Larry D. Tallacus v. KATHLEEN SEBELIUS, Secretary, Department of Health and Human Services

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY D. TALLACUS,
Plaintiff - Appellant,
v.
KATHLEEN SEBELIUS, Secretary,
Department of Health and Human
Services,
Defendant - Appellee.
No. 12-35046
D.C. No. 3:08-cv-00591-AC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
John V. Acosta, Magistrate Judge, Presiding
Argued and Submitted May 10, 2013
Portland, Oregon
Before: KOZINSKI, Chief Judge, and BERZON and HURWITZ, Circuit Judges.
Larry D. Tallacus appeals from a judgment entered against him after a jury
trial and an order denying his motion for a new trial. We affirm.
FILED
MAY 29 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. Tallacus had the burden of demonstrating that the district court had
jurisdiction over his breach of contract claim. See Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). He did not do so.
Little Tucker Act jurisdiction in a federal district court requires a claim
against the Government of contract-based damages not exceeding $10,000. See 28
U.S.C. § 1346(a)(2). The complaint did not allege that Tallacus had incurred any
legally cognizable damages for the agency’s alleged breach of a settlement
agreement. Nor did Tallacus seek to amend his complaint to allege damages. To
the degree the complaint can be read as alleging damages to be incurred in the
future, and without deciding whether such an allegation is sufficient, the complaint
does not state that any such damages would be for $10,000 or less, or waive any
damages over $10,000. See United States v. Park Place Assocs., 563 F.3d 907,
928 (9th Cir. 2009).
2. Substantial evidence supported the conclusion of the Merit Systems
Protection Board that Tallacus’s responsibilities under his former position “were
insufficient to justify a fulltime [position].” See 5 U.S.C. § 7703(c); Romain v.
Shear, 799 F.2d 1416, 1421 (9th Cir. 1986) (per curiam). Under our deferential
standard of review, see Romain, 799 F.2d at 1421, we affirm that conclusion.

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3. Tallacus has not met his burden of establishing prejudice from the district
court’s exclusion of evidence concerning his reassignment to his former position.
Because the jury could have inferred without those exhibits that the agency
implicitly admitted some mistake in undoing the prior reduction in force (RIF), it
was not “more probabl[e] than not” that exclusion of the exhibits at issue “tainted
the [jury’s] verdict.” See Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 1009 (9th
Cir. 2007).
4. Nor has Tallacus demonstrated prejudice from the admission of
testimony about RIFs in Alaska. The witness told the jury not only how she
carried out RIFs generally, but also how she carried out Tallacus’s RIF in Portland.
5. Tallacus did not object to the jury instruction about which he now
complains. We therefore review only for plain error. Fed. R. Civ. P. 51(d)(2).
There was none; the challenged portion of the instruction accurately stated the
scope of the claims before the jury.
6. Because “the jury’s verdict was [not] against the clear weight of the
evidence,” the district court did not abuse its discretion in denying Tallacus’s Rule
59 motion for a new trial. Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075,
1083 (9th Cir. 2009) (internal quotation marks omitted). A reasonable jury could
credit the agency’s reasons for eliminating Tallacus’s position, and could also rely

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on the agency’s evidence of budget shortfalls and insufficient workload as refuting
any inference of a discriminatory motive.
AFFIRMED.

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