Background
LaDonna Collier held a temporary Attorney Advisor position with the Small Business Administration, where she reviewed Economic Injury Disaster Loan files for possible fraud or illegality. She reported disagreements with second-level reviewers, known as “Fixers,” asserting that they had failed to follow internal policies, overlooked potentially fraudulent files, or incorrectly flagged other files.
After Collier’s temporary appointment expired, she filed an Individual Right of Action appeal alleging retaliation for disclosures protected by the Whistleblower Protection Act. An administrative judge dismissed the appeal for lack of jurisdiction, finding that Collier had not nonfrivolously alleged a protected disclosure or protected activity that contributed to a covered personnel action. The full Merit Systems Protection Board affirmed with modified reasoning, overruling prior Board precedent insofar as it categorically excluded personal grievances from qualifying as disclosures of abuse of authority, but concluding that the administrative judge’s reliance on that precedent was harmless.
The Court’s Holding
The Federal Circuit affirmed. It held that Collier failed to nonfrivolously allege that she made a protected disclosure because her allegations described professional disagreements about how other agency employees exercised discretion in reviewing loan files. A disclosure concerning a discretionary policy decision is protected only if the employee objectively and reasonably believes that it evidences a violation of law, rule, or regulation, gross mismanagement, gross waste, abuse of authority, or a substantial and specific danger to public health or safety.
The court concluded that a disinterested observer familiar with the relevant facts would not reasonably view Collier’s reported disagreements as evidence of wrongdoing covered by the Whistleblower Protection Act. Because she failed to satisfy the protected-disclosure element, the court did not address whether her disclosures contributed to a retaliatory personnel action. It also rejected her procedural objections, finding that the jurisdictional order gave adequate notice and an opportunity to cure, the Board properly applied the nonfrivolous-allegation standard at the jurisdictional stage, and the administrative judge independently evaluated the evidence despite finding the agency’s arguments persuasive.
Key Takeaways
- A workplace disagreement over colleagues’ discretionary decisions does not become a protected whistleblower disclosure without an objectively reasonable basis for believing that the conduct falls within a statutory category of wrongdoing.
- The MSPB may determine at the jurisdictional stage whether an appellant has nonfrivolously alleged that a purported disclosure is protected, while keeping that threshold inquiry distinct from the merits.
- A jurisdictional order explaining the applicable requirements and identifying jurisdiction as disputed can provide adequate notice and an opportunity to cure alleged pleading deficiencies.
Why It Matters
The nonprecedential decision underscores that federal employees invoking the MSPB’s whistleblower jurisdiction must plead specific, plausible facts showing an objectively reasonable belief that their disclosures revealed statutorily defined wrongdoing. Characterizing ordinary professional or policy disagreements as violations, without facts connecting them to a protected category, is insufficient.
The opinion also confirms that an administrative judge may adopt persuasive reasoning advanced by an agency so long as the judge independently assesses the appellant’s allegations and does not resolve disputed evidence against the appellant at the jurisdictional stage.