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Kahn v. Dep't of Justice

The Federal Circuit reversed a final decision of the Merit Systems Protection Board, dismissing for lack of jurisdiction an individual right of action appeal filed by the petitioner, a special agent with the Drug Enforcement Administration, under the Whistleblower Protection Act. In his individual right of action appeal, the petitioner alleged that his 2005 job transfer was in retaliation for his having made protected disclosures under the Whistleblower Protection Act. Holding that the petitioner made "non-frivolous allegations that the disclosures he made were outside of his normal duties," the Federal Circuit reversed the determination that the Board lacked jurisdiction and remanded the matter to the Board for a hearing on the merits.

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Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.

Douglas Kahn is a Special Agent (“SA”) of the Drug Enforcement Administration (“DEA”), a component of the Department of Justice. He is assigned to the DEA’s Atlanta Field Division. In this appeal, he petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that dismissed for lack of jurisdiction his individual right of action (“IRA”) appeal under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) (2000) (“WPA”). Kahn v. Dep’t of Justice, No. AT-1221-06-0966-W-1 (M.S.P.B. Mar. 23, 2007) (“Final Decision”).*fn1 In his IRA appeal, Mr. Kahn alleged that his 2005 transfer from Beaufort, South Carolina, to the Atlanta Field Division was in retaliation for his having made protected disclosures under the WPA. The AJ dismissed the appeal for lack of jurisdiction after concluding that the disclosures Mr. Kahn made were not protected disclosures under the WPA because they were made as part of his normal duties. Id. at 5. Because we hold that Mr. Kahn made non-frivolous allegations that the disclosures he made were outside of his normal duties, we reverse the Final Decision and remand the case to the Board for further proceedings consistent with this opinion.

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