Greenspan v. Department of Veterans Affairs, 05-3302.

Decision Date08 September 2006
Docket NumberNo. 05-3302.,05-3302.
Citation464 F.3d 1297
PartiesBennett S. GREENSPAN, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Robert L. Hess, II, Husch & Eppenberger, LLC, of Jefferson City, Missouri, argued for petitioner. With him on the brief was Harvey M. Tettlebaum.

Kenneth M. Dintzer, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, 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 of Veterans Affairs, of St. Louis, Missouri.

Before NEWMAN, MAYER, and RADER, Circuit Judges.

Opinion for the court filed by Circuit Judge NEWMAN.

Dissenting opinion filed by Circuit Judge RADER.

NEWMAN, Circuit Judge.

Dr. Bennett S. Greenspan petitions for review of the decision of the Merit Systems Protection Board, Docket No. CH1221010192-B-1, denying his request for correction of disciplinary actions taken in retaliation for certain critical statements that he made while he was Medical Director of the Nuclear Medicine Section at the Harry S. Truman Memorial Veterans Hospital in Columbia, Missouri. He invokes the protection of the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (the WPA). The Board upheld the agency's position 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 on March 1, 1999. A few months earlier the Medical Staff had taken a vote of "No Confidence in the leadership" of Ms. Pat Crosetti, Chief Executive Officer of Veterans Integrated Service Network 15 (VISN), a network of eight veterans hospitals and forty clinics, headquartered in Kansas City, Kansas. This was Ms. Crosetti's first visit to the Truman Hospital after that vote, and she had been informed of the result. The purpose of her visit, Ms. Crosetti testified before the MSPB, was to "hear concerns and issues and let the medical staff know the strategic direction and the fiscal well-being, or lack thereof, of the budget, and the management issues we were going to raise and that we were going to address for the next couple of quarters and usually out a year or two." At the meeting Ms. Crosetti spoke to the staff, and then the floor was opened for a question and answer session. Dr. Greenspan spoke for about five minutes, making the statements 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: As you probably know, I have been trying to change some things in this Network for quite awhile, and I have had — I've got a number of observations and complaints, and I think it's useful for other people to know about this.

First of all, I think that we have a very fine staff here in this hospital (inaudible), and we work very well as a team. I'm not sure the managers are on the same team. It seems that the majority of our staff members have not been pleased with the way things have been run in the last couple of years. And it's not just a small local minority. I've been quite loud about this, but I'm willing to speak up. A lot of people aren't. But that doesn't mean they're not dissatisfied with things. An overwhelming majority of our full time physicians voted no confidence a few months ago, and we're not the only hospital that feels that way. There are a number of physicians in St. Louis, Leavenworth, and Topeka that feel the same way. And the physicians in Kansas City voted overwhelmingly for a professional union for the same reasons we did. Lack of physician input, lack of participation in the decision-making process. And I think that needs to change.

You know, you're — 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 okay, but you haven't been willing to listen, and if we tell you something, it's because we're trying to provide the best possible care to our veterans. I think that to ignore that is a prescription for disaster.

In addition, there a number of other — there are a number of other (inaudible). For one thing, I think when you started here, you should have gone around observing the Network better. You should have gone around the Network and realized that — to try to take positive advantage of all of the good programs we've had throughout the Network. Our cardiology program is certainly one of them. Geriatrics is another one. I think you should have realized that this is a dual position. And instead of trying to dismantle our cardiac program, you should've tried to support it. We sure got the feeling that you were trying to dismantle it by taking our proposal and sending it out throughout the Division and having other people bid on it. And there is no possible way that the private hospitals could match our costs because our costs are less than Medicare rates, and they've got to make a profit, which we don't have to do.

But in general, there has been a major problem with lack of input, and when we do provide input, it hasn't been listened to. We're also having problems with loss of veterans' preference jobs at the same time Congress is trying to support that and promote it. What I'm referring to specifically is the deal with Canteen Service, where you've mandated Canteen Service and the nutrition service merge throughout the VISN. There's a problem with that. For one thing, it's a loss of veterans' preference jobs. For another thing, it turns out that there is a conflict of interest there because Mayi Canales, who is the business director of the VISN, 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 on top of that, there have been other prohibitive personnel practices such as nepotism with your husband being the Chief Dental Advisor, and this is after he was — he's not on the Dental Examiner's Board, but (inaudible). This in itself is probably okay, although I don't know why the (inaudible) also couldn't be the subject-matter of (inaudible), but to make him the Chief Dental Advisor was fully above and beyond reason. And he did step down on December 2nd, by the way.

And then there 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 coming up, but that doesn't mean we should do things that are illegal (inaudible).

Unidentified Speaker: Do you have a question?

Dr. Greenspan: Do I have a question? Well, I guess I do. It's a little bit off the wall, but I understand you are working on a Ph.D. and my question is — I've heard a rumor that the topic is on ethics. Is that true?

Unidentified Speaker: That's personal.

Dr. Greenspan: Well, the reason I asked you this is that there is a problem of ethics in the way things have been run. There are a lot of things that have been done that's (inaudible), and that's got to stop also.

Tom Sanders: I am publicly humiliated by the — you haven't brought up anything new regarding — you're rehashing stuff that has been there for ages 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: Let's get to — if you are arguing specific (inaudible) specific (inaudible) that haven't been rehashed, that's what we're here for.

Dr. Greenspan: One of them is the (inaudible) business where we have been — up until recently, we have been sending those tests across the street to (inaudible). And as most of you probably know, this is a test to look at hemoglobin A1c testing and handling their blood sugar levels. The lab across the street is one that — Dr. Goldstein has been providing that for us for a long time. I understand now that we're mandated to do the test here also. The problem is that the test here doesn't have the same accuracy rate, and we're concerned that it may turn a very accurate test into a marginal — a marginally useful one.

MSPB Record at 266-74. The record states that three other physicians also criticized the management of the hospital at that meeting. The meeting ended when Ms. Crosetti left the room.

The minutes of the meeting, signed by Dr. Philip B. Dobrin, the Chief of Staff of the Truman Hospital, stated that "Dr. Bennett Greenspan engaged in a personal attack upon the network management present, and accused the Chief Executive Officer of engaging in illegal activities and unethical...

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