Federal Manager's Daily Report

A federal appeals court decision has addressed the standards for what types of disclosures by federal employees qualify for protection against retaliation, saying an “abuse of authority” includes “bullying” behavior.

An abuse of authority disclosure — along with violations of laws or rules, gross mismanagement or waste of funds or a danger to public health or safety — is listed as qualifying under the Whistleblower Protection Act.

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The scope of that term was key to the dispute in a case in which an MSPB hearing officer rejected an Army employee’s allegation that he suffered reprisal for testifying at an internal hearing into alleged intimidating behavior of a military officer above him.

On appeal, the Court of Appeals for the Federal Circuit said (in decision No. 2021-1751) that while the Whistleblower Protection Act does not specifically define the term “abuse of authority,” related whistleblower laws do: as an “arbitrary and capricious” exercise of authority inconsistent with the mission of the agency.

It said the behavior the employee alleged met the standard for “intimidating” and that the hearing officer erred by holding that the employee had not made a protected disclosure. The alleged behavior also could be considered a violation of rules for that purpose, it added in sending the case back to the MSPB.

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