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 petiti on 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 (I RA), filed pursuant to the Wh istleblower 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 prematurel y decided the case based on the merits and because Mr. Ng made non-frivolous allegat ions that he engaged in whistleblowingactivity 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 appea l alleging that retaliatory ac tion was taken agains t him because he made dis c losures pr otected under 5 U.S.C. § 2302( b)(8 ). The Department of Treasury (Treasury) moved to dismiss up on the basis that the disclosures he alleged were not protected. The Board granted Treasury’s motion to dismiss. The Board considered six specific allegat ions of protected disclosur es Mr. Ng raised, as follows: (1) Alleged that Gloria Gandara, President of Union Chapter 107 colluded with management to coer ce me to terminate the EEO process, terminate my duties as union stewar d. (2) Complained to TIGTA [Treasury Inspector Gene ral for T a x Administration] (1) threat by man ager Charles Wong: “Fixed me” (2) concede a tax issue with no just ification (3) Richard Davega’s abuse of authority when he violated my pr ivacy rights by discussing my EEO complaints to all managers on 2/24/00 in a branc h meeting (4) Dee Woodard’s misconduct by fraudulent ly coerced taxpay er to s i gn an extens ion. On July 12, 2000, I complained further to TIGTA regarding Charles ’ harassment. (3) On October 12, 2000, I compla ined to my acting manager Victor Aguilar and TIGTA regarding m anagement’s attempt to destroy records fro m case file of tax payer. (4) On April 12, 2000, I complained to TIGTO and Secretary O’Neill (1) sexual harassment by Richard Dav ega (2) Managem ent’s favoritism by promoting the culprits (3 ) Richard Dav ega coerced an EEO counselor to change the EEO report (4) asked Secret ary O’Neill to investigate and impos e sanction on Richard Davega for Act Section 1203(b) violation. On June 4, 2001, I report to TIGTA regarding Richard Davega’s sexual harass m ent to a manager also. (5) On August 21, 2001, I complained to Alana Casey a nd copies sent to Secretary O’Neill & Commi ssioner (1) manageme n t harassed other employees (2) complained my evaluation (3) Alan a Casey, the territory manager is incompetent (4) Richard Davega misconduct which include sexual harassment.

04-3220 2(6) On September 17, 2001, I comp lained to TIGTA regarding Ric hard Davega’s misuse of administrative time to prepare the lawsuit filed against him by manger Alice Shio tsugu. 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 t hat these disc losures did not constitute disclos ures protected by 5 U. S.C. § 2302(b)(8). Initi a l dec is ion at 7. The full Boar d denied review making the initial decision the fi nal decis ion of the B oard. Final Order. DISCUSSI ON This court must affirm any agenc y action, finding, or conclusions not found to be: (1) arbitrary or capricious, an abuse of discr etion, or otherwise not in accordance with the law; (2) obtained without pr ocedure required by law, rule , or regulations having been followed; or (3) unsupported by substant ial evidenc e. 5 U. S.C. §7703(c) (2000), Haye s v. Dep’t of Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984).
This court has held t hat the Board has jurisdiction over an IRA appeal if the appellant has ex hausted 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 protecte d disc losur e under 5 U.S.C. § 2302(b)(8), and (2) the disclos ure was a contri buting fac t or in the agency's decision to take or fail to take a pers onnel action as def ined 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 & Recor d s 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. M e rit Sys. Pr ot. Bd. , 978 F.2d 679, 686-89 (Fed. Cir. 1992).

04-3220 3In this case, the Boar d’s determination t hat Mr. Ng failed to make a non-frivolous allegation of Board jurisdiction was not in accordance with the la w because the Board prematurely decided the ca se based on the merits. The Board should have only determined whether or not Mr. Ng’s allegations were frivol ous. For exam ple, Mr. Ng alleged that on October 12, 2000 he “complain ed to [his] acting manag er Victor Aguilar and TIGT A [Treas ury Inspector General for Tax Administra tion] regarding management’s attempt to destroy records from case file of taxp ayer.” Instead of determining whether or not thi s allegati on 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 Apr il 12, 2000 and June 4, 2001 allegations: On April 12, 2000, I complained to T IGTO and Secretary O’Neill (1) sexual harassment by Richard Davega (2) Managem ent’s favoritism by promoting the culprits (3) Richar d Davega coerc ed an EEO counselor to change the EEO report (4) asked Secr etary O’Neill to invest igate and impos e sanction on Richard Davega for Act Section 1203(b) violation. On June 4, 2001, I report to TIGTA regarding Ric hard Davega’s sexual harassment to a manager also. The Board concluded this disc lo s u re did not meet the definiti on of 5 U.S.C. § 2302(b)(8) because it was “general and vague” and did not m eet the requirements of McCollum v.
Veterans Administration , 75 M.S.P.R. 449, 455-56 (1997) (an arbitrary and capricious exercis e of power that adversely affects t he rights of any person or that results in personal gain or advantage to hi mself or to preferred other per sons). Initial decisio n at 4-5. Again, instead of discussi ng the frivolit y of the all egations, the Board prematurely reviewed these allegations based on the meri ts.

04-3220 4Yet another example is Mr. Ng’s September 17, 2001 allegation: On September 17, 2001, I complain ed to TIGTA regardin g Ric hard Davega’s misuse of administrative ti me to prepare the lawsuit filed against him by manger Alic e Shiotsugu. Ric hard Davega is not allowed to use administrative time to prepare the fort hcoming trial & lawsuit filed against him. The Board concluded that although these ac tions 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 i t persuasi ve that Mr. N g di d not state what rule and regulati on Richar d Davega was violating. Id. Once again, instead of determining whether or not Mr. Ng’s allegati on was frivolous, the Board disposed of this allegat ion on the merits. In addition to determining that the Boar d prematurely decided this case on the merits, this court finds the abov e-mentioned allegations are non-fri volous. Therefore, this court finds the Board erroneously c onc luded it did not have jurisdiction and remands this case for a hearing on the merits.

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