NOTE: This disposition is nonprecedential.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, Washington, DC, for respondent. Also represented by BRIAN M.

BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E. WHITE, JR. 

 ______________________ 

Before LOURIE, PROST, and REYNA, Circuit Judges.

Opinion for the court filed PER CURIAM. 

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2 REED v. DVA

Dissenting opinion filed by Circuit Judge REYNA.

PER CURIAM. 

Margaret Michelle Reed appeals from a decision of the 

Merit Systems Protection Board (“the Board”) denying a request for relief in an Individual Right of Action (“IRA”) appeal 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 exchange with her supervisor, Jennifer Pardun, regarding 

Pardun’s apparent refusal to answer a work-related question 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 Human 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 admonishment. Both were denied. See, e.g., R.A. 111–17;

P.A. 253.2 

1 “R.A.” refers to the appendix filed with Respondent’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 expected 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 Director 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 department managers, including HRMS Chief Erwin and 

HRMS Assistant Chief Watkins, announcing that any employee 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 reports suggesting that Reed was unhelpful or rude in performing 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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4 REED v. DVA

“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 complainant’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 experiences, as well as evidence supporting her continued attempts 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 response to the October 1, 2012 complaint). 

On October 4, 2012, HRMS Chief Erwin proposed suspending 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 disciplinary record, which included the February 13, 2012 admonishment that remained in her personnel file.3 Id. 

In a November 7, 2012 complaint to the Office of Special Counsel (“OSC”), Reed asserted that the suspension

was evidence of agency retaliation for whistleblowing activity 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 admonishment 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 rationale 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 disclosure 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 adjudication. Id. at 29. However, on January 6, 2015, the Board 

vacated its November 25, 2014 decision and instead affirmed 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 January 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 September 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 

Case: 23-1628 Document: 29 Page: 5 Filed: 02/07/2024
6 REED v. DVA

§ 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 decision not to remove Reed’s admonishment from her personnel 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 believed that her admonishment was an abuse of authority or 

that an agency rule had been violated in the course of issuing her admonishment or handling her subsequent grievances. 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).

DISCUSSION

Reed contends that the Board erred in holding that she 

failed to establish that any of the June 22, July 26, or August 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 action may not take, or threaten to take, such an action because 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 reasonable 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 corrective 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 personnel practices were performed at the behest of agency 

employees with the authority to take, recommend, or approve 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 violation of a rule. She does not appear to assert that the agency 

violated a law or regulation. 

Case: 23-1628 Document: 29 Page: 7 Filed: 02/07/2024
8 REED v. DVA

We begin with her first disclosure, the June 22, 2012 email bringing concerns regarding an allegedly futile grievance process to the attention of the Medical Center Director. 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 reflect that the agency had denied her any required procedural 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 misconduct 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 essential facts known to and readily ascertainable by the employee 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 establish 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 existing 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 

Case: 23-1628 Document: 29 Page: 8 Filed: 02/07/2024
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 violation. The June 22, 2012 e-mail therefore does not constitute 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 required 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. However, 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 before us to overturn the Board’s determination that none of 

the three disclosures constitutes a protected disclosure 

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10 REED v. DVA

under § 2302(b)(8)(A)(i). 

II.

We next turn to Reed’s allegations of an abuse of authority 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 favorable to Reed describing the January 12, 2012 exchange with 

Pardun described her as being involved “in a loud, non-productive exchange” that involved acting with disrespect toward 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 admonishment 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 inconsistent with the mission of the executive agency concerned.” 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 supervisor. 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 complaint 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 establishes 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 admonishment is not supported by the record,” (2) that her own testimony 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 substantial evidence. Welshans, 550 F.3d at 1102. 

There is some evidence to support that the report submitted 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 “embellished” 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 [occurred] 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 behavior is not an abuse of authority under the whistleblowing statutes. Our case law has emphasized that routine 

disputes between an employee and a supervisor are not encompassed by the WPA. Langer v. Dep’t of Treasury, 265 

F.3d 1259, 1266 (Fed. Cir. 2001). The facts of this case reflect 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 under 5 U.S.C. § 2302(b)(8)(A)(ii). 

III.

Because we find none of the three disclosures to be 

Case: 23-1628 Document: 29 Page: 11 Filed: 02/07/2024
12 REED v. DVA

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 under 5 U.S.C. § 2302(b)(8). 

AFFIRMED

COSTS

No costs.

Case: 23-1628 Document: 29 Page: 12 Filed: 02/07/2024
NOTE: 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 altercation as alleged by her supervisor, Pardun. Based on that 

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2 REED v. DVA

finding, the majority asserts that this case involves a routine “employee-supervisor dispute.” Maj. Op. 11. The majority 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) because the Whistleblower Protection Act (“WPA”) does not 

apply to routine employee-supervisor disputes. Id. 

But this case is not a routine employee-supervisor dispute. 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 foundational question of whether the altercation was “as Pardun 

alleged.” Thus, while the incident report prepared by Pardun relays her side of the altercation, the overwhelming 

eyewitness evidence establishes that the characterizations 

in the incident report were false, or “embellished.” Consider that all but one employee who witnessed the exchange either contradicted Pardun’s incident report or 

provided a perspective that rendered it suspect, if not outright fabricated. See P.A. 58–59 (describing Pardun’s account 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 reported”); id. (“not believ[ing]” Pardun’s account and allegations 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 witness 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 something.” P.A. 58; see also R.A. 98 (identifying Pardun as the 

aggressor that escalated the exchange). Only one coworker colleague lent limited support to Pardun’s version 

of events. R.A. 101. 

This case is also not a routine employee-supervisor dispute because senior officials above Reed were also involved. 

After the January incident, Reed was admonished by the 

Assistant Chief of the Human Resources Management Service (“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 became an adverse personnel action. See § 2302(a)(2) (defining personnel actions). Subsequently, based on the 

admonishment, Reed was suspended—another adverse 

personnel action. P.A. 4−9. During this process, Reed alleged 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 resources department, including HRMS Chief Jerry Erwin, 

HRMS Assistant Chief Rolanda Watkins, and Pardun. It 

seems to me that conduct by such officials in levying personnel actions on the basis of inaccurate and embellished 

information would support a reasonable basis of an abuse 

of authority. 

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4 REED v. DVA

Section 2302 of the WPA does not define abuse of authority. Some statutes related to whistleblower-type protection define it as “an arbitrary and capricious exercise of 

authority that is inconsistent with the mission of the executive agency concerned.” E.g., 41 U.S.C. § 4712(g)(1)

(whistleblower protections for employees of federal contractors). The Board has maintained that abuse of authority 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 definition 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 capricious 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 support 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 perspective 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 inconsistent with the mission of the agency, recognizing that 

the primary individuals involved in this matter worked in 

the human resources department of the agency. 

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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