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. 

04-3220 5