Louie v. Department of the Treasury , 211 F. App'x 942 ( 2007 )

NOTE: This disposition is nonprecedential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, California, 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 Board
NOTE: This disposition is nonprecedential.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.
____________________________
DECIDED: January 9, 2007
____________________________
Before LINN, DYK, and MOORE, Circuit Judges.
PER CURIAM.
Petitioner Wayne L. Louie appeals two final decisions of the Merit Systems
Protection Board (“Board”) dismissing his two individual right of action (“IRA”) appeals
as barred under 5 U.S.C. § 7121(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 otherwise not in accordance with the law and are supported by
substantial evidence, we affirm.
BACKGROUND
Wayne L. Louie is a GS-512-12 Revenue Agent with the Internal Revenue
Service’s (“IRS”) Glendale, California post of duty. In 2005, after his previous appeal to
this court, Louie filed two complaints (OSC File Nos. MA 05-2378 and MA 05-2644) with
the United States Office of Special Counsel (“OSC”) concerning alleged “personnel
actions” that he asserted were taken in reprisal for protected activities under the
Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8). Louie alleged several
personnel actions in his complaints, including a June 2000 demotion to a GS-12
Revenue Agent, a May 1999 reassignment to a different supervisor, a June 2000
reassignment to a different organization, disapproval of travel vouchers from 2000-
2005, the removal of two cases from his workload in 1997 and 1998, a 1996 non-
selection decision under vacancy announcement No. LA-96-170, 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, which were consolidated into one IRA appeal under MSPB
Docket No. SF1221060134-W-1. The IRS filed a motion to dismiss the consolidated
appeal, asserting that many of the alleged personnel actions were barred by 5 U.S.C. §
7121(g) or res judicata. Louie responded, admitting that some of the actions had been
pursued previously and also raised additional alleged personnel actions. The
administrative judge (“AJ”), after issuing two orders to show cause, dismissed several of
Louie’s claims as barred and denied his request to add new claims not raised before the
OSC in the two complaints that had been appealed. Finding that Louie failed to
demonstrate jurisdiction over any of the asserted claims, the AJ issued an Initial
Decision dismissing the entire appeal for lack of jurisdiction. Louie v. Dep’t of the
Treasury, No. SF1221060134-W-1 (M.S.P.B. Mar. 2, 2006).
2006-3321 2
Louie filed a petition for review with the Board, and the Board denied the petition.
Thus, the AJ’s Initial Decision became the final decision of the Board. Louie v. Dep’t of
the Treasury, No. SF1221060134-W-1 (M.S.P.B. May 23, 2006). Louie appeals from
this decision.
Louie filed two more complaints with OSC (OSC File Nos. MA 06-0952 and MA
06-1126), which raised a whistleblowing reprisal claim relating to his 1997 non-selection
under vacancy announcement No. LA 97-106 and provided in the complaint a list of
alleged personnel actions for his whistleblowing that included allegations of personnel
actions that had been raised in his prior IRA appeal. He also alleged threats by his
supervisor and an admonishment letter that were covered personnel actions.
Additionally, Louie asserted that his 2005-2006 whistleblowing disclosures resulted in a
requirement by the IRS that he observe check in/check out procedures with regard to
his usage of official union time and was threatened with absence without leave
(“AWOL”). OSC rejected both complaints and Louie appealed to the Board. The
appeal was docketed as MSPB Docket No. SF1221060546-W-1.
The IRS filed a motion to dismiss this second appeal, asserting that Louie’s
unreasonable and unexplained delay in filing his appeal over the 1997 non-selection
effectively prevented the IRS from mounting a defense and materially prejudiced the
IRS. The agency asserted that he should be equitably barred from now asserting this
claim under the doctrine of laches. The IRS also alleged in its dismissal motion that
many of his other appealed claims had been previously raised and considered by the AJ
or in other venues and thus were also barred. The agency alleged that he failed to
make non-frivolous allegations to establish Board jurisdiction over the remaining claims.
2006-3321 3
Louie responded, asserting that he has previously adequately pled disclosures in
response to the order to show cause and asked for an “expeditious” decision. The AJ
held that Louie was collaterally estopped from raising claims that had already been
considered in the prior appeal and that the IRS had shown that the allegation regarding
the 1997 non-selection was barred under the doctrine of laches. The AJ also dismissed
claims relating to alleged threats by his supervisor in 1998 and an admonishment letter;
both had already been raised in a grievance. Additionally, the AJ determined that Louie
failed to make non-frivolous allegations of covered personnel actions to establish Board
jurisdiction over the claim relating to the requirement that he observe check in/check out
procedures. Finally, the AJ dismissed without prejudice all of Louie’s remaining claims
with leave to refile an amended appeal, noting that the claims suffered from apparent
deficiencies, but allowing Louie the opportunity to cure these defects and refile. Louie v.
Dep’t of the Treasury, No SF1221060546-W-1 (M.S.P.B. July 17, 2006). Louie did not
file an amended appeal, nor did he file a petition for review with the full Board. Thus,
the AJ’s decision became the final decision of the Board and Louie appeals from this
decision.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm a Board decision unless it is (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence. See 5 U.S.C. § 7703(a). The court reviews the question of
whether the Board possessed jurisdiction over Louie’s appeal de novo. See Vesser v.
2006-3321 4
Office of Personnel Mgmt., 29 F.3d 600, 602 (Fed. Cir. 1994). Louie must make a non-
frivolous allegation of Board jurisdiction to receive a hearing before the Board. See
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc).
Louie failed to make non-frivolous allegations that establish Board jurisdiction
over several appealed claims. With respect to Louie’s demotion, non-selection under
vacancy announcement No. LA-96-170, his lowered performance rating, the
dissemination of his appraisal, the alleged 1998 threats by his supervisor, and a 1998
admonishment letter, he is barred by § 7121(g) from requesting corrective action with
OSC and filing an IRA at the Board.1 Under § 7121(g)(2), an employee that is covered
by a collective bargaining agreement (“CBA”) and who believes he has suffered reprisal
for whistleblowing disclosures may elect only one of three remedies: an appeal to the
Board under 5 U.S.C. § 7701; a grievance filed pursuant to the negotiated grievance
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
1207, 1210 (Fed. Cir. 2003). It is undisputed that Louie is an employee covered by a
collective bargaining agreement which includes a negotiated grievance procedure and
that he already filed an appeal of his demotion directly to the Board in 2000. Since
Louie already elected to pursue his personnel action claims regarding the demotion with
an appeal to the Board under § 7701, he is barred from bringing those claims again
under § 7121(g)(4). Likewise, earlier grievance filings regarding his non-selection under
vacancy announcement No. LA-96-170, the lowered performance rating, the
1
In his second appeal to the Board, 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 claims cannot be relitigated under the doctrine of collateral
estoppel, as the AJ concluded.
2006-3321 5
dissemination of his appraisal, the alleged 1998 threats by his supervisor, 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 was
resolved in Louie’s previous appeal to this court. See Louie v. Dep’t of the Treasury,
122 Fed. Appx. 449 (Fed. Cir. 2004).
Also, the AJ’s determination that the doctrine of laches bars his whistleblower
reprisal claim relating to his non-selection for vacancy announcement No. LA-97-106 is
not arbitrary or capricious. The AJ weighed Louie’s assertion that he still had a copy of
his application package and that relevant witnesses are available against the IRS’s
evidence that relevant documentation had been destroyed in the intervening years, that
it would be prejudiced in its efforts to defend against the claim given the lack of
documents reflecting its decision-making process, and the absence of a satisfactory
explanation for Louie’s delay in bringing this claim.2 After an appellant shows that a
disclosure occurred and that it was a protected disclosure under the WPA, the burden
shifts to the agency to show by clear and convincing evidence that the appellant would
not have been selected under vacancy announcement No. LA-97-106, even if the
protected disclosure had not occurred. See Spencer v. Dep’t of the Navy, 327 F.3d
1354, 1356 (Fed. Cir. 2003); 5 U.S.C. §§ 1221(e), 2302(b)(8). Without the other
applications that were submitted for this vacancy announcement or records reflecting
how the applicants were rated and ranked, the agency is effectively unable to defend
itself. The AJ’s determination that this claim is barred under the doctrine of laches is not
arbitrary or capricious and is supported by substantial evidence.
2
Louie waited approximately eight and a half years to bring this claim
before OSC. Resp. App. 6.
2006-3321 6
We also find that Louie failed to establish IRA jurisdiction over his claims
involving the failure to approve his travel vouchers, his supervisory and organizational
reassignments, and the removal of cases from his workload. In order to establish IRA
jurisdiction, Louie must exhaust his remedies before OSC and he must also make non-
frivolous allegations that he engaged in whistleblowing activity by making a protected
disclosure, and the disclosure was a contributing factor in the agency’s decision 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 evidence that indicated some of Louie’s vouchers were denied because they
covered non-official travel related to his union duties, which was not reimbursable.
Louie fails to make non-frivolous allegations that any protected disclosure was a
contributing factor in the decision to not approve his vouchers. With respect to Louie’s
1999 and 2000 reassignment allegations, he has not alleged any facts that would show
that his involuntary reassignments by manager Pam Christensen were in retaliation for
his disclosure to union representatives’ alleged conflict of interest on the part of his
supervisor some four to six years earlier. Additionally, the AJ determined that Louie
failed to allege facts which, if proven, would show that changes in his case assignments
constituted personnel actions for WPA purposes because they involved a “significant
change in duties,” 5 U.S.C. § 2302(a)(2)(A)(xi). We find that 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 the imposition of check in/check out procedures and threats of AWOL as
personnel actions. But Louie has not alleged specific facts on appeal that constitute
2006-3321 7
non-frivolous allegations sufficient to vest the Board with jurisdiction over these claims.
We find that the Board lacks jurisdiction over these claims.
To the extent that Louie is attempting to assert additional causes of action in his
appeal to this court that were not before the Board, we cannot address them in the first
instance on appeal.
For the foregoing reasons, we affirm both Board judgments.
No costs.
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