NOTE: This disposition is nonprecedential 

## United States Court of Appeals for the Federal Circuit

2006-3320, -3396

WAYNE L. LOUIE, Petitioner,

v.
DEPARTMENT OF THE TREASURY, Respondent.

Wayne L. Louie , of South Pasadena, Ca lifornia, pro se. Dawn S. Conrad , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Todd M. Hughes , Assistant Director. Of counsel was Quan K. Luong , Senior Attorney, Office of Chief Counsel, Internal Revenue Service, of Washington, DC.
Appealed from: United States Merit Systems Protection BoardNOTE: This dispositio n is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3320, -3396 WAYNE L. LOUIE, Petitioner,

v. DEPARTMENT OF THE TREASURY, Respondent.

____________________________ DECIDED: January 9, 2007

____________________________ Before LINN, DYK, and MOORE, Circuit Judges

. PER CURIAM. Petitioner Wayne L. Louie appeals two fi nal decisions of the Merit Systems Protection Board (“Board”) dism issing his two individual ri ght of action (“IRA”) appeals as barred under 5 U.S.C. § 7 12 1(g), res judicata , laches, collateral estoppel, and for lack of jurisdiction. This court granted Louie’s motion to consolidate his appeals on September 21, 2006. Because the Board’s decisions are not arbitrary, capricious, an abuse of discretion, or other wise not in accordance with the law and are supported by substantial evidence, we affirm

. BACKGROUND Wayne L. Louie is a GS-5 12

- 12 Revenue Agent with the Internal Revenue Service’s (“IRS”) Glendale, California post of dut y. In 2005, after his previous appeal to this court, Louie filed two complaints (OSC File Nos. MA 05-2378 and MA 05-2644) withthe United States Office of Special Counsel (“OSC”) c oncerning alleged “personne l actions” that he ass e rted were taken in reprisal for prot ected activities under the Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8). Louie alleged several personnel actions in his complaints, in c l uding a J u ne 20 00 demotion t o a GS- 12 Revenue Agent, a May 1999 reassignment to a different supervi sor, a June 2000 reassignm ent to a different organization, di sapproval of travel vouchers from 2000- 2005, the removal of two cas e s from his workload in 1997 an d 1998, a 1996 nonselection decision under vacanc y announc ement No. LA-96-17 0, a September 1996 lowered performance rating, and dissemination of his work appraisal to co-workers in November of 1996. These complaints were rejected by OSC and Louie filed two separate IRA appeals with the Board, wh ich were cons olidated int o one IRA appeal under MSPB Docket No. SF 12 21060134-W-1. The IRS filed a mo tion to dismiss the consolidated appeal, as serting that many of the alleged personnel actions were barred by 5 U.S.C. §
7 12 1(g) or res judicata . Louie r e sponded, admitting that some of the actions had been pursued previously and also raised addi tional alleged pers onnel actions. The administrative judge (“AJ”), afte r issuing two orders to show caus e, dismissed several of Louie’s claims as barred and denied his reques t to add new claim s not raised before the OSC in the two complaints that had been appealed. Finding that Louie failed t o demonstrate jurisdiction over any of the a sserted claims, the AJ iss u ed an Initia l Decis i on dismissing the entire appeal for lack of jurisdiction. Louie v. Dep’t of the Treasury , No. SF 12 21060134-W-1 (M.S.P.B. Mar. 2, 2006).

2006-3321 2Louie filed a petition for revi ew with the Board, and the Board denied the petit ion. Thus, the AJ’s Initial Decis i on became the final dec ision of the Board. Louie v. Dep’t of the Treasury , No. SF 12 21060134-W-1 (M.S.P.B. May 23, 20 06). Louie appeals from this decisio n. Louie filed two more complaints with OSC (OSC File Nos. MA 06-0952 and MA
06-1 12 6), which raise d a whistle b lowing re prisal c l aim relating to his 19 97 non-selectio n under vacancy announcement No. LA 97-106 and provided in the complaint a list of alleged personnel actions for hi s whistleblowing that include d allegations of personne l actions that had been raised in his prior I R A appeal. He a l so a lleged thr eats by his supervisor and an admonis h ment letter that w e re covered personnel actions. Additionally , Louie ass e rted t hat his 2005-2006 whistleblowing dis c losures resulted in a requirement by the IRS that he observe check in/chec k out proc edures with regard to his us age of official union tim e and wa s threatened with absence wit hout le ave (“AWOL”). OSC rejected bot h complaints and Louie appealed to the Board. The
appea l was docketed as MSPB Docket No. SF 12 21060546-W-1. The IRS filed a motion to dismiss this second appe al, asserting that Louie’s unreasonable and unexplained delay in filing his appeal ov er the 1997 non-selection effectively prevented the IRS from mounti ng a defense and materially prejudiced the IRS. The agency as serted that he should be equitably barred from now asserting this claim under the doctrine of laches. The IR S als o alleged in its dismissal motion that many of his other appealed c l aim s had been pr eviously raised and cons idered by the AJ or in other venues and thus were also ba rred. The agency alleged that he failed to make non-frivolous allegations to establish Board jurisdiction over the remai n ing claims

.

2006-3321 3Louie responded, as serting t hat he has previously adequately pled disc losures in response to the order to show cause and ask ed for an “expeditious” decision. The AJ held that Louie was collatera lly estopped from raising clai ms that had already been considered in the prior appeal and that the IRS had shown t hat the allegation regarding the 1997 non-selection was barr ed under the doctrine of laches . The AJ als o dismiss e d claims relat i ng to alleged threats by his s upervisor in 1998 and an admonishment letter; both had already been raised in a grievance. Additionally, the AJ determined that Louie failed to m a ke non-frivolous allegations of covered personnel act i ons to est a blis h Bo ard jurisdiction over the claim relating to the requirement that he observe check in/check out procedures . Finally, the AJ di sm issed without prej udice all of Louie’s remaining c l aims with leave to refile an am ended appeal, noting that the claims suffered from apparen t deficienc ies, but allowing Loui e t he opportunity to cure these defects and refile. Louie v

. Dep’t of the Treasury , No SF 12 21060546-W-1 (M.S.P.B. July 17, 2006). Louie did not file an amended appeal, nor did he f ile a petition for review with the full Board. Thus, the AJ’s decision became the final decis io n of the Board and Loui e appeals from this decision. We have jurisdiction pursuant to 28 U.S.C. § 12 95(a)(9). DISCUSSI ON We must affirm a Board decis ion unless it is (1) arbitrary, capricious, an abus e of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation hav ing been followed; or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703(a). The c ourt reviews the question of whether the Board possessed jurisdiction over Louie’s appeal de novo . See Vesser v.

2006-3321 4Office of Personnel Mgmt. , 29 F.3d 600, 602 (Fed. Cir. 1994). Louie must make a nonfrivolous allegation of Board jurisdiction to receive a hearing before the Board. See Garcia v. D ep’t of Homeland Sec. , 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). Louie failed to make non-frivolous allegat i ons that establish Board jurisdiction

over sever a l appealed claims. With resp ect to Louie’s demotion, non-selec tion un der
vacancy announc ement No. LA-96-170, hi s lowered performance rating, the dissemination of his appraisa l, the alleged 1998 threats by his supervisor, and a 1998 admonishment letter, he is barred by § 7 12 1(g) from requesting corrective action wit h OSC and filing an IRA at the Board. 1 Under § 7 12 1(g)(2), an empl oyee that is covered by a collect ive bargaining agreem ent (“CBA”) and who believ e s he has suffered reprisal for whistleblowing dis c losures may elect only one of three remedies: an appeal to the Board under 5 U.S.C. § 7701; a grievanc e filed pursuant to the negotiate d grievanc e procedure; or a request for corrective action with OSC, followed by an IRA appeal to the Board if OSC denies corrective action. Holderfield v. Merit Sys. Prot. Bd. , 326 F.3d
12 07, 12 10 (Fed. Cir. 2003). It is undisputed that Louie is an employee c o vered by a collectiv e bargaining agreement which inc l udes a negotiated grievance proc edure and that he already filed an appeal of his demotion directly to the B oard in 2000. Since Louie already elected to purs ue his personnel action c l aims regarding the demotion with an appeal to the Board under § 7701, he is barred from bringing those claims again under § 7 12 1(g)(4). Likewise, earlier grievance fi lings r e garding his non-selection und e r vacancy announc ement No. LA-96-170, t he lowered performance rating, the

1 In his second appeal to the Boar d, Louie seems to have renewed his allegations that were before the AJ and were disposed of in his previous appeal No. SF1221060134-W-1. These c l aims cannot be re litigated under the doc trine of collatera l estoppel, as the AJ concluded.

2006-3321 5dissemination of his appraisa l, the alleged 1998 threats by his supervis o r, and an admonishment letter act as a bar to a subsequent IRA appeal of these same claims. In addition, Louie’s challenge to his demotion is barred by res judicata since the issue wa s resolved in Louie’s pr evious appeal to this court. See Louie v. Dep’t of the Treasury , 12 2 Fed. Appx. 449 (F ed. Cir. 2004). Also, the AJ’s determination that the doc trine of laches bars his whistleblower reprisal claim relating t o his non-s e lectio n for vacancy announcem ent No. LA-97-106 is not arbitrary or capricious. The AJ weighe d Louie’s a ssertion that he still h ad a copy of his application package and that relevant wit nesses are available against the IRS’s evidenc e that relevant document ation had been destroyed in th e intervening years, that it would be prejudiced in its efforts to defend against the clai m given the lack of documents reflecting its decision-making proc ess, and the abs ence of a satisfactory explanation for Louie’s delay in bringing this claim. 2 After an appellant shows that a disclos ure occurred and that it was a protected disclosur e under the WPA, the burden shifts to the agency t o show by clear and c onvinc i ng evidence that the appella nt would not have been selec t ed under vacancy announc em ent No. LA-97-106, even if the protected disclos ure had not oc curred. See Spencer v. Dep’t of the Nav y , 327 F.3d 1354, 1356 (Fed. Cir. 2003); 5 U.S.C. §§ 12 21(e), 2302(b)(8). Without the other applications that were submitted for this vacancy announcement or records reflecting how the applic ants were rated and ranked, the agenc y is effectively unable to defend itself. The AJ’s deter mination that this clai m is barred under the doctrine of laches is n o t arbitrary or capricious and is s upported by substantial ev idence.

2 Louie wait ed approximately eight and a half years to bring this claim before OSC. Resp. App. 6.

2006-3321 6We also find that Louie failed to estab lis h IRA jurisdiction ov er his claims involv ing the failure to approve his travel vo uchers, his supervisor y and orga nizational reassignm ents, and the removal of cases from his wo rkload. In order to establish IRA jurisdiction, Louie must exhaust his remedies before OSC and he must also make nonfrivolous allegations t hat he engaged in whistleblowing activi ty by making a protected disclos ure, and the dis c losure was a contributi ng factor in the agency’s decis ion to take or fail to take a personnel action. See Yunus v. Dep’t of Veteran’s Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001). We have considered Louie’s allegations and also considered evidenc e that indic a ted some of Louie’s vouchers were denied be cause the y covered non-official travel related to his union duties, which was not reimbursable. Louie fails to make non-frivolous allegati ons that any protected disclos ure was a contributing factor in the dec ision to not approve his v ouchers. With respect to Louie’s 1999 and 2000 reassignment allegations, he has not alleg ed any facts that would show that his inv o luntary reassignm ent s by manager Pam Christensen were in retaliation for his disclos ure to union represent atives’ alleged conflict of in terest on the part of his supervisor some four to six y ears earlier. Additionally , the AJ determined that Louie failed to allege facts which, if proven, woul d show that c hanges in his case as signments constituted personnel actions for WPA pur pos es bec ause they involv ed a “significant change in duties,” 5 U.S.C. § 2302(a)(2)(A)(xi). We find t hat Louie has not met his burden of establishing the Board’s jurisdiction over these claims. Louie also asserts that in his second appeal to the Board the AJ failed to properly consider t he impos ition of chec k in/check out procedures and th reats of AWOL as personnel actions. But Louie has not alleged spec ific facts on appeal that constitute

2006-3321 7non-frivolous allegations sufficient to vest t he Board with jurisdiction over t hese claim s

. We find that the Board lacks jurisdiction over these claims. To the extent that Louie is attempting to ass e rt additional caus es of action in his appeal to t h is court that were not before the Board, we cannot ad dress them in the first instance on appeal. For the foregoing reasons, we affirm both B oard judgments. No costs.

2006-3321 8