Jorge Aviles v. Merit Systems Protection Board
799 F.3d 457
5th Cir.2015Background
- Jorge Aviles, a former IRS International Examiner, audited Exxon and alleged Exxon committed over $500 million in tax fraud for 2006–2007.
- Aviles claims he reported Exxon’s fraud and that IRS management helped cover it up; months later he was removed for leave and misconduct and filed an IRA with the MSPB asserting whistleblower retaliation.
- An ALJ dismissed the MSPB appeal for lack of jurisdiction, finding Aviles alleged only private wrongdoing and made only "vague and conclusory" assertions of government involvement; the MSPB affirmed 2–1.
- Aviles appealed directly to the Fifth Circuit under the WPEA-expanded venue for MSPB review.
- The Fifth Circuit considered (1) whether the WPA (as amended by the WPEA) protects disclosures of purely private wrongdoing made in the normal course of duties, and (2) whether Aviles nonfrivolously alleged government complicity in Exxon’s alleged fraud.
- The court held the WPA does not extend protection to purely private wrongdoing and affirmed dismissal because Aviles failed to nonfrivolously plead specific government involvement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the WPEA/5 U.S.C. § 2302 protects disclosures of purely private wrongdoing made in the normal course of duties | Aviles: WPEA §2302(f)(2) expanded protection to disclosures made in normal duties, including private-entity misconduct discovered while performing official duties | Treasury/MSPB: Text targets government misconduct; §2302(f)(2) only prevents exclusion of otherwise-covered disclosures made in the normal course of duties | Held: WPEA does not protect disclosures of purely private wrongdoing; statute focuses on government misconduct |
| Whether Aviles nonfrivolously alleged government involvement in Exxon’s alleged fraud (threshold jurisdictional pleading) | Aviles: Alleged supervisors ignored disclosures, directed nondisclosure, and that IRS management covered up Exxon’s fraud—sufficient to survive dismissal | Treasury/MSPB: Allegations are vague/conclusory; unlike Coons, Aviles failed to identify who, what, when, where, how as to government wrongdoing; given opportunities, he did not add detail | Held: Dismissal affirmed — allegations were conclusory and not nonfrivolous; no specific allegations of government complicity |
| Proper standard for threshold MSPB jurisdictional sufficiency (nonfrivolous allegation) | Aviles: Need not meet preponderance; standard is nonfrivolous allegation analogous to motion-to-dismiss plausibility | Treasury: Petitioner must show jurisdiction by preponderance | Held: Court follows Garcia and regulations — petitioner need only make nonfrivolous allegations evaluated under a motion-to-dismiss/plausibility standard, not preponderance |
| Whether Aviles also stated a claim under 5 U.S.C. § 2302(b)(9) (exercising grievance/appeal rights) | Aviles: Also urged relief under §2302(b)(9) and sought remand | Treasury/MSPB: Claim was unexhausted before OSC | Held: Claim unexhausted; court cannot consider it |
Key Cases Cited
- Willis v. Department of Agriculture, 141 F.3d 1139 (Fed. Cir. 1998) (held disclosures made in normal job duties are not per se protected)
- Coons v. Secretary of the U.S. Department of the Treasury, 383 F.3d 879 (9th Cir. 2004) (disclosures alleging IRS agents knowingly processed fraudulent refunds implicated government mismanagement and could be protected)
- City of Arlington v. FCC, 133 S. Ct. 1863 (2013) (Chevron deference can apply to agency constructions of jurisdictional provisions)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)