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Federal Circuit Reverses MSPB Dismissal under the Whistleblower Protection Act

In Kahn v. Dept. of Justice, the Federal Circuit held that the Merit Systems Protection Board (“MSPB”) erred in dismissing Kahn’s individual right of action (“IRA”) appeal under the Whistleblower Protection Act (“WPA”).  In his IRA appeal, Kahn, a special agent for the Drug Enforcement Agency (DEA), alleged that he was retaliated against after he made disclosures to his superiors about another agent’s alleged violations of DEA rules and regulations.  

The MSPB held that Kahn’s reporting of Agent Annis’ activities were not protected under the Whistleblower Protection Act because the disclosures were made as part of his normal duties as a special agent.  The Federal Circuit reversed, concluding that there was an issue of material fact as to whether Kahn’s disclosure was a part of his normal duties given Kahn’s job description and competing sworn statements from him and his supervisor.  Finding that Kahn presented non-frivolous allegations that his disclosures were outside of the scope of his normal duties, the Federal Circuit remanded the case to the MSPB.

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