Margaret M. Reed v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARGARET M. REED,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2023-1628
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-13-1557-B-1.
______________________
Decided: February 7, 2024
______________________
MARGARET MICHELLE REED, Jupiter, FL, pro se.
VIJAYA SURAMPUDI, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY , F RANKLIN E. WHITE, J R.
______________________
Before L OURIE, P ROST , and REYNA, Circuit Judges.
Opinion for the court filed P ER CURIAM .
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REED v. DVA 2
Dissenting opinion filed by Circuit Judge R EYNA.
P ER CURIAM .
Margaret Michelle Reed appeals from a decision of the
Merit Systems Protection Board (“the Board”) denying a re-
quest for relief in an Individual Right of Action (“IRA”) ap-
peal that asserted agency retaliatory action for alleged
whistleblowing activity. Reed v. Dep’t of Veterans Affs., No.
CH-1221-13-1557-B-1, 2023 WL 2213175 (M.S.P.B. Feb.
24, 2023), R.A. 78–92.1
For the following reasons, we affirm.
BACKGROUND
In 2009, Reed began working as a Human Resources
Specialist at a Department of Veterans Affairs Medical
Center. On January 12, 2012, she engaged in a verbal ex-
change with her supervisor, Jennifer Pardun, regarding
Pardun’s apparent refusal to answer a work-related ques-
tion that Reed had raised several times over e-mail. On
January 13, 2012, Pardun submitted a Report of Contact,
accusing Reed of engaging in threatening and disrespectful
behavior during the previous day’s exchange. R.A. 96.
On February 13, 2012, the Assistant Chief of the Hu-
man Resources Management Service (“HRMS”), Rolanda
Watkins, issued Reed an admonishment for disrespectful
conduct based on Pardun’s account of the January 12, 2012
incident. R.A. 93−95. Reed filed both an informal and a
formal grievance challenging the factual basis of that ad-
monishment. Both were denied. See, e.g., R.A. 111–17;
P.A. 253.2
1 “R.A.” refers to the appendix filed with Respond-
ent’s brief.
2 “P.A.” refers to the appendix filed with Petitioner’s
brief.
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REED v. DVA 3
On June 22, 2012, Reed e-mailed the Medical Center
Director, Glenn Costie, to inform him of what she believed
was a futile grievance process. R.A. 118. In her e-mail, she
averred that the allegations underlying her admonishment
had been fabricated by Pardun in an attempt to secure an
admonishment. Id. She also expressed that she had ex-
pected that the agency would have conducted further fact
finding while investigating her formal grievance. Id. Her
e-mail also included a request to meet with Director Costie
to discuss the matter. Id.
On July 26, 2012, Reed sent an additional e-mail to Di-
rector Costie as well as HRMS Chief Jerry Erwin outlining
her concerns regarding the grievance process. R.A. 120. In
particular, she wrote that HRMS management had ignored
the factual disputes that she had raised and had failed to
make additional factual inquiries as required by agency
policy. Id. She further contended that that agency failure
constituted a violation of her due process rights. Id.
On August 3, 2012, a meeting was held by Reed’s de-
partment managers, including HRMS Chief Erwin and
HRMS Assistant Chief Watkins, announcing that any em-
ployee who contacted the Director’s office without approval
from his or her management team would face disciplinary
action. See P.A. 174.
On August 29, 2012, Reed met with Director Costie and
contended that her admonishment was an unwarranted
personnel action taken without due process. See P.A.
175−77. She also asserted that, in retaliation for her filing
the grievances, the Chief and Assistant Chief of HRMS
failed to follow various agency rules. Id.
Somewhat contemporaneously, on August 15, August
24, and October 1, 2012, three agency employees filed re-
ports suggesting that Reed was unhelpful or rude in per-
forming her duties of giving advice on various personnel
matters. See R.A. 130−31 (reporting that she was rude on
a phone call); id. at 128 (reporting that she spoke with a
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REED v. DVA 4
“snippy tone” on a phone call and sighed on a voice mail);
id. at 125−26 (asserting frustration that she did not provide
a citation to support an answer that she had given, while
acknowledging that she was still helpful and that the com-
plainant’s frustrations may lie in the procedural aspects of
his job rather than with Reed). Reed provided responses to
each of those reports, providing context and her own expe-
riences, as well as evidence supporting her continued at-
tempts to be helpful and to provide beneficial service. See
P.A. 16−22 (August 17, 2012 response to the August 15,
2012 complaint), 33−35 (August 30, 2012 response to the
August 24, 2012 complaint), 41−44 (October 2, 2012 re-
sponse to the October 1, 2012 complaint).
On October 4, 2012, HRMS Chief Erwin proposed sus-
pending Reed for three days. P.A. at 4−7. Soon thereafter,
he issued a decision effecting that suspension. P.A. 8−9
(asserting that “the sustained charges against [Reed were]
of such gravity that mitigation of the proposed penalty is
not warranted”). In the notice of suspension, Erwin noted
that his decision involved consideration of the three recent
reports on Reed’s conduct as well as Reed’s past discipli-
nary record, which included the February 13, 2012 admon-
ishment that remained in her personnel file.3 Id.
In a November 7, 2012 complaint to the Office of Spe-
cial Counsel (“OSC”), Reed asserted that the suspension
was evidence of agency retaliation for whistleblowing ac-
tivity in violation of 5 U.S.C. § 2302(b)(8). P.A. 62−72. On
May 16, 2013, the OSC issued a preliminary decision to
close the file without taking corrective action in view of a
lack of “evidence that any management officials
3 Although agency procedures allow for such an ad-
monishment to be removed from an employee’s personnel
file six months after issuance and Reed timely requested
such a removal, HRMS Assistant Chief Watkins elected not
to do so. See R.A. 67 n.3, 93−95; P.A. 168−69, ¶¶ 6−7.
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REED v. DVA 5
responsible for the personnel actions suffered any adverse
impact as a result of [Reed’s] meeting with the Director.”
R.A. 157−58. Reed responded, noting that the cited ra-
tionale was not the relevant legal standard, id. at 159−62,
but the OSC nevertheless closed its file on June 7, 2013
without taking corrective action. Id. at 163−64.
Reed then filed an IRA appeal under the Whistleblower
Protection Act (“WPA”) on July 29, 2013. R.A. 1. In a
March 31, 2014 initial decision, an administrative judge
(“AJ”) held that she had not met her burden to establish
jurisdiction because she had failed to nonfrivolously allege
that she had made protected disclosures under
§ 2302(b)(8). R.A. 1−16. But on November 25, 2014, the
Board modified that initial decision, finding that she had
made a nonfrivolous allegation of at least one protected dis-
closure in the form of her OSC complaint, and that Reed
should also be given an opportunity to argue on remand
that the agency perceived her to be a whistleblower even in
the absence of a protected disclosure. Id. at 21−29. The
Board subsequently remanded the case for further adjudi-
cation. Id. at 29. However, on January 6, 2015, the Board
vacated its November 25, 2014 decision and instead af-
firmed the March 31, 2014 initial decision that found a lack
of jurisdiction. Id. at 32−47.
Reed then appealed to this court. While that appeal
was pending, the Board requested that we vacate its Janu-
ary 6, 2015 decision in light of its new determination that
Reed had, in fact, made a nonfrivolous allegation that each
of her June 22, July 26, and August 29, 2012 disclosures
were protected and were contributing factors in various
personnel actions. R.A. 48−50. At the Board’s request, its
decision was vacated by this court on June 23, 2015 and
the case was remanded for further adjudication. Id. The
Board subsequently issued its own remand order on Sep-
tember 25, 2015, instructing the AJ to issue a new initial
decision evaluating whether or not Reed’s June 22, July 26,
and August 29, 2012 disclosures were protected under
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REED v. DVA 6
§ 2302(b)(8). R.A. 51−56. If so, the AJ was to evaluate
whether or not those disclosures contributed to the alleged
retaliatory actions consisting of (1) discipline threatened
for meeting with the Director; (2) the August 29, 2012 de-
cision not to remove Reed’s admonishment from her per-
sonnel file; (3) the 3-day suspension proposed on October 4,
2012; and (4) the 3-day suspension issued on October 29,
2012. Id.
On remand, the AJ found that none of the disclosures
were protected because Reed could not have reasonably be-
lieved that her admonishment was an abuse of authority or
that an agency rule had been violated in the course of issu-
ing her admonishment or handling her subsequent griev-
ances. R.A. 57−77. Reed filed a petition for review, which
was denied. The remand initial decision thus became the
Board’s final decision on February 23, 2023. R.A. 78−92.
Reed appealed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
Reed contends that the Board erred in holding that she
failed to establish that any of the June 22, July 26, or Au-
gust 29, 2012 disclosures was protected under § 2302(b)(8).
We review the Board’s legal determinations de novo and its
underlying findings of fact for substantial evidence.
Welshans v. United States Postal Serv., 550 F.3d 1100,
1102 (Fed. Cir. 2008). A court will not overturn an agency
decision if it is not contrary to law and was supported by
“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Consol. Edison Co.
v. Nat’l Lab. Rel. Bd., 305 U.S. 197, 229 (1938).
Under the WPA, any supervisory employee with the
authority to take, recommend, or approve a personnel ac-
tion may not take, or threaten to take, such an action be-
cause of an employee’s disclosure that that employee
“reasonably believes evidences (i) any violation of any law,
rule, or regulation, or (ii) gross mismanagement, a gross
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REED v. DVA 7
waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety,” assuming the
disclosure is not specifically prohibited by law or otherwise
“specifically required by Executive order to be kept secret
in the interest of national defense or the conduct of foreign
affairs.” 5 U.S.C. § 2302(b)(8)(A). An employee may be
protected from retaliation under the WPA even if her rea-
sonable belief of agency wrongdoing was mistaken. See
Drake v. Agency for Int’l Dev., 543 F.3d 1377, 1382 (Fed.
Cir. 2008).
Here, the four allegedly prohibited personnel practices
identified by the Board in its September 25, 2015 remand
order all fall within the umbrella of disciplinary or correc-
tive actions under 5 U.S.C. § 2302(a)(2)(A)(iii). See R.A.
55−56. There appears to be no dispute that those four per-
sonnel practices were performed at the behest of agency
employees with the authority to take, recommend, or ap-
prove personnel actions.
Reed does not allege that her disclosures evidence a
gross waste of funds or a substantial and specific danger to
public health or safety. And, although the AJ, Board, and
government on appeal each discussed a lack of a showing
of gross mismanagement, Reed has never asserted gross
mismanagement. She does allege, however, that each of
her disclosures demonstrated that she reasonably believed
that the agency (i) violated a law, rule, or regulation under
5 U.S.C. § 2302(b)(8)(A)(i) and (ii) committed an abuse of
authority under 5 U.S.C. § 2302(b)(8)(A)(ii). We address
both in turn below.
I.
We turn first to protection under 5 U.S.C.
§ 2302(b)(8)(A)(i). Reed asserts that the agency violated its
grievance policies, which she asserts amounts to the viola-
tion of a rule. She does not appear to assert that the agency
violated a law or regulation.
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REED v. DVA 8
We begin with her first disclosure, the June 22, 2012 e-
mail bringing concerns regarding an allegedly futile griev-
ance process to the attention of the Medical Center Direc-
tor. The Board determined that that e-mail could not have
disclosed such a violation because she “failed to show that
the agency was required by its own rules to conduct any
further fact finding regarding her grievance or to allow her
to present her grievance orally, and the record did not re-
flect that the agency had denied her any required proce-
dural protections.” R.A. 84.
The proper test for determining if an employee made a
protected disclosure rests on whether or not that employee
had a reasonable belief that her disclosures revealed mis-
conduct prohibited under the WPA. See 5 U.S.C.
§ 2302(b)(8)(A). That inquiry involves evaluating whether
or not a disinterested observer with knowledge of the es-
sential facts known to and readily ascertainable by the em-
ployee could reasonably conclude that the actions of the
agency evidence wrongdoing as defined by the WPA. See
Drake, 543 F.3d at 1382; see Huffman v. Office of Pers.
Mgmt., 92 M.S.P.R. 429, 433 (2002) (“To establish that he
held such a reasonable belief, an appellant need not prove
that the condition disclosed actually established one or
more of the listed categories of wrongdoing, but he must
show that the matter disclosed was one which a reasonable
person in his position would believe evidenced one of the
situations specified in 5 U.S.C. § 2302(b)(8).”).
The analysis therefore turns not on Reed’s ability to es-
tablish that the agency violated its own rules, but whether
or not she reasonably believed that it had.
We agree with the Board that the June 22, 2012 e-mail
did not evidence a belief that a rule had been violated. See
P.A. 234. Rather, it served to bring the nature of the exist-
ing grievance process to the attention of the Medical Center
Director. Id. Although Reed did note that she “thought
that an additional fact finding would occur with employees
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REED v. DVA 9
who could shed light on the fact that the scenario depicted
within the admonishment never happened” and that “no
one did an additional fact-finding,” she did not assert that
failure to perform additional fact-finding was a rule viola-
tion. The June 22, 2012 e-mail therefore does not consti-
tute a protected disclosure under § 2302(b)(8)(A)(i).
The July 26, 2012 e-mail did not merely raise a concern
with a futile grievance process. Rather, Reed asserted that
“in order to afford me any real due process, an additional
inquiry would have had to occur. I believe this was re-
quired as the policy is written.” R.A. 242. Nevertheless,
we do not find that such a cursory statement sufficiently
alleges a rule violation, and for that reason do not find the
July 26, 2012 disclosure to be a protected disclosure under
the WPA.
The limited evidence describing what was asserted at
Reed’s August 29, 2012 meeting with the Medical Center
also appears insufficient to overturn the Board’s conclusion
that those disclosures were not protected. For example, a
statement signed by an attorney who accompanied Reed to
the meeting describes how Reed “reiterated many of the
same points that were in her grievance.” R.A. 169. How-
ever, the attorney’s statement does not sufficiently explain
what those points were. The statement seems to indicate
that Reed asserted that the agency deviated from standard
procedures in handling her grievances, see R.A. 169, but
that is not the same as alleging that those deviations were
actual rule violations. Similarly, the attorney testified that
he “reviewed the agency’s grievance policy and found that
[Reed] w[as] afforded none of the procedures that would
have amounted to a substantive process for review.” See
R.A. 168. But there does not appear to be a sufficiently
pled allegation that such deviations were rule violations.
In view of the above, there is insufficient evidence be-
fore us to overturn the Board’s determination that none of
the three disclosures constitutes a protected disclosure
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REED v. DVA 10
under § 2302(b)(8)(A)(i).
II.
We next turn to Reed’s allegations of an abuse of au-
thority under 5 U.S.C. § 2302(b)(8)(A)(ii). In adopting the
AJ’s remand initial decision, the Board agreed with the
AJ’s holding that all three disclosures lacked a reasonably
believed assertion of an abuse of authority. See R.A. 83−84.
In particular, the AJ found that the evidence most favora-
ble to Reed describing the January 12, 2012 exchange with
Pardun described her as being involved “in a loud, non-pro-
ductive exchange” that involved acting with disrespect to-
ward her supervisor. R.A. 64−66. The AJ reasoned that,
because her own testimony could be viewed as supporting
a finding that she was disrespectful toward her supervisor,
Reed deserved the admonishment, and she therefore could
not have reasonably believed that the issuance of the ad-
monishment constituted an abuse of authority. Id. The
Board agreed.
“Although § 2302 does not define abuse of authority,
related whistleblower-protection statutes” define it as “an
arbitrary and capricious exercise of authority that is incon-
sistent with the mission of the executive agency con-
cerned.” Smolinski v. Merit Sys. Prot. Bd., 23 F.4th 1345,
1352 (Fed. Cir. 2022).
The foundational question that Reed presents at the
heart of her appeal is a factual one: did she engage in the
January 12, 2012 altercation as Pardun alleged. The AJ
and Board found that she did. R.A. 84−85. Reed appears
to have acknowledged that evidence in the record supports
the conclusion that she acted disrespectfully toward her su-
pervisor. She has also acknowledged that if she did engage
in disrespectful conduct, it would have been reasonable for
her to be disciplined. R.A. 118. But Reed challenges that
evidence in the record, asserting that it was fabricated to
support an unjust admonishment. She alleges that a com-
plaint of fabricated evidence appears in each of the June
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REED v. DVA 11
22, July 26, and August 29, 2012 disclosures and that es-
tablishes her charge of an abuse of authority, not simply
the fact that she was admonished.
But the Board found (1) that Reed’s “insistence that the
agency fabricated the evidence in support of her admonish-
ment is not supported by the record,” (2) that her own tes-
timony regarding the January 12, 2012 incident supported
the admonishment, and (3) that even her most favorable
evidence corroborated the agency’s version of the events on
January 12, 2012. We review such factual findings for sub-
stantial evidence. Welshans, 550 F.3d at 1102.
There is some evidence to support that the report sub-
mitted by Pardun was embellished, as several employees
filed statements testifying to that effect. See R.A. 58−59
(employee reports describing Pardun’s account as “embel-
lished” and “not accurate”); id. (“the exchange I heard does
not support” Pardun’s accounting of events); id. at 60 (“I do
not believe that the incident in the admonishment [oc-
curred] as reported.”); id. (the incident had not risen “to the
level of intensity reported”); id. (“not believ[ing]” Pardun’s
account).
However, even if Reed reasonably believed, and some
evidence in the record supports that, Pardun’s Report of
Contact unfairly characterized their interaction, such be-
havior is not an abuse of authority under the whistleblow-
ing statutes. Our case law has emphasized that routine
disputes between an employee and a supervisor are not en-
compassed by the WPA. Langer v. Dep’t of Treasury, 265
F.3d 1259, 1266 (Fed. Cir. 2001). The facts of this case re-
flect only an employee-supervisor dispute. We therefore
find that none of the June 22, July 26, and August 29, 2012
disclosures asserting abuses of authority was protected un-
der 5 U.S.C. § 2302(b)(8)(A)(ii).
III.
Because we find none of the three disclosures to be
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REED v. DVA 12
protected under § 2302(b)(8)(A), we need not assess
whether the disclosures contributed to allegedly retaliatory
personnel actions.
CONCLUSION
We have considered Reed’s remaining arguments and
do not find them persuasive. For the foregoing reasons, we
affirm the Board’s determination that none of the June 22,
July 26, and August 29, 2012 disclosures was protected un-
der 5 U.S.C. § 2302(b)(8).
AFFIRMED
COSTS
No costs.
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N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARGARET M. REED,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2023-1628
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-13-1557-B-1.
______________________
REYNA, Circuit Judge, dissenting.
This appeal comes upon a curious path, the facts and
history of which are aptly laid out in the majority opinion.
The underlying case has involved several remands by the
Board, a remand from this court, and two decisions by the
ALJ, all addressing the “foundational question” that the
majority declares is “at the heart of [Reed’s] appeal”: “did
she engage in the January 12, 2012 altercation as Pardun
alleged.” Maj. Op. 10. This is a question of fact that we
review for substantial evidence. Welshans v. United States
Postal Serv., 550 F.3d 1100, 1102 (Fed. Cir. 2008).
The majority concludes that Reed engaged in an alter-
cation as alleged by her supervisor, Pardun. Based on that
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REED v. DVA 2
finding, the majority asserts that this case involves a rou-
tine “employee-supervisor dispute.” Maj. Op. 11. The ma-
jority affirms, in part, on the basis that Reed fails to allege
an abuse of authority under 5 U.S.C. § 2302(b)(8)(A)(ii) be-
cause the Whistleblower Protection Act (“WPA”) does not
apply to routine employee-supervisor disputes. Id.
But this case is not a routine employee-supervisor dis-
pute. This case is about an inaccurate, embellished report
filed by supervisor Pardun against Reed that formed the
basis for an admonishment, later followed by suspension.
The January 12, 2012 incident between Reed and her
supervisor Pardun was witnessed by Reed’s co-workers.
What those co-workers said speaks directly to the founda-
tional question of whether the altercation was “as Pardun
alleged.” Thus, while the incident report prepared by Par-
dun relays her side of the altercation, the overwhelming
eyewitness evidence establishes that the characterizations
in the incident report were false, or “embellished.” Con-
sider that all but one employee who witnessed the ex-
change either contradicted Pardun’s incident report or
provided a perspective that rendered it suspect, if not out-
right fabricated. See P.A. 58–59 (describing Pardun’s ac-
count as “embellished” and “not accurate”); id. (stating “the
exchange I heard does not support” Pardun’s accounting of
events); id. at 60 (stating “I do not believe that the incident
in the admonishment [occurred] as reported.”); id. (stating
the incident had not risen “to the level of intensity re-
ported”); id. (“not believ[ing]” Pardun’s account and allega-
tions of potential violence).
One witness related that it was the supervisor, Pardun,
that was “the person [they] heard using an inappropriate
tone with an elevated vocal range” during the January 12,
2012 incident. P.A. 58. The witness statement clearly
identifies the supervisor as the inappropriate actor: “Ms.
Pardun continued to engage in an inappropriate verbal
manner with Michelle Reed,” and, “instead of diffusing the
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REED v. DVA 3
situation[,] [was] elevat[ing] the situation to the point
[that] Ms. Pardun was raising her voice for the entire area
to hear her interaction with Ms. Reed.” P.A. 58. The wit-
ness continued, explaining that “[i]t appeared [Pardun]
was actually trying to provoke/bait Ms. Reed” and that “[i]t
was obvious from Ms. Reed’s comments that she was only
trying to obtain Ms. Pardun’s full attention about some-
thing.” P.A. 58; see also R.A. 98 (identifying Pardun as the
aggressor that escalated the exchange). Only one co-
worker colleague lent limited support to Pardun’s version
of events. R.A. 101.
This case is also not a routine employee-supervisor dis-
pute because senior officials above Reed were also involved.
After the January incident, Reed was admonished by the
Assistant Chief of the Human Resources Management Ser-
vice (“HRMS”), Rolanda Watkins, for disrespectful conduct
based on the incident report. R.A. 93–95. Once it was
placed in Reed’s employment file, the admonishment be-
came an adverse personnel action. See § 2302(a)(2) (defin-
ing personnel actions). Subsequently, based on the
admonishment, Reed was suspended—another adverse
personnel action. P.A. 4−9. During this process, Reed al-
leged to the Director of the Department of Veterans Affairs
Medical Center, Mr. Alex Costie, that she was deprived of
her due process rights because factual disputes that she
had raised were ignored and the agency had failed to make
additional factual inquiries. R.A. 118−20. Importantly, all
the individuals involved, other than Reed, are senior level
officials in the Department of Veterans Affairs Medical
Center, such as Director Costie, or those in the human re-
sources department, including HRMS Chief Jerry Erwin,
HRMS Assistant Chief Rolanda Watkins, and Pardun. It
seems to me that conduct by such officials in levying per-
sonnel actions on the basis of inaccurate and embellished
information would support a reasonable basis of an abuse
of authority.
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REED v. DVA 4
Section 2302 of the WPA does not define abuse of au-
thority. Some statutes related to whistleblower-type pro-
tection define it as “an arbitrary and capricious exercise of
authority that is inconsistent with the mission of the exec-
utive agency concerned.” E.g., 41 U.S.C. § 4712(g)(1)
(whistleblower protections for employees of federal con-
tractors). The Board has maintained that abuse of author-
ity occurs when there is an “arbitrary or capricious exercise
of power by a Federal official or employee that adversely
affects the rights of any person or that results in personal
gain or advantage to himself or to preferred other persons.”
Smolinski v. Merit Sys. Prot. Bd., 23 F.4th 1345, 1351 (Fed.
Cir. 2022) (citing Wheeler v. Dep’t of Veterans Affs., 88
M.S.P.R. 236, 241 (2001)). In Smolinski, applying the def-
inition of an abuse of authority from related whistleblower
statutes, we reasoned that sexual harassment and bullying
by a superior officer would be an abuse of authority as this
conduct is inconsistent with the mission of the army. Id.
at 1352. Here, the evidence points to an arbitrary and ca-
pricious exercise of authority that is inconsistent with the
mission of the executive agency concerned.
Our substantial evidence standard of review considers
the entire record, not just bits and pieces. Parker v. United
States Postal Serv., 819 F.2d 1113, 1115 (Fed. Cir. 1987)
(explaining the substantial evidence standard requires
evaluation of the “evidence on the record as a whole”). The
majority acknowledges that there is “some evidence to sup-
port that the report submitted by Pardun was embellished”
and that Pardun “unfairly characterized” the altercation
with Reed. Maj. Op. 11. But the majority’s final perspec-
tive is too limited and fails to account for the entire record.
The record evidence demonstrates arbitrary and capricious
conduct by high-level officials, and that such conduct is in-
consistent with the mission of the agency, recognizing that
the primary individuals involved in this matter worked in
the human resources department of the agency.
Case: 23-1628 Document: 29 Page: 16 Filed: 02/07/2024

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REED v. DVA 5
Based on the foregoing, I would find that substantial
evidence supports that Reed alleged a reasonable belief
that the June 22, July 26, and August 29, 2012 disclosures
each were protected disclosures under § 2302(b)(8)(A)(ii). I
respectfully dissent.
Case: 23-1628 Document: 29 Page: 17 Filed: 02/07/2024

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