Layton v. Merit Systems Protection Board , 392 F. App'x 875 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ORVILLE W. J. LAYTON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF THE ARMY,
Intervenor.
__________________________
2010-3063
__________________________
Petition for review of the Merit Systems Protection
Board in case No. SF1221090069-W-1.
___________________________
Decided: September 9, 2010
___________________________
Orville W. J. Layton, of Eagle River, Alaska, pro se.
Calvin M. Morrow, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were James M.
Eisenmann, General Counsel, and Keisha Dawn Bell, Dep-
uty General Counsel.
LAYTON v. MSPB 2
Joseph A. Pixley, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Justice,
of Washington, DC, for intervenor. With him on the brief
were Tony West, Assistant Attorney General, Jeanne E.
Davidson, Director, and Steven J. Gillingham, Assistant
Director. Of counsel on the brief was Brian Bentley, Attor-
ney, Civilian Personnel Branch, United States Army Legal
Services Agency, of Arlington, Virginia.
__________________________
Before RADER, Chief Judge, LINN and MOORE, Circuit
Judges.
PER CURIAM.
Orville Layton appeals from a final decision of the
Merit Systems Protection Board (Board) dismissing his
individual right of action appeal for lack of jurisdiction.
See Layton v. Merit Sys. Prot. Bd., No. SF-1221-09-0069-
W-1 (M.S.P.B. May 5, 2009) (initial decision); Layton v.
Merit Sys. Prot. Bd., No. SF-1221-09-0069-W-1 (M.S.P.B.
Oct. 30, 2009) (final order denying petition for review).
For the reasons discussed below, we affirm.
BACKGROUND
Mr. Layton serves as an environmental law attorney
for the U.S. Army Garrison Alaska (USAG-AK), Office of
the Staff Judge Advocate (OSJA) in Anchorage, Alaska.
OSJA provides legal counsel in civil and criminal matters
to USAG-AK and to U.S. Army Alaska.
According to Mr. Layton, Army began work on the
Taku Family Housing project at Fort Wainwright, Alaska
(Taku project) in 2005. The Army soon discovered that
the soil at the Taku project site was contaminated with
hazardous substances, which caused construction delays.
The USAG-AK Commander, Col. David Shutt, directed
3 LAYTON v. MSPB
the Pacific Region Chief of Staff to conduct an investiga-
tion into the Taku project delays, and the Chief of Staff
submitted a report detailing his findings. In his report,
the Chief of Staff identified various violations of Army
environmental rules and regulations. He also identified
specific individuals who appeared to have knowledge
regarding the contamination and questioned the suffi-
ciency and timeliness of decisions made by certain indi-
viduals regarding the health and safety of the community.
According to Mr. Layton, Army management was not
convinced that this initial report accurately assessed the
Taku situation. Therefore, Col. Shutt issued a memoran-
dum tasking Mr. Layton with “conducting a comprehen-
sive audit of the [Taku project] site selection and waste
management practices.” Pet. App. 72. The memorandum
identified three areas of focus: (1) verifying that all pre-
construction environmental site assessment actions
conformed to applicable regulations and requirements;
(2) verifying that all waste management practices during
construction conformed to applicable regulations and
requirements; and (3) determining whether USAG-AK’s
oversight and management of the construction contract-
ing with respect to site assessment and waste manage-
ment should be improved and, if so, recommending
practices to effect such improvement. The memorandum
directed Mr. Layton to review records and to interview
Army and contractor personnel with responsibility for site
access and/or waste identification, management, or dis-
posal. It also identified specific questions that the audit
should answer, “in addition to considering how best to
maintain or achieve effective oversight of such matters on
future contracts.” Id. The memorandum directed Mr.
Layton to provide Col. Shutt with a report of his findings,
along with copies of all substantiating documents and
LAYTON v. MSPB 4
recommendations for improving site selection and waste
management procedures.
Mr. Layton approached various individuals to gather
information and documents relevant to the Taku project,
representing that Col. Shutt had “appointed” him to
perform the audit. During the course of the audit, Mr.
Layton met with Col. Shutt and Lt. Col. Maxwell, one of
Mr. Layton’s supervisors at OSJA, to discuss his progress.
Mr. Layton also submitted drafts and supporting docu-
ments to his two immediate OSJA superiors for their
review and comment prior to submitting his final report
to Col. Shutt.
In his final report, Mr. Layton concluded that various
errors and wrongdoing had occurred during construction
of the Taku project, reiterating many of the concerns
identified in the Chief of Staff’s earlier report. Mr. Layton
offered recommendations for addressing these concerns,
including taking disciplinary action against specific
individuals who had violated or allowed violations of law
or regulations. In particular, Mr. Layton identified four
individuals who had potentially violated laws or regula-
tions in connection with handling contaminants, and one
individual who had intentionally misled Army officials
regarding the contamination.
In April 2008, Mr. Layton filed a complaint with the
U.S. Office of Special Counsel (OSC), alleging that Army
personnel retaliated against him because of “whistleblow-
ing” disclosures contained in his audit report. Specifi-
cally, Mr. Layton alleged that Army limited the scope of
his duties, scrutinized his work, and failed to select him
for a position in retaliation for his disclosures. OSC
determined that the audit was part of Mr. Layton’s as-
signed job responsibilities and that Mr. Layton conveyed
the report’s findings through normal channels. OSC cited
5 LAYTON v. MSPB
Huffman v. Office of Personnel Management, 263 F.3d
1341 (Fed. Cir. 2001), where we held that “reports made
as part of an employee’s assigned normal job responsibili-
ties are not covered by the [Whistleblower Protection Act]
when made through normal channels.” Id. at 1344.
Under Huffman, OSC concluded that Mr. Layton had not
made any protected disclosures and terminated its in-
quiry into Mr. Layton’s allegations.
Mr. Layton filed an independent right of action appeal
with the Board and requested relief under the Whistle-
blower Protection Act (WPA), 5 U.S.C. § 2302(b)(8), alleg-
ing that Army retaliated against him for whistleblowing
activities. In an initial decision, the administrative judge
(AJ) dismissed Mr. Layton’s appeal for lack of jurisdiction.
The AJ found that Mr. Layton performed the audit pur-
suant to an express order; that he coordinated the audit
and accompanying report with his superiors; and that he
relied on USAR-AK and OSJA resources, time, and au-
thority to complete the investigation. Therefore, the AJ
found that the discussion and findings in Mr. Layton’s
report accompanying his audit were part of his normal,
assigned duties. The AJ also found that Mr. Layton
reported the findings of his investigation within the
normal channels, because he conveyed his findings only to
Col. Shutt, who had given him the audit assignment, and
to his normal OSJA supervisors. The AJ determined that
Mr. Layton had not alleged a protected disclosure, and
therefore had failed to establish jurisdiction.
Mr. Layton petitioned for review of the AJ’s initial de-
cision to the Board, which reopened the case on its own
motion pursuant to 5 C.F.R. § 1201.118. In his petition,
Mr. Layton argued that the allegations of wrongdoing
contained in his report went beyond the scope of his
assignment to audit the Taku project. Therefore, Mr.
Layton asserted, his petition presented a nonfrivolous
LAYTON v. MSPB 6
allegation that he had made a protected disclosure, suffi-
cient to support jurisdiction. The Board observed that it
was undisputed that Army assigned Mr. Layton a duty to
investigate and report on the Taku project. Under Huff-
man, the Board noted, any disclosures made pursuant to
this assigned duty were not protected under the WPA.
The Board also observed that Mr. Layton discussed his
progress with, and received feedback from, his superiors
as he conducted the investigation and prepared his report.
To the extent the scope of the final report differed from
the initial assignment, the Board found that this differ-
ence was due either to Mr. Layton’s investigation—which
was pursuant to his assigned duty—or to feedback from
his superiors. Therefore, the Board found that Mr.
Layton had not shown that the disclosures in his report
were outside the scope of his assigned duties and had not
presented a nonfrivolous allegation of jurisdiction. The
Board affirmed the AJ’s initial decision, as modified by its
opinion and order. Layton v. Merit Sys. Prot. Bd., No. SF-
1221-09-0069-W-1 (M.S.P.B. Oct. 30, 2009).
Mr. Layton appeals the Board’s decision. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board's
decision unless it was “(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.” 5 U.S.C. § 7703(c); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
“We review whether the MSPB has jurisdiction over an
appeal de novo.” Coradeschi v. Dep’t of Homeland Sec.,
439 F.3d 1329, 1331 (Fed. Cir. 2006). “Factual findings
7 LAYTON v. MSPB
underlying the Board's jurisdictional conclusions, how-
ever, are entitled to deference unless unsupported by
substantial evidence.” Bolton v. Merit Sys. Prot. Bd., 154
F.3d 1313, 1316 (Fed. Cir. 1998).
Mr. Layton, as the petitioner, bears the burden of es-
tablishing jurisdiction. Kahn v. Dep't of Justice, 528 F.3d
1336, 1341 (Fed. Cir. 2008). The Board has jurisdiction
over an independent right of action appeal if “a petitioner
has exhausted his or her administrative remedies before
the OSC and makes non-frivolous allegations that (1) he
or she engaged in whistleblowing activities by making a
protected disclosure under 5 U.S.C. § 2302(b)(8) and (2)
the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action as
defined by 5 U.S.C. § 2302(a).” Id. We held in Huffman
that reports made as part of an employee’s normal, as-
signed duties are not “protected disclosures” under the
WPA when made through normal channels. 263 F.3d at
1344, 1352.
Mr. Layton argues that the disclosures in his report
identifying wrongdoing by Army personnel and contrac-
tors were protected disclosures under the WPA. He
argues that the disclosures were not made as part of his
normal duties because his assignment to audit the Taku
project did not cover investigating the misconduct of Army
officials. Mr. Layton also argues that he did not disclose
his findings of misconduct through normal channels
because his findings were communicated to officials
outside Col. Shutt’s chain of command and without Col.
Shutt’s permission.
The Board found that Mr. Layton’s disclosures of mis-
conduct were within the scope of his normal, assigned
duties. Substantial evidence supports this finding. There
is no dispute that Mr. Layton performed his investigation
LAYTON v. MSPB 8
of the Taku project pursuant to direct orders, as set forth
in Col. Shutt’s memorandum. The memorandum broadly
tasked Mr. Layton with conducting “a comprehensive
audit” of the Taku project’s site selection and waste
management practices. Pet. App. 72. It specifically
instructed Mr. Layton to verify that all actions related to
site assessment and waste management conformed to all
applicable rules and regulations and to articulate any
ways in which Army’s management practices with respect
to site assessment and waste management should be
improved. After performing his investigation of the Taku
project, Mr. Layton identified certain Army officials who
had potentially violated laws and regulations through
improperly handling contaminants and misleading Army
officials regarding the contamination. These findings of
misconduct, which Mr. Layton discussed in his report,
plainly fall within the scope of Mr. Layton’s duties to
verify compliance with applicable regulations and to
identify ways to improve Army’s management of site
assessment and waste management issues. Further, Mr.
Layton conferred with Col. Shutt and his OSJA supervi-
sor regarding his progress on the audit and provided his
OSJA supervisors with drafts of the report containing the
findings of misconduct.
Mr. Layton next argues that the audit was not in-
tended to encompass an investigation into possible mis-
conduct by Army employees or contractors. To support
this contention, Mr. Layton asserts that Col. Shutt’s
memorandum fails to comply with the requirements of
Army Regulation (AR) 15-6, the regulation that controls
formal investigations of Army officials. However, the
Board did not find—and Army did not claim—that Mr.
Layton’s audit assignment was an investigation pursuant
to AR 15-6. Rather, the purpose of the audit was to
comprehensively review the site selection and waste
9 LAYTON v. MSPB
management practices associated with the Taku project,
to verify that all such practices complied with the appli-
cable laws and regulations, and to identify ways to im-
prove these practices. Mr. Layton’s findings related to
Army officials’ potential violation of applicable rules and
regulations during construction were relevant to these
purposes and thus within the scope of Mr. Layton’s as-
signed duties.
Mr. Layton also argues that his disclosures were
made outside of normal channels. He asserts that the
findings in his audit report were provided to the U.S.
Army Alaska commander and to officials within Alaska
District Corps of Engineers, all of whom were outside of
Col. Shutt’s chain of command. However, Mr. Layton did
not disclose the findings in his report to these individuals;
rather, Mr. Layton’s superiors in OSJA forwarded his
findings to the U.S. Army Alaska commander and officials
in the Corps of Engineers. The record contains no evi-
dence that Mr. Layton disclosed his findings to anyone
other than his superiors in OSJA and to Col. Shutt, the
official who initially tasked Mr. Layton with the audit
assignment. Therefore, substantial evidence supports the
Board’s finding that Mr. Layton did not make the disclo-
sures outside of normal channels.
Because substantial evidence supports the Board’s
findings that Mr. Layton made the disclosures of potential
misconduct by Army officials as part of his assigned
duties and through normal channels, these disclosures
were not “protected disclosures” under the WPA. Huff-
man, 263 F.3d at 1344. Therefore, the Board correctly
determined that Mr. Layton failed to raise a nonfrivolous
allegation of jurisdiction.
LAYTON v. MSPB 10
CONCLUSION
We have considered Mr. Layton’s remaining argu-
ments and find them to be without merit. For the forego-
ing reasons, we affirm the final decision of the Board
dismissing Mr. Layton’s appeal for lack of jurisdiction.
AFFIRMED
COSTS
No costs.