A federal appeals court ruled 8/24/2015 that disclosures about non-governmental wrongdoing are not protected by the Whistleblower Protection Act (WPA), even taking into account 2012 amendments that expanded that law’s protection.
Jorge Aviles was an examiner for IRS in Houston who was fired for AWOL, failure to follow directions, and giving misleading statements about official business. He filed a whistleblower complaint with the U.S. Office of Special Counsel and then proceeded to the Merit Systems Protection Board. He claimed he actually was fired for disclosing Exxon’s improperly taking a $500,000,000 tax reduction and the role of IRS management in covering this up.
MSPB ruled that the WPA applied only to governmental wrongdoing. As to the allegations of IRS management wrongdoing, MSPB said they were too vague to be actionable. One of the three MSPB members dissented as to whether disclosures of private wrongdoing are protected after the 2012 amendments to the WPA.
The Fifth Circuit–which hears cases from Louisiana, Mississippi, and Texas–reviewed the statutory history of the WPA and the amendments and concluded that MSPB was right: there is no protection under that law for a federal employee’s disclosure of wrongdoing by private parties. The court also agreed that the claims of IRS involvement in a cover-up were too vague to go forward, noting that Aviles had not offered specifics even after the hearing officer at MSPB provided multiple chances to do so.
The Fifth Circuit did find reason to disagree with the Federal Circuit’s historic approach to resolving whistleblower cases, and did so in a way that aids employees. To be able even to have an initial hearing before MSPB, an employee must make “nonfrivolous” assertions of whistleblower retaliation. The Federal Circuit requires an employee to prove such assertions by a preponderance of evidence standard (i.e., more likely than not to be true). The Fifth Circuit said the more appropriate test is whether an employee made “plausible” allegations of retaliation–in other words, ones with enough detail that, if assumed to be true, would make for a winning case.
The Fifth Circuit approach is like the one used to determine whether a federal court lawsuit should be dismissed at the initial filing stage. The Federal Circuit approach is closer to the standards used at the later stage of summary judgment, in determining if a case should proceed on to a trial.
The case, Aviles v. MSPB, was the first to be heard by the Court of Appeals for the Fifth Circuit under a temporary provision of the amended WPA that allows appeals from MSPB to the federal court of appeals for the area where the case arose. Under the prior law, unless they also involved EEO claims, such appeals went to the Federal Circuit (in DC), which frequently ruled against whistleblowers.
If you are a federal employee facing whistleblower issues, you may contact us at 800-892-1506 ext. 1, or contact David Schleicher via email by clicking here. We have represented whistleblowers in the D.C. area, Texas, and elsewhere around the country since 1996, including in testimony before the House Oversight and Government Reform Committee. The stakes are too high to go it alone. We are on the web at www.TheFirmForFeds.com and www.ThisLawFirm.com.