Ng v. Department of the Treasury ( 2008 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3301
RICHARD T. NG,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
Richard T. Ng, of Hacienda Heights, California, pro se.
J. Reid Prouty, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Harold D. Lester, Jr., Assistant
Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3301
RICHARD T. NG,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
Petition for review of the Merit Systems Protection Board in SF1221040495-B-1,
SF1221020674-M-1, and SF1221050575-W-1.
__________________________
DECIDED: February 7, 2008
__________________________
Before MAYER, LOURIE and RADER, Circuit Judges.
PER CURIAM.
Richard T. Ng appeals from the final decision of the Merit Systems Protection
Board denying his request for corrective action. Ng v. Department of the Treasury, Nos.
SF-1221-04-0495-B-1, SF-1221-02-0674-M-1, SF-1221-05-0575-W-1 (M.S.P.B. June
19, 2007). We affirm.
At the time relevant to this appeal, Ng was employed as a GS-12 Revenue Agent
at the Internal Revenue Service (“agency”). Ng filed an appeal with the board in 2002,
alleging that he had suffered reprisal for disclosures protected under the Whistleblower
Protection Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8). The board dismissed his
appeal, finding that he had failed to make non-frivolous allegations of disclosures
protected under the WPA. This court, however, concluded that Ng’s allegations were
sufficient to establish board jurisdiction. Ng v. Department of the Treasury, 120 Fed.
Appx. 794, 796-97 (Fed. Cir. 2004) (non-precedential decision). The case was
remanded to the board for a hearing on the merits of Ng’s claims. Id.Ng filed two additional appeals with the board, both of which were joined to his
initial appeal. After conducting two hearings, the administrative judge ruled in favor of
the agency, concluding that “the agency established by clear and convincing evidence
it had legitimate reasons for taking all of the challenged actions, and that the agency
would have taken the same actions even if [Ng] had not made any protected
disclosures.” Ng v. Department of the Treasury, Nos. SF-1221-04-0495-B-1, SF-1221-
02-0674-M-1, SF-1221-05-0575-W-1, slip. op. at 68 (M.S.P.B. Nov. 3, 2006). The
administrative judge’s decision became the final decision of the board on June 19,
2007.
This court’s review of a board decision is limited by statute. We must affirm such
a decision unless it is arbitrary, capricious, an abuse of discretion, otherwise not in
accordance with law, obtained without required procedures, or not supported by
substantial evidence. 5 U.S.C. § 7703(c); Hayes v. Department of Navy, 727 F.2d 1535,
1537 (Fed. Cir. 1984).
Substantial evidence supports the board’s determination that the agency
established, by clear and convincing evidence, that it would have taken the same
personnel actions against Ng even absent any disclosures protected under the WPA.
2007-3301 2
Ng asserts that the agency improperly placed him on administrative leave in 2001. The
evidence showed, however, that Ng displayed disturbing pictures, including a graphic
depiction of the Columbine massacre, and sent emails to various agency employees
which alluded to death and indicated that Ng had instructed his family to file a wrongful
death suit against the agency in the event Ng suddenly died. The board properly
concluded that the agency had “significant, and well-founded, concerns” regarding Ng’s
mental health, and that the decision to place Ng on administrative leave was based not
on any protected disclosure, but instead on the agency’s legitimate concern that Ng
might pose a danger to himself or others. Ng, slip op. at 30.
Ng also contends that he was denied several promotions because of disclosures
protected under the WPA. The administrative judge, however, properly credited
testimony from agency officials stating that Ng did not have the proper qualifications for
certain positions, and that other applicants were better qualified for the remaining
positions Ng sought. We conclude, therefore, that the board correctly determined that
Ng would have been denied the promotions he sought even absent any protected
disclosures.
Ng mounts several challenges to the administrative judge’s credibility
determinations. Determinations as to the credibility of witnesses, however, as well as
the factual findings based thereon, are accorded great deference by this court. See
Rogers v. Office of Personnel Management, 87 F.3d 471, 472 (Fed. Cir. 1996). Ng fails
to establish that any of the board’s credibility determinations were unsupported by the
evidence.
2007-3301 3
We have considered Ng’s remaining arguments. We conclude, however, that
they are insufficient to justify reversal of the board’s decision.
2007-3301 4