Bennett S. Greenspan v. Department of Veterans Affairs Document 22

Court of Appeals for the Federal Circuit
Case No. 05-3302
Filed November 29, 2006

RESPONDENT [DEPARTMENT OF VETERANS AFFAIRS ]-PETITION FOR REHEARING. MAIL SERVICE-11/29/2006.

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Page 1 ESTIC $
05-
UNITED
STATES
COURT
OF APPEALS
BENNETT
FOR
THE
FEDERAL
CIRCUIT
S. GREENSPAN,
FILED
U.$. COURTOF APPEALSFOP
rUE FEDERALCIRCUIT
Petitioner,
V.
DEPARTMENT
_q!)V _ 9 2[]
OF VETERANS
,JAN t10/_,_
AFFAIRS,
Respondent.
Petition
for Review
of the Merit Systems
In CH-1221-01-0192-B-I
CORRECTED
OF RESPONDENT,
PETITION
THE
FOR
Protection
PANEL
DEPARTMENT
Board
REHEARING
OF VETERANS
PETER
D. KEISLER
Assistant
Attorney
DAVID
M. COHEN
AFFAIRS
General
Director
KENNETH
M. DINTZER
Senior
Counsel
Trial
Commercial
Litigation
Civil Division
Department
of Justice
Washington,
Tel:
November
29,
(202)
Attorneys
D.C.

305-for
Respondent
Branch
Page 2 TABLE
OF CONTENTS
TABLE
OF AUTHORITIES
..........................................
ii
Reason
For Panel Rehearing
..........................................

Argument
Conclusion
.........................................................

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

-i-
Page 3 TABLE
OF AUTHORITIES
CASES
Greenspan
v. United
F.3d
Horton
66 F.3d
1297,

v. Dep't
ofthe
279,

States,
(Fed.
Cir. 2006)
..............................
passim
Navy,
(Fed.
Cir.1995)
......................................

STATUTES
Whistleblower
Protection
Act,
5 U.S.C.
§ 2302(b)(8)
-ii-
......................
2
Page 4 05-
UNITED
STATES
COURT
OF APPEALS
BENNETT
FOR
THE
FEDERAL
CIRCUIT
S. GREENSPAN,
Petitioner,
V.
DEPARTMENT
OF VETERANS
AFFAIRS,
Respondent.
CORRECTED
PETITION
RESPONDENT,
THE
Pursuant
40 of the Federal
to Rule
defendant-appellee,
petitions
the United
the Panel
System
States,
for rehearing
In its September
Protection
8, Board,
REHEARING
OF VETERANS
Rules
of Appellate
for the reasons
stated
OF
AFFAIRS
Procedure,
below,
respectfully
in this case.
FOR
PANEL
decision,
with
proceedings
including
determination
disciplinary
actions."
Greenspan
2006).
PANEL
DEPARTMENT
REASON
Merit
FOR
REHEARING
this Court
remanded
this matter
the following
direction:
"remand
of the remedy
appropriate
v. United
States,
464 F.3d
to the
for further
to the improper
1297,

(Fed.
Cir.
Page 5 Although the Panel likely did not intend to conclude that the discipline of
Dr. Greenspan was "improper" and that the MSPB should directly proceed to the
damages phase of the case, the language in Greenspan could be misinterpreted if
not clarified.
The Panel itself recognized, in the body of its opinion, that case is at
an intermediate stage and further proceedings are necessary to determine whether
the discipline of Dr. Greenspan was "improper" and if Dr. Greenspan is, in fact,
entitled to any remedy. Thus, we respectfully request that the Panel clarify the
remand.
ARGUMENT
In its opinion,
the Panel
The Board,
that
correctly
at this
stage
Dr. Greenspan's
agency's
actions
stated
adverse
the meaning
of § 2302,
contributing
factor
were
presumed
protected,
personnel
and that
actions
actions.
F.3d

279,
Horton
(Fed.
the administrative
v. Dep't
Cir. 1995).
judge
agency could establish,
evidence,
that it would
judge
disclosures
were
actions
constitute
that
were
a
of the Navy,
should
remanded
to
of whether
protected
The Board
not established,
determine
and whether
personnel
actions
on

by clear and convincing
have taken the same actions
the absence
of protected
disclosures.
instructed
that if this defense
were
administrative
within
that it would
of the
The Board
fQr determination
the
To prevail
these premises,
the agency had to establish
have laken the same actions in the absence
disclosures.
that
his disclosures
to the agency's
protected
posture:
of the proceedings,
disclosures
were
the case's
whether
in
the
the
the agency
under
the
the [
took
Page 6 Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8)
("WPA")]
because
:t¢ :¢
The
administrative
actions
even
because
appeal,
This
followed.
appeal
at 1303.
the only
issue
The Panel
been
As the Panel
to determine
actions
whether
that
protected
recognized,
personnel
were
actions
dismissed
denied
step
protected
under
Dr.
review.
the agency
had
established
of the allegedly
conclusion
the next
the disclosures
and
judge
the MSPB's
not
that
such
protected
a showing
is for the administrative
and whether
the WPA
because
that
the agency
had
judge
took
of those
disclosures.
Given
including
constitute
reversed
were
was rude
in the absence
that
disciplinary
statements
was whether
actions
and found
the same
and the full Board
on appeal
the same
disclosure.
made.
taken
his conduct
Greenspan's
taken
disclosures.
a hearing,
The administrative
464 F.3d
have
have
held
if Dr. Greenspan's
disrespectful.
it would
judge
would
protected,
Thus,
protected

the agency
Greenspan,
of those
this undisputed
determination
the Panel's
of the remedy
actions,"
is at best confusing
expected
on remand.
Accordingly,
posture,
and could
we respectfully
appropriate
remand
that
further
to the improper
lead to needless
request
"for
the Panel
litigation
clarify
proceedings
disciplinary
as to what
Greenspan
is
to
Page 7 make clear that, on remand, the administrative judge should determine whether the
disclosures were protected and whether the agency took actions that constitute
personnel actions under the WPA because of those protected disclosures.
CONCLUSION
For these
reasons,
we respectfully
request
that the Panel
grant
for rehearing.
Respectfully
PETER
submitted,
D. KEISLER
Assistant
_nior
Attorney
Trial
General
Counsel
Commercial
Litigation
Civil Division
Department
Attn:
of Justice
Classification
8th F1.,
Washington,
November
29,
D.C.
Unit,
L. St., N.W.
Tele:
(202)
616-
Fax:
(202)
307-
Attorneys
Branch
for Respondent
this petition
Page 8 AMENDED
I hereby
served
copies
declare
on the 29TH
of "CORRECTED
RESPONDENT,
following
that
manner
THE
CERTIFICATE
addressed
day of November,
PETITION
DEPARTMENT
OF SERVICE
FOR
PANEL
OF VETERANS
as follows:
By First-Class
Mail
Robert L. Hess II
Husch & Eppenberger, LLC
235 East High Street, Suite Jefferson City, MO
2006,
I caused
REHEARING
AFFAIRS"
to be
OF
in the
Page 9 ----'1"
United
States
Court
of Appeals
for the Federal
Circuit
05-
BENNETT
S. GREENSPAN,
Petitioner,
V,
DEPARTMENT
OF VETERANS
AFFAIRS,
Respondent.
Robert
argued
L.
Hess,
for petitioner.
II, Husch
With
& Eppenberger,
LLC,
him on the brief was Harvey
Kenneth
M. Dintzer,
Attorney,
Commercial
United States Department
of Justice, of Washington,
of Jefferson
City,
Missouri,
M. Tettlebaum.
Litigation
Branch,
Civil Division,
DC, argued for respondent.
With
him on the brief were Peter D. Keisler, Assistant
Attorney
General,
David M. Cohen,
Director,
Harold D. Lester, Jr., Assistant
Director,
and Kelly B. Blank, Attorney.
Of
counsel on the brief was Daniel C. Rattray, Attorney,
Office of Regional Counsel,
United
States
Department
Appealed
from:
of Veterans
United
States
Affairs,
Merit
of St. Louis,
Systems
Missouri.
Protection
Board
Page 10 i
United
States
Court
of Appeals
for the Federal
Circuit
05-
BENNETT
S. GREENSPAN,
Petitioner,
V.
DEPARTMENT
OF VETERANS
AFFAIRS,
Respondent.
DECIDED:
Before
NEWMAN,
MAYER,
Opinion for the court
JudcLe RADER
NEWMAN,
Circuit
Dr. Bennett
Protection
disciphnary
was Medical
Veterans
by Circuit
S. Greenspan
Docket
actions
taken
Director
5U
and RADER,
Circuit
8,
Judqes.
Judg_¢ NEWMAN
Dissenting
opinion
filed
by Circuit
Judqe.
Board_
Hospital
ProtechonAct,
filed
September
petitions
No. CH1221010192-B-1,
in retaliation
of the Nuclear
in Columbia.
S.C
for revJew
for certain
Medicine
Missouri.
§2302(b)(8)(theWPA)
of the decision
denying
critical
Section
He _nvokes
The
his request
statements
at the
HarryS
the protection
Board
of the Merit
upheld
Systems
for correction
that he made
Truman
while
of
he
Memorial
of the Vk/hlstleblower
the agency's
position
Page 11 that the letter of reprimand and reduced proficiency rating would have been given because
of the manner in which the protected disclosure was made, independent of the content of
the disclosure; thus the Board ruled that Dr. Greenspan was not entitled to the protection
of the WPA.1 We conclude that the Board erred in law, for the WPA does not contemplate
removal of protection when protected subject matter is stated in a blunt manner. We
remand to the Board for application of the protection of the WPA to Dr. Greenspan, and
determination of appropriate remedy.
BACKGROUND
Dr. Greenspan was elected by the Truman Hospital's medical staff to serve as
Medical Staff Representative to the hospital management. The events at issue occurred
at a Medical Staff meeting
taken
a vote
Officer
of "No
of Veterans
hospitals
on March
Confidence
Integrated
and forty clinics,
1, 1999.
Jn the
Servrce
headquartered
The purpose
Ms. Crosettitestified
and let the medical
lack thereof,
we were
of the budget,
going
At the meeting
and answer
LEXIS
05-
staff
and tile
to address
Dr. Greenspan
Greenspan
(June
spoke
earlier
City,
Chief
a network
of eight
Kansas.
and she had been
the MSPB,
the strategic
management
drrection
issues
of quarters
and
we were
and
v. Dep't of Veterans
for about
Affairs.
8, 2005).

informed
the
had
Executive
veterans
of the
and
well-being,
to raise
out a year
opened
making
result.
concerns
fiscal
going
usually
five minutes,
Staff
Th_s was Ms. Crosetti's
wasto"hear
to the staff, and then the floorwas
spoke
the Medical
Pat Crosetti,
15 (VISN),
before
for the next couple
Ms. Crosetti
session.
after that vote.
know
of Ms.
in Kansas
Hospital
issues
leadership"
Network
first visit to the Truman
of her visit,
A few months
or
and that
or two."
for a question
the statements
No. CH1221010192-B-1,
MSPB
Page 12 here at issue. Following are his remarks as recorded at the staff meeting and played at
the MSPB hearing, as transcribed in the record:
Dr. Greenspan:
things
As you probably
in this Network
observations
about this.
First
(inaudible),
that we have
It seems
And it's not just a small
to speak
dissatisfied
a very
have
local minority.
up. A lot of people
with things.
Lack of physician
I think
input,
that needs
You know,
and
I think
probably
been
that
prowde
willing
to provide
to listen,
is a prescription
have not
of years
majority
around
good
realized
possibly
cardiac
throughout
possible
in Kansas
City
reasons we did.
much of a background
understand
care.
process.
care
in medicine,
a lot of the
That by itself
is okay,
nuances
but you
it's because
to our veterans.
the Network
we've
that
one of them
I think
that
haven't
we're
trying
that to Jgnore
that
you should've
trying
the Division
And
it by taking
and having
other
tTospitals
rates,

I think
of trying
around
of all of the
program
you should
to dismantle
lt. We sure
our costs
got to make
have
our
got the feeling
and sending
bid on it. And there
match
and they've
gone
advantage
our proposal
people
could
have
Our cardiology
one.
instead
tried to support
to dismantle
way' that the private
the Network.
is another
position.
are a number
of other
here, you should have
You should
to try to take positive
Geriatrics
that this is a dual
program,
better.
had throughout
costs are less than Medicare
we don't have to do.
05-
not
physicians
in the decJsion-makmg
and Jf we tell you something,
possible
and realized
that you were
they're
for disaster.
programs
is certainly
this, but I'm
mean
And the physicians
union for the same
don't have
medical
observing
the Network
loud about
ofourfulltime
In addition,
there a number of other -- there
(inaudible).
For one thing, Ithinkwhen
you started
gone
are
run in the last couple
But that doesn't
lack of participation
can't
good
the best
in this hospital
to change.
you're--you
you
of
to know
ago, and we're not the only hospital that
of physicians
in St. Louis, Leavenworth,
and Topeka
that feel the same way.
voted overwhelmingly
for a professional
And
people
of our staff members
I've been quite
An overwhelming
voted no confidence
a few months
feels that way. There are a number
some
I've got a number
for other
fine staff here
been
aren't.
to change
I'm not sure the managers
that the majority
with the way things
had--
it's useful
very well as a team.
team.
been trying
and I have
and I think
of all, I think
pleased
willing
awhile,
I have
and we work
on the same
been
for quite
and complaints,
know,
because
a profit,
it out
is no
our
which
Page 13 I
J
But in general,
we do provide
when
problems
with
there has been a major problem with lack of input, and
input, it hasn't been listened
to. We're also having
loss of veterans'
preference
is trying to support
that and promote
the deal with Canteen
Service, where
the
nutrition
that.
For
service
one
merge
thing,
thing,
it turns
Canales,
who
jobs
time Congress
it. What I'm referring
to specifically
is
you've mandated
Canteen
Service and
throughout
the VlSN.
it's a loss of veterans'
out that there
is the business
at the same
There's
preference
a problem
jobs.
with
For another
is a conflict
of interest
there because
Mayi
director
of the VlSN, is married to a guy that
who is high up in the Canteen
Service,
and so at the very least there's a
conflict.
At worst, there is public loss for private gain. That's a prohibitive
personnel
practice.
And
practices
Advisor,
on
top
of that,
there
have
been
other
prohibitive
personnel
such
as nepotism
with your husband
being
the Chief
and this is after he was-- he's not on the Dental Examiner's
but (inaudible).
(inaudible)
the Chief
This in itself
is probably
okay,
although
I don't
know
Dental
Board,
why the
also couldn't be the subject-matter
of (inaudible),
but to make him
Dental Advisor
was fully above and beyond
reason.
And he did
step down
on December
And
then
there
2nd,
by the way.
have
been
issues
of
reprisal,
which
are
also
prohibitive,
and we want this to stop.
It's got to stop.
Again, because
we
have a high quality of staff here, and we're trying to do the best we can to
provide care to our veterans
and that kind of stuff doesn't really belong here
frankly
I mean, our position
is to try and do the best job we can with the
resources
we have.
I realize though that it's difficult to--we
have (inaudible)
problem
illegal
coming
up.
but that
doesn't
mean
should
do things
that
are
(inaudible).
Unidentified
Speaker:
Do you
have
a question?
Dr. Greenspan:
Do l have a question?
wall, but I understand
you are working
heard
a rumor
Unidentified
that the topic
Speaker:
That's
Dr. Greens. apaD_ Well,
of ethics
done
that's
Tom
Sanders
I am
I asked
been
you th_s is that there
run.
There
got to stop
humiliated
bylhe--you
you're
rehashing

is a problem
are a lot of things
and that's
publicly
new regarding--
Is that true?
personal.
the reason
(maudible),
Well,
guessldo,
lt's a little bit off the
on a Ph.D. and my question
is -- I've
_s on ethics.
m the way th_ngs have
been
anything
05-
we
that have
also.
haven't
brought
stuff that has been there
up
for ages
Page 14 and everybody has talked about, and I don't know what the purpose of that
would be except to try to publicly humiliate someone, and I am ashamed.
Dr. Greenspan:
But I'm trying to point out there are some issues here that
we do need to address and we do need to correct.
For example,
in terms of
clinical activities
-Tom
Sanders:
(inaudible)
Let's
get to -- if you are arguing
that haven't
Dr. Greenspan:
-- up until
Oneofthem
recently,
(inaudible).
been
And
hemoglobin
Alc
across the street
that's
is the (inaudible)
we have
as most
rehashed,
testing and
is one that--
those
probably
concerned
a marginally
MSPB
Record
management
across
the street
is a test
to
to look
mandated
to do the test
have the same accuracy
that it may turn a very accurate
useful
we have been
at
blood sugar levels.
The lab
has been providing
that for us
for a long time.
I understand
now that we're
also. The problem is that the test here doesn't
and we're
this
specific
here for.
where
tests
know,
handling
their
Dr. Goldstein
(inaudible)
we're
business
been sending
of you
specific
what
test
here
rate,
into a marginal
--
one.
at 266-74.
The record
of the hospital
states
that three
at thatnqeeting
other
The meeting
physicians
ended
also criticized
when
the
Ms. Crosettileft
the room.
The minutes
Truman
Hospital,
lhe network
stated
outburst
any emotional
rnteractionswith
O5-
,with "the
displayed
d_scornfor[
Drs
Greenspan
and accused
description
engaged
the Chief
wrote
of the
by Mrs. Croseth,"
Watsonand
B. Dobrin,
He described
Adelstein
that we caused
Demmy,
by Dr. Philip
practices."
" Dr. Edward
his "disagreement"
emotional
present,
and unethical
inappropriate
signed
that "Dr. Bennett
management
_n _llegal actwJbes
"grossly
of the meeting,
Parker

Executive
Dr.
"[w]hile
director,
as well
statements
Greenspan
her actions
upon
of engagHlg
to the minutes,
the enhre
of the
attack
Officer
Dr. Greenspan's
that
and that,
the VISN
in a personal
an addendum
role
the Chief of Staff
played
as
stating
in the
staff is sorry
for
were
by
as Dr. Greenspan."
driven
Page 15 Dr. Greenspanalso added a statement to the minutes, stating that "Dr. Parker also
stated that ourVISN CEO hadto take some ownership for consequences of her decisions
made _n the VISN office," after which Ms. Crosetti "lost her composure, essentially
threatened our entirehospital, and stormed out of the meeting." Dr. Greenspan wrote that
the issues he had raised reflected the concerns of the "overwhelming majority of our
medical staff." Anotherwritten comment to the minutes, by Dr. Terry S. Hoyt, states: "Both
Dr Adelstein's and Dr. Greenspan's comments are pertinent "
Severalofthose in attendancewrote apologies to Ms. Crosetti; for example, Dr. Gail
Wright wrote that "the doctors who spoke are a small and much too vocal faction"; Dr.
Karen Zanol wrote that "Drs Greenspan and Parker were both inappropriate in their
remarks " Dr. Greenspanalso wroteto Ms Crosetti."My personal comment regarding your
Ph D thesis was inappropriate, and I am sorry for making that comment
Some of my
other comments were of a personal nature, which was also inappropriate, and for that also
lamsorry
I realizethat my comments were disruptlve . ..
]-hree weeks after the meeting, onMarch22, 1999, Mr Campbell, Director of the
-FrumanHospital. _ssueda Notice to Dr. Greenspan stating: "1am, therefore, suspending
you for three days for your conduct at this open meeting _nwhich you engaged in a
personal attack onthe Network CEO." This Notice was rescinded for "procedural errors"
and on IVlarch31, 1999 a new Noticewas issued, proposing that Dr. Greenspan would be
suspended for oneday for making "unfounded statements which were defamatory about
a sen_or VA official," and stating that he had the right to reply orally or in writing. Dr.
Greenspan rephedorally on June 29, 1999 to Dr. Carol Lake. Chief of Staff at Roudebush
VA Ivledlcal Centerin Indlanapohs. Indiana, who was appointed as Hearing Officer by Mr
05-
6
Page 16 Kenneth Clark, the Chief Network Officer and designated deciding official.
Upon
consideration of Dr.Greenspan's reply, Dr. Lakerecommendedthat Dr.Greenspan instead
should receive "positive" disciplinary action in the form of attendance at a formal program
on the business of medicine, and mentoring about organizational behavior and effective
communication. Mr Clark rejected Dr Lake's recommendation and tssued a formal letter
of reprimand on September 17, 1999.
In the repnrnand Mr. Clark acknowledged Dr. Greenspan's entitlement to express
opinions at a medical staff meeting, but criticized the "statements about a senior VHA
management official at the March 1, 1999, Medical Staff meeting" that were presented in
"a derogatory, inflammatory and inappropriate manner." On August 16, 1999 Dr Hoyt, Dr.
Greenspan's immediate supervisor, completed Dr. Greenspan's proficiency evaluation for
the year ending July 7, 1999; Dr. Hoyt rated Dr. Greenspan as "High Satisfactory" in all
categories. On August 19, 1999 Dr. Dobnn lowered Dr. Greenspan's proficiency rating for
"Personal Qualities."from "High Satisfactory" to "Satisfactory."
Dr. Greenspan filed a requestfor correctiveaction with the Merit Systems Protection
Board, claiming that the agency had retaliated for his"whistleblowlng" by issuing the letter
of reprimand and by reducing htsproficiency rating. On March 20, 2001 the admln_stratwe
judge dismissed the petition for lack of jurisdiction on the grounds that the Iowenng of a
proficiency rating was not a personnel actton under the WPA, and that tile letter of
reprimand was outside of the Board's jurisdiction because the record showed that Dr.
Greenspan had elected to pursue that aspect through grievance under a collective
bargaining agreement.
05-
7
Page 17 /
Dr. Greenspan
allegations
!
appealed
to the full Board,
that he had engaged
a contributing
factor
in
the
in protected
agency's
which
activity
Dr. Greenspan
finding
this conclusion.
had established
The
within
were
the
agency's
at this
actions.
that
d_sclosures.
protected
award
'2 n.
05-
rejected
the
procedure,
premises,
taken
the
instructed
that
adverse
were
a contributing
could
same
estabhsh,
actions
if this
defense
personnel
actions
Dep't
to the administrative
and convincing
absence
were
not
of
the WPA
protected
established,
protected
under
to the
that it would
Hortonv.
by clear
in the
actions
factor
disclosures.
remanded
Greenspan's
personnel
had to establish
protected
The Board
the agency
Dr.
were
the agency
ofthe
that
the
and whether
because
of those
d_sclosures.
and
"request
presumed
actions
Cir. 1995).
that const_tute
Board
were
held that Dr. Greenspan
shoulddetermJnewhetherthedisclosureswere
took actions
On remand,
have
Board
administratavejudge
(Fed.
disclosures
the grievance
The Board
his disclosures
in the absence
of whether
it would
The
the agency
on these
66 F.3d 279,
The
had elected
proceedings,
agency's
and that
actions
action.
nonfrivolous
the WPA.
of the
that the
To prevail
for determination
evidence,
stage
of §2302,
the same
of the Navy,
under
protected,
meaning
have taken
judge
its jurisdiction
Board.
disclosures
did not support
and that protected
disciplinary
administrativejudge'sconclusionthat
that the record
held that he had made
the
the administrative
disciplinary
for corrective
of consequential
The
admlnlstratlve
judge
actions
action"
had
was
damages
judge
noted
been
removed
not thereby
if he prevails."
held
a hearing,

that Dr. Greenspan
moot
from
his
"because
Greenspan,
and found
had resigned
personnel
he may
MSPB
that the
in July
file,
but
be entitled
LEXIS
agency
to an
2871,
would
his
at
have
Page 18 {
L
taken
the same
because
disciplinary
his conduct
Greenspan's
actions
even if Dr. Greenspan's
was rude and disrespectful.
appeal,
and the full Board
statements
were
The administrative
denied
review.
This appeal
not protected,
judge
dismissed
Dr.
followed.
DISCUSSION
The
WPA
disclosure
prohibits
of information
reasonably
believes
mismanagement,
specific
that
agency
would
Personal
there
was
have
Qualities
When
absence
health
idenhfled
issued
reason
in the absence
70 M.S.P.R.
factors
of any motive
against
similarly
Security
endorsed
has carried
to retaliate
situated
Administration.
the analytic
its burden
action
disclosures,
aft'd,
parameters
of establishing
the
would
set forth

or (ii) gross
and
Dr. Greenspan
holding
his proficiency
have
116 F 3d including

in _
by clear
or applicant
or a substantial
Board's
the Board
been
in Geyer
(Fed.
Cir.
the strength
is excluded;
that
the
rating
for
(Fed.
aspect
Cir. 1999),
for determining
and convincing
evidence
taken
in the
v. Department
1997)
(Table),
of the agency's
the existence
and any evidence
for the non-whistleblowing
1318,
of "any
disclosures
the whistleblowing
185 F.3d
because
§2302(b)(8)(A).
and reduced
for thewhistleblowing,
employees
of authority,
to support
be considered,
when
the employee
" 5 US.C.
agency
688 (1996),
action
....
of Reprimand
whistleblowmg
that may
which
an abuse
evidence
the
action
of any law, rule, or regulation,
of the protected
whether
682,
for the personnel
strength
and safety
the Letter
determining
several
of funds,
not substantial
personnel
or applicant
(i) a violation
waste
of the employee's
of Jushce.
05-
evidences--
to public
of any adverse
by an employee
a gross
danger
argues
Social
the taking
and
ofsimilaraction
alone.
InCarrv
the Federal
whether"an
Circuit
agency
that it would
have
Page 19 taken
the personnel
action
at issue Jn the absence
of the disciplined
employee's
protected
disclosure(s)."
The
retaliation
charged
agency
"conduct,"
in the
Notice
conducting
accused
Suspension,
Ms.
of Dr. Greenspan's
statements
The
comments
statements,
and behaved
with "open
it trrelevant
instead
incorporated
statements
You
specific
Staff
which
accused
that
were
disrespect,"
Patricia
illegal activities
A
about
Crosetti,
mcludmg
with
arrogant
practices
regard
unfounded
made
MSPB
"inappropriate"
LEXIS
these
of proposed
you made
2871,
aspects,
suspension":
unfounded
Network
15 CEO
to her husband
of
and;
a conflict
of interest
regarding
the
program
with the VA Canteen
Service

and
that resulted
VA official:
VA Heartland
nepotism
and
disclosures.
had
in the notice
a senior
blunt
for making
did not mention
1, 199g,
it was referenced
statements,

was on
it was the "unfounded
whtstleblowing
Greenspan,
held on March
defamatory
those
Dr. Greenspan
(1) to (4) as stated
meeting
stresses
The
and disrespectful
personnel
Dr. Greenspan
not protected
(2) You accused
Ms
Crosetti
of
consolidation
of the Food Produchon
05-
" The agency
that the letter of reprimand
"Reason
At the Medical
finding
In a very
in
of Reprimand
were defamatory."
because
prohibited
reprirnanded
were
judge,
"(3)
not the "content"of
have
administrative
stated:
taken
that Dr. Greenspan
action
of performing
....
which
states
were
the Letter
inappropriate,
The agency
which
activities
even if the statements
deemed
(1)
Crosetti
and that it would
-23-24.
statements
for derogatory,
of his words.
illegal contracting
in the reprimand
"unfounded
Dr. Greenspan
Indeed,
was the basis ofthedisciplinary
of Proposed
you
against
1 staff meeting.
disciplined
not for the content
that this "conduct"
nature"
making
that he was
notice
that the actions
at the March
Greenspanwith
argues
manner
not dispute
for his statements
Dr
agency
does
at
but
Page 20 since the Network Business Office Director, Ms. Mayi Canales, is married to
the Assistant Director of the NationalVA Canteen Service and;
(3) In a very blunt and arrogant manner you accused Ms. Crosetti of
performing prohibited personnel practicesand conducting illegal contracting
activities and;
(4) You bluntly accused Ms Crosetti of unethical practices. You asked her,
"1 understand that you were studying for a Ph.D. In what area was that
Ph.D.?" Dr. Dobrin interrupted you by saying that that was a personal matter.
You then stated, "1understand that it was Ethics and you are not ethical! ''Dr. Greenspan
appeal
states
that the grounds
are not the same
"unfounded
were
statements
management
himself
which
unfounded
were
well
as the
disciplinary
were
posture
that
content
of his whlstleblowing
actfon
("the
when
Board
the notice
stated
the
_
05-
ground
in the letter
the
for the
of
for the medical
content
agency
MSPB
now
to extensive
other
staff
these
staff.
of his remarks,
cannot
and
on this
of reprimand,
argues
that
his
evidence
that his
physicians
about
concerns
not
He stresses
and
only
that
that the
be separated
for
the
present
from
the
based
the
of management.
Js reviewed
on the
grounds
v. Smithsonian
or sustain
of "unfounded
remarks
for "disrespect"
criticisms
See Hawkins
He points
that he expressed
to the
disciplined
adverse
The transcnpt,
defamatory,"
spokesman
consider
of proposed
by the agency
citing
attributed
action
It was taken.
cannot
stated
He states
he was properly
A personnel
were
founded,
designated
actions
to the
and "disrespectful."
of the hospital.
but
by the agency
as the grounds
statements
statements
argued
action")
charges
or specifications
which
not match

the
agency
Inst., 73 M.S.P.R.
Here the agency,
statements
sup_La_,does
on which
were
after
397,
(1997)
that are not included
rescinding
defamatory"
this statement.
its first
in
Notice.
in its Notice
and
Page 21 Decision letter. Dr. Greenspan was not charged with "disrespect." The Board cannot
change the agency's grounds from those Noticed by the agency at the time of the
dfscipline. See
that the
agency
individual
The
discipline
agency
even
before
argues
the
"lobbied"
that
to place
anyone
Serwce.
The
responds
the
Board
whether
because
and proximately
and
05-
in injury
The Board
apparently
husband
agency
argues
he d_d not have
that his criticisms
on
that
were
these
his
an
his
did not, in
stated
by either
whistleblowing,
"unfounded
publication
which
described
protected
and defamatory."
his statements
attempt
were
w_th certainty
of dental
benefitted
"concrete
that
with
were
defamatory.
of false
statements
Bonanovav.
Dep'tofEduc.,
did not find that Dr. Greenspan'sstatements
statements
in charge
personally
were
to another."
did not
he did not know
her
were
as the "unprivileged
Dr. Greenspan's
that
statements
mandated
and the MSPB
to the grounds
statements
no evidence
result
(1991)
agency
had
h_s statements
was
defamation
294,301-
false,
agency
that there
has defined
49M.S.PR
Jf the
if the protected
argues
naturally
that
have
of apology
ground,
in addition
("We
offense
in his letter
on that
component
judge.
Cir. 1994)
of the substantive
not disciplined
a "disruptive"
argues
(Fed.
Dr. Greenspan
or the administrative
Greenspan
were
Although
was appropriate
The Board
43 F.3d 663,
all of the elements
he was
impose
the agency
which
prove
as "disruptive"
its analysis,
that
must
is charged").
remarks
Dr
Kinq v. Nazelrod,
from
statements
or speclfic
to prove
"unfounded,"
whether
services,
the
and
issues
"unfounded

had
actually
he d_d not know
of the
VA's
were
of wrongdolng
but of possible
not
that
the
his testimony
Crosetti
issues
not of wrongdoing,
were
However,
citing
Ms.
restructure
on these
knowledge"
falsity.
conflict
statements
Canteen
"unfounded"
Dr. Greenspan
of_nterest,
which
and
were
Page 22 defamatory."
The agency responds that it has a legitimate interest in reprimanding
employees that make unfounded statements, whether or not the statements meet the
criteria of protected whistleblowing.
The purpose of the WPA is to shield employees who are willing to speak out and
crihcize government management, to "freely encourage employees to disclose that which
is wrong with our government."
1993).
The
WPA
"reasonably
There
by its terms
believes"
and
Although
the
wrongful
disclosure,
see
Watson
v. Dep't
to show,
by clear
reasons
unrelated
Admin,
have
taken
F.3d
critical
and
a disclosure
to speak
shown
conwncmg
05-
1378 (Fed.
is of protected
highly
out on subjects
substanlJal
evidence
evtdence
that
that _twould
subject
critical.
in support
have
incur

must
WPA
protects
retaliation
not "reasonably
(Fed
these
disciplinary
concerns
of a protected
Cir
1995),
and
is on the agency
the employee
for
are anchored
m
Archives
and Records
estabhsh
that
it would
disclosure).
likely
those
than
not to be
employees
if unshielded.
burden
Cir.
an employee
similar
the charges
_t Js more
of the agency's
taken
had
of the protected
matter,
The
were
the burden
v. Natronal
agency
_n the absence
that could
it would
(the

(Fed.
§2302(b)(8)(A).
have drsc_plined
In this case,
Cir. 2001)
action
perhaps
1524,
See, e.__g_q_.,
Bnley
that
by the presence
is protected
disclosure.
themselves.
personnel
of manager'nent,
are willing
been
1373,
the same
When
evidence,
to the protected
physicians
64 F.3d
the disclosure
and convincing
disclosures
other

5 US.C.
statements
is not shielded
of Justice,
2 F 3d at 1142 n.5. when
disclosure
or mismanagement,
several
conduct
Marano,
the protected
that
2 F.3d 1137.
"any"
that Dr. Greenspan's
shows
or disruptive
of Justice.
and protects
misconduct
or allegation
record
v. Dep't
includes
evidences
was no evidence
believed,"
Marano
We have
to establish
actions
who
not
by clear
absent
the
Page 23 I
protected
disclosures.
Board's
decision,
remedy
appropriate
"
The Board's
and
remand
for
to the improper
contrary
further
cannot
proceedings
disciplinary
REVERSED
05-
finding
actions.
and REMANDED

be sustained.
including
We reverse
determination
the
of the
Page 24 United
States
Court
of Appeals
for the Federal
Circuit
05-BENNETT
S. GREENSPAN,
Petitioner,
V.
DEPARTMENT
OF VETERANS
AFFAIRS,
Respondent.
RADER,
Circuit
Judqe,
Because
Greenspan
Everyone
very
Crosetti
an
"disruptive,"
a staff
support
meeting,
apology,
those
In this instance,
Greenspan
for
following
that
some
I must
attacked
Greenspan
may have
of
been
inappropriate,
Majority
Opinion,
the WPA,
his
have
reprimanded
respectfully
supervisor,
himself,
considered
the
meeting,
his
comments
merits
agency,
his disruptive
as
conduct
protected
personal,
2.
and
In other
he may freely
conduct
conduct
the
Dr.
would
dissent.
Ms.
Crosetti.
his
personal
Dr. Greenspan
were
Dr.
sent
Ms.
"inappropriate,"
in nature."
Dr. Greenspan's
Thus,
disclosures,
Greenspan
Specifically,
Greenspans'
disrespectful
Penalties.
Dr.
comments
may fall within
that the agency
of protected
including
and "personal
Dr.
found
admitting
a reprimancl.
comments
In fact,
meeting,
inappropriate.
Because
that
correctly
in the absence
at the
attacks
holds
the Board
even
During
dissenting.
supports
disrupt
and disturb
the
held,
of the
under
would
nature
this court
comments
because
the reprimand
charge
regardless
disruptive
words,
a separate
Board
disclosures,
Dr.
the
have
cannot
Greenspan's
agency
upheld
today
meetings.
by the
Agency's
Board.
Table
of
reprimanded
Dr.
of his disclosures.
In
Page 25 sum, the agency's decision to reprimand Dr. Greenspan for his conduct outweighed any
evidence that the proposing and deciding officials held retaliatory motives against him.
Thus, the Board was, by no means, arbitrary in upholding that reprimand.
In addition to a letter of reprimand, the Board also upheld a lowered performance
rating. The record, however, shows that Dr. Greenspan's overall proficiency rating was
not lowered. Instead the agency changed Dr. Greenspan's rating for
from
high
because
satisfactory
his conduct
also testified
that
to satisfactory.
at the March
Dr. Greenspan
in airing
his complaints.
changes
in Dr. Greenspan's
must
really
stretch
to find
Once
Dr.

meeting
regularly
again,
personal
the Board's
Greenspan's
failed
the
qualities
decision

"really
to follow
record
evidence.
05-
was
supervisor
rating.
underscores
arbitrary
made
out of line."
the
From
personal
proper
the
this
of command
propriety
or unsupported
change
The supervisor
chain
my vantage
qualities
point,
of these
this court
by substantial
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