Lowenstein v. DVA
17-2358
| Fed. Cir. | Dec 18, 2017Background
- Dr. David L. Lowenstein, a VA chiropractor in Iowa City, was terminated for persistent unprofessional behavior.
- He filed an Individual Right of Action (IRA) appeal alleging the VA retaliated for protected whistleblowing: complaints about a colleague’s acupuncture privileging, alleged double-billing, and application of lidocaine; he also filed an OSC complaint and later an Arizona Board complaint.
- The Administrative Judge (AJ) denied corrective action on two independent grounds: (1) Lowenstein failed to establish a prima facie whistleblower retaliation case (disclosures were not protected or not contributing factors), and (2) the Agency proved by clear and convincing evidence it would have terminated him regardless.
- AJ found disclosures about privileging were not protected (Agency had authority, state rules permitted the privileging, no patient-safety evidence); no evidence supported double-billing; lidocaine application was not outside scope of practice.
- AJ found OSC complaint was not a contributing factor (personnel decisionmakers lacked knowledge) and Arizona complaint was filed after termination.
- AJ relied on extensive evidence of repeated unprofessional conduct and lack of retaliatory motive; Agency showed similar discipline against non‑whistleblowers. Board decision became final; Lowenstein appealed to this court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lowenstein made a prima facie WPA claim (protected disclosure was a contributing factor) | Disclosures about privileging, billing, lidocaine, OSC complaint, and Arizona complaint were protected and contributed to termination | Disclosures were not protected or were not known to decisionmakers; Arizona complaint post-dated termination | Court affirmed Board did not decide protected status; plaintiff failed to show contributing factor for OSC/Arizona complaints and AJ reasonably found supervisor disclosures not protected |
| Whether Agency proved by clear and convincing evidence it would have terminated Lowenstein absent disclosures | N/A — Lowenstein disputed some adverse-evidence characterizations and emphasized satisfactory evaluations | Agency showed strong, documented pattern of unprofessional conduct, warnings, opportunities to improve, and similar treatment of non-whistleblowers | Held: Agency met clear-and-convincing burden; termination would have occurred absent disclosures |
| Whether Agency officials had motive to retaliate | Lowenstein pointed to PSB composition changes and alleged failure to interview favorable witnesses as evidence of animus | Agency showed no evidence PSB members knew plaintiff or had motive; afforded opportunities to improve; lack of retaliatory animus | Held: No substantial evidence of retaliatory motive |
| Whether Agency treated similarly situated non‑whistleblowers differently | Lowenstein argued others discussed privileging but were not disciplined | Agency identified multiple non‑whistleblower terminations for misconduct and showed consistent practices | Held: Substantial evidence Agency treated non‑whistleblowers similarly |
Key Cases Cited
- Carr v. Soc. Sec. Admin., 185 F.3d 1318 (Fed. Cir. 1999) (prima facie and burden-shifting framework for WPA claims)
- Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (agency must show by clear and convincing evidence it would have taken same action absent disclosure)
- Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357 (Fed. Cir. 1998) (court may affirm on independent, unchallenged basis)