MSPB: No Abuse of Power is Too Small

The Merit Systems Protection Board (“Board”) recently issued a precedential decision holding that an employee’s personal complaints and grievances about how an Agency treated them may constitute “nonfrivolous allegations of disclosures” of an abuse of authority. In doing so, the Board overruled prior decisions that held, as a blanket rule, that complaints from an employee about how they, personally, were treated did not constitute protected disclosures of an abuse of authority.

Appellant, a former Small Business Administration employee, filed an Individual Right of Action (IRA) appeal following her removal from her position. Appellant argued that she was subjected to reprisal, including the creation of a hostile work environment and termination of her employment, after she made protected disclosures. The Administrative Judge dismissed Appellant’s IRA for lack of jurisdiction, finding that Appellant did not make any nonfrivolous allegation that “her disclosures were protected under 5 U.S.C. § 2302(b)(8) as a violation of law, rule, or regulation, an abuse of authority, or gross mismanagement.” 

The Board ultimately upheld the Administration Judge’s denial of Appellant’s IRA appeal. It agreed with the Administrative Judge that the Board only has jurisdiction over an IRA appeal if the Appellant has made nonfrivolous allegations that she made a protected disclosure. The Board also agreed with the Administrative Judge that the Appellant failed to do so in this instance.

However, the Board took issue with the Administrative Judge’s citation to and reliance on a prior Board decision, which found that an “appellant’s rambling allegations of abuses of authority are fundamentally his own personal complaints and grievances about how he was treated by the agency . . . and therefore do [not] constitute . . . a nonfrivolous allegation of a protected disclosure.”

The Board rejected this interpretation, finding that there “are no exceptions in the applicable statute for disclosures of abuses of authority that are personal complaints or grievances about treatment by an agency, nor does the Board’s definition include such an exception.” The Board also noted that an exception for “personal complaints and grievances” would not be consistent with the statutory definition of “abuse of authority,” which has no threshold limitation. In other words, there is no mandatory degree of seriousness or requirement that an allegation be more than de minimis, unlike other categories of disclosures.

The Board in Collier did not hold that all “personal complaints and grievances about how the agency treated an appellant” constitute protected disclosures. Instead, the Board held that agencies must analyze whether such complaints meet the definition of “abuse of authority,” rather than dispensing with them simply because they are an individual’s personal complaints.

Read the full decision here: https://www.mspb.gov/decisions/precedential/Collier_LaDonnaNY-1221-23-0093-W-1_Opinion_And_Order.pdf