News from the Courts: On August 24, 2015, the U.S. Court of Appeals for the 5th Circuit issued its decision in Aviles v. Merit Systems Protection Board, No. 14-60645. Although it ultimately found against the employee, the 5th Circuit rejected several points of Federal Circuit whistleblower reprisal caselaw in the process.
Aviles was issued under the all-circuit review pilot program originally created by the Whistleblower Protection Enhancement Act of 2012 (WPEA) and extended in 2014, as previously analyzed in this blog. Mr. Aviles was an IRS employee in Texas who claimed he was fired after blowing the whistle on an alleged tax fraud by a corporation, which he claimed IRS officials were covering up. After proceedings at the Office of Special Counsel, Mr. Aviles filed an Independent Right of Action appeal on his removal at the MSPB. The administrative judge dismissed his claims, finding that the Whistleblower Protection Act (WPA) only covered disclosures of governmental wrongdoing, and did not cover disclosures of wrongdoing by private entities. The MSPB affirmed 2-1, with then-Vice Chair Wagner finding that the WPEA covered disclosures of wrongdoing by private parties. Invoking all-circuit review, Mr. Aviles appealed the MSPB’s decision to the 5th Circuit.
The 5th Circuit panel affirmed the MSPB’s result, agreeing that the WPA was limited to disclosures of governmental wrongdoing. The panel reasoned that Vice Chair Wagner’s analysis would create a slippery slope giving rise to a whistleblower reprisal claim from any supervisor-subordinate dispute on enforcement issues within any federal agency. The panel also found Mr. Aviles’ claims of an alleged cover-up by Agency employees to be too vague to avoid dismissal.
However, the 5th Circuit took the opportunity to reject two aspects of Federal Circuit caselaw along the way. First, the 5th Circuit called into question the might Federal Circuit’s de novo review of the MSPB’s jurisdictional decisions, citing a 2013 Supreme Court decision which suggested that the Federal Circuit ought to defer to the MSPB’s jurisdictional determinations. Second, the 5th Circuit set a lower standard for appellants to establish jurisdiction in WPA cases, requiring only proving a non-frivolous allegation for jurisdiction (similar to the dismissal motion standard) rather than the higher preponderant evidence standard (similar to the summary judgment standard).
If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan to request an initial consultation.