Admin.,
(1997)
of
Personnel
States
Cir.
Postal
(Fed.
Cir.
..................................

..................................

Mqmt.,
1996)
............................

Serv.,
..........................

Aviation
Admin.,
Cir.
1986)
...........................

Spezzaferro
v.
Federal
F..2d (Fed.
Yates
v.
Merit
F.3d
Sys.
v.
Dept.
F.3d
of Veterans
(Fed.
Yunus
25,
Inst.,
(Fed.

.......................
Mqmt.,
Cir.
(1990)

1990)
Cir.
Service
Office

Admin.,
Smithsonian
F.3d
Inc.,
...........................
Army,
Personnel

Bard,
1990)
Cir.
(Fed.
General
M.S.P.R.
v.
the
(Fed.

M.S.P.R.
v.
Russo
Office
F.2d
v.

C.R.
Cir.
Security
F.3d
v.
v.
(Fed.
Social
Co.

Burrouqhs
&
F.2d
Protection
(Fed.
Cir.
2002)
Bd.,
1998)
Affairs,
Cir.
2001)
-Ul-
..........................
......................

17,
18
Page 5 STATUTE
5 U.S.C.
§
1221(e)(I)
5 U.S.C.
§
2302(b)
5 U.S.C.
§ 2302(b)(8)
5 U.S.C.
§
5 U.S.C.
§ 7703(c)(1996)

U.S.C.

§
(1994)
S
.................................
...........................................
........................................
...............................................
7425(a)(8)

.....................................

........................................

-iv-
Page 6 STATEMENT
Pursuant
that
to
we
have
to
are
unaware
been
the
cases
pend_.ng
pending
petitioner
or
Cir.
of
same
be
or
this
directly
appeal.
has
or
appeal
in
title.
other
affected
by
another
or
the
before
-v-
from
any
are
court
counsel
case
or
We
any
CASES
respondent's
this
Respondent's
had
RELATED
47.5,
before
similar
in
R.
any
previously
under
affect
Fed.
OF
the
other
same
unaware
that
will
not
this
Court.
proceeding
court
of
any
directly
decision
aware
states
appellate
also
Court's
is
counsel
that
in
this
Page 7 05-UNITED STATES COURTOF APPEALS FOR THE FEDERAL CIRCUIT
BENNETT S. GREENSPAN,
Petitioner,
v.
DEPARTMENTOF VETERANSAFFAIRS,
Respondent.
PETITION FOR REVIEW OF THE MERIT SYSTEMSPROTECTIONBOARD
IN CH-1221-01-0192-B-I
STATEMENT
Whether
("MSPB"
action
or
be
decision
discretion,
(2)
obtained
rule,
or
decision
"board")
should
board's
or
the
affirmed,
or
without
regulation;
of
denying
is
the
as
otherwise
ISSUE
Merit
adherence
he
(i)
not
(3)
THE
Systems
petitioner's
either:
or
OF
has
request
not
to
procedures
by
with
required
substantial
Board
corrective
that
capricious,
accordance
unsupported
for
established
arbitrary,
in
Protection
an
the
abuse
law;
by
law,
evidence.
Page 8 STATEMENT
I.
Nature
Of
The
Petitioner,
denial
of
right
of
that
by
the
appeal.
convincing
personnel
actions
final
we
decision
II.
Course
In
195,9,
S
Truman
Harry
Missouri.
Truman
to
the
Dr.
and
Greenspan
On
i,
Service
included
the
Hospital.
m
Pursuant
case
to
to
those
this
proved
taken
the
protected
Court
affirm
the
Dr.
as
Chief
a
VA
physician
("Truman")
Greenspan
which
he
addressed
in
the
Columbia,
a
critical
Officer
(_VISN")
at
attended
Executive
Network
Fed.
Below
Hospital
at
Integrated
the
that
employed
1999,
Crosetti,
Truman
_VA")
alleged
Disposition
was
meeting
Patricia
have
Greenspan's
Veterans
March
staff
concluded
or
would
board's
individual
properly
it
request
veterans
of
Dr.
his
(_agency"
that
the
board.
Memorial
medical
remarks
absent
in
board
Affairs
evidence
appeals
action
the
Veterans
Proceedinqs
A6.
I
M.D.,
corrective
respectfully
of
Of
CASE
Greenspan,
Because
of
and
disclosures:,
S.
for
Department
clear
same
request
action
THE
Case
Bennett
his
OF
15,
of
which
the
network
A291-92.
Cir.
specific
R.
28(b),
areas
in
we
which
limit
we
our
statement
disagree
with
petitioner.
filed
the
"A
by
brief
refers
conducted
by
Mr.
"
on
by
Greenspan.
filed
page
refers
by
number
"Pet.
Mr.
number
January
page
Br.
Greenspan
to
the
and
"
on
transcript
22,
2004.
to
the
joint
refers
October
of
by
26,
the
appendix
page
2005.
MSPB
to
number
to
"TR
"
hearing
be
Page 9 On March 31,
Hospital,
Dr.
Greenspan
A71.
to
issued
Dr.
of
Greenspan,
of
On
report
96.
for
Philip
lowered
from
On
of
Special
i,
Suspension
and
3 On
action
staff
March
from
believed
meeting.
1999.
the
26,
the
had
OSC
upon
occurred
A519-20.
to
July
the
his

Dr.
an
qualities
that
his

first
first
of
the
at
the
victim
the
Proposed
A391-94.
sought
at
to
was
made
Notice
alleged
remarks
appeal
he
he
report.
its
A438.
Dr.
but
that
the
various
closed
A395-
personal
filed
alleging
Greenspan
upon
1999,
M.D.
and
that
and
7,
A396.
proficiency
Dr.
Staff
Satisfactory,
including
OSC
to
proficiency
Hoyt,
disclosures
following
The
1999,
reply
through
of
Greenspan
(_OSC")
meeting,
based
oral
Terry
Chief
protected
1999,
reply
29,
a
activities
Dr.
lowered
June
received
Satisfactory.
1999,
an
recommended
research
Counsel
based
Truman's
High
8,
1998,
supervisor,
Satisfactory
remain
reprisals
March
for
September
7,
supervisor,
High
rating
Greenspan
July
M.D.,
a written
On
made
meeting.
A342.
first-line
rating
overall
June
his
A90.
Truman
one day to
at the March ist
counsel,
Dr.
from
secondary
Greenspan's
of
period
Dobrin,
Greenspan's
by
1999,
for
Greenspan provided
Suspension.
i,
the
conduct
of the
Suspension
Suspension.
represented
by
office
Proposed
September
Director
of Proposed
1999, Dr.
Proposed
completed
be
16,
Notice
Notice
a Notice
based upon his
On April
the
1999, Gary Campbell,
In
corrective
reprisals
he
the
i,
March
investigation
in
Page 10 addition,
c.n August
Greenspan
filed
agency.
Dr.
1999 and September
two MSPB appeals
A433, 439.
and filed
1999,
30,
On September
Greenspan's
at his
Dr.
request.
On September
17,
and oral
the agency,
Kenneth
Clark,
suspension
to
in
the
notice
letter
the
of
action
under
July
Federal
7,
service.
subject
to

appeals
Dr.
Greenspan's
U.S.C.
to
the
-
one-day
(4)
The
the
as
to
the
stated
decision
right
or
by
Ms.
proposed
(I)
procedure
voluntarily
report
of
Dr.
were
reprimand
§
under
reprimand
§
had
presented
and
A69-70.
he
Greenspan
U.S.C.
MSPB
the
-
"appeal
negotiated

of
V
with
of Dr.
"Reason
Subsequently,
letter
subchapter
for

Dr.
appointed
to
upon
that
A70.
the
Pursuant
professional
mitigate
proficiency
and

to
grievance
A648.
Greenspan's
document,
under
VA
2000,
appeal
Officer
suspension."
procedure."
On
Network
Greenspan
the
first
and the evidence
Chief
based
proposed
Dr.
On December 27,
consideration
reply
decided
reprimand
informed
grievance
Dr.
a
the MSPB consolidated
A40.
Greenspan's
1999, after
written
superior,
17, 1999,
by the
A537-38.
Greenspan's
Crosetti's
Dr.
reprisals
two appeals.
the MSPB dismissed
prejudice
alleging
16, 1999,
section
chapter
from
is
not
an
7513.
removed
(8),
a
of
from
of
title
agency
appealable
Dr.
health
title
5,
which
actions.
adverse
upon
the
from
VA
from
comments
removed
7401(1)
adverse
Dobrin's
was
7425(a)
resigned
care
is
not
provides
Moreover,
action
Page 11 Greenspan's
file.
A701-04.
On September
had completed
A132-34.
25,
its
2000, OSC informed
investigation
C)n October
findings
Dr.
board
for
seeking
his
letter
Dr.
corrective
remarks
of
leave
On
issued
to
Ma_ch
an
vacated
proceedings
upon
January

administrative
Greenspan's
order
that
March
request
stated
the
I,
Whistleblower
judge
that
alleged

"for
meeting
Protection
of
previous
alleged
meeting,
with
report
cancel
the
reprisals
including
the
rating,
three
and
days
of
A59-64.
Judge
Howard
September
15,
2003,
remanded
the
J.
for
Ansorge
lack
the
full
appeal
for
of
board
further
AI05-I16.
and
February
an
Act,"
by
this
the
that
the
hearing
A7.
appellant
the
upon
The
hearing
disclosures
and
2004,
evidentiary
of
made
are
23,
action.
purpose
disclosures
staff
result
appeal
and
it
action.
an appeal
conference.
corrective
the
filed
proficiency
conducted
for
its
the
merits.
22,
no further
dismissing
On
and

that
A135-37.
Greenspan
decision
the
a
Administrative
decision
initial
i,
medical
A96-I01.
the
On
2001,
initial
as
Dr.
a
file.
Greenspan
lowered
that
attend
30,
jurisdiction.
March
the
request
Dr.
action
the
reprimand,
Dobrin's
annual
at
OSC confirmed
Greenspan's
On Dec:ember 27, 2000,
Greenspan
and would take
30, 2000,
and closed
Dr.
Dr.
pre-hearing
I
will
during
assume
the
protected
under
personnel
actions
the
at
Page 12 issue,
i.e.,
lowered
the
proficiency
Accordingly,
of
absent
On
action.
A6-
Dr.
decision
30,
Greenspan's
became
the
Dr.
(initial
can
medical
the
VISN
March
i,
staff
meeting
for
A2-3.
and
Crosetti,
the
visited
this
facility
8,
corrective
2005,
the
the
an
board
initial
followed.
s
attended
by
of
the
the
a
Truman
developments
staff.
official
within
issued
for
and
staff
ranked
personnel
A291-92.
within
VISN
within
the
twice
a
Ms.
VISN,
year
for
i,
with

prepared
meeting,
Dr.
notes
and,
Greenspan
after
rose
several
to
address
introductory
stated:
the
FACTS
posed
same
Id.
March
Crosetti
remarks,
of
medical
purpose.
the
questions
the
and
judge
June
appeal
the
purpose
clear
request
Crosetti
inform
second-highest
every
At
Ms.
answer
OF
limited
A705.
A705-06.
review,
This
Patricia
to
taken
On
petition
1999,
by
Greenspan's
STATEMENT
On
prove,
administrative
decision).
final.
the
have
and the
actions.
for
disclosures."
2004,
denying
the reprimand,
personnel
held
would
protected
September
decision
being
it
leave,
covered
agency
that
the
initial
is
the
evidence,
actions
are
hearing
whether
convincing
of approved
rating,
"the
determining
denied
denial
Pursuant
facts
petitioner's
to
to
those
factual
Fed.
Cir.
specific
R.
areas
statement.
28(b),
in
we
which
limit
we
our
disagree
statement
with
Page 13 You don't have much of a background in
medicine,
and I think that you can't
possibly
understand
a lot of the nuances that probably
provide
good medical care.
That
by
itself
is
OK,
but
and
if
you
we
we're
haven't
tell
trying
care
to
to
our
But,
in
provide
input,
We're
lack
also
it.
What
specifically
Service
where
Canteen
Service
throughout
-that.
one
guy
and
At
I'm
the
and
so
at
gain.
the
support
the
mandated
in
a
Canteen
loss
of
the
merge
with
veterans
thing,
it
of
interest
who
is
VISN,
is
turns
the
married
Canteen
to
Service,
is
office
prohibited
and
problem
there
public
of
time
Service
the
least
loss
that
There's
up
to.
to
with
a
do
that
referrinq
the
is
a
same
of
very
That's
at
Canales,
high
there
with
to
major
listened
problems
it's
Mayi
the
been
For
another
a conflict
Director
worst,
we
Nutrition
thing,
is
a
when
have
jobs.
there
is
who
been
and
deal
VISN.
because
has
jobs
you
the
Business
possible
there
trying
is
preference
out
that
best
listen,
because
input,
hasn't
preference
For
to
it's
the
having
is
there
of
it
Congress
promote
a
provide
general,
with
that
willing
something,
veterans
problem
veterans
been
you
a
conflict.
for
private
personnel
practice.
And
other
on
top
of
prohibited
nepotism
Dental
with
Advisor
your
.
Dental
Advisor
was
reason.
by
And
the
there
he
have
husband
beinq
. to make
him
fully
did
been
practices
above
such
the
the
and
step
down
on
have
been
issues
also
prohibited,
It's
got
as
Chief
Chief
beyond
December
2nd
way.
And
then
there
reprisal,
which
want
to
because
that,
personnel
this
we
are
stop.
have
a
high
quality
to
stop.
staff
of
and
we
Again,
here,
Page 14 and we're
provide
of
stuff
I
are
Dr.
Greenspan:
I
I
and
my
that
do.
Dr.
Greenspan:
is
way
of
i,
having
that
General
Crosetti.
529-
29,
to
and
1999,
frankly
.
should
do
thinqs
Dr.
Dr.
to
this
the
VA
officials,
in
A524-
been
Greenspan
the
Dr.
a
a
I
wall,
Ph.D.
rumor
that
I
true?
i,
532-
to
ask
of
run.
stop
i,
tape
TR
179-185)
recorded
the
evening,
while
informed
the
next
had
and
A
sent
Office
Dr.
day
meeting.
of
allegations
Kenneth
a
aren't
1999;
previous
staff
(June
are
that
Greenspan
1998),
in
also.
March
the
you
ethics
There
done
Greenspan
made
wrote
reason
Crosetti
including
1998),
the
on
problem
The
Dr.
Ms.
(December
working
been
138).
he
Well,
off
secretly
Dobrin,
which
28,
a
of
meeting,
bit
Is
have
at
question?
heard
Greenspan
_get"
a
question?
I've
gotta
(TR
a
personal.
have
that's
to
Dr.
to
kind
difficult
ethics.
is
that
questions
(October
on
recording
with
("IG"),
are
there
A
"uncomfortable"
letters
little
is
things
intended
Prior
have
a
is
things
meeting.
he
I
Well,
that
added).
dinner
Do
That's
(transcribed

have
you
topic
honest,
(emphasis
you
question
Crosetti:
lot
we
can
that
here
it's
Do
It's
Ms.
the
belong
that
mean
understand
the
this
really
though
we
and
illeqal.
Crosetti:
but
veterans,
doesn't
Ms.
guess
our
doesn't
that
that
to do the best
to
realize
but
A266-
trying
care
22,
Clark
ask
her
293).
several
the
Inspector
Ms.
(November
1998).
Dobrin
(TR
against
527-
March
On
regarding
9,
1998),
January
his
Page 15 dissatisfaction
accused
with
her of
Ms. Crosetti's
performance
"dishonesty,"
"nepotism,"
practices,"
and "engag[ing]
in cronyism
activities,
and [is
ethical
behavior
in
Following
Dr.
extremely
Dr.
to
Dobrin,
in
Dr.
I
personal
Ms.
and
Dr.
citing
(TR
Greenspan
to
by
an
175-76).
time
Dr.
to
attend
period
in
staff
a
and,
if
both
April
that
Dr.

of
Dr.
annual
poorest
these
apology
to
to
the
Coy,
that
Dr.
't
had
attend
a
and
VA.
A683-
M.D.,
conference
and
Dobrin
leave
1999,
with
Greenspan
the
by
A371-72.
Greenspan
James
vented
A373-381.
26-28,
leadership
Dr.
you."
letters
of
A371.
heard
meeting,
days
for
for
I
remarks.

in
when
sent
with
and
attack
and
at
unaffiliated
spring
of
Crosetti,
personal
for
met
meeting.
Ms.
pain
i,
explained
VA
the
meeting
three
organization
to
hurled
March
scheduled
Campbell
the
sent
order
Mr.
at
uncalled
the
cancel
Dobrin
and
visceral
the
illegal
understanding
inappropriate
Greenspan's
approved
conference,
selected
same
Dr.
no
his
charges
at
after
been
sponsored
felt
has
frankly
for
at
entirely
myself
days
previously
medical
was
personnel
and other
clearly
apology
"appalled
attendees
Crosetti,
Several
of
"prohibited
Dobrin
him
inappropriate
other
asked
was
It
taste
Dr.
behavior"
letter
he
Greenspan.
Several
meeting,
moreover,
A521-23.
"chastis[e]
a
that
who
government."
personalizing
explained
of
the
Greenspan
a person]
and,
had
during
Coy
were
been
the
Page 16 absent,
on3y one doctor
time.
A296,
asked Dr.
(TR 300, 347-48).
Greenspan
participate
Dr.
311-
in
Greens_an
to cancel
his
agreed
stating
so that
Dr.
Dr.
were
Greenspan
On
minutes
(TR 300-01).
sent
a letter
of apology
forum
1999,
Dr.
Greenspan
found
guilty
On
of
March
Suspension
the
for
March
6 On
attend
A671-Greenspan
medicine.
a
ist
one
yet."
1999,
day
Gary
to
Dr.
A
71.
meeting.
March
10-12,
De'oartment
(TR
Ms.
148-49).
attended
1999,
of
Energy
In
a
to
medical
and
that
also
I
am
staff
for
such
issues.
annotated
the
"to
have
Crosetti
for
were
writing,
the
been
has
official
best
of
my
investigated
not
been
to
exonerated
or
A387.
Campbell
issued
Greenspan
The
Dr.
Notice
April
i
of
his
Proposed
used
in
regarding
Id.
Notice
upon
of
Greenspan
on
a
based
conference
addition,
conference
that
comments
allegations
far,
as
the
meeting,
these
any
31,
that
ist
so
my
for
wrong
of
and,
and
that
and
March
completion,
nature,
the
the
none
personal
is
21,
knowledge,
a
realize
March
of
of
I
disruptive,
A700.
Coy could
Id.
inappropriate,
sorry.
meeting
Dobrin
that
comments
also
that
A296-
My personal
comment regarding
your Ph.D.
thesis was inappropriate,
and I am sorry
making that comment.
Some
of my
other
is
during
Accordingly,
meeting.
to do so.
1999, Dr.
in radioiogy
leave
the VA leadership
On March 17,
Ms. Crosetti
would be present
annual
radiation
conduct
at
Suspension
leave
Washington,
7-8,
Proposed
to
D.C.
1999,
Dr.
protection
in
Page 17 stated
you
made
unfounded
defamatory
(i)
You
to
You
Food
her
were
official:
Crosetti]
of
specific
nepotism
with
and;
Ms.
Crosetti
regarding
the
Production
of
a
conflict
consolidation
program
with
of
the
VA
of
the
Canteen
and;
In
a
accused
very
Ms.
personnel
blunt
and
Crosetti
of
practices
contracting
(4)
which
VA
including
husband
Service
You
arrogant
bluntly
manner
you
performing
prohibited
conducting
illegal
and
activities
unethical
and;
accused
practices
Ms•
Crosetti
of
....
.
On
July
Greenspan
7,
of
findings
second
pending.
hand
decision
Mr.
IG
In
will
staff
be
not
sent
allegations
informed
was
a
letter
of
Dr.
nepotism
by
the
in
letter,
Mr.
stated,
your
behavior
independent
Clark
• was
of
the
Id.
ii
Dr.
against
that
the
IG
allegations•
initiated
meeting
to
Greenspan
investigated
substantiate
his
or
Clark
were
investigation
whether
medical
not
his
Clark
nepotism
did
Id.
is
1999,
Kenneth
to
A493.
allegations
the
1999,
responding
Crosetti.
a
[Ms.
accused
interest
(3)
senior
activities
regard
A
a
accused
illegal
(2)
statements
about
(conduct
appropriate
[IG's]
the
in
1997,
Id.
1998,
and
_the
at
the
Ms•
and
Further,
was
still
issue
at
March
That
investigation."
I,
Page 18 On September
report
for
completed
96.
1999, Dr.
the period
by his
Dr.
I,
Greenspan
from July
first-line
received
7, 1998, through
supervisor,
Terry
Dobrin,
Dr.
Greenspan's
secondary
recommended that
Dr.
Greenspan's
rating
and personal
qualities
Satisfactory,
but
Satisfactory.
be lowered
that
v
A396.
High Satisfactory
for
what had transpired
"that
outburst
really
out
In
or
of
to
contacts
were,
And
(TR
like
that
but
I
I
he
know
thought

proficiency
protected
that
and
or
Dr.
.
made
that
he
it
was
further
within
the
the
activity.
does
for
A
in
our
of
(TR
of
was too
high
because
meeting
didn't
that
you
can't
allege
was

I
about
the
or

that
what
they
issues
irritating."
you've
got
can't
it
and
specific
ethical
really
get
hospital
exactly
very
"if
[Dr.
in
know
activities
128).
about
about
absolutely
hospital
not
rating
the
heads
concerned
research
the
302-03).
I
you
to
meeting,"
"concerned
knew
just
VISN
his
over
explained
Greenspan
rating
of
(TR
was
activities
High
"probably
March Ist
was
had
within
qualities
in that
I
that
He
this
resolved
explained
Office.
A395-
from High Satisfactory
Dobrin
going
M.D.
research
Dr.
persistent
Central
for
remain
Dobrin
7, 1999,
supervisor,
rating
A298-Dr.
Hoyt,
overall
activity
line."
addition,
Greenspan's]
going
that
July
his
personal
after
a proficiency
a
get
resolved,
the
was
lowering
reprisal
A
problem
it
you
of
for
may
his
Page 19 want to call
the
IG, and he did
On September
superior,
17,
decided
1999,
to mitigate
of proposed
suspension."
stated
"your
statements
manner."
On September
30,
2004,
decision
denying
Dr.
action.
A6-26.
In the
initial
concluded
evidence
issue
that
action
was
admission
and
the
alleged
based
regarding
on
the
Canteen
to
in the notice
VHA management
the administrative
Greenspan's
inflammatory
and
judge
an
request
decision,
taken
all
the
by
found
remarks
personal
of
Dr.
that
"the
more
were
many
judge
that
than
Service
and
of
the
in
light
Greenspan's
appellant's

"some
of
Dr.
and
"based
Greenspan's
rank
In
evidence
of
lacked
allegations
and
the
inappropriate
the
remarks
on
at
disciplinary
AI9.
that
speculation,"
were
actions
attendance.
found
convincing
Regarding
that
in
corrective
administrative
clear
three
issued
for
disclosures.
judge
administrative
little
a senior
particularly
reaction
stating
suspension
the decision
in a derogatory,
protected
his
demcnstrated
one-day
(4) as stated
agency proved
have
warranted,"
the
foundation,
the
would
that
Ms. Crosetti's
In addition,
about
administrative
negative
addition,
record
the
the
own
were
it
absent
reprimand,
that
A301 (TR 305).
A69.
initial
judge
Clark,
(i)
A69-70.
. were presented
inappropriate
IG."
the proposed
based upon "Reason
official
the
Kenneth
a reprimand[
that
call
of
the
nepotism
allegations
speculation."
Page 20 A21.
The administrative
proposing
official,
Kenneth
Clark,
Greenspan's
Ms.
Dr.
qualities,
"conduct
was
a
A23.
Finally,
would
have
medical
the
conference
attendance
at
his
the
VA
of
the
conflict
leadership
beard's
decision
convincing
evidence
downgraded
his
report
in
s
of
Dr.
cancelled
Accordingly,
Becton
(Fed.
rating
the
Greenspan
leave
Dr.
constitutes
1990)
waiver
the
for
absence
Dickinson
Cir.
that
presumed
does
not
in
his
Co.
(failure
of
v.
to
March
the
agency
at
the
protected
by
Dr.
Coy's
A24-26.
proved

the
brief
raise
the
clear
a
in
and
reprimand
his
issue
to
this
appeal
Inc.,
in
issue).

of
and
proficiency
disclosures,
an
issue
by
issued
protected
Bard,
of
the
supervisors."
that
qualities
waived
C.R.
his
attendance
have
raise
has
appeal
which
presumed
would
moving
Greenspan
&
behavior,
agency
personal
of
personal
ARGUMENT
the
VA
for
found
Dr.
would
at
conference.
that
Dobrin
disclosures
created
OF
of
A21-22.
Dr.
to
forego
the
subjects
rating
concern
to
the
official,
the
that
judge
SUMMARY
The
found
of
Greenspan
upon
deciding
disrespectful
issue
neither
meeting.
protected
regardless
based
ist
also
administrative
Dr.
the
were
March
presumed
of
that
proficiency
legitimate
asked
disclosureE
the
judge
because
nor
superior,
at
the
noted
Campbell,
Greenspan's
absent
meeting,
also
Crosetti's
administrative
lowered
Ist
Gary
disclosures
The
have
judge
the
is
three
days
Court.
of
F.2d
opening
this
792,
brief
issue.
800
Page 21 supported
by substantial
arbitrary
nor capricious,
In determining
establishing
issue
in
the absence
of the disciplined
personnel
strength
of any motive
that
the
to reprimand
which
proposing
against
Dr.
its
and that
agency was required
Moreover,
by permitting
the
the agency
the
properly
agency's
"unfounded
any evidence
retaliatory
agency was not
that
he committed
defense
that
motives
required
Greenspan's
defamation.
in
judge
did
not
of evidence
comments
support
in a whistleblowing
of the
to prove
Rather,
of any retaliatory
from the merits
introduction
Dr.
the evidence
the evidence
administrative
the
of
and
the comments he made to Ms. Crosetti.
evidence
affirmative
independent
the
for
to show that
outweighed
The agency's
outweighed
held
of the
The board
making
of
at
existence
supporting
for
officials
burden,
and convincing
discipline
Greenspan
were defamatory,"
Greenspan
were unfounded
legally
Dr.
of the
upon the part
of the evidence
burden
protected
support
in the decision.
law.
action
employee's
in
with
its
the personnel
evidence
to retaliate
and deciding
In meeting
by clear
strength
in accordance
the evidence
against
who were involved
statements
the
weighs
action
neither
an agency has carried
would have taken
agency's
decision
the record,
it
the board
officials
in
and otherwise
whether
that
disclosure,
found
evidence
relevant
of
motive.
action
agency action
abuse his
the
is
itself.
discretion
to the
Page 22 disrespectful
Dr.
manner in which
Dr.
Greenspan
made his
remarks
to
Crosetti.
The bcard's
arbitrary,
denying
Dr.
capricious,
or contrary
evidence
in the record.
substantial
should
decision
affirm
the
board's
Greenspan's
to law,
and is
Accordingly,
appeal
is
not
supported
this
by
Court
decision.
ARGUMENT
I.
Standard
This
limited
if
review
statute.
Security
O'Neill
Cir.
Review
Court's
by
Social
Of
v.
it

of
This

§
Court
may
of
7703(c)
F.3d
MSPB
(1996);
1318,

Mqmt.,
reverse
the

a
see
(Fed.
F.3d
decision
363,
of
is
strictly
also
Carrv.
Cir.
1999);
364-
the
MSPB
is:
(I)
with
(2)
law,
arbitrary,
capricious,
(3)
U.S.C.

§
obtained
rule,
otherwise
without
or
an
not
abuse
in
of
accordance
1480,
procedures
regulation
required
having
by
been
or
unsupported
7703(c);
F.3d
or
law;
followed;
Bd.,
decision
Personnel
discretion,

a
U.S.C.
Admin.,
Office
1996).
of
by
substantial
see,
e.Q.,
Yates

(Fed.
Cir.

evidence.
v.
Merit
1998).
Sys.
Protection
(Fed.
only
Page 23 II.
Substantial
Evidence Supports The Board's Decision
That The
VA Would Have Taken Certain
Personnel Actions Against Dr.
Greenspan In The Absence Of His Presumed Protected
Disclosures
At The March I, 1999 Meetinq
A.
l,eqal
Dr.
lower
Greenspan
grade
of
proficiency"
in
§
forbidden
to
an
(i)
a
the
do
that
violation
of
a
substantial
§
2302(b)
contributed
to
demonstrates
See

same
U.S.C.
Affairs,
at
by
the

Pet.
Br.
as
a
waste
specific
board
a
adverse
clear
1221(e)
F.3d
1367,
of
funds,
to
must
disclosure
personnel
and
action
(I)
in
(1994);
1372-
v.
Cir.
Dept.
2001);
safety.
2302(b)
the
that
of
or

action
unless
absence
gross
or
section
evidence
(Fed.
information
authority,
health
under
WPA,
evidences
of
corrective

are
(ii)
order
the
the
of
abuse
public
Yunus
].322.
to
or
action,
convincing
"WPA"),
believes
an
a
activities,
disclosure
regulation,
received
his
actions
reasonably
or
in
Act
personnel
any
danger
The
qualities
Pursuant
take
of
and
whistleblowing
16-17.
to
rule,
personnel
§
at
employee
law,
reprimanded
personal
for
result
the
was
Protection
authority
that
an
for
Whistleblower
(8).
proves
he
retaliation
gross
and
employee
taken
so
employee
U.S.C.
an
the
.
mismanagement,
a
in
2302(b)
with
that
Satisfactory
of
employees
by
alleges
report
violation
U.S.C.
Elements
it
the
of
if
(8)
agency
would
have
disclosure.
Veterans
Carr,

F.3d
Page 24 In the MSPB proceedings
reaching
the
issue,
that
at the March Ist
meeting
proved,
and
taken
by clear
the
same
below,
Dr.
assumed,
without
Greenspan made protected
and only
convincing
personnel
the board
determined
evidence,
actions
whether
that
absent
disclosures
the
it
the
would
agency
have
protected
disclosures.
In
determining
establishing
issue
in
that
the
disclosure,
the
of
the
any
have
of
evidence
and
strength
agency
has
carried
taken
the
personnel
disciplined
factors
in
any
who
of
motive
were
that
the
agency
are
not
whistleblowers
wlho
similarly
situated.
The
board
decision
to
Yunus,
properly
deny
Dr.
assessed
to
retaliate
upon
the
who
at
1372;
the
the
part
and
against
are
otherwise
Carr,
factors
request
of
decision;
actions
but
at
strength
action;
these
Greenspan's
the
personnel
in
of
action
its
similar
F.3d
burden
protected
relevant:
involved
takes
its
employee's
are
support
of
officials
evidence
the
following
employees
its
would
it
the
agency
1323.
an
absence
agency's
existence
whether
in
for

F.3d
arriving
at
at
corrective
action.
B.
The
Board
Would
The
Have
March
Correctly
Held
Reprimanded
ist
Meeting
That
The
Dr.
Greenspan
Absent
Any
Agency
Proved
For
Presumed
His
It
Conduct
Protected
Disclosures
Substantial
the
agency
would
evidence
have
supports
the
reprimanded
Dr.
board's
Greenspan
conclusion
for
his
that
conduct
At
Page 25 at the March i,
his
remarks
properly
in
1999 meeting
constituted
weighed
support
outweighed
the
any
official,
or
motives
Mr.
at
base
to
others,
and
inferences
facts.
In
concerns
of
his
gossip
and
Greenspan
also
contracts
or
before
the
Further,
lacked
the
the
of
evidence
Greenspan
proposing
held
he
retaliatory
made
to
this
Ms.
documents
at
substantiation
to
that
to
time
of
he
"did
or
Id.
of
his
these
not
disprove
at

had
other
appeared
heard
from
widely-known
that
part
and
had
there
Pet.
Br.
have
access
his
of
at
the
expressed
was
24.
to
"a
lot
Dr.
the
allegations
25.
events,
allegations.
he
staff
Greenspan,"
or
from
medical
subject."
prove
meeting."
the
drawn
_the
Dr.
the
he
Dr.
unfounded
Rather,
concedes
that
that
evidence
rumors
speculation
Greenspan
on
concedes

upon
was
were
documentary
entirely
issue
innuendo
no
finding
Crosetti
allegations.
Dr.
knowledge
March
Ms.
board's
his
and
brief,
about
board
Dr.
comments
the
against
support
allegations
for
the
supports
possessed
his
basis
The
reprimand
official,
for
content
that
Campbell,
deciding
Greenspan
Greenspan
his
to
Mr.
the
evidence
substantiation
to
that
accusations
Dr.
determined
the
meeting.
Substantial
because
and
decision
Clark,
Dr.
the
Greenspan's
agency's
that
disclosures.
evidence
evidence
against
Crosetti
protected
this
of
even assuming
he
For
admitted
example,
that
he
on
March
Page 26 21,
1999, Dr.
Greenspan
substantiating
minutes
these
far,
his
allegations
as yet."
to the
at the
time
concrete
or
Greenspan
had
I
to
of
that
select
heard[
testified
Ms.
any
as
her.
that
Ms.
least
that,
when
had
of any
of
his
do not
VISN's
the
have access
practices
as
asked
whether
husband
_I
one."
didn't
A660-
made
not
made
ist
meeting,
his
his
not
he
know
(TR

what
Br.
at
criteria
advisory
68-69).
selection
the
IG's
6-
communicated
precisely,
allegations
the
been
an
Dr.
written
Pet.
knew
for
any
allegations.
152-53);
had
that,
his
regarding
(TR
testified
he lacked
March
investigation
he
repeatedly
meeting,
A261-
testified,
Crosetti
of
Crosetti's
at
so
to the Notice
"I
of this
and,
guilty
concerning
concerning
findings
When
Greenspan
had
that,
against
_results
staff
knowledge
made
reply
that,
Greenspan
of the March ist
not
or found
wrote
details
none of
A90.
Dr.
specific
the official
to completion,
Canteen Service
the
in
of my knowledge,
written
Greenspan
Service."
Greenspan").
Dr.
the
testimony,
allegations
used
Dr.
testified
office
the best
in his
to establish
Canteen
In his
when he wrote
"to
Moreover,
about
to documents
he had no evidence
has not been exonerated
Suspension,
allegations
that
have been investigated
A387.
Proposed
Dr.
allegations
to the meeting,
Ms. Crosetti
(the
admitted
to
were
position,
but
Dr.
I
thought
Greenspan
of
nepotism,
of
her
husband
he
knew
for
Page 27 the dental
dentist
advisory
position,
at the VA for
over
that
20 years,
appointed
her husband as a staff
a network
advisor
A673-
had
(TR
But
I
Care,
to
the
suspect
that
with
supplies
anything
and
and
261-63).
finding
Service
documents
that
equipment,
Dr.
merger,
I
do
had
Dr.
establishing
be
a
network
one
or
substantial
or
choice."
evidence
allegation
of
for
dental
far
away
purchase
the
advisors
(TR
recused
260).
was
Ms.
"strictly
select
VISN.
A691-
the
nepotism
Primary
and
or
supported
of
Crosetti
Dr.
Chief
A
for
pay.
other
position
to
or
as
162).
stayed
funds
grade
Ms.
the
"the
husband's
commit
in
advisor,
(TR
that,
authority
his
whether
way
A
his
her
Greenspan's
his
knew
applications
with
no
duties
he
absolutely
that
he
speculation."
Regarding
to
testified
Thus,
that
than
and
and that
if
did."
for
had not
increase
know
had been a staff
Ms. Crosetti
an
testified
asked
care,
also
advisory"
more
had
to
didn't
Crosetti
Leiker,
dentist,
asked
she
Crosetti
that
with
husband
"I
primary
Crosetti
her
Ms.
come
When
testified,
fact,
Dr.
myself
(TR
for
would
In
not
160-61).
advocated
Greenspan
did
Rick
was
board's
"little
A21.
allegations
Greenspan
the
about
testified
relationship

problems
that
between
with
he
the
did
not
the
VISN
Canteen
have
and
any
the
Page 28 Canteen
Service.
regarding
his
had no idea
Since
her business
but
of
personally
Canteen
that,
at
Ralph
the
the
be
28.
Greenspan's
covered
Such
own
_[w]hat
I'm
Canteen
Service
and
Nutrition
problem
with
now
were
an
by
remarks
referring
where
Service
that."
at
to
of
is
you
merge
A269-
have
mandated
(TR
182-83)
any
related
fact,
for
his
conflict
between
Proposed
in
the
concerning
therefore,
Suspension.
that
the
which
Pet.
by
he
of
Ms.
contradicted
is
to
Dr.
his
allegations
Crosetti
and,
meeting,
throughout
the
practices
basis
or
interests
seen
In
plainly
specifically
Canales,
between
relationship
Notice
the
VISN's
the
of
Mayi
not
the
testified
financial
163-65).
alleges
that
not
about
Ms.
the
had
with
conflict
contract
he
the
marital
allegation
any
a
that
(TR
a
of
individual
also
Crosetti,
had
although
the
of
seen
showing
A676-
was
Greenspan
Service
never
allegatlon
any
He
allegation
Ms.
them.
A668 (TR 131).
associated
163-64).
and
that,
allegation
whether
husband,
had
or
Service.
not
at
Canales's
establishing
Dr.
Canteen
could
Br.
whether
testified
interest
(TR
know
he
know
"I
she must have known
activities
not
Truman,
Greenspan
any
his
and
Canteen
not
made
that
Service
documents
did
that
knew about
when he made his
he
Ms.
merger,
Canteen
he
A676-
did
irregularities
[Ms. Crosetti]
that,
Truman.
Shalda,
the
testified
time
testified
know what or how much."
from
he
Greenspan
manager was involved,
benefitted
the
interest,
what
interest,
and
Dr.
of contracting
I didn't
Greenspan
conflict
in
allegations
of knowing
something,
Dr.
9 A662 (TR 103).
Dr.
stated,
deal
with
the
Canteen
the
VISN.
There's
(emphasis
added).
Service
a
Page 29 At the
jobs,
Dr.
time
that
Greenspan
Canteen Sex,ice
the
CanteeE.
he
did
to
Canteen
was
the
required
to
such
prove
an
Dr.
Dobrin
Crosetti
the
next
staff
attended
while
meeting
testified
advance.
A
unethical
behavior
my
Greenspan
ethics
in
the
is
I've
reason
the
"I
I
way
ask
things
he
understand
heard
you
this
have
a

to
rumor
is
been

(TR
his
that
that
run."
there
A
to
357).
Dr.
allegations
to
harm
at
on
topic
is
in
accusation
working
the
at
referred
256,
present
are
Ms.
Greenspan
he
designed
you
Greenspan
questions
Greenspan's
staff
evidence
"get"
Dr.
make
been
the
the
Dr.
which
Dr.
have
of
meeting,
notes,
Moreover,
only
and
agency
substantial
intended
to
the
Crosetti,
Moreover,
planned
members
stated
question
the
could
38,
applied
that
Ms.
the
A686,
he
Title
"uncomfortable"
prepared
139).
harm
293).
Crosetti.
that
(TR
among
(TR
her
and
know whether
regulations
provides
that
ask

suggests
before
dinner
with
Ms.
Greenspan
Dr.
night
know how the
166-69).
to
conduct
and
Title
Greenspan
his
at
day
(TR
intent
A
addressing
reputation
his
The
_eeting.
the
Dr.
of
intent.
informed
the
that
nature
by
preference
he did not
preference
A679-
extent
he did not
covered
veterans
employees.
of veterans
or operated,
were
whether
a loss
that
was funded
know
premeditated
of
testified
employees
not
To
he alleged
a
(TR
the
a
is
problem
185).
of
her
meeting.
Ph.D.
on
and
ethics
of
Dr.
Page 30 my question
• the
ethics
is
I've
reason
in
the
I ask you
way
things
Greenspan
testified
unethical
by
his
Mr.
official,
motives.
First,
of
upon
any
of
parties
in
Crosetti.
529-
no
manner
which
he
disclosures
meeting
statements
Greenspan
forum
that
wrote
he
to
the
Mr.
Clark
"nepotism,"
in
cronyism
to
IG
527-
22,
his
accusations
directly
other
and
the
the

meeting•
discipline
based
or
other
third
about
Ms.
that
at
accused
personnel
illegal
1999,
Ms.
1998),
fact
after
finding
29,
9,
The
discipline,
frankly

I,
Greenspan
January
that
Clark,
was
1998).
a
proposed
Mr.
(November
supports
_prohibited
and
March
the
Dr.
finding
Clark
accusations
on
was
retaliatory
proposed
(June
Indeed,
Dr.
Crosettl
nor
Mr.
the
1998),
made
of
185).
board's
upon
ever
against
made
prompted
themselves.
_dishonesty,"
_engag[ing]
which
the
at
532-
taken
were
in
I,
problem
(TR
Ms.
nor
similar
a
is on ethics
175).
decisions
had
made
is
official,
letters
1998),
was
(TR
topic
A
imply
Campbell
(December
28,
to
comments
had
there
supports
official
action
or
Mr.
Greenspan's
(October
proposed
meant
their
the
run."
proposing
Greenspan's
A524-
numerous

based
Dr.
that
been
also
the
neither
is
A
neither
Dr.
Second,
he
evidence
deciding
subject
have
that
Campbell,
a rumor that
this
statement.
Substantial
neither
heard
that
these
it
was
the
March
not
the
the
I,
Dr.
Crosetti
practices,"
activities,
of
and
and
Page 31 [she]
clearly
government."
action
A521-23.
against
fact
that
Dr.
Mr.
reprimand
Cir.
agency
1990),
was
defamation
absence
of
Greenspan's
agency's
WPA
that
prove
protected
equipment
official
the
Court
agency
in
other
judge
purpose."
held
to
use
that
Burrouqhs,
the
prove
was

a
Br.

him
at
31-32.
misplaced
and
action
a
judge
this
Id.
at
board
a
charge
171.
erred
at
172.
the
Dr.
confuses
and
the
a
decision
where
was
element
the
appeal
a

in
materials,
employee
F.2d
F.2d
of
purposes,"
administrative

the
a
by
elements
Government
material
element.
motivated
that
sustaining
the
to
asserts
reversed
official
Finally,
Army,
the
adverse
of
disciplinary
reprimanded
is
an
upon
than
the
Pet.
Burrouqhs
found
purposes
that
have
in
suspension
for
unofficial
would
burdens
was
in
A69.
of
Burrouqhs
unauthorized
administrative
Court
upon
he
of
all
any
letter.
incorrectly
disclosures.
14-day
the
Dep't
behavior
suspension
Greenspan.
establish
it
take
this
that
Greenspan
to
The
_directing
for
v.
to
not
proposed
finding
Burrouqhs
reliance
a
a
required
appeal.
the
Dr.
Dr.
did
of ethical
following
against
evidentiary
imposing
and
against
upon
Clark
mitigated
animus
Relying
Mr.
Greenspan
Clark
weighs
retaliatory
(Fed.
has no understanding
of
manpower
the
_acting
for
Because
acting
of
the
charge,
in
not
requiring
an
the
Page 32 The decision
of
Dr.
Greenspan's
multiple
but
proposed
all
discipline
statements
to
it
satisfy
could
examples
Second,
challenge
agency
Citing
(1990),
prove
the
Dr.
before
unfounded
30.
In
request
and
GerQick,
for
a
the
failed
agency
remarks
were
it
v.
board
acted
board
of
of
to
defamatory
nature
rather,
of
to
his
grant
personnel
introduce
and,
board
have
evidence
in
fact,

does
failed
did.
not
requires
M.S.P.R.
agency
was
remarks."
the
to
the
651,
required
disciplined
the
were
animus.

among
that
VA
factual
it
it
action
because,
The
agency
four
that
Admin.,
would
appeal
the
found
the
or
statements,
retaliatory
that
decided
of
the
Service
threatened
action
board
without
the
unfounded
one
one
specifications
that
made
action;
"it
of
single
unfounded
four
assuming
the
asserts
that
a
Id.
"made
proving
General
support
"proof
listed
before
defamatory
stay
right
by
adverse
the
individual
even
which
Greenspan
the
and
facts
case,
to
provide
Greenspan
appeal
that
out
the
specifications."
Greenspan
burden
appealable
Gerqick
Dr.
Dr.
conduct,
prove
to
from
Greenspan's
"set
supporting
Thus,
Greenspan's
an
to
its
Dr.
agency
defamatory"
that
the
Dr.
the
A71.
prove
of
the
were
conduct.
required
in
are
because
which
this

of
distinguishable
First,
requires
not
is
specifications
which
more,
Burroughs
case.
factual
charge,"
of
in
him
for
Pet.
Br.
appellant's
in
other
an
things,
appellant's
even
_identif[y]
to
at
Page 33 the
aspects
Gerqick,
of the

allegations
M.S.P.R.
Suspension
at
clearly
presented
evidence
that
664.
it
Here,
believes
the
Notice
identified
four
to
the
board's
not
required
support
were inaccurate."
specific
of
Proposed
unfounded
finding
remarks
that
they
and
were
unfounded.
Moreover,
convincing
the
evidence
Proposed
Suspension
required
tc
for
his
conduct
even
is
not
defamation.
unfounded
statements
is
(TR
358).
reputation
of
another
Restatement
where
All
A
Dr.
four
focus
_which
were
were
of
he
was
that
I°
upon
accusatory"
specifications
include
communication"
of
Torts

cmt.
d
proof
to
of
letter
because
Greenspan
The
he
made
word
unfounded
testified
aspects
public
not
"tends
so
estimation
the
the
need
it
the
§
Dr.
_specific
a
was
proposal
Campbell
in
of
Greenspan
suspended
of
Mr.
it
A71.
nature
based
rather
him
in
the
states
and
Notice
agency's
be
clear
protected
defamatory."
accusatory.
was
the
should
the
the
Dr.
presumed
upon
by
rather,
Indeed,
it
in
reprimanded
made
Greenspan
another;
to
lower
(Second)
not
Rather,
_defamatory
of
as
had
prove
listed
have
misplaced.
discipline
[statements]
he
to
defamation;
would
descriptive
which
proposed
misconduct
Greenspan's
committed
the
if
that
_defamatory"
the
it
entirely
state
statements,
that
that
Dr.
defamation
was
constituted
prove
disclosures.
does
agency
that
of
forum.
phrase
actually
A
"you
harm
the
harm
the
reputation
of
the
community."
(1977).
Page 34 accused."
A71.
Mr. Campbell's
Proposed
Suspension
indicate
upon
view
his
Ms.
that
Crosetti
Dr.
that
board
was
support
to
of
existence
of
its
F.3d
1323.
reprimand
the
or
Dr.
Greenspan
of
any
who
evidence
for
Clark
the
of
any
harbored
comments
in
made
the
the
the
Carr,
evidence
agency's
evidence
that
Ms.
and
decision
either
motives
about
part
decision.
this
retaliatory
he
in
upon
the
weighed
outweighed
of
retaliate
support
the
evidence
evidence
involved
in
to
Rather,
agency's
to
properly
statements
suit.
against
were
board
the
motive
based
substance.
defamation
of
of
discipline
accusatory
or
action,
Greenspan
Mr.
a
and the Notice
proposed
made
strength
The
Dr.
Campbell
the
not
personnel
that
Mr.
was
officials
at
he
foundation
strength
agency
determined
to
weigh
and
the

this
that
Greenspan
lacked
Ultimately,
testimony
against
Crosetti
at
the
meeting.
C.
The
Board
evidence
charged
Evidence
of
And
Inappropriate
The
Agency
Would
Reprimanded
Conduct
Greenspan
that
with
his
making
Proposed
Suspension.
overturn
a
error
Considered
Greenspan's
Disrespectful
When
It Determined
That
Meetinq
Dr.
Properly
"unless
decision
an
Him
Absent
For
Any
contends
remarks
His
Protected
that
board
abuse
the
of
Br.
the
board
18.
upon
discretion
in
This
the
is
March
Ist
Disclosures
considered
because
remarks
at
Conduct
Have
improperly
disrespectful
disrespectful
of
The
Presumed
were
Pet.
At
Dr.
the
clear
of
will
not
a
procedural
of
and
was
Notice
Court
basis
he
is
harmful."
not
Page 35 Curtin
Cir.
v.
Office
1988)
require
(failure
the
M_mt.,
to
interrogatories
compel
of
accord
169,
Personnel
production
discretion);
F.2d
of
determines
documents
Spezzaferro
173-
(Fed.

Cir.
is
F.2d
Federal
1986).
Even

and
not
v.
1373,
an
failure
abuse
to
of
Aviation
if
(Fed.
Admin.,
this

Court
that:
an
abuse
to
the
order
of
discretion
discovery
for
issues
did
and
petitioner
he
must
substantial
which
could
to
prove
harm
have
occur
with
evidentiary
prevail
that
respect
rulings,
on
the
error
or prejudice
affected
the
in
these
caused
to his
outcome
rights
of
the
case.
Curtin,
erred
84,
F.2d
1379.
Dr.
Greenspan's
contention
by
considering
evidence
remarks
lacks
conduct
for
merit.
which
disrespectful
When
notify
the
sufficient
reply."
(Fed.
at
an
inappropriate
proposes
v.
of
to
that
the
the
allow
Dr.
recommended,
he
made
to
discipline
the
was
official,
the
and
meeting
nature
upon
of
notice
his
of
the
the
statements.
an
to
make
Serv.,
substantial
judge
including
which
employee
Postal
was
his
with
Greenspan
at
disrespectful
was
conduct
is
proposing
conduct
the
administrative
Greenspan
States
There
the
Dr.
which
United
2002).
demonstrating
Campbell,
agency
employee
Russo
Cir.
discipline
in
detail
of
First,
manner
that
evidence
employee,
he
is
an

nit
charged
in
informed
F.3d
in
1304,
the
upon
notice
that
Dr.
Dobrin
believed
warranted
must
record
Mr.
disciplinary
his
1308
Page 36 action.
Immediately
Dobrin
chastised
personalizing
Greenspan
Dr.
the meeting,
Greenspan
for
behavior."
whether
when in public."
meeting
following
had ever
Id.
In his
public
"engaged
Dr.
minutes,
In
Notice
inappropriate
concerns
of
manner
the
"(
Crosetti
"(
A
You
of
conduct
misconduct
mitigate
the
stated
Clark
was
the
"Reason
very
the
proposed
(I)
letter
own letter
were
reprimand.
staff
was
3O
was
being
in
accused
practices,"
was
and
practices."
plainly
upon
disciplined.
the
specific
Suspension
Mr.
to
cited
you
unethical
to
his
proposed
manner
Proposed
the
share
the
personnel
suspension
in
to
meeting
arroqant
A69.
stated
admittedly
chose
of
of
A700.
the
cites
of
network
comments
Greenspan
he
that
underlying
and
Dr.
Notice
as
in his
the
Crosetti
one-day
(4)
upon the
his
at
which
decision
a
Dr.
stated
Greenspan
blunt
Ms.
for
issuing
Dobrin
misconduct
Thus,
in
the
prohibited
accused
added).
the
a
performing
bluntl_
Moreover,
upon
In
of
Crosetti
of
comments regarding
Suspension,
Dr.
asked Dr.
him how to behave
"inappropriate."
which
acts
(emphasis
notzce
Mr.
Ms.
specific
that
Proposed
in
regarding
discipline:
Ms.
admitted
and Dr.
and extremely
Dobrin
taught
Indeed,
and
of
Dr.
attack
A383-84.
_disruptive,"
the
Dr.
in a personal
Greenspan
"personal,"
Indeed,
mother
management present."
apology,
"inappropriate
"his
in the official
Greenspan
two
A371.
Mr. Campbell
Clark
a
notice
acts
for
of
which
decided
reprimand
proposed
of
based
to
Page 37 suspension."
!d.
specific
of
acts
meeting
as
its
issued
a
making
unfounded
that
based
Dr.
board
agency
must
the
in
have
the
taken
Greenspan
board
prohibited
disrespectful
Notice
of
an
deciding
in
in
the
this
to
the
at
Ms.
(1997.),
Dr.
board
held
the
of
a
agency
presumed
of
--
the
with
in
Hawkins
that
under
--
board
that
18,
did
or
included"
in
20.
The
adjudicate
Greenspan.
Dr.
hearing
for
limited
purpose
protected
reprimanded
disclosures.
Dr.
Under
the
logical
not
against
have
the
consider
charges
would
of
Smithsonian
sustain
the
would
regarding
not
at
it
absence
contends
are
where
to
that
the
v.
"cannot
Br.
A69.
show
even
in
standard
testimony
the
presented
misconduct
must
board
that
factor
standard
charges
Pet.
i.e.,
actions
Greenspan
the
properly
"were
the
four

aggravating
adverse
any
I,
manner."
upon
hearing
is
or
the
issue
Relying
because
consider
as
agency
at
March
conduct,
Crosetti
the
cited
official
confuses
action
contention
the
inappropriate
Suspension.
whether
absence
well
specifications
Proposed
action
Rather,
or
as
where
from
conduct
charges
fallacy
case,

of
underlying
action
disclosure.
M.S.P.R.
was
the
proposed
adverse
personnel
Inst_______.,
out
appealable
the
Suspension
deciding
again
adjudicates
this
protected
sustain
upon
and
prove
Proposed
The
leveled
imposed
applicable
the
A71.
statements,
the
sustain
of
arising
inflammatory
Second,
the
basis.
accusations
derogatory,,
Notice
misconduct
reprimand
the
which
The
of
Greenspan
the
a
Page 38 applicable
support
standard,
of the agency's
outweighed
motives
made about
1323.
Ms. Crosetti
board's
determination
decision
outweighs
Finally,
error
Dr.
A71,
would
as
be
the
harmless
evidence
Greenspan's
allegations
for
the
it
with
comments he
185 F.3d at
supports
supporting
the
the
the administrative
"blunt
basis
because,
the
the
and
for
as
supported
at
that
in
reprimand
of retaliation.
that
legitimate
evidence
acted
evidence
evidence
Greenspan's
substantial
officials
See Carr,
substantial
that
the
and found
at the meeting.
above,
a
decision
Greenspan
any evidence
Dr.
reviewed
the deciding
even assuming
considering
meeting,
that
against
As discussed
properly
reprimand
any evidence
retaliatory
by
the board
judge
arrogant
manner"
disciplinary
demonstrated
board's
March
I,
at
action,
the
such
above,
finding

erred
that
meeting
Dr.
were
unfounded.
D.
The
Board
Would
For
Substantial
Dobrin
for
personal
absent
meeting,
the
have
because
supports
from
protected
of
his
The
Based
Absent
lowered
That
Agency
Greenspan's
Qualities"
qualities
presumed
Dr.
Meeting
evidence
would
Held
Lowered
"Personal
March
ist
Disclosures
Dr.
Correctly
Have
Dr.
High
Upon
Any
Presumed
the
board's
Greenspan's
disrespectful

His
It
Rating
Conduct
At
conclusion
to
at
behavior,
The
Protected
that
proficiency
Satisfactory
disclosures
Proved
Proficiency
the
rating
Satisfactory,
March
which
Ist
"conduct
Page 39 was a legitimate
issue
of concern
to his
supervisors."
A396;
A23.
Dr.
for
Dobrin
personal
qualities
transpire/[
that
explained
in that
activity
March ist
line."
A_98_
(TR
board's
finding
that
based
conduct
in
a
A370-
(staff
rating
"solely
Pet.
Br.
at
Dr.
Greenspan's
Dr.
Dobrin
to
Contacts
were,
And
(TR
I
manner
content,
C_ntral
I
Office.
he
which
and
with
I
he
it
knew
was
was
just
Dr.
Greenspan
his
practice
Dr.
letter);
Dobrin
officials
our
of
didn't
Dobrin
of
I
about
absolutely
aired
about
know
concerned
was
his
going
the
of
in
the
or

ethical
and
specific
what
they
issues
.
irritating."
more
concerned
Dr.
Truman.
hospital
exactly
complaints,
of
[Dr.
very
over
his
content
outside
heads
about
lowered
activities,"
with
"concerned
I
added).
Dr.
VA
over
made
that
that
(emphasis
in
had
know
was
going
inappropriate
(apology
familiar
to
he
that
not
the
to
whistle-blowing
was
that
A
of
supports
rating
or
.
contends
Dobrin
persistent
thought

Dr.
outburst
out
admittedly
See
Greenspan's
testified
tlhat
but
Dr.
this
Crosetti)
communications
Greenspan's]
going
Ms.
"that
evidence
Greenspan's
Greenspan
on
34,
to
what had
was really
lowered
forum.
after
because
Substantial
Dr.
letters
of High Satisfactory
meeting
Dobrin
upon
Dr.
meeting,"
302-03).
Dr.
rating
was too high
in the
professional
Although
the
"probably
of his
Satisfactory
that
not
Dobrin,
A
with
the
the
the
Page 40 Chief
of Staff,
Dobrin
be
alE:o explained
inappropriate
within
the
the
VISN
and
he
you
did[
the
downgraded
protected
concerns
that
he did
because
hospital
can't
call
Because
that
to discuss
"if
you
get
the
agency
his
would
A
have
you
However,
IG
it
like
resolved
may
want
Dr.
complaints
problem
to
to
this
and
or
within
call
the
IG,
305).
supports
reprimanded
report
the
a
get
(TR
evidence
proficiency
disclosures,
can't
Truman.
consider
got
resolved,
IG."
substantial
not
you've
really
it
about
Dr.
in
board's
the
the
board's
decision
Greenspan
absence
decision
and
of
should
presumed
be
affirmed.
CONCLUSION
For
the
final
these
order
reasons,
of
the
we
respectfully
request
the
Court
affirm
board.
Respectfully
PETER
D.
Assistant
submitted,
KEISLER
Attorney
DAV_DreMt°rCOHEN__
HAROLD
D.
Assistant

_
General
_
LESTER,
JR_---_-_
Director
/
_
Page 41 Of Counsel:
DANIEL C. RATTRAY
of
Department
Tel:
January
Reqional
of
Jefferson
St.
Attorney
Commercial
Attorney
Office

BLANK
Louis,
(314)
5,
Barracks
Missouri
845-
Counsel
Veterans
Affairs
Dr.
Civil
Litiqation
Division
Department
L
of
St.,
Washinqton,
Tel:
(202)
Attorneys

Justice
N.W.
D.C.

353-
for
Respondent
Branch
Page 42 CERTIFICATE
I
attached
and
certify
that
Respondent's
contains
7,
OF
pursuant
brief
to
is
COMPLIANCE
Fed.
R.
in
an
B.
BLANK
App.
P.
allowable
32(a)
(7) (C),
monospaced
words.
KELLY
Attorney
Commercial
Litigation
Civil
Division
Branch
Department
of Justice
Attn:
Classification
8th
Floor,
II
Washington,
Tele:
January
5,

Attorney
D.C.
(202)
for
L
Unit
Street,
353-
Respondent
N.W.
face
the
Page 43 CERTIFICATE
I
I
certify
caused
"RESPONDENT'S
to
under
be
served
BRIEF"
penalty
by
to
OF
of
perjury
first
the
class
that
mail,
following
Harvey
Husch
SERVICE
M.
&

Jefferson
postage
address:
Tettlebaum
Eppenberger,
East
Suite
on
High
City,
LLC
St.
MO

January
_,
prepaid,
2006,
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