NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID LEOPOLD LOWENSTEIN,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2017-2358
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-17-0108-W-1.
______________________
Decided: December 18, 2017
______________________
DAVID LEOPOLD LOWENSTEIN, Phoenix, AZ, pro se.
ROBERT C. BIGLER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
______________________
LOWENSTEIN v. DVA
2
Before PROST, Chief Judge, MOORE, and REYNA, Circuit
Judges.
PER CURIAM.
David Leopold Lowenstein appeals the decision of the
Merit Systems Protection Board (“Board”) denying him
relief in his Individual Right of Action (“IRA”) appeal.
Because substantial evidence supports the Board’s deci-
sion, we affirm.
BACKGROUND
Dr. Lowenstein worked as a chiropractor for the De-
partment of Veterans Affairs (“Agency”) in the Iowa City
VA Health Care System. He was terminated from his job
because he engaged in persistent unprofessional behavior.
He filed an IRA appeal alleging the Agency retaliated
against him for protected whistleblowing activity. He
alleged he made protected disclosures to his supervisors
including that the Agency granted Dr. Bonavito-
Larragoite, another Agency chiropractor, acupuncture
privileges beyond the scope of her certifications; that
Dr. Bonavito-Larragoite double billed a patient; and that
Dr. Bonavito-Larragoite applied prescription lidocaine to
a patient. He also alleged a complaint he filed with the
Office of Special Counsel (“OSC”) disclosing alleged Agen-
cy violations and a complaint he filed with the Arizona
Board of Chiropractic Examiners after his termination
constituted protected disclosures. The administrative
judge (“AJ”) denied his request for corrective action on
two independent bases: Dr. Lowenstein failed to establish
a prima facie case of whistleblower retaliation, and the
Agency established by clear and convincing evidence that
it would have terminated Dr. Lowenstein regardless of his
disclosures.
The AJ determined Dr. Lowenstein failed to establish
a prima facie case of whistleblower retaliation because his
disclosures to his supervisors were not protected and the
LOWENSTEIN v. DVA 3
OSC and Arizona complaints were not contributing fac-
tors to his termination. She found it was unreasonable
for Dr. Lowenstein to believe reporting the Agency’s grant
of acupuncture privileges to Dr. Bonavito-Larragoite
evidenced a protected disclosure under 35 U.S.C.
§ 2302(b)(8)(A) because the Agency had authority to set
its own standards, Arizona regulations allowed for
Dr. Bonavito-Larragoite’s acupuncture privileges, and
there was no evidence of a danger to patients. She found
no evidence to support the allegations of double-billing.
She found it was unreasonable to believe Dr. Bonavito-
Larragoite acted outside the scope of her license when
applying properly prescribed lidocaine to a patient be-
cause the medication could be applied by any person
regardless of training or credentials. She found
Dr. Lowenstein’s OSC complaint was not a contributing
factor to his termination because Dr. Lowenstein failed to
show that the Agency officials responsible for the person-
nel actions had actual or constructive knowledge of the
complaint. The AJ found the Arizona complaint could not
have been a contributing factor because it was filed more
than two weeks after Dr. Lowenstein’s termination.
The AJ determined that even if Dr. Lowenstein had
established a prima facie case of whistleblower retalia-
tion, clear and convincing evidence showed that the
Agency would have terminated him in the absence of the
allegedly protected activity. The AJ found strong evi-
dence of persistent unprofessional behavior, no evidence
of retaliatory motive, and evidence that the Agency acts
similarly against non-whistleblowers.
The initial decision became final pursuant to 5 C.F.R.
§ 1201.113, and Dr. Lowenstein timely petitioned this
court for review. We have jurisdiction under 5 U.S.C.
§ 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9).
LOWENSTEIN v. DVA
4
DISCUSSION
The Whistleblower Protection Act (“WPA”) protects
government employees from retaliation for protected
disclosures. Carr v. Soc. Sec. Admin.,
185 F.3d 1318,
1326 (Fed. Cir. 1999). Employees bear the burden of
showing that a protected disclosure was a contributing
factor in a personnel action. 5 U.S.C. § 1221(e)(1). If the
employee establishes a prima facie case of whistleblower
retaliation, the burden shifts to the agency “to show by
clear and convincing evidence that it would have taken
‘the same personnel action in the absence of such disclo-
sure.’” Whitmore v. Dep’t of Labor,
680 F.3d 1353, 1364
(Fed. Cir. 2012) (quoting 5 U.S.C. § 1221(e)(2)). In deter-
mining whether the agency met its burden, the Board
considers:
the strength of the agency’s evidence in support of
its personnel action; the existence and strength of
any motive to retaliate on the part of the agency
officials who were involved in the decision; and
any evidence that the agency takes similar actions
against employees who are not whistleblowers but
who are otherwise similarly situated.
Carr, 185 F.3d at 1323. We must affirm the Board’s
decision unless it is “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c).
As an independent basis for denying corrective action,
the AJ found the Agency proved by clear and convincing
evidence that it would have terminated Dr. Lowenstein in
the absence of his disclosures. On appeal, Dr. Lowenstein
makes few challenges to the AJ’s findings regarding this
independent basis. Instead, he focuses on evidence sup-
porting his prima facie case of whistleblower retaliation.
For example, he cites to portions of the Arizona Adminis-
LOWENSTEIN v. DVA 5
trative Code and the Veterans Health Administration
Handbook and refers to conversations he had with col-
leagues to argue that the Agency granted Dr. Bonavito-
Larragoite privileges outside the scope of her credentials.
He argues he told multiple Agency employees about his
OSC complaint. He explains his frustration with the lack
of guidance from the Agency regarding privileging stand-
ards. But these arguments do not address the substantial
evidence supporting the AJ’s finding that the Agency
would have terminated him regardless of these disclo-
sures. We affirm the AJ’s decision because an independ-
ent and largely unchallenged basis to affirm the AJ’s
decision exists. Kewley v. Dep’t of Health & Human
Servs.,
153 F.3d 1357, 1364 (Fed. Cir. 1998).
Substantial evidence supports the AJ’s finding that
strong evidence independent of Dr. Lowenstein’s disclo-
sures supports the Agency’s decision to terminate him.
The AJ recites numerous examples of Dr. Lowenstein’s
unprofessional conduct toward Dr. Bonavito-Larragoite
and insubordination toward his superiors. His supervi-
sors and representatives from Human Resources made
repeated attempts to intervene, but substantial evidence
shows that this pattern of behavior continued from Au-
gust 2014 until his termination. Prior to the Professional
Standards Board (“PSB”) convening to review his em-
ployment, Dr. Lowenstein apologized to his supervisors
and Dr. Bonavito-Larragoite for his past behavior.
Dr. Lowenstein argues that a proficiency report rated his
performance as satisfactory, testimony from other em-
ployees at his clinic would not have corroborated the
Agency’s evidence, and he and Dr. Bonavito-Larragoite
were cooperating from April 2015 until his termination.
But a different evaluation from July 2015 rated his gen-
eral cooperation and attitude with the health care team as
unsatisfactory. We cannot reweigh the evidence on ap-
peal.
LOWENSTEIN v. DVA
6
Substantial evidence also supports the AJ’s finding
that the Agency officials involved in the personnel action
lacked motive to retaliate. No evidence suggests the PSB
members knew who Dr. Lowenstein was prior to his
review or that any Agency officials had a motivation to
retaliate against him. On the contrary, the evidence
shows the Agency gave Dr. Lowenstein opportunities to
improve his conduct and ensure his grievances went
through the proper chain of command. The record con-
tains substantial evidence that Dr. Lowenstein’s unpro-
fessional conduct continued. Dr. Lowenstein argues that
the Agency showed retaliatory animus when it removed
the only medical physician from the PSB and replaced
him with another chiropractor. He also argues the PSB
did not interview any Agency employees that would have
testified in his favor. There is no evidence in the record to
suggest these actions demonstrate a motivation to retali-
ate.
Finally, substantial evidence supports the AJ’s find-
ing that the Agency has taken similar actions against
similarly situated employees who were not whistleblow-
ers. The Agency identified four former Agency employees
terminated for workplace misconduct during their proba-
tionary period, none of whom asserted whistleblower
claims. The AJ found that there was no proof the Agency
treated non-whistleblowers differently. Dr. Lowenstein
argues that other Agency employees were involved in e-
mail discussions regarding acupuncture privileging but
were not similarly admonished. This does not override
the substantial evidence in favor of the AJ’s findings.
We do not reweigh evidence on appeal. Because sub-
stantial evidence supports the AJ’s findings regarding
each Carr factor, we affirm his conclusion that the Agency
did not violate the WPA when it terminated
Dr. Lowenstein’s employment. We do not reach whether
Dr. Lowenstein’s disclosures were protected or were a
contributing factor to his termination.
LOWENSTEIN v. DVA 7
CONCLUSION
For the reasons stated above, the decision of the
Board is affirmed.
AFFIRMED
COSTS
No costs.
