Collier v. MSPB

Case: 25-1339 Document: 79 Page: 1 Filed: 09/17/2026

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ LADONNA COLLIER, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2025-1339 ______________________ Petition for review of the Merit Systems Protection Board in No. NY-1221-23-0093-W-1. ______________________ Decided: September 17, 2026 ______________________ LADONNA COLLIER, Staten Island, NY, pro se.

ELIZABETH W. FLETCHER, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________ Before LOURIE, HUGHES, and STOLL, Circuit Judges.

PER CURIAM.

Case: 25-1339 Document: 79 Page: 2 Filed: 09/17/2026

2 COLLIER v. MSPB

LaDonna Collier petitions for review of the Merit Sys- tems Protection Board’s final order affirming the dismissal of her whistleblower Individual Right of Action appeal for lack of jurisdiction. Because Ms. Collier fails to identify any reversible error or nonfrivolously allege that she made any protected disclosures under the Whistleblower Protection Act, we affirm.

I In August 2021, Ms. Collier was appointed to a tempo- rary position with the Small Business Administration as an Attorney Advisor in its Office of Disaster Assistance, Processing and Disbursement Center. During her tenure, Ms. Collier managed Economic Injury Disaster Loans (EIDLs) and conducted first-level reviews to flag possible illegal or fraudulent activity. Any files that she determined contained no fraudulent or illegal activity were sent to sec- ond-level investigators, called “Fixers,” who would review the files and escalate further if necessary. At times, the Fixers disagreed with Ms. Collier’s assessment of EIDL loan files. Ms. Collier reported some of these instances to her supervisors, suggesting that the Fixers failed to abide by internal policies, failed to report certain possibly fraud- ulent files, and erroneously reported other cases for fraud or other illegal activity. In April 2022, Ms. Collier filed a complaint with the Office of Special Counsel (OSC). Perti- nent to this appeal, Ms. Collier reported her disagreements with several Fixers about their alleged wrongdoing.

On May 18, 2022, while OSC’s investigation remained ongoing, the agency sent Ms. Collier a letter explaining that her temporary appointment was to expire on May 27, 2022, due to the agency ending its work with the project for which she was hired. After Ms. Collier’s employment ended, in February 2023, OSC issued a final decision and closure letter.

On April 19, 2023, Ms. Collier then filed an Individual Right of Action (IRA) appeal with the Merit Systems Case: 25-1339 Document: 79 Page: 3 Filed: 09/17/2026

COLLIER v. MSPB 3

Protection Board alleging that the agency retaliated against her for making disclosures protected by the Whis- tleblower Protection Act (WPA). A week later, the admin- istrative judge issued a jurisdiction order explaining the elements and burdens of proof for establishing the Board’s jurisdiction over an IRA appeal. Ms. Collier submitted a re- sponse alleging that she had made several protected disclo- sures that led to the agency subjecting her to prohibited personnel practices from December 2021 through May 2022. On July 27, 2023, the administrative judge is- sued an initial decision dismissing Ms. Collier’s appeal for lack of jurisdiction because she failed to nonfrivolously al- lege that she made any protected disclosures or engaged in protected activity that was a contributing factor to a cov- ered personnel action. See Collier v. Small Bus. Admin., No. NY-1221-23-0093-W-1, 2023 MSPB LEXIS 3868, at *1 (July 27, 2023) (Initial Decision).

Ms. Collier petitioned for review of the initial decision before the full Board. In October 2024, the Board issued a final decision denying her petition and affirming the initial decision as modified to supplement the initial decision’s analysis. Collier v. Small Bus. Admin., No. NY-1221-23- 0093-W-1, 2024 MSPB LEXIS 6217, at *1 (Oct. 29, 2024) (Final Decision). Specifically, the Board modified the por- tions of the initial decision’s rationale that relied on Mc Corcle v. Dep’t of Agric., 98 M.S.P.R. 363, ¶ 24 (2005).

See Final Decision, 2024 MSPB LEXIS 6217, at *4–8.

In the initial decision, the administrative judge cited Mc Corcle to suggest that “an appellant’s own personal complaints about how she was treated by the agency or mere debatable disagreements with the agency’s policy de- cisions do not qualify as nonfrivolous disclosures of an abuse of authority.” Initial Decision, 2023 MSPB LEXIS 3868, at *13 (cleaned up). On review, the Board explicitly overruled Mc Corcle and its progeny to the extent they “have held that a disclosure of an alleged abuse of authority is not protected simply because it involves personal Case: 25-1339 Document: 79 Page: 4 Filed: 09/17/2026

II We must affirm the Board’s decision unless it is “(1) ar- bitrary, 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.” 5 U.S.C. § 7703(c). “Whether the Board has jurisdiction over a par- ticular matter is a question of law that this court reviews de novo.” Kerrigan v. Merit Sys. Prot. Bd., 833 F.3d 1349, 1353 (Fed. Cir. 2016). The Board has jurisdiction over an IRA appeal if the appellant makes “‘non-frivolous allega- tions’ that (1) [s]he engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).” Yunus v. Dep’t of Veter- ans Affs., 242 F.3d 1367, 1371 (Fed. Cir. 2001).

A As a general matter, Ms. Collier argues that she non- frivolously alleged that she disclosed gross mismanage- ment, an abuse of authority, and violations of law, rule, or Case: 25-1339 Document: 79 Page: 5 Filed: 09/17/2026

COLLIER v. MSPB 5 regulation under 5 U.S.C. § 2302(b)(8)(A). 1 A disclosure of information is protected under the WPA if the speaker “reasonably believes” it evidences “(i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(A). We apply an objective test to determine whether an employee’s belief is “reasonable.” Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1328 (Fed. Cir. 2020).

This court asks “whether a disinterested observer with knowledge of the essential facts known to and readily as- certainable by the employee would reasonably conclude that the actions of the government evidence wrongdoing as defined by the Whistleblower Protection Act.” Id. “A non- frivolous allegation is an assertion that, if proven, could es- tablish the matter at issue.” 5 C.F.R. § 1201.4(s). “An allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that: (1) Is more than conclusory; (2) Is plausible on its face; and (3) Is material to the legal issues in the ap- peal.” Id.

See Initial Decision, 2023 MSPB LEXIS 3868, at *43–54.

In her briefing to this court, however, she expressly waives any arguments related to these purported Protected Man- agement Disclosures, and she claims that only her “6 Non- frivolous and Protected Fixer Disclosures” form the basis of her whistleblower claims. Pet. Br. 13; see also Pet. Reply Br. 6 (stating the Board did not have jurisdiction over her “NFAP Management Disclosures”). Accordingly, any argu- ments pertaining to her Protected Management Disclo- sures are waived.

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6 COLLIER v. MSPB

Like the Board, we conclude that Ms. Collier fails to nonfrivolously allege that she made a protected disclosure under the WPA. Ms. Collier’s alleged disclosures are in- stances of discretionary policy decisions made by other agency employees that are insufficient to qualify for WPA protections unless the employee reasonably believes that the alleged disclosure evidences wrongdoing as described in 5 U.S.C. § 2302(a)(2)(D). For example, in disclosure (1), Ms. Collier claimed that a specific Fixer “failed to follow agency instructions to report an identity theft EIDL Loan file to the SIT/SEF Fraud Department after [he] expressly agreed to do so.” S.A. 80. 2 But this amounts to a disagree- ment with how her colleagues exercised discretion with re- spect to the EIDL loan files they reviewed. And such allegations do not amount to non-frivolous disclosures un- der the WPA because “a communication concerning policy decisions that lawfully exercise discretionary authority” is not a disclosure unless the employee reasonably believes, under an objective test, that the disclosure evidences “(i) any violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of au- thority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(a)(2)(D). This is con- sistent with the principle that “[a] purely subjective per- spective of an employee” does not establish an objective reasonable belief of such a violation because the WPA “is not a weapon in arguments over policy.” Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). We agree with the Board that Ms. Collier’s alleged disclosures and underlying evidence show a professional disagreement between agency employees. That is, Ms. Collier has not established that she made disclosures that “a disinterested observer with knowledge of the essential facts known to and readily ascertainable” by Ms. Collier could reasonably conclude

Case: 25-1339 Document: 79 Page: 7 Filed: 09/17/2026

COLLIER v. MSPB 7 constitute the kinds of unlawful actions contemplated by the WPA. See id. Ms. Collier’s remaining disclosures fail for the same reason. Accordingly, we find no error in the Board’s determination that Ms. Collier failed to nonfrivo- lously allege that she made a protected disclosure as con- templated by the WPA. 3 B We briefly address Ms. Collier’s arguments that both the administrative judge and full Board committed several legal and procedural errors. We conclude that Ms. Collier fails to identify any legal or procedural errors that warrant reversal.

Ms. Collier claims that the Board failed to provide her with a notice of deficiency before dismissing her claims, which she contends constitutes a due process violation. Pet.

Br. 51–53. To the extent such a notice was even necessary given the agency’s clear contention that jurisdiction was improper, we note that the administrative judge’s jurisdic- tional order—which was issued in response to Ms. Collier’s initial petition—informed her of the requirements to estab- lish Board jurisdiction and notified her that the Board’s ju- risdiction was in question in her case. See S.A. 91–98; Cahill, 821 F.3d at 1375–76. Thus, the administrative judge adequately provided notice of any perceived

Bd., 821 F.3d 1370, 1373 (Fed. Cir. 2016) (noting that to establish Board jurisdiction, an appellant must make non- frivolous allegations that (1) they made a protected disclo- sure and (2) the disclosure was a contributing factor in the agency’s decision to take a personnel action).

Case: 25-1339 Document: 79 Page: 8 Filed: 09/17/2026

Ms. Collier also argues that the administrative judge applied an incorrect standard for assessing its jurisdiction.

See Pet. Br. 31 (contending “the AJ abused her discretion by only quoting the first half of my jurisdictional burden of proof”). And she seemingly suggests that she was not re- quired to prove the protected status of her disclosures “un- til the merits hearing,” and thus it was error for the administrative judge and Board to assess whether her dis- closures were protected under the WPA at the jurisdic- tional stage. Id. at 38. Not so. First, our caselaw makes it clear that “the threshold question of whether an appellant has invoked the Board’s jurisdiction should be assessed un- der a ‘non-frivolous allegation’ standard analogous to the ‘well-pleaded complaint rule.’” Hessami v. Merit Sys. Prot.

Bd., 979 F.3d 1362, 1367 (Fed. Cir. 2020) (citation omit- ted). And while we have made clear that the Board must “separate the issue of jurisdiction from that of the merits of a petitioner’s case,” Piccolo v. Merit Sys. Prot. Bd., 869 F.3d 1369, 1371 (Fed. Cir. 2017) (citation omitted), whether there are non-frivolous allegations suggesting that the pur- ported disclosures fall within the category of protected dis- closures as defined by the WPA is not an improper assessment of the merits.

Finally, we address Ms. Collier’s arguments that the administrative judge erred by quoting the agency’s legal arguments in its decision and that the Board erred by “summarily affirm[ing] the AJ’s copying and pasting.” Pet.

Br. 39–40. Ms. Collier claims that the administrative judge and Board failed to make an independent jurisdictional de- termination based on Ms. Collier’s evidence. See id. at 39– 41. Our caselaw makes it clear that “[t]he Board may not deny jurisdiction by crediting the agency’s interpretation of the evidence as to whether the alleged disclosures fell within the protected categories or whether the disclosures were a contributing factor to an adverse personnel action.”

Case: 25-1339 Document: 79 Page: 9 Filed: 09/17/2026

COLLIER v. MSPB 9

Hessami, 979 F.3d at 1369. But the administrative judge did not improperly credit the agency’s interpretation of ev- idence. Rather, the administrative judge presented the agency’s arguments and explained why those arguments were persuasive. See generally Initial Decision, 2023 MSPB LEXIS 3868, at *15–60. Despite the vagueness of Ms. Collier’s purported disclosures, the Board conducted a thorough, independent review of her claims and provided a comprehensive decision explaining that Ms. Collier failed to nonfrivolously allege that she reasonably believed that she made a protected disclosure under the WPA. Ms. Col- lier fails to identify any error by the administrative judge or the full Board that would warrant reversal.

III We have considered the remainder of Ms. Collier’s ar- guments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s dismissal of her IRA appeal for lack of jurisdiction.

AFFIRMED COSTS No costs.