* On July 10, 2006, Henry M. Paulson, Jr. became the Secretary for the

United States Treasury. In accordance with Rule 43(c)(2) of the Federal Rules of

Appellate Procedure, Mr. Paulson is substituted for John W. Snow as an appellee

in this action.

** After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

February 5, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JIMMY ROBERTS,

Plaintiff-Appellant,

v.

HENRY M. PAULSON, JR.,*

Secretary, United States Treasury;

BECKY MILES, Management

Official; ROBYN JACKSON,

Management Official, Internal

Revenue Service,

Defendants-Appellees.

No. 07-4087

(D.C. No. 1:06-CV-75-DB)

(D. Utah)

ORDER AND JUDGMENT**

Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.
1 Defendants assert that Mr. Roberts did not appeal from the dismissal of his

claims under the Privacy Act and the Federal Tort Claims Act (FTCA). Answer

at 2. We find no support for this statement in the record. The district court’s

order dismissed all of Mr. Roberts’s claims and denied all of his outstanding

motions. Mr. Roberts filed a timely notice of appeal from the entirety of that

order. There is no indication that he intended to forego appealing the dismissal of

his Privacy Act and FTCA claims or that he has actually done so.

-2-

After his termination from his employment with the Internal Revenue

Service (IRS), plaintiff appellant Jimmy Roberts sued in federal district court

alleging various violations of federal law. In response to defendants’ motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), the district court

dismissed the case “[f]or the reasons set forth in the Defendants’ briefs,” and

denied Mr. Roberts’s motion for a default judgment. R. Doc. 24 (District Court

Order) at 1. Mr. Roberts appeals, and we affirm.1

Our jurisdiction arises under 28 U.S.C. § 1291. We review a dismissal

under both Rule 12(b)(1) and Rule 12(b)(6) de novo. U.S. West, Inc. v. Tristani,

182 F.3d 1202, 1206 (10th Cir. 1999) (reviewing Rule 12(b)(1) dismissal);

Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (reviewing

Rule 12(b)(6) dismissal). Particularly with respect to Rule 12(b)(6), “[w]e must

accept all the well-pleaded allegations of the complaint as true and must construe

them in the light most favorable to the plaintiff. We look for plausibility in th[e]

complaint.” Id. (quotations and citations omitted).
2 Mr. Roberts lists forty issues in his opening appellate brief. We will

review on appeal only those issues presented to the district court; the remaining

eight issues are waived. See Hicks v. Gates Rubber Co., 928 F.2d 966, 970

(10th Cir. 1991). 

-3-

Prohibited Personnel Practices Claims

Mr. Roberts acknowledges, and his thirty-two-issue complaint

demonstrates,2

 that the bulk of his claims accused defendants of various

prohibited personnel practices as defined in the Civil Service Reform Act

5 U.S.C. § 1101 (CSRA). See Aplt. Opening Br. at 4; R. Doc. 1 (Complaint) at

18-27. As such, those complaints are preempted by the CSRA and may not be

brought in federal court. Petrini v. Howard, 918 F.2d 1482, 1485 (10th Cir.

1990).

Contrary to Mr. Roberts’s apparent belief, the fact that the Office of

Special Counsel (OSC) declined to petition the Merit Systems Protection Board

(Board) for consideration of his complaint, does not mean that federal courts then

acquired jurisdiction. “[A]ll review ended when [the OSC] declined to petition

the Board for consideration of the grievance.” Stephens v. Dep’t of Health &

Human Servs., 901 F.2d 1571, 1574 (11th Cir. 1990) (citing 5 U.S.C. § 1214).

Because Mr. Roberts did not assert a claim under the Tucker Act, his reliance on

Worthington v. United States, 168 F.3d 24, 27 (Fed. Cir. 1999), is misplaced.
-4-

Privacy Act

Mr. Roberts’s claims under the Privacy Act, 5 U.S.C. § 552a, are based on

the same general occurrences that he claims constituted prohibited personnel

practices. “[T]he Privacy Act does not vest the court with jurisdiction to review

personnel decisions where the Civil Service Reform Act precludes such review.” 

Henderson v. Soc. Sec. Admin., 908 F.2d 559, 560-61 (10th Cir. 1990). 

Federal Tort Claims Act

To the extent Mr. Roberts made claims which would only be cognizable

under the FTCA, he has not demonstrated that he presented his tort claims in the

first instance to the IRS as required by 28 U.S.C. § 2675(a). He has therefore

failed to exhaust his remedies under the statute, thus depriving the federal court

of jurisdiction over these claims. Kendall v. Watkins, 998 F.2d 848, 852

(10th Cir. 1993).

Freedom of Information Act

As with his tort claims, Mr. Roberts has failed to demonstrate that he has

exhausted his remedies under the Freedom of Information Act (FOIA) because he

did not allege that he complied with the notice requirements of 26 C.F.R.

§ 601.702(c)(4)(i)(C). The district court thus properly dismissed the FOIA claim. 

See Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) (holding that “[t]he

FOIA clearly requires a party to exhaust all administrative remedies before

seeking redress in the federal courts” and collecting cases).
-5-

Refusal to Grant Default Judgment

Mr. Roberts argues that the district court should have granted him a default

judgment based on defendants’ failure to file a timely answer. We review the

district court’s refusal to grant a default judgment for abuse of discretion. Dennis

Garberg & Assocs., Inc. v. Pack-Tech Int’l Corp., 115 F.3d 767, 771 (10th Cir.

1997). “In light of the strong preference for the disposition of litigation on the

merits, and the lack of any allegation of prejudice to [Mr. Roberts], the district

court did not abuse its discretion in denying [Mr. Roberts’s] motion for default

judgment.” Gulley v. Orr, 905 F.2d 1383, 1386 (10th Cir. 1990) (citation

omitted). 

Because he has not presented “a reasoned, nonfrivolous argument on the

law and the facts in support of the issues raised on appeal,” see DeBardeleben v.

Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), Mr. Roberts’s motion to proceed

without prepayment of costs or fees is DENIED, and Mr. Roberts is obligated to

pay the remainder of the filing fee. Mr. Roberts’s amended motions to strike

appellees’ answer brief and to strike their motion for extension of time to file that

brief are DENIED. 

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge