Case: 21-2001   Document: 43     Page: 1    Filed: 12/05/2022




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                  MARK EDENFIELD,
                      Petitioner

                            v.

      DEPARTMENT OF VETERANS AFFAIRS,
                   Respondent
             ______________________

                       2021-2001
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. AT-1221-19-0440-W-2.
                 ______________________

                Decided: December 5, 2022
                 ______________________

     NATHANIEL M. EDENFIELD, Sodhi Spoont PLLC, West
 Palm Beach, FL, argued for petitioner. Also repre-
 sented by ERIC SODHI, Miami, FL.

     DOMENIQUE GRACE KIRCHNER, Commercial Litigation
 Branch, Civil Division, United States Department of Jus-
 tice, Washington, DC, argued for respondent. Also repre-
 sented by BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
 MCCARTHY.
                  ______________________
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 2                                           EDENFIELD V. DVA




     Before CHEN, BRYSON, and HUGHES, Circuit Judges.
 HUGHES, Circuit Judge.
      Dr. Mark Edenfield appeals a decision from the Merit
 Systems Protection Board that he did not make a protected
 disclosure under the Whistleblower Protection Act. Be-
 cause the Board erred in finding that Dr. Edenfield did not
 make a protected disclosure, we reverse and remand for
 further proceedings.
                               I
      Dr. Edenfield is a staff anesthesiologist at the James
 H. Quillen Veterans Affairs Medical Center (Quillen
 VAMC) in Mountain Home, Tennessee. From 2004 until
 2016, Dr. Edenfield supervised Quillen VAMC’s Pre-Oper-
 ative Clinic, which was one of his roles as Chief of Anesthe-
 sia.
     In 2016, Quillen VAMC began to review and revise its
 policy for obtaining informed consent 1 for endoscopic pro-
 cedures. Before the policy change, physicians obtained in-
 formed consent on the day of the procedure, which cut into
 their time available to perform procedures. The new policy
 would allow mid-level practitioners, such as nurse practi-
 tioners and physician assistants, to obtain informed con-
 sent from patients the day before the procedure. Over a six-
 month period, the proposed policy change was reviewed by



     1   All medical treatments and procedures at Veterans
 Affairs medical centers, including Quillen VAMC, require
 the prior, voluntary informed consent of the patient or an
 authorized surrogate. The process of obtaining informed
 consent involves providing the patient with information
 about the procedure or treatment they will undergo, an-
 swering questions about the procedure or treatment, and
 confirming that the patient consents to the procedure or
 treatment.
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 EDENFIELD   v. DVA                                           3



 (1) the National Center for Ethics in Health Care
 (NCEHC), which writes and reviews agency policies re-
 lated to ethics; (2) the Credentialing Committee, which
 consists of several Quillen VAMC service chiefs as well as
 the heads of pharmacy, audiology, and dental services; (3)
 the Medical Executive Board (MEB), a group of 20 physi-
 cians as well as the Quillen VAMC Medical Center Direc-
 tor; and (4) the Veteran Integrated Service Network, a
 regional group of providers that includes Quillen VAMC.
 All four groups approved the new policy.
      On June 27, 2016, Quillen VAMC’s credentialing office
 sent an email to several employees, including Dr. Eden-
 field, asking which mid-level practitioners needed re-cre-
 dentialing packets that covered obtaining informed
 consent. Dr. Edenfield responded, claiming that it was
 against the Department of Veterans Affairs’ policy for mid-
 level practitioners to obtain informed consent for endo-
 scopic procedures. Dr. Edenfield quoted the definition of
 “practitioner” from the Veterans Health Administration
 Handbook (Handbook), which requires practitioners ob-
 taining informed consent to be “appropriately trained and
 authorized to perform the procedure or to provide the treat-
 ment for which consent is being obtained.” J.A. 581. 2 Ac-
 cording to Dr. Edenfield, none of the mid-level practitioners
 in the Pre-Operative Clinic were authorized to perform en-
 doscopic procedures and, therefore, were not authorized to
 obtain informed consent.
     In response, Lori Hagen, Chief of Quality Management
 at Quillen VAMC, told Dr. Edenfield that “we know the Di-
 rective and have further written guidance and are follow-
 ing it.” J.A. 580–81. Ms. Hagen also explained that the
 policy was discussed and approved by the MEB. Ms. Hagen
 later offered to meet with Dr. Edenfield and Dr. David


     2   All J.A. citations refer to the joint appendix filed by
 the parties.
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 4                                          EDENFIELD V. DVA




 Hecht, the Chief of Staff at Quillen VAMC. During the
 meeting, Dr. Edenfield reiterated his belief that it would
 violate the Handbook to allow mid-level practitioners to ob-
 tain informed consent for endoscopic procedures, while Ms.
 Hagen and Dr. Hecht explained why the new policy did not
 violate the Handbook. Although the parties dispute the
 driving factor leading to his role change, Dr. Edenfield ul-
 timately stepped down as the supervisor of the Pre-Opera-
 tive Clinic.

      About two years later, on April 11, 2018, a Market Pay
 Review Panel reviewed Dr. Edenfield’s salary. Dr. Hecht
 was one of the physicians on this review panel. Although
 Dr. Edenfield’s supervisor recommended that Dr. Eden-
 field receive a pay increase, the panel voted to keep
 Dr. Edenfield’s salary the same. This prompted Dr. Eden-
 field to write a letter to the Quillen VAMC Director, alleg-
 ing that Dr. Hecht was retaliating against him for
 questioning the new informed consent policy. Dr. Edenfield
 eventually resigned as Chief of Anesthesiology and became
 a staff anesthesiologist.
     Dr. Edenfield filed a complaint with the Office of Spe-
 cial Counsel (OSC), alleging that he had been retaliated
 against for making protected disclosures in violation of the
 Whistleblower Protection Act (WPA). OSC determined that
 there was no WPA violation and closed its investigation,
 after which Dr. Edenfield appealed to the Merit Systems
 Protection Board, requesting corrective action. administra-
 tive judge denied Dr. Edenfield’s request for corrective ac-
 tion and found that Dr. Edenfield did not meet his burden
 to show that his statements were protected disclosures un-
 der 

(b)(8). In particular, the administrative
 judge found that Dr. Edenfield did not have a reasonable
 belief that the new informed consent policy violated any
 agency regulation or the Handbook.
    Dr. Edenfield now appeals. We have jurisdiction under
 

(a)(9).
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 EDENFIELD   v. DVA                                          5



                               II
     We set aside the Board’s decision only if it is “(1) arbi-
 trary, capricious, an abuse of discretion, or otherwise not
 in accordance with law; (2) obtained without procedures re-
 quired by law, rule, or regulation having been followed; or
 (3) unsupported by substantial evidence.” 

(c). Legal conclusions by the Board are reviewed de
 novo. Wrocklage v. Dep’t of Homeland Sec., 

 (Fed. Cir. 2014).
                              III
     The WPA protects disclosures made by federal employ-
 ees who reasonably believe that the disclosure evidences a
 violation of a law, rule, or regulation. 

(b)(8)(A)(i). To determine whether a belief is reason-
 able, we ask whether a “disinterested observer with
 knowledge of the essential facts known to and readily as-
 certainable by the employee [could] reasonably conclude”
 that the agency’s action violates a law, rule, or regulation.
 Lachance v. White, 

 (Fed. Cir. 1999).
      The issue before us is whether the Board properly con-
 cluded that Dr. Edenfield did not have a reasonable belief
 that Quillen VAMC’s new informed consent policy violated
 the Handbook. The Board’s determination relied largely on
 its interpretation of the Handbook and its conclusion that
 “[a] plain reading of this regulation does not limit obtaining
 informed consent to the physician performing the proce-
 dure . . . .” J.A. 12.
      The proper interpretation of an agency manual, like
 the interpretation of a statute or regulation, is a question
 of law that we consider de novo on appeal. See Welshans v.
 U.S. Postal Serv., 

, 1102–03 (Fed. Cir. 2008).
 And, as we explain further below, the Board’s legal inter-
 pretation is incorrect. The more natural reading of the
 Handbook provision is likely that of Dr. Edenfield, but at
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 6                                              EDENFIELD V. DVA




 the very least, the definition of “practitioner” is ambiguous,
 rendering Dr. Edenfield’s interpretation reasonable.
                                  A
      The Handbook states that informed consent must be
 obtained by a “practitioner.” 3 The Handbook defines “prac-
 titioner” as follows:
         Practitioner. A practitioner is defined as any
         physician, dentist, or health care professional
         granted specific clinical privileges to perform
         the treatment or procedure. For the purpose
         of this Handbook, the term practitioner also
         includes:
                                ....
         (2) Other health care professionals whose
         scope of practice agreement or other formal
         delineation of job responsibility specifically
         permits them to obtain informed consent, and
         who are appropriately trained and authorized
         to perform the procedure or to provide the
         treatment for which consent is being ob-
         tained.




     3   The informed consent policies in the Handbook are
 drafted to cover a variety of medical measures, including
 those that might not be “procedures” in the traditional
 sense, such as non-surgical treatments. When obtaining in-
 formed consent, the practitioner must be able to fully de-
 scribe the procedure or treatment and answer any
 questions that the patient might have. It is important that
 a practitioner be authorized to perform the procedure or
 provide the treatment—if they are not, they might not be
 fully knowledgeable about what the patient is about to en-
 dure.
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 EDENFIELD   v. DVA                                          7



 Veterans       Health        Administration      Handbook
 § 1004.01(2)(3)(j)(2) (Aug. 14, 2009) (emphasis added).
      “Practitioner” is broadly defined because the Handbook
 covers obtaining informed consent for a variety of medical
 procedures and treatments, not only endoscopic proce-
 dures. Even though there are situations where other health
 care professionals, such as mid-level practitioners, may ob-
 tain informed consent, this does not mean mid-level prac-
 titioners can always obtain informed consent. The
 definition of “practitioner” lays out two conditions for
 “other health care professionals” to obtain informed con-
 sent: (1) the scope of practice or job delineation must permit
 them to obtain informed consent; and (2) they must be ap-
 propriately trained and authorized to either (a) perform the
 procedure or (b) to provide the treatment. Id. The second
 prong is ambiguous about the relationship between being
 authorized to perform a procedure and being authorized to
 provide treatment. At Quillen VAMC for example, mid-
 level practitioners are undisputedly not authorized to per-
 form endoscopic procedures. However, mid-level practition-
 ers do provide certain treatments related to endoscopic
 procedures. This raises a question about whether, in the
 context of performing endoscopic procedures, mid-level
 practitioners such as nurse practitioners and physician as-
 sistants qualify as “other health care professionals” under
 the definition.
     The agency argues that the Board properly adopted its
 interpretation of the Handbook because “[m]id-levels
 would fall under the [‘]other health care professionals’ cat-
 egory and, as such, would be able to obtain informed con-
 sent if their scope of practice permitted it, and if they were
 appropriately trained to either perform the procedure or
 provide the treatment.” Appellee’s Br. 36 (quoting J.A. 12).
 Under the agency’s interpretation, mid-level practitioners
 were covered under the definition because, even though
 they could not perform endoscopic procedures themselves,
 they were authorized to provide treatment related to
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 8                                            EDENFIELD V. DVA




 endoscopic procedures, such as overseeing the preparation
 for endoscopic procedures and following up with the patient
 after the procedure was completed. Appellee’s Br. 37–38.
      Here, we do not need to determine whether the agency
 or Dr. Edenfield had the correct interpretation of the Hand-
 book. As we have previously held, an employee’s belief that
 a violation occurred can still be reasonable even if it is
 wrong. Drake v. Agency for Int’l Dev., 

 (Fed. Cir. 2008). Even if the agency’s interpretation of the
 Handbook is a possible interpretation, it is not, as the
 Board erroneously held, the only plain interpretation. The
 definition of “practitioner” in the Handbook was clearly
 susceptible to multiple interpretations: one where mid-
 level practitioners could obtain informed consent if they
 were part of a treatment team, and another where mid-
 level practitioners could not obtain informed consent if
 they were not authorized to perform the procedure. For ex-
 ample, at least two other Quillen VAMC employees inter-
 preted the Handbook the same way as Dr. Edenfield and
 felt that mid-level practitioners were not authorized to ob-
 tain informed consent for endoscopic procedures. Even Dr.
 Jason Dominitz, the National Program Director of Gastro-
 enterology who testified on behalf of the agency, admitted
 that the definition of practitioner was “open to interpreta-
 tion.” J.A. 268.
     The definition in the Handbook is ambiguous at best,
 and Dr. Edenfield’s interpretation reflects that ambiguity.
 Because the definition is at least ambiguous and both Dr.
 Edenfield’s and the agency’s interpretations are reasona-
 ble, the Board erred in holding that Dr. Edenfield did not
 have a reasonable belief that he was making a protected
 disclosure.
                                B
     Furthermore, when applying the test for what consti-
 tutes a reasonable belief, the Board must look to the infor-
 mation that would have been available to or ascertainable
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 EDENFIELD   v. DVA                                         9



 by a disinterested observer at the time they made the dis-
 closure. Dr. Edenfield first expressed his belief in response
 to the email about re-credentialing packets. When Dr.
 Edenfield made his disclosure, he relied on the Handbook’s
 definition of “practitioner,” the corresponding regulation at
 

 that contains the definition, and a fact
 sheet from the NCEHC. Appellant’s Br. 10–11. There is
 nothing in the record suggesting that a disinterested ob-
 server standing in Dr. Edenfield’s shoes could have known
 or ascertained additional information before making the
 disclosure. Based on the information he had at the time of
 his disclosure, Dr. Edenfield reasonably believed that the
 policy allowing mid-level practitioners to obtain informed
 consent for endoscopic procedures would violate the Hand-
 book.
     Dr. Edenfield expressed his belief in the context of ob-
 taining informed consent for procedures such as endosco-
 pies and colonoscopies. When Dr. Edenfield made his
 disclosure, mid-level practitioners at Quillen VAMC were
 not authorized to perform these procedures, which are per-
 formed by physicians because they require placing a scope
 inside a patient. Based on the language of the Handbook,
 Dr. Edenfield believed that mid-level practitioners were
 not authorized to obtain informed consent.
     The Board concluded that Dr. Edenfield’s belief was
 unreasonable in part because Ms. Hagen and Dr. Hecht ex-
 plained that Quillen VAMC had obtained approval for this
 new policy from several decision-making bodies during
 their meeting. But when Dr. Edenfield made his disclosure,
 he could not have known about the steps Quillen VAMC
 had taken to get the new policy approved because he was
 not involved in this decision-making process, nor was this
 information publicly available. Dr. Edenfield was first
 given information about the decision-making process in an
 email from Ms. Hagen after he first voiced his belief. Dr.
 Hecht and Ms. Hagen did not provide Dr. Edenfield with
 any other information about the approval process until
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 10                                           EDENFIELD V. DVA




 their in-person meeting after he had made his disclosure,
 and after he had explained why he thought the new policy
 violated the Handbook. At least two of the agency’s wit-
 nesses testified that the information supporting Quillen
 VAMC’s interpretation of “practitioner” was not publicly
 available or readily ascertainable. The Board erred by re-
 lying on information that would not have been known to or
 readily ascertainable by a disinterested observer, because
 such information cannot support a finding that Dr. Eden-
 field’s belief was unreasonable.
                            IV
     Because the Board erred in finding that Dr. Edenfield
 did not make a protected disclosure under 

(b)(8), we reverse and remand for further proceed-
 ings consistent with this opinion.
                REVERSED AND REMANDED
                           COSTS

 Costs to petitioner.