Bennett S. Greenspan v. Department of Veterans Affairs Document 11

Court of Appeals for the Federal Circuit
Case No. 05-3302
Filed January 23, 2006

REPLY BRIEF OF PETITIONER BENNETT S. GREENSPAN . BY BENNETT S. GREENSPAN (PETITIONER ). SERVED BY MAIL ON 1/23/2006. FILED ON 1/23/2006 . (NON-CONFIDENTIAL)

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Page 1 D
D
O
No. 05-
D
D
D
ID
D
D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL
CIRCUIT
BENNETT
S. GREENSPAN,
Petitioner,
VS.
DEPARTMENrl
" OF VETERANS
AFFAIRS,
Respondent.
)
)
)
)
)
FILE
JAN _ 8 ZOO,v,
JAtt
HORB_
)
Petition for Review of the Merit Systems
Protection Board in CH 1221010192-B-!
REPLY BRIEF OF PETITIONER
BENNETT
S. GREENSPAN
©
L
Husch & Eppenberger,

LLC
Harvey M. Tettlebaum
Robert L. Hess II
235 East High Street, Suite Jefferson City, MO Phone: 573-635-Fax:
573-635-
_
Aaomeys
for Petitioner
Bennett
S. Greenspan
Page 2 Table of Contents
Table of Contents .............................................................................................
Table of Authorities
Argument
I.
II.
........................................................................................
........................................................................................................
The Merit Systems Protection Board Erred by
Considering
Whether Dr. Greenspan Acted
Disrespectfully,
Because He was Not Disciplined
by the Agency for Acting Disrespectfully
.................................
i
ii
i
The Merit Systems Protection Board Erred in Entering
Judgment for the Agency, Because Substantial Evidence
Does Not Support its Decision
"Unfounded
and Defamatory"
that Dr. Greenspan Made
Comments .................................

III. The Merit Systems Protection Board Erred in Entering
Judgment for the Agency, Because Substantial Evidence
Does Not Support its Decision that Dr. Greenspan's
Proficiency
Report Would Have Been Lowered Absent
His Protected Disclosures ...........................................................
Conclusion
......................................................................................................
Certificate
of Service
Certificate
of Compliance
ol_61 i.ol
....................................................................................
.............................................................................
i
I11
Page 3 ,Table
of Authorities
Cases
Hew
York Times
St. Amant
Yunus
v. Thompson:
v. Dep:t
Administrative
Hawkins
Other
Co. v. Sullivan,
of Veterans

3"/5 U.S.
U.S.
Affairs,
727 (1958)
242 F.3d
.........................
4, 5,
...............................................

1357 (Fed.

Cir. 2001) ............
Decisions
v. Smithsonian
Inst.,
73 M.S.P.R.
Unabridged
Dictionary,
397 (1997)
.................................

Authorities
Webster's
Revised
© ]
ol_,.ol
254 (1954)
ii
......................................
4
Page 4 Ar_oument
I.
The
Merit
Whether
Not
with
of
Crosetti,
A421.
The Merit
Systems
evidence
Greenspan's
asserts four
Motion
being disciplined
and Dr.
Dobrin
Affairs
for making disrespectful
to Ms.
formally
o;8_611.ol
of those
disciplined
or "MSPB")
xwongly
evidence
of the
In its Brief,
the Board's
reliance
on
was on notice that he was
comments,
Crosetti,
Dr.
In support,
Dobrin's
and a letter from Dr. Greenspan
None
A365,
because
about the appropriateness
from
A700.
of Penalties.
Resp. Brief at 28-32.
Resp. Brief at 29-30.
meeting,
VISN
conduct
Pet. Brief at 18-22.
argues that Dr. Greenspan
him
about
Dr.
disrespectful
to exclude
separate reasons to justify
chastised
Dobdn
Table
in Limine
He Was
charged
comments
Board ("Board"
after the meeting.
Dr.
Because
("Agency")
and defamatory
conduct.
Considering
Disrespectfully.
under the Agency's
of uncharged conduct.
First,. the Agency
for Acting
Protection
by
Disrespectfully,
Veteran
uncharged offense of disrespectful
the Agency
Erred
and did not charge him with
is a separate offense
Dr.
Acted
unfounded
which
overruled
Board
by the Agency
making
Patficia
Protection
Greenspan
Department
Greenspan
Director
Dr.
Disciplined
The

Systems
documents
for his statements
of his comments
the Agency
summary
to Ms. Crosetti.
states that
cites a letter
of the March
A371,
Dr. Greenspan
at the meeting.
!
Mr. Campbell
A383-84,
has or will
They
!
be
do not even
Page 5 address the topic of discipline.
was disciplined,
Dr. Greenspan
be construed
the Agency
to and
in support
manner.
Resp.
Greenspan's
claims
of the
Brief
charge
at 30.
ld at 31.
proposed
one day suspension
because
to his "blunt"
Agency
attempts
as an "aggravating
Factually,
in reducing
to a reprimand,
underlying
The Chief Network
offense.
factors.
A69.
/d.
He actually
mitigation
of the proposed
throughout
this proceeding,
of disrespectfulness
under
one
Greenspan.
importantly,
charge
Officer
as the underlying
charged
cannot
an entirely
to the charged
discipline

from a
Officer
factor
to the
any
required
has wrongly
treated
did
done
the uncharged
offense.
use
the specifications
different
Dr. Greenspan
The four specific
Dr.
did not consider
As the Agency
the Chief Net, york Officer
bootstrap
statements.
factor"
as an aggravating
ld.
the Agency
The Agency
and defamatory
olsT_ii.oi
to
to recharacterize
found that the circumstances
discipline,
acts
"arrogant"
the Chief Netavork
disrespectfulness
was
specific
and
Dr. Greenspan's
not treat Dr. Greenspan's
More
notice to
of disrespectfulness
two of the four
referred
The
disrespectfulness
conduct,
conduct
Dr. Greenspan
as nor do they constitute
that evidence
pan of the charge
alleged
aa_ravating
before
of the basis for his discipline.
Second,
relevant
and cannot
The), were prepared
with
charge
making
acts alleged
against
listed
Dr.
unfounded
by the Agency
Page 6 notified
made
Dr. Greenspan
unfounded
charged
and
with
v. Smithsonian
protected
The
issues,
and
to discipline
however,
Dr. Greenspan
Fourth
and
the Board
the disrespectful
nature
action
consideration
Ol_61i.OI
the
against
Resp.
conduct
relied almost
of the irrelevant
Dr.
evidence
that
disclosures,
that
the
comments
was
before the Board.

See
that the
absent
supports
the
17-18, 27, 31.
it would
have
the Agency
must
Board's
Resp.
totally on the Agency's
Greenspan
the
at all.
was harmless.
of Dr. Greenspan's
him.
argues
Brief
To show
claims
use
(1997).
evidence
Dr. Greenspan
Agency
never
Dr. Greenspan
the
Dr. Greenspan.
of uncharged
To the contrary,
Agency
whether
was
cannot
its Brief, the Agency
not
he had
Dr. Greenspan.
397, 401-
absent the protected
finally,
evidence
Agency
have disciplined
to discipline
believed
Dr. Greenspan
the charge against
are not independent.
show that it was entitled
admitting
would
disclosures,
the Agency
The
Inst., 73 M.S.P.R.
the Agency
decision
disciplined
conduct.
at page 3 i and throughout
issue is whether
Agency's
when
statements.
as a basis for changing
Third,
his
defamatory
disrespectful
specifications
Hmvkins
of the instances
error
in
Brief at 32.
evidence
in upholding
prejudiced
by
of
the
the
Page 7 H.
The
Merit
Systems
Protection
Board
Erred
in Entering
Judgment
for the Agency,
Because
Substantial
Evidence
Does
Not
Support
its
Decision
"Unfounded
and Defamatory"
The
would
Agency
have
Resp.
Brief
Agency
did
disciplined
pp.
justify
but
show
Dr.
The
Dr.
Greenspan
has
since
by clear
Greenspan
18-28.
charged
statements,
not
that
Dr.
Comments.
support
convincing
absent
his
on
making
was
of an
that
it
disclosures.
very
weak.
and
defamatory
unfounded
evidence
Made
evidence
protected
for the discipline
with
relied
and
Greenspan
uncharged
The
offense
to
the discipline.
Regarding
"defamatory"
the
actual
statements,
charged
conduct
the Agency
of making
acknowledges
that
"unfounded"
and
Dr. Greenspan
had
a basis
O
for his
belief,
Greenspan
needed
or specific
knowledge"
proof
Resp.
Brief
them
to be "founded."

(defining
idle").
at 19-21.
a medical
Greenspan
of the VISN.
ot_tt.o
before
at
19, but
See
making
staff
York
public
only
Webster's
proof
Times
needed
a basis
government
his concerns
Co. v. Sullivan,

about
Ms.
Crosetti.
for
Dictionary,
foundation;
and
Dr.
for his claims
Unabridged
claims.
that
or "concrete
about
of those
representative
to voice
statements
no
believes
of documents
Revised
as "[h]aving
conclusive
apparently
in the form
Dr. Greenspan
had an obligation
See New
Brief
of his belief
"unfounded"
He did not need
As
Resp.
baseless;
©
vain;
employee,
Dr.
the administration
U.S.
254,
282 (1964)
Page 8 (explaining
duty
that,
to criticize
Amendment
conclusive
kind
of
is
nepotism
Greenspan

e
their
are meant
served
by
('WPA")
freedom
honest
would
of
to prevent.
protect
government
complaints
to a comparable
is as much
to administer").
Act
id. at
frank
First
him
from
to
the
the
(noting
First
that
a
the truth of all his
%elf-censorship'
and
The
exactly
which
to guarantee
his
employees
create
speech
See
conduct
"[i]t
").
The
public
communication
among
employees.
evidence
and
was
quite
clear
the administration
founded
his claims
The
The
A258,
01S.7611.
on
leads
appointment
advisor

duty
Requiring
lodging
the critic of official
best
government
The
official's
concerns.
effect
assertions..,
of government,
Protection
before
and _,x,
rpA
compelling
interest
the
those
proof
chilling
Amendment

it is
in voicing
have
factual
as
and Whistleblower
retaliation
"rule
for the citizen-critic
I. 11-25;
Dr. Greenspan's
of the canteen
of nepotism
of
for the \rISN,
pending
that
Ms.
service
claims
were
concerning
founded.
Dr.
on:
Crosetti's
husband
as chief
dental
A524;
Inspector
General
A259,
I. 25; A260,

investigation
I. !-5; A263,
of
Ms.
i. 7-15;
Crosetti
and
Page 9
Concerns
from
medical
staff
A334,
Dr. Greenspan

The
A335,
that
Dr.
A286,
regarding
of the
chief
received
A322,
as
I. 10-15;
I. 15-24.
the canteen
relationship
and the associate
Greenspan
I. 10-15;
I. 1-4; A336,
his claims
husband/wife
VISN
staff
representative,
l. 20-25;
founded
medical
service
business
of the canteen
on:
director
service,
of the
A288,
I. 3-
6; and

The
possibility
overlap
of personal
In addition,
is no evidence
actual
is shown
The
the
The
First
defamation,
criticizing
his
Amendment
because
official
must
show
was
policy.
made
the proponent
Ms.
for
public
a
vital
were
of his
test
Where
of the
that a statement
that
the
with
of the speech

or were
malice
malice,
knew
figures
Brief

with
U.S.
at 23.
a public
are involved,
to
and
the subject
that
made
malice
in evaluating
Co.,
There
whether
actual
Times
I. 7-25.
of Dr. Greenspan
Resp.
and
of
by that
defamatory.
determining
interest
actual
not
Crosetti
officials
Nenv York
created
A
conduct."
showing
public
benefit
relationships,
that the actual
nature
requires
public
harmed
suggests
defamed.
financial
comments
comments
Agency
show
oizz61Lol
Greenspan's
misunderstands
has been
improper
and business
by the "premeditated
Agency
official
Dr.
that
malice.
for
prove
at times
at 283.
To
of the speech
the statements
were
Page 10 false or acted with reckless
about them.
St. Amant
has not proved
made
in the
throughout
where
officials
to request
A309, I. 22-24.
request,
experience
against
O
comments
at Truman
and
Office."
against
and actually
made his comments,
were
Hospital
intended
activities.
Dr. Vincent
resign
and
to retaliate
After the meeting
Aivarez
as medical
told
Dr.
cuts
if he did not resign.
Greenspan
report
persistence
directed
that
score,
in "going
the
staff representative.
hospital
A309,
Dr. Dobrin
over our heads
Dr.
to present
would
likely
!. 9-24;
A391.
In
specifically
cited
Dr.
in the hospital
and going
A300, 1.4-7.
has cited
employees
in support
Dr. Greenspan.
was imposed
OIS26II.OI
care
doubts
The Agency
Chief of Staff Dr. Dobrin met with Dr. Greenspan
The Agency
evidence
patient
that Dr. Greenspan
funding
Greenspan's
actions
Dr. Greenspan's
had a strong motive
his proficiency
to Central
because
for his whistle-blowing
Dr. Greenspan
lowering
390 U.S. 727, 731 (1968).
of improving
Dr. Greenspan
Dobrin
this
malice,
he had serious
the \qSN.
Agency
against
v. Thompson,
actual
interest
disregard at a time when
no evidence
who were
of the charged
it took
not whistleblowers.
conduct,
and the absence
on non-whistleblowers,
that
the strong
of evidence
the Agency

similar
disciplinary
Given
motive
that similar
the weak
to retaliate
discipline
did not carry its burden
of
Page 11 O
proving
by clear
Greenspan
Affairs,
III.
and
absent
242 F.3d
The
Merit
convincing
evidence
that
his protected
disclosures.
1367,
fled.
1372-
Systems
Protection
it would
See
have
Yunus
disciplined
v. Dep 't of Veterans
Cir. 2001).
Board
Erred
in Entering
for the Agency,
Because
Substantial
Evidence
Does
its Decision
that Dr. Greenspan_s
Proficiency
Report
Been Lowered
Absent
His Protected
Disclosures.
The
Agency
personal
argues
qualities
was
lowered
whistle-blowing
activities.
vCho lowered
Dr. Greenspan's
I. 1-20.
He testified
comments
at the
officials
and
irritating.'"
that
March
I. 13-22;
Dr.
Greenspan's
because
Resp.
Congress,
A298,
that
Brief
of
report
he lowered
the score
1 meeting
and
which
Dobrin
A299,
his
at 32-34.
proficiency
Dr.
Dr.
his
I. 7-10;
Not Support
Would
I-lave
proficiency
conduct,
rather
Dr. Dobrin
was
score.
A298,
because
found
score
on
than
his
the person
I. 5-25;
A
of Dr. Greenspan's
contacts
A300,
Judgment
with
"just
I. 4-25;
senior
Agency
absolutely
A301,
very
I. !-!5.
CONCLUSION
For these
Court
reverse
the Agency
ol_ll.ol
reasons.
the decision
and remand
Petitioner
Dr. Greenspan
of the Merit
the case
Systems
for further

respectfully
Protection
proceedings.
prays
Board
that
in favor
the
of
Page 12 Respectfu
:
HUSCH
"
y Submitted,
&l'lEPPENB
ERGER,
HARVEY
M. TETTLEBALIM
Mo. Bar//
ROBERT
L. HESS
Mo.
II
Jefferson
East High
City, Street,
MO Suite
Phone:
573-635-Fax:
Attorneys
OIS_ll.OI
LLC
Bar #
573-635-
for Petitioner

Bennett
S. Greenspan
Page 13 Certificate
The undersigned
were
forwarded
prepaid,
Kelly
this
hereby
23rd
certifies
Of Service
that two copies
day of January,
to:
B. Blank
Deparunent
of Justice
Commercial
Litigation
1100 L. Streek NAY.,
Washington,
D.C.
Daniel
C. Rattray
Office
of Regional
Department
I Jefferson
S_. Louis,
- Civil
Room
Division

Counsel
of Veteran
Affairs
Barracks Drive
MO
on,._-6n.on
I
2006,
of the foregoing
by first class
mail,
brief
postage
Page 14 Certificate
Of Compliance
The undersigned counsel hereby certifies that this brief contains 1,words, exclusive of the items set forth in Rule 32(a)(7)(B)(iii)
of the Federal
Rules of Appellate Procedure and those set forth under Rule 32(b) of the
Federal Circuit Rules, based on the word count
Word 2002 SP3. This Brief has been prepared
typeface
using Microsoft
\Vord 2_02 SP3 in Times New Roman font size 14.
Attorneys for Petitioner
January 23,
D
®
Q
ov_oo.ol
that is part of Microsoft
in a proportionally
space
Il
Bennett
S. Greenspan
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