Kahn v. Department of Justice

United States Court of Appeals for the Federal Circuit

2007-3216

DOUGLAS KAHN,

Petitioner,

v.

DEPARTMENT OF JUSTICE,

Respondent.

Thomas G. Roth, Law Offices of Thomas G. Roth, of West Orange, New Jersey,
argued for petitioner.

Steven J. Gillingham, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent. On
the brief were Jeanne E. Davidson, Director, Todd M. Hughes, Deputy Director, and
Steven Abelson, Attorney.

Appealed from: Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit

2007-3216

DOUGLAS KAHN,

Petitioner,

v.

DEPARTMENT OF JUSTICE,

Respondent.

Petition for review of the Merit Systems Protection Board in AT1221060966-W-1.

DECIDED: June 11, 2008

Before NEWMAN, LOURIE, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

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”). 1 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.

BACKGROUND

I.

On August 24, 2005, Mr. Kahn filed a whistleblowing complaint with the United

States Office of Special Counsel (“OSC”). 2 Id. at 2. In his complaint, Mr. Kahn alleged

that certain reports he made to his superiors constituted protected disclosures under the

WPA. Id. Mr. Kahn further alleged that the DEA had engaged in a prohibited personnel

practice in retaliation for those disclosures by transferring him to the Atlanta Field

Division. Id. On July 5, 2006, OSC gave Mr. Kahn notice that it had terminated its

inquiry into his complaint and would not be taking corrective action. Id. Mr. Kahn

thereafter filed his IRA appeal with the Board.

1
Pursuant to 5 C.F.R. § 1201.113, the administrative judge’s (“AJ’s”) initial
decision became the final decision of the Board on April 27, 2007, after Mr. Kahn failed
to file a petition for review with the full Board. Hence, we refer to the AJ’s March 23
initial decision as the Board’s “Final Decision.”
2
OSC is responsible for receiving and investigating allegations of prohibited
personnel practices under the WPA. 5 U.S.C. § 1212(a). The statutory provisions
relating to OSC are at 5 U.S.C. §§ 1211–19.

2007-3216 2
 II.

The Board has jurisdiction over an IRA appeal “‘if the appellant has exhausted

administrative remedies before . . . OSC and makes ‘non-frivolous allegations’ that (1)

he 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 a personnel action as defined by 5 U.S.C. § 2302(a).’” Fields v. Dep’t of Justice,

452 F.3d 1297, 1302 (Fed. Cir. 2006) (quoting Yunus v. Dep’t of Veterans Affairs, 242

F.3d 1367, 1371 (Fed. Cir. 2001)). A protected disclosure under section 2302(b)(8) is

defined in relevant part as

(A) any disclosure of information by an employee or applicant which the
employee or applicant reasonably believes evidences—

(i) a violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public health or
safety . . . .

The AJ found that Mr. Kahn had demonstrated that he had exhausted his

remedies before OSC. Final Decision at 2. In addition, the AJ noted that a transfer or

reassignment is a personnel action under 5 U.S.C. § 2302(a)(2). Id. at 3. The AJ then

turned to the question of whether Mr. Kahn had made non-frivolous allegations of

protected disclosures under 5 U.S.C. § 2302(b)(8) so as to establish Board jurisdiction

over his IRA appeal. The AJ noted that the following was undisputed:

In 2002, Mr. Kahn was a member of a “Provisional Task Force” (“Task Force”)

that operated out of the DEA’s Beaufort Office. The Task Force was charged with

investigating drug crimes and developing criminal cases against drug offenders. Id.

2007-3216 3
Cases developed by the Task force were prosecuted by the United States Attorney in

Charleston, South Carolina. Id.

The Task Force was comprised of DEA agents and officers from the Beaufort

County Sheriff’s Office and the Beaufort Police Department. Id. In addition to Mr. Kahn,

the Task Force included DEA SA Henry Meehan and local law enforcement officers

Donald Annis and Tony Herald. 3 The Beaufort Office reported to Steven Mitchell, the

Resident Agent in Charge (“RAC”) of the DEA’s Charleston Resident Office. Id. RAC

Mitchell had supervisory responsibility over Mr. Kahn and all other members of the

Beaufort Office. Id. RAC Mitchell, in turn, reported to Assistant Special Agent in

Charge (“ASAC”) John Ozaluk, who was stationed in DEA’s Columbia District Office.

Id.

At some point in 2002, an individual who had recently been released from prison

and who had an extensive criminal record contacted the Task Force and expressed

interest in becoming a confidential source. Ultimately, this individual discussed the

possibility of becoming a confidential source with TFA Annis. Eventually, Annis

proceeded to utilize the individual as a confidential source.

In May of 2002, Mr. Kahn had a series of communications with RAC Mitchell

relating to what Mr. Kahn stated was improper conduct of TFA Annis regarding the

confidential source. Id. Thereafter, Mr. Kahn documented these communications in a

memorandum dated August 16, 2002 to ASAC Ozaluk. Id. In his communications and

memorandum, Mr. Kahn reported to his superiors that Annis had used the confidential

source without first having him documented and registered as a DEA source and that

3
Annis and Herald were designated as Task Force Agents (“TFAs”) in the
Beaufort Office.

2007-3216 4
Annis had been involved with the confidential source in a drug transaction without

following required procedures. Id. According to Mr. Kahn, this alleged conduct on the

part of Annis was in violation of DEA rules and regulations. In addition, in his August 16

memorandum, Mr. Kahn indicated that he had raised the issue of Annis’s conduct with

Annis’s superiors at the Beaufort County Sheriff’s Office, including Sheriff P.J. Tanner.

Id. Eventually, Sheriff Tanner removed Annis from the Task Force. Id.

The foregoing matters, which the AJ noted were undisputed and which are

recited in the Final Decision, were mostly set forth in an affidavit dated December 6,

2006, that Mr. Kahn submitted to the Board. In his affidavit, and through documents

that were before the Board, Mr. Kahn alleged, in addition to what is recited in the Final

Decision, the following:

Following Annis’s removal from the Task Force, Assistant United States Attorney

Robert Bickerton of the United States Attorney’s Office in Charleston, who had worked

with Annis, complained of “integrity problems” in Mr. Kahn’s investigative work for DEA.

Specifically, Bickerton suggested in a meeting with ASAC Ozaluk that Mr. Kahn had

made material misrepresentations in various investigative reports. As a consequence,

DEA’s Office of Professional Responsibility conducted an investigation of Mr. Kahn.

The investigation commenced in January of 2003. Ultimately, in January of 2004, the

Office of Professional Responsibility cleared Mr. Kahn of all charges of misconduct.

Even though DEA’s Office of Professional Responsibility found no wrongdoing on

Mr. Kahn’s part, the United States Attorney’s Office conducted its own investigation of

Mr. Kahn’s conduct, so as to determine whether the Office would be required to disclose

any past false statements or misrepresentations by Mr. Kahn to criminal defendants

2007-3216 5
against whom Mr. Kahn testified. 4 During this investigation, the United States

Attorney’s Office barred Mr. Kahn from presenting any cases to it. Though the United

States Attorney’s Office also determined that Mr. Kahn had not engaged in any

wrongdoing, the Office recommended that Mr. Kahn be transferred to a post outside of

the State of South Carolina. Eventually, though Mr. Kahn expressed an interest in

working in North Carolina in the event of a transfer out of state, the DEA transferred him

to Atlanta, Georgia in July of 2005.

In ruling on the Board’s jurisdiction, the AJ focused on one issue:

Even assuming that the appellant possessed a reasonable belief
that his oral and written reports concerning Mr. Annis’[s] use of his
[confidential source] constituted evidence of a violation of law, rule, or
regulation, gross mismanagement, a gross waste of funds, abuse of
authority, or a substantial and specific danger to the public health or
safety, to the extent that they represented “disclosures made as part of
normal duties through normal channels,” they remain unprotected under 5
U.S.C. § 2302(b)(8). See Fields v. Dep’t of Justice, 452 F.3d 1297, 1305
(Fed. Cir. 2006) (citing Huffman v. Office of Pers. Mgmt., 263 F.3d 1341,
1354 (Fed. Cir. 2001)); see also Willis v. Dep’t of Agric., 141 F.3d 1139,
1144 (Fed. Cir. 1998) (reporting in connection with assigned normal duties
is not a protected disclosure covered by the Whistleblower Protection Act).

Final Decision at 3–4.

The AJ acknowledged that Mr. Kahn’s job description confirmed that

investigating the professional misconduct of Task Force agents, such as TFA Annis, did

not form part of his normal duties. Id. at 4. The AJ concluded, however, that Mr. Kahn’s

reports concerning Annis’s use of the confidential source did not fall outside of his

normal duties. Id. The AJ reasoned that, in discussing Annis’s use of the confidential

source with his superiors, Mr. Kahn was engaged in the core purpose of his position as

4
Under Giglio v. United States, 405 U.S. 150 (1972), a prosecutor is
required to provide to a criminal defendant evidence that affects the credibility of a
witness who testifies against the defendant, id. at 154.

2007-3216 6
a Criminal Investigator GS-13, as set forth in his position description: “to plan and

conduct highly complex criminal investigations primarily involving major violators in

large-scale drug trafficking networks operating throughout several regions of the United

States, nationwide or internationally.” Id. The AJ determined that Mr. Kahn’s reports

concerning Annis’s activities with the confidential source related to an ongoing drug

investigation. Id. at 5. “This drug operation, and not any independent investigation into

Mr. Annis’[s] professional misconduct, was the focus of [the] back and forth

communications” between Mr. Kahn and his superiors, the AJ stated. Id. For this

reason, the AJ ruled that Mr. Kahn had failed to make non-frivolous allegations that he

made a protected disclosure under 5 U.S.C. § 2302(b)(8). Id. He therefore held that

the Board lacked jurisdiction over Mr. Kahn’s IRA appeal. Id.

DISCUSSION

I.

We have jurisdiction over Mr. Kahn’s appeal pursuant to 28 U.S.C. § 1295(a)(9).

Our scope of review in an appeal from a decision of the Board is limited. Specifically,

we must affirm the Board's decision unless we find it to be arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule, or regulation having been followed; or unsupported by

substantial evidence. 5 U.S.C. § 7703(c); Abell v. Dep’t of the Navy, 343 F.3d 1378,

1382-83 (Fed. Cir. 2003). We review decisions of the Board regarding its own

jurisdiction without deference. McCormick v. Dep’t of the Air Force, 307 F.3d 1339,

1340 (Fed. Cir. 2002) (citing King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996)).

Before the Board, an appellant bears the burden of establishing Board jurisdiction. Id.

2007-3216 7
(citing Clark v. U.S. Postal Serv., 989 F.2d 1164, 1167 (Fed. Cir. 1993)); 5 C.F.R.

§ 1201.56(a)(2)(i) (2007)).

As already noted, the Board has jurisdiction over an IRA appeal if the appellant

has exhausted his or her administrative remedies before the OSC and makes non-

frivolous allegations that (1) he or she 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). The standard for determining whether non-frivolous

disclosures exist “is analogous to that for summary judgment.” Dorrall v. Dep’t of the

Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002), overruled on other grounds by Garcia v.

Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006). “[T]he petitioner must show

the existence of a material fact issue . . . to support Board jurisdiction. Non-frivolous

allegations cannot be supported by unsubstantiated speculation in a pleading submitted

by petitioner.” Id. The determination of whether an allegation of jurisdiction is non-

frivolous is made based entirely on the written record, and a hearing with respect to the

existence of jurisdiction is unnecessary. Francisco v. Office of Pers. Mgmt., 295 F.3d

1310, 1313 (Fed. Cir. 2002). If the employee successfully makes nonfrivolous

allegations of jurisdiction, the Board then conducts a hearing on the merits. Yunus, 242

F.3d at 1371; Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 687–88 (Fed. Cir. 1992).

II.

The basis for the AJ’s conclusion that Mr. Kahn had failed to make non-frivolous

allegations that he had made protected disclosures under the WPA was his

determination that Mr. Kahn’s reports to his superiors were not outside of his normal job

2007-3216 8
duties. According to the AJ, this was because, although it was not part of Mr. Kahn’s

duties to report wrongdoing of others, it was part of his duties to plan and conduct drug

investigations, and it was in that context that he reported to his superiors about TFA

Annis.

We addressed the issue presented by this appeal in Huffman v. Office of

Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001). In Huffman, we outlined three

categories into which a disclosure may fall, only the latter two of which constitute

disclosures that are protected under the WPA: (1) disclosures made as part of normal

duties through normal channels, (2) disclosures as part of normal duties outside of

normal channels, and (3) disclosures outside of normal duties. Id. at 1353–54. On

appeal, Mr. Kahn contends that his reports concerning TFA Annis’s use of the individual

he (Annis) recruited as a confidential source fell into the third Huffman category. We

explained in Huffman that this category involves the situation “in which the employee is

obligated to report the wrongdoing, but such report is not part of the employee’s normal

duties or the employee has not been assigned those duties.” Id. at 1354. In making

this statement, we noted: “For example, the regulations, 5 C.F.R. § 2635.101(b)(11),

specifically require all employees to ‘disclose waste, fraud, abuse, and corruption to

appropriate authorities.’” Id. at 1354 n.6. In other words, a disclosure comes within the

third category of Huffman if, although the employee, like all agency employees, is

generally required to report wrongdoing that he or she sees, the disclosure is not part of

the employee’s assigned duties.

Mr. Kahn argues that he made non-frivolous allegations that the reports he made

to his superiors concerning TFA Annis came within Huffman category 3. In advancing

2007-3216 9
this argument, Mr. Kahn relies primarily upon his December 6, 2006 affidavit. In his

affidavit, Mr. Kahn outlined the chain of command at the Beaufort Office. Kahn Aff. ¶ 6.

In that regard, he stated that all of the agents in Beaufort reported directly to RAC

Mitchell and that he (Mr. Kahn) and SA Meehan were co-equals in the office. Id. ¶ 7.

Mr. Kahn stated that the ultimate decision to register a confidential source was made by

either RAC Mitchell or ASAC Ozaluk. Id. ¶ 8. Mr. Kahn continued that he was not

directly involved in the process of registering the confidential source at issue and that

SA Meehan and TFA Annis did all of the paperwork to register the confidential source

and then passed the paperwork to RAC Mitchell without any review or participation by

him (Kahn). Id. ¶ 9. Thus, Mr. Kahn stated, “TFA Annis would have supervised [the

confidential source] and controlled his undercover efforts.” Id. Mr. Kahn recounted that

the confidential source “had been ‘fronted’ an ounce of crack cocaine by a target

trafficker.” Id. ¶ 10. Mr. Kahn stated that he told Annis that “neither he nor anyone else

associated with DEA could properly take custody of such drugs because [the

confidential source] had not yet been documented as a [confidential source by DEA].”

Id. After setting forth the ways in which Annis violated DEA regulations in his dealings

with the confidential source, Mr. Kahn told of his reports to his superiors, RAC Mitchell

and ASAC Ozaluk. Id. ¶¶ 12–13. He then stated:

Although I believe that I, like all DEA Special Agents, am obligated
to report misconduct if I am aware of it, that is not part of my normal duties
with DEA. I have carefully reviewed the job description of the Special
Agent position, and I see no reference to the reporting of misconduct
committed by other agents or Task Force Officers. Rather, my job is to
enforce the federal narcotics laws under Title 21 of the United States
Code.

Id. ¶ 14.

2007-3216 10
 Mr. Kahn contends that, because he made non-frivolous allegations of protected

disclosures, the Board should have granted him a hearing on the merits of his appeal.

The government responds that it was part of Mr. Kahn’s assigned duties to report

TFA Annis’s alleged violations of DEA rules and regulations. The government notes

that Mr. Kahn’s duties explicitly included “[d]etermin[ing] the most effective manner for

developing and carrying out investigations.” Rep’t’s Br. 12. In addition, the government

points to the December 6, 2006 declaration of RAC Mitchell that was submitted to the

Board. In his declaration, RAC Mitchell stated that “[b]ecause SA Kahn was the most

senior Agent in such a small office, I designated him to report to me daily regarding

administrative matters and ongoing law enforcement operations in . . . Beaufort . . . .

SA Kahn called me every day to report what the office was doing administratively and

operationally.” Mitchell Decl. ¶ 4. RAC Mitchell noted that, during 2002, section 6622 of

the DEA Special Agent’s manual required that “‘[e]ach undercover buy will be

thoroughly planned by the immediate supervisor and all participating personnel’” and

that “‘[a]s much as possible, this planning will encompass all potential developments

that could occur.’” Id. ¶ 5. Finally, RAC Mitchell stated:

Pursuant to the Special Agent’s Manual requirements in effect in
2002, as well as the more general instructions I gave to SA Kahn to report
daily administrative matters and operational activities of the Beaufort
[Office] to me, SA Kahn was required, as part of his assigned job duties, to
notify me at least verbally of TFO Annis’[s] proposed use of a confidential
source . . . to purchase crack cocaine or for DEA to provide Official
Authorized Funds to a target in a DEA Organized Crime Enforcement
Task Force . . . investigation.

Id. ¶ 11. Thus, the government maintains that the AJ did not err in his determination

that Mr. Kahn’s reporting of TFA Annis’s activities relating to the confidential source did

not fall outside of his normal duties.

2007-3216 11
 III.

The narrow issue before us is whether Mr. Kahn made non-frivolous allegations

that his reports concerning TFA Annis’s activities were not part of his normal duties, so

that they came within Huffman category 3. The evidence of record on this point

consists of Mr. Kahn’s position description and two competing statements, Mr. Kahn’s

affidavit and RAC Mitchell’s declaration.

Before the Board, Mr. Kahn submitted an affidavit in which he alleged facts

indicating that his reports concerning TFA Annis were not part of his normal duties.

Specifically, Mr. Kahn acknowledged that, like all DEA agents, he was required to report

wrongdoing of which he became aware. At the same time, however, he stated that the

reporting of Annis’s alleged violation of DEA rules and regulations was not part of his

normal duties. He asserted that doing so went beyond his job responsibilities,

contending that he had no supervisory responsibility over Annis, no involvement in the

recruitment of the individual who became Annis’s confidential source, and no specific

job duty to ferret out and report misconduct of co-employees. The government relies

upon the declaration of RAC Mitchell. In his declaration, RAC Mitchell stated that he

designated Mr. Kahn to report to him daily regarding administrative matters and law

enforcement operations at the Beaufort Office. Presumably, such reporting would have

included Mr. Kahn’s communications concerning Annis, thereby bringing those

communications within the scope of Mr. Kahn’s normal duties. In our view, although

this is a close case, the combination of Mr. Kahn’s job description and the competing

sworn statements of Mr. Kahn and RAC Mitchell places the evidence on the question of

Mr. Kahn’s normal duties in equipoise. In short, there is a genuine issue of material fact

2007-3216 12
on the question. Under these circumstances, we think that Mr. Kahn has presented

non-frivolous allegations that his reports concerning Annis were not part of his normal

duties.

CONCLUSION

For the foregoing reasons, we hold that the AJ erred in holding that Mr. Kahn had

failed to make non-frivolous allegations that he made protected disclosures under 5

U.S.C. § 2302(b)(8). The decision of the Board that it lacks jurisdiction over Mr. Kahn’s

IRA appeal is therefore reversed. The case is remanded to the Board for a hearing on

the merits of the appeal. 5

REVERSED and REMANDED

5
Before the Board, Mr. Kahn will have the burden of establishing his WPA
claim by a preponderance of the evidence. Johnston v. Merit Sys. Prot. Bd., 518 F.3d
905, 909 (Fed. Cir. 2008). Specifically, he will be required to demonstrate that his
reports to his superiors concerning TFA Annis constituted protected disclosures under 5
U.S.C. § 2302(b)(8), that the reports were not part of his normal duties, and that the
reports were a contributing factor in the DEA’s decision to transfer him to Atlanta. Id. At
this point, however, Mr. Kahn has made non-frivolous allegations sufficient to establish
Board jurisdiction. On appeal, the government does not dispute the AJ’s assumption
that Mr. Kahn’s reports constituted disclosures of violations of DEA rules and
regulations. At the same time, we have held that Mr. Kahn made non-frivolous
allegations that his reports concerning Annis were not part of his normal duties. Finally,
we think that Mr. Kahn’s affidavit and the documentary material before the Board
concerning the events that took place after his reports and the removal of Annis from
the Task Force raised non-frivolous allegations that Mr. Kahn’s reports concerning
Annis were a contributing factor in the DEA’s decision to transfer Mr. Kahn to Atlanta. If
Mr. Kahn establishes a prohibited personnel practice by a preponderance of the
evidence, the burden will shift to the DEA to demonstrate by clear and convincing
evidence that it would have transferred him to Atlanta even in the absence of his
protected disclosures. See Marano v. Dep’t of Justice, 2 F.3d 1137, 1141 (Fed. Cir.
1993). If the DEA fails to carry that burden, the Board will then have occasion to
fashion such corrective action as it considers appropriate. Id. at 1343.

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