                  Note: Pursuant to Fed. Cir. R. 47.6, this disposition
                   Is not citable as precedent. It is a public record.

     United States Court of Appeals for the Federal Circuit

                                         04-3220

                                    RICHARD T. NG,

                                                       Petitioner,

                                            v.

                         DEPARTMENT OF THE TREASURY,

                                                       Respondent.

                           ___________________________

                           DECIDED: December 13, 2004
                           ___________________________

Before LOURIE, RADER, and SCHALL, Circuit Judges.

PER CURIAM.

      Appellant Richard T. Ng (Mr. Ng) seeks review of a final order of the Merit

Systems Protection Board (Board), Docket No. SF-1221-02-0674-W-1 (final order). On

March 5, 2004, the Board denied Mr. Ng’s petition for review of an initial decision issued

on December 19, 2002.       Id.   In the initial decision, the Board dismissed Mr. Ng’s

Individual Right of Action (IRA), filed pursuant to the Whistleblower Protection Act of

1989, Pub. L. No. 101-12, 103 Stat. 16 (codified at various sections of 5 U.S.C. (1994))

(WPA). Ng v. Dep’t of Treasury, No. SF-1221-02-0120-W-1 (MSPB Dec. 19, 2002)

(initial decision). Because the Board prematurely decided the case based on the merits

and because Mr. Ng made non-frivolous allegations that he engaged in whistleblowing
activity protected by 5 U.S.C. § 2302(b)(8), this court vacates and remands for a

hearing on the merits.

                                     BACKGROUND

      Mr. Ng filed this IRA appeal alleging that retaliatory action was taken against him

because he made disclosures protected under 5 U.S.C. § 2302(b)(8). The Department

of Treasury (Treasury) moved to dismiss upon the basis that the disclosures he alleged

were not protected.      The Board granted Treasury’s motion to dismiss.       The Board

considered six specific allegations of protected disclosures Mr. Ng raised, as follows:

      (1)    Alleged that Gloria Gandara, President of Union Chapter 107
             colluded with management to coerce me to terminate the EEO
             process, terminate my duties as union steward.

      (2)    Complained to TIGTA [Treasury Inspector General for Tax
             Administration] (1) threat by manager Charles Wong: “Fixed me” (2)
             concede a tax issue with no justification (3) Richard Davega’s abuse
             of authority when he violated my privacy rights by discussing my
             EEO complaints to all managers on 2/24/00 in a branch meeting (4)
             Dee Woodard’s misconduct by fraudulently coerced taxpayer to sign
             an extension. On July 12, 2000, I complained further to TIGTA
             regarding Charles’ harassment.

      (3)    On October 12, 2000, I complained to my acting manager Victor
             Aguilar and TIGTA regarding management’s attempt to destroy
             records from case file of taxpayer.

      (4)    On April 12, 2000, I complained to TIGTO and Secretary O’Neill (1)
             sexual harassment by Richard Davega (2) Management’s favoritism
             by promoting the culprits (3) Richard Davega coerced an EEO
             counselor to change the EEO report (4) asked Secretary O’Neill to
             investigate and impose sanction on Richard Davega for Act Section
             1203(b) violation. On June 4, 2001, I report to TIGTA regarding
             Richard Davega’s sexual harassment to a manager also.

      (5)    On August 21, 2001, I complained to Alana Casey and copies sent
             to Secretary O’Neill & Commissioner (1) management harassed
             other employees (2) complained my evaluation (3) Alana Casey, the
             territory manager is incompetent (4) Richard Davega misconduct
             which include sexual harassment.



04-3220                                     2
      (6)    On September 17, 2001, I complained to TIGTA regarding Richard
             Davega’s misuse of administrative time to prepare the lawsuit filed
             against him by manger Alice Shiotsugu. Richard Davega is not
             allowed to use administrative time to prepare the forthcoming trial &
             lawsuit filed against him.

       In its initial decision, the Board held that these disclosures did not constitute

disclosures protected by 5 U.S.C. § 2302(b)(8). Initial decision at 7. The full Board

denied review making the initial decision the final decision of the Board. Final Order.

                                      DISCUSSION

       This court must affirm any agency action, finding, or conclusions not found to be:

(1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with

the law; (2) obtained without procedure required by law, rule, or regulations having been

followed; or (3) unsupported by substantial evidence. 5 U.S.C. §7703(c) (2000), Hayes

v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

       This court has held that the Board has jurisdiction over an IRA appeal if the

appellant has exhausted his administrative remedies before the Office of Special

Counsel (OSC) and makes "non-frivolous allegations" that (1) he engaged in

whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8),

and (2) the disclosure was a contributing factor in the agency's decision to take or fail to

take a personnel action as defined by 5 U.S.C. § 2302(a). Yunus v. Dep’t of Veterans

Affairs, 242 F.3d 1367, 1371-1372 (Fed. Cir., 2001); Briley v. Nat'l Archives & Records

Admin., 236 F.3d 1373, 1378 (Fed. Cir. 2001); Meuwissen v. Dep't of Interior, 234 F.3d

9, 12 (Fed. Cir. 2000); Schmittling v. Dep’t of Army, 219 F.3d 1332, 1336 (Fed. Cir.

2000); Willis v. Dep't of Agric., 141 F.3d 1139, 1142 (Fed. Cir. 1998); see generally

Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 686-89 (Fed. Cir. 1992).




04-3220                                      3
      In this case, the Board’s determination that Mr. Ng failed to make a non-frivolous

allegation of Board jurisdiction was not in accordance with the law because the Board

prematurely decided the case based on the merits.          The Board should have only

determined whether or not Mr. Ng’s allegations were frivolous. For example, Mr. Ng

alleged that on October 12, 2000 he “complained to [his] acting manager Victor Aguilar

and   TIGTA    [Treasury    Inspector   General    for   Tax   Administration]   regarding

management’s attempt to destroy records from case file of taxpayer.”             Instead of

determining whether or not this allegation was frivolous, the Board concluded the

destruction of case file records did not rise to the level of disclosing gross

mismanagement or an abuse of authority pursuant to 5 U.S.C. § 2302(b)(8) because

such activity is within the ordinary supervisory functions of managers.

      Another example is Mr. Ng’s April 12, 2000 and June 4, 2001 allegations:

      On April 12, 2000, I complained to TIGTO and Secretary O’Neill (1) sexual
      harassment by Richard Davega (2) Management’s favoritism by promoting
      the culprits (3) Richard Davega coerced an EEO counselor to change the
      EEO report (4) asked Secretary O’Neill to investigate and impose sanction
      on Richard Davega for Act Section 1203(b) violation. On June 4, 2001, I
      report to TIGTA regarding Richard Davega’s sexual harassment to a
      manager also.

The Board concluded this disclosure did not meet the definition of 5 U.S.C. § 2302(b)(8)

because it was “general and vague” and did not meet the requirements of McCollum v.

Veterans Administration, 75 M.S.P.R. 449, 455-56 (1997) (an arbitrary and capricious

exercise of power that adversely affects the rights of any person or that results in

personal gain or advantage to himself or to preferred other persons). Initial decision at

4-5. Again, instead of discussing the frivolity of the allegations, the Board prematurely

reviewed these allegations based on the merits.




04-3220                                     4
       Yet another example is Mr. Ng’s September 17, 2001 allegation:

       On September 17, 2001, I complained to TIGTA regarding Richard
       Davega’s misuse of administrative time to prepare the lawsuit filed against
       him by manger Alice Shiotsugu. Richard Davega is not allowed to use
       administrative time to prepare the forthcoming trial & lawsuit filed against
       him.

The Board concluded that although these actions by managers may be of concern to

Mr. Ng, they are not evidence of gross mismanagement or abuse of authority pursuant

to 5 U.S.C. § 2302(b)(8). Id. at 6. The Board also found it persuasive that Mr. Ng did

not state what rule and regulation Richard Davega was violating. Id. Once again,

instead of determining whether or not Mr. Ng’s allegation was frivolous, the Board

disposed of this allegation on the merits.

       In addition to determining that the Board prematurely decided this case on the

merits, this court finds the above-mentioned allegations are non-frivolous. Therefore,

this court finds the Board erroneously concluded it did not have jurisdiction and

remands this case for a hearing on the merits.




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