Blakemore v. Department of the Navy ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3444
LINDA BLAKEMORE,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
________________________
DECIDED: October 20, 2005
________________________
Before LOURIE, GAJARSA, and ARCHER, Circuit Judges.
PER CURIAM
DECISION
Linda Blakemore, an alleged whistleblower, petitions this court to reverse the
July 30, 2004 final order of the Merit Systems Protection Board ("MSPB") that declined
to reopen the initial decision of the MSPB's administrative judge ("AJ"). The AJ found
that Blakemore had failed to establish jurisdiction because she failed to demonstrate
that her actions were not part of her normally assigned duties. Upon review of the
record, we affirm.
BACKGROUND
On appeal to the MSPB, the AJ found that Blakemore failed to raise "a non-
frivolous allegation that she engaged in whistleblowing activity by making a protected
disclosure." The AJ found that Blakemore's "challenge . . . constitute[d] little more than
a bare assertion that the work described was not part of her normal duties" at the
Quantico Business Performance Office ("BPO"). Furthermore, her job description,
performance evaluation, and her own subsequent employment application all indicated
that the investigation and disclosure of unauthorized expenditures and pay violations at
Quantico's Marine Corps Community Services division ("MCCS") was one of her normal
duties.
STANDARD OF REVIEW
We review whether the MSPB has jurisdiction over a matter de novo. See Butler
v. Soc. Sec. Admin., 331 F.3d 1368, 1371-72 (Fed. Cir. 2003). Such a review is made
without deference. Id.DISCUSSION
In order to establish jurisdiction, Blakemore must show "'(1) [s]he engaged in
whistleblowing activity 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).'" Huffman v. Office of
Personnel Mgmt., 263 F.3d 1341, 1347 (Fed. Cir. 2001) (citation omitted). The heart of
Blakemore's appeal is whether her reporting of MCCS misconduct was protected within
the meaning of the Whistleblowing Protection Act ("WPA"). We have held that
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disclosures made as part of an employee's normal job responsibilities through normal
channels are not covered by the WPA. See id. at 1352-53.
Blakemore alleges that her MCCS report was not within her normal employment
responsibilities and that she did not report the alleged transgressions through normal
channels. She contends that the report was not "normal" in the context of her other
employment responsibilities, which were to perform studies and to improve base
efficiency. She claims that audits to find rule violations were not within her normal job
responsibilities. We do not agree.
One of her "major duties" contained in the BPO job description included
"[p]articipat[ing] as a team leader or member in management surveys, projects and
investigations directed by the Commanding General." In fact, the Commanding General
Clifford Stanley assigned Blakemore the task of investigating the MCCS, a fact she
does not dispute. Although Blakemore's position responsibilities may have focused on
improving base efficiencies and not investigations, the MCCS report was not outside her
normal employment requirements.
Blakemore presents no more than conclusory allegations that the MCCS report
was not within her normal job responsibilities. In light of her job description and her own
representations, such allegations are frivolous. Thus, we affirm the MSPB's decision
and deny the petition.
04-3444 3