Layton v. United States Air Force, 707 F. App'x 429

Petitioner Orville Layton challenged the MSPB’s affirmance of an AJ’s denial of his WPA complaint after the Board concluded the agency proved by clear and convincing evidence it would have reassigned and reprimanded him absent protected disclosures.
The Board found Layton established a prima facie case of whistleblower retaliation, triggering the agency’s burden to prove same-action defense under Carr factors.
The agency introduced witnesses, emails, memoranda, and Layton’s own account to show the reassignment responded to Layton’s complaint about a hostile work environment and the reprimand resulted from failure to follow direct orders.
The Board credited the agency’s explanations and found Layton’s supervisor, John Whittington, who made the personnel decisions, lacked motive to retaliate; alleged motives of other employees were deemed inapposite given their lack of influence over Whittington.
There was no record evidence of comparators (similarly situated non‑whistleblowers) so the third Carr factor was not applied.
Layton also appealed two AJ prehearing rulings: denial of a late motion to compel discovery and exclusion of additional witnesses for failure to comply with a required attestation; the Board upheld both rulings as within the AJ’s discretion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether agency carried its burden to show same‑action defense under Carr	Layton argued agency actions were retaliatory and agency evidence was insufficient	Agency argued it would have reassigned and reprimanded Layton absent disclosures, supported by documentation and testimony	Held for agency: Board reasonably found clear and convincing evidence agency would have taken same actions
Whether decision‑maker had motive to retaliate	Layton pointed to other employees’ motives post‑disclosure	Agency showed Whittington (the decision‑maker) lacked motive and others had no control over him	Held for agency: substantial evidence supported lack of retaliatory motive by decision‑maker
Whether absence of comparator evidence requires ruling for Layton	Layton argued agency’s failure to produce comparators implies retaliation	Agency noted no evidence of similarly situated non‑whistleblowers; Carr doesn’t require producing comparator evidence	Held for agency: Board permissibly declined to weigh third Carr factor without comparator evidence
Whether AJ abused discretion in prehearing rulings (discovery & witnesses)	Layton argued denial of motion to compel and exclusion of witnesses was improper	Agency argued motion was untimely and Layton failed to satisfy AJ’s conditions for witness testimony	Held for agency: AJ did not abuse discretion; late discovery denied and witnesses excluded due to noncompliance

Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999) (establishes three‑factor framework for same‑action defense in WPA cases)
Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (agency must not disregard countervailing evidence when proving same‑action defense)
Miller v. Dep’t of Justice, 842 F.3d 1252 (Fed. Cir. 2016) (Carr factors are considerations, agency need not produce evidence on every factor)
Fellhoelter v. Dep’t of Agric., 568 F.3d 965 (Fed. Cir. 2009) (AJ’s denial of untimely discovery is reviewed for abuse of discretion)
Langer v. Dep’t of Treasury, 265 F.3d 1259 (Fed. Cir. 2001) (admissibility of evidence before the Board is within its discretion)