Thomas McLean v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS MCLEAN,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2024-1812
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-1221-22-0142-W-2.
______________________
Decided: November 19, 2024
______________________
THOMAS R. MCLEAN, Shawnee, KS, pro se.
STEPHEN J. SMITH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY.
______________________
Before CHEN, BRYSON, and STOLL, Circuit Judges.
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MCLEAN v. DVA 2
PER CURIAM.
Dr. Thomas McLean appeals pro se a final decision of
the Merit Systems Protection Board (Board) denying his
request for corrective action under the Whistleblower
Protection Act of 1989 (WPA), as amended by the
Whistleblower Protection Enhancement Act of 2012
(WPEA). See McLean v. Dep’t of Veterans Affs., No. DE-
1221-22-0142-W-2, 2024 WL 2784976 (M.S.P.B. Apr. 26,
2024) (Appx. 1–35)1 (Decision).2 Although the Board found
that Dr. McLean proved a prima facie case of whistleblower
reprisal by his suspension and termination by the
Department of Veterans Affairs (VA), the Board denied
relief because it found that the VA met its burden to show
it would have taken the same personnel actions even in the
absence of Dr. McLean’s protected activity. We affirm.
BACKGROUND
Dr. McLean worked as a surgeon at the VA’s Dwight D.
Eisenhower Medical Center in Kansas. In August 2010,
Dr. McLean filed with the Office of Special Counsel (OSC)
a whistleblower complaint alleging that he was obstructed
from applying for a promotion to the Surgical Service Line
Manager position, which was instead filled by a colleague,
Dr. Van Landingham.
While his OSC complaint was pending, Dr. McLean
began to engage in troubling operating room (OR) conduct.
During an appendectomy in December 2010, Dr. McLean
carelessly passed sharp surgical instruments, made
inappropriate comments to a nurse, and, out of frustration,
left the OR for 10–20 minutes while the patient remained
1 “Appx.” refers to the appendix filed with
Dr. McLean’s informal opening brief.
2 Because the electronic version of the decision lacks
page designations, we employ the pagination used in the
decision at Appx. 1–35.
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MCLEAN v. DVA 3
under general anesthesia with an open surgical wound. In
a separate incident in January 2011, Dr. McLean did not
give his nurses sufficient time to count surgical
instruments during a procedure. Shortly thereafter, OSC
closed its inquiry into Dr. McLean’s complaint.
In February 2011, the VA appointed an Administrative
Investigation Board (AIB), consisting of two “outside
medical experts,” to investigate concerns regarding
Dr. McLean’s behavior and competency. Decision at 2 n.4,
4. After reviewing medical records and witness
statements, including formal testimony under oath, the
AIB issued a report in April 2011 that found “substantial
evidence of inappropriate and disruptive conduct” by
Dr. McLean in the OR; “widespread concern” among
surgery staff “regarding Dr. McLean’s behavior and
competence in the OR”; and behavior by Dr. McLean that
was often perceived as intimidating, thus “undermin[ing] a
culture of safety in the OR.” Id. at 4, 6–7 (citations
omitted). Consequently, the AIB recommended that
Dr. McLean be placed into a Focused Professional Practice
Evaluation (FPPE). The FPPE proposed for Dr. McLean
would involve 54 cases performed by Dr. McLean over six
months, with each case observed by one of two proctoring
surgeons, namely, Dr. Montecino or, as a backup, Dr. Van
Landingham. On August 12, 2011, the VA approved the
FPPE, which commenced several days later. The FPPE
was eventually extended for an additional six months.
In March 2012, while the FPPE was ongoing,
Dr. McLean testified on behalf of a colleague, Dr. Malik, in
a separate AIB investigation (Malik AIB testimony). In his
testimony, Dr. McLean criticized Drs. Montecino and Van
Landingham, alleging that they engaged in unprofessional
behavior and committed various medical errors.
In May 2012, Drs. Montecino and Van Landingham
recommended closing Dr. McLean’s FPPE early. They
reported that Dr. McLean’s surgical technique fell so far
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MCLEAN v. DVA 4
below the standard of care that each of Drs. Montecino and
Van Landingham needed to intervene in his procedures on
several occasions, placing themselves and the patients at
“undue risk.” Id. at 11–12 (citation omitted). They opined
that Dr. McLean should no longer be permitted to practice
general surgery independently or supervise residents. The
Professional Standards Board (PSB) unanimously agreed,
and Dr. McLean’s operating privileges were suspended.
The VA proposed removal of Dr. McLean in January
2014 on a charge of “failure to demonstrate appropriate
surgical skills,” supported by 22 specifications of
substandard medical treatment. Id. at 13 (citation
omitted). The deciding official, Dr. Klopfer, sustained the
removal due to the “gravity” of Dr. McLean’s prolonged
misconduct.3 Id. at 13–14. Dr. McLean appealed the
decision to a Disciplinary Appeals Board (DAB), which
unanimously sustained the charge and the penalty, and
noted that it felt “very strongly” that Dr. McLean should
not be permitted to practice general surgery due to his
“outdated techniques and thinking” and OR performance
that fell “below the community standard.” Appx. 2022,
2026–27.
Dr. McLean subsequently filed an individual right of
action (IRA) appeal with the Board. In an initial decision,
the administrative judge found that Dr. McLean engaged
in protected activity under 5 U.S.C. § 2302(b)(9)(C) by
making his August 2010 complaint to the OSC, and under
5 U.S.C. § 2302(b)(9)(B) by providing the Malik AIB
3 Dr. McLean’s removal was first proposed in
October 2012 and sustained by Dr. Klopfer in February
2013, based on the same charge and supporting
specifications. Dr. Klopfer rescinded this initial removal in
August 2013 due to a procedural concern regarding
Dr. McLean’s access to the materials relied upon for that
removal decision.
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MCLEAN v. DVA 5
testimony.4 Decision at 18–19. The administrative judge
also found that both protected activities were contributing
factors in the VA’s 2012 suspension and 2014 removal of
Dr. McLean.5 Id. at 21–22. But the administrative judge
denied corrective action after analyzing the factors
enumerated in Carr v. Social Security Administration, 185
F.3d 1318, 1323 (Fed. Cir. 1999), finding that the VA proved
by clear and convincing evidence that it would have taken
the same action notwithstanding the protected activities.
Decision at 22–29. Finally, the administrative judge found
that Dr. McLean failed to establish an additional alleged
personnel action, namely, that the VA restricted him from
4 Effective December 27, 2012, the WPEA “expanded
[the Board’s] jurisdiction to cover IRA appeals alleging that
an agency engaged in [certain] prohibited personnel
practices described in 5 U.S.C. § 2302(b)(9),” in addition to
those described in 5 U.S.C. § 2302(b)(8). Hicks v. Merit Sys.
Prot. Bd., 819 F.3d 1318, 1319–21 (Fed. Cir. 2016); see
WPEA, Pub. L. No. 112-199, §§ 101(b)(1), 202, 126 Stat.
1465, 1476. We have previously held that “section 101(b)(1)
of the WPEA cannot be applied retroactively to supply a
predicate for the exercise of jurisdiction.” Hicks, 819 F.3d
at 1322–23. Though neither party disputes or even
discusses the Board’s IRA jurisdiction over the alleged
personnel actions to the extent they occurred before the
effective date of the WPEA, having reviewed the
administrative judge’s earlier jurisdictional rulings, we
view the Board as finding that Dr. McLean’s protected
activity also constituted protected disclosures under
section 2302(b)(8). See IRA Jurisdiction Ruling at 2–6,
McLean v. Dep’t of Veterans Affs., No. DE-1221-22-0142-W-
1 (Apr. 26, 2022), Tab 12; Amended IRA Jurisdiction Ruling
at 1–2, McLean, No. DE-1221-22-0142-W-1 (Jan. 26, 2023),
Tab 42.
5 The Board treated the suspension and the removal
as a single personnel action.
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MCLEAN v. DVA 6
working with and evaluating or instructing surgical
residents beginning in August 2010. Id. at 19–20. The
administrative judge’s initial decision later became the
final decision of the Board. See 5 C.F.R. § 1201.113.
Dr. McLean timely appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of a final decision by the Board is limited
by statute. We must affirm unless the decision 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); see also Miller v. Dep’t of Just., 842 F.3d
1252, 1257 (Fed. Cir. 2016). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Miller, 842 F.3d at 1258
(citation omitted). “The petitioner bears the burden of
establishing reversible error.” McIntosh v. Dep’t of Def., 53
F.4th 630, 638 (Fed. Cir. 2022).
I
Dr. McLean begins his argument by alleging several
factual and procedural errors. See Pet’r’s Br. 1–5. We are
unpersuaded by these arguments.
As an initial matter, Dr. McLean’s arguments do not
heed the standard of review on appeal. For example,
Dr. McLean asserts that certain findings of the Board are
“wrong,” and he speculates that if the PSB had been aware
of the potential bias by the FPPE proctors, Drs. Van
Landingham and Montecino—who had been criticized by
Dr. McLean in the Malik AIB testimony—then “it is more
probable than not that the other four non-surgeon PSB
members would have voted to not suspend [Dr. McLean].”
Pet’r’s Br. 2–3. “Our function as a reviewing court,
however, is not to engage in such de novo fact finding, but
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MCLEAN v. DVA 7
only to determine whether the Board’s factual findings are
supported by substantial evidence.” Bevans v. Off. of Pers.
Mgmt., 900 F.2d 1558, 1565 (Fed. Cir. 1990).
Some of Dr. McLean’s arguments also misunderstand
the Board’s decision. For example, Dr. McLean argues that
the Board ignored that VA physicians are not to be
disciplined or placed under a FPPE “for a single bad
outcome.” Pet’r’s Br. 2. The Board, however, found that it
was “well-established [Dr. McLean] engaged in extremely
concerning Operating Room behavior on December 29,
2010 and January 18, 2011,” and “the FPPE revealed even
more concerns about [Dr. McLean’s] Operating Room
behavior.” Decision at 23 (emphasis added). This finding
is supported by substantial evidence of Dr. McLean’s
substandard performance and concerning behavior.
Dr. McLean also argues that the VA, and in particular
the AIB, committed certain procedural errors. Dr. McLean
asserts that he was “prohibited from putting on evidence or
cross-examining witnesses” before the AIB, Pet’r’s Br. 2,
and that the AIB “took testimony from only selected
witnesses,” id. at 5. Dr. McLean cites to VA Handbook
0700, but the handbook belies his argument by explaining
that due process rights, such as the “right to review or to
challenge adverse evidence,” are “inapplicable to
administrative investigations” conducted by an AIB. VA
Handbook 0700 App. I at I-1 (July 31, 2002); see Hannah v.
Larche, 363 U.S. 420, 442 (1960) (“[W]hen governmental
action does not partake of an adjudication, as for example,
when a general fact-finding investigation is being
conducted, it is not necessary that the full panoply of
judicial procedures be used.”). Dr. McLean also asserts
that the VA “violated its policies and [his] due process
rights.” Pet’r’s Br. 5. Dr. McLean appears to refer first to
his argument that VA policy required FPPEs to be “of short
duration,” but the documents that he cites do not mention
such a policy. Id. at 14–15. He also appears to refer to his
argument that the deciding official violated his due process
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MCLEAN v. DVA 8
rights in reaching the removal decision. Id. at 15–16.
However, a majority of the DAB concluded that the
deciding official’s procedural error in failing to fully review
Dr. McLean’s responses to his proposed removal was not
harmful, see Appx. 2027, and the DAB’s decision reviewing
his removal is not on direct appeal before the Board or us
in this IRA appeal. Cf. 38 U.S.C. § 7462(f) (providing for
judicial review of a final order or decision of a DAB).
II
Dr. McLean next argues that the Board erred in its
analysis of his prima facie case for whistleblower reprisal
and in its analysis of the Carr factors. To succeed on an
IRA appeal alleging a prohibited personnel practice, an
employee must demonstrate by preponderant evidence
that the employee made a protected disclosure under 5
U.S.C. § 2302(b)(8) or engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and the
protected disclosure or activity contributed to the agency’s
personnel action. See Miller, 842 F.3d at 1257; 5 U.S.C.
§ 1221(e)(1). The agency can then rebut the employee’s
prima facie case by demonstrating by clear and convincing
evidence that it would have taken the same personnel
action absent the whistleblowing. See Miller, 842 F.3d at
1257; 5 U.S.C. § 1221(e)(2). “‘Clear and convincing’
evidence has been described as evidence which produces in
the mind of the trier of fact an abiding conviction that the
truth of a factual contention is ‘highly probable.’” Miller,
842 F.3d at 1257–58 (citation omitted). The three Carr
factors are used in evaluating whether the agency has met
its burden:
[1] the strength of the agency’s evidence in support
of its personnel action;
[2] the existence and strength of any motive to
retaliate on the part of the agency officials who
were involved in the decision; and
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MCLEAN v. DVA 9
[3] 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 first address Dr. McLean’s argument that the
Board incorrectly found that he had not made a prima facie
case of whistleblower reprisal because he failed to prove an
alleged restriction on his working with surgical residents.6
See Pet’r’s Br. 6–7. The Board supplied two independent
reasons for that finding: (1) Dr. McLean “failed to offer
credible evidence regarding any 2010 restrictions on
working with residents,” and (2) he failed to prove that
such a restriction would constitute a personnel action
under 5 U.S.C. § 2302(a)(2)(A)(xii). Decision at 19–20.
Dr. McLean challenges only the second basis, and does not
point to any evidence that the Board overlooked in finding
no credible evidence of such a restriction. Thus, regardless
of whether the alleged restriction could constitute a
personnel action, we see no reason to disturb the Board’s
finding that Dr. McLean offered no evidence of that
restriction and therefore failed to establish a prima facie
case as to that restriction.
6 Dr. McLean in part misunderstands the Board’s
decision. The Board did not, as he asserts, “terminate[] its
review of [his] prima facie case concerning his 2010 OSC[]
disclosures.” Pet’r’s Br. 6. The Board found that
Dr. McLean’s 2010 OSC complaint “qualified for
whistleblower protection” and that it contributed to his
2012 suspension and 2014 removal. Decision at 18–22.
Dr. McLean also appears to incorrectly view the Board’s
decision as addressing whether his FPPE constituted a
personnel action. See Pet’r’s Br. 6–7.
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MCLEAN v. DVA 10
Next, we address Dr. McLean’s argument that the
Board erred in its analysis of the Carr factors.
Beginning with Carr factor one, Dr. McLean argues
that the DAB ignored evidence favorable to Dr. McLean
and relied on evidence allegedly fabricated by the VA. See
Pet’r’s Br. 7–10. Dr. McLean’s arguments, again focusing
on the DAB proceeding, do not undermine the Board’s
analysis of factor one. The Board found that Dr. McLean’s
“extremely concerning Operating Room behavior” was
“well-established” and justified the AIB investigation,
which was “conducted by outside unbiased experts.”
Decision at 23. “[B]ased on overwhelming evidence,” the
AIB, critical of Dr. McLean’s medical practices,
recommended the FPPE, which “revealed even more
concerns” and led to Dr. McLean’s suspension and proposed
removal. Id. at 23–24. Finally, the DAB—consisting of
“three experienced surgeons”—conducted a
“comprehensive hearing,” “carefully analyzed” the
“extensive evidence,” including by ruling in Dr. McLean’s
favor on several of the specifications, and unanimously
sustained the charge and the penalty. Id. at 14 n.15, 24.
The Board’s finding that Carr factor one “weighed heavily
in favor of” the VA is supported by substantial evidence. Id.
at 23.
Dr. McLean next argues that the Board incorrectly
found that the VA “met its burden” and “prevail[ed]” with
respect to Carr factor two. Pet’r’s Br. 10, 17. This
argument misunderstands both the framework of the Carr
factors and the Board’s findings on the second factor. Carr
does not require that “each factor weigh in favor of the
agency for the VA to carry its burden.” Robinson v. Dep’t of
Veterans Affs., 923 F.3d 1004, 1019 (Fed. Cir. 2019).
Indeed, the Board determined that “the second Carr factor
weighed in favor of” Dr. McLean. Decision at 25. The
Board found that VA “management was clearly on notice”
of Dr. McLean’s repeated criticism of his colleagues and
managers, and knowledge of those criticisms would
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MCLEAN v. DVA 11
“suggest the existence and strength of a motive to
retaliate.” Id. at 25–26. However, the Board reasonably
found that the strength of that motive was somewhat
diminished by several factors, including, for example, that
evidence of Dr. McLean’s misconduct was collected and
analyzed by the independent, outside experts who
comprised the AIB and the DAB. Id. at 26. Substantial
evidence supports the Board’s findings for Carr factor two.
Finally, Dr. McLean takes issue with the Board’s Carr
factor three analysis. The Board found that each party had
provided “some comparator evidence.” Id. at 28. The
comparator in the VA’s favor was Dr. Mohapatra, a VA
doctor and non-whistleblower who was “removed for
misconduct which was less concerning than” Dr. McLean’s.
Id. at 27. Dr. McLean argues that Dr. Mohapatra was an
improper comparator because of certain differences
between them, such as the two doctors working at different
hospitals and having different duties. This argument
invokes an overly restrictive view of what it means for a
comparator to be similarly situated under Carr factor
three, akin to the “nearly identical” standard we have
previously rejected. See Whitmore v. Dep’t of Lab., 680 F.3d
1353, 1373 (Fed. Cir. 2012). In Dr. McLean’s favor on factor
three, the Board found that Dr. McLean had put
management on notice of alleged misconduct by three non-
whistleblower doctors, including Drs. Van Landingham
and Montecino, and “there was no credible evidence
management did much if anything about it.” Decision at
28. Weighing the competing comparator evidence, the
Board reasonably determined that Carr factor three was
neutral. Id.; see, e.g., Robinson, 923 F.3d at 1020 (“This
mixed record causes the last Carr factor to be neutral.
Accordingly, it was not unreasonable for the
[administrative judge] to count it as neutral.”).
The Board ultimately determined that the strength of
factor one in the VA’s favor outweighed that of factor two in
Dr. McLean’s favor, and thus found that the VA satisfied its
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MCLEAN v. DVA 12
burden by clear and convincing evidence. Decision at 28–
29. Substantial evidence supports the Board’s findings,
and we may not reweigh the evidence on appeal as
Dr. McLean asks us to do. See McIntosh, 53 F.4th at 643;
Pet’r’s Reply Br. 14.
CONCLUSION
We have considered Dr. McLean’s remaining
arguments—including his final argument speculating that
the Board was biased against him because of the potential
value of the backpay if his request for corrective action
were to be granted—and find these arguments
unpersuasive. Accordingly, we affirm the Board’s final
decision.
AFFIRMED
COSTS
No costs.
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