The Whistleblower Protection Act (WPA) proscribes retaliation against a federal employee who discloses what the employee reasonably believes is a violation of any law, rule, regulation or an abuse of authority. In 2012, Congress amended the WPA to expand judicial review to all of the Court of Appeals . On August 24,2015, the U.S. Court of Appeals for the Fifth Circuit decided the case of Aviles v. Merit Systems Protection Board (MSPB), the first direct appeal of an MSPB decision to this court.
Aviles, the plaintiff, was discharged in 2010 from his position as an international tax examiner in the Houston Office of the Internal Revenue Service (IRS). Among other charges, he was alleged to have been absent without leave for over 500 hours, and allegedly violating other requirements of the IRS. In 2013, he filed an appeal to the MSPB asserting that he was removed from his position in retaliation for protected whistleblowing; i.e., that he uncovered a $500 million tax fraud and that IRS officials covered it up.
The administrative law judge (ALJ) dismissed Aviles’s appeal, concluding that Aviles failed to allege that the IRS was involved in the alleged tax fraud. The MSPB affirmed, finding that Aviles “failed to make a nonfrivolous allegation of government involvement in [the] alleged wrongdoing” and, as a result, his “disclosure was not protected.”
Applying a de novo standard of review, the Court of Appeals affirmed the ruling of the MSPB dismissing his appeal and also held that the WPA does not protect the disclosure of “purely private wrongdoing”. The focus of the WPA is on alleged governmental wrongdoing, and an allegation of purely private wrongdoing is not protected by the WPA. Aviles’ generalized assertion of governmental involvement did not constitute a non-frivolous allegation of a protected disclosure.