This is a matter arising under section 4(a) of the Whistleblower Protection Act of 1989 (“WPA”), 5 U.S.C. § 2302(b)(8) (2006). Douglas Kahn is a Special Agent Criminal Investigator with the U.S. Drug-Enforcement Administration (“DEA”). He appeals from the Merit Systems Protection Board’s (“Board”) final decision that Kahn did not make protected disclosures under the WPA.
See id.
§ 2302(b)(8)(A). This is Kahn’s second appeal from the Board. In the previous appeal, this court reversed the administrative judge’s decision that the Board lacked jurisdiction over his individual right of action (“IRA”).
See Kahn v. Dep’t of Justice,
The DEA employed Kahn as a Spеcial Agent Criminal Investigator, “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.” J.A. 1178. His performance work plan shows that the DEA tasked Kahn with, e.g., ‘“initiating], planning], and coordinating] investigations and enforcement operations,” “recruiting], developing], de-brief[ing], documenting], and/or coordinating] program[s] on confidential sources,” and “ensuring] investigative and other administrative files are up-to-date and in compliance with DEA pоlicies and procedures.” J.A. 7 (alterations in the original) (internal quotation marks omitted); see also J.A. 1208-14; J.A. 1232-40.
In 2002, Kahn was part of a “Provisional Task Force” (“Task Force”) in the DEA’s office in Beaufort, South Carolina.
Kahn,
Although Kahn and Meehan shared the same position and government service level, the administrative judge found that Kahn “functioned as the ‘lead agent’ in the Beaufort office, the single point of contact through which operational details of all ongoing investigations were submitted up the supervisory chain for review and approval.” J.A. 8. As Mitchell testified, “[A]ny operational things went through [Kahn].” J.A. 190.
I. Alleged Protected Disclosures & Transfer to Atlanta Field Office
Sometime in 2002, an individual with an extensive criminal record approached the Task Force about becoming a confidential source for the DEA.
Kahn,
Annis disobeyed that order. On approximately May 9, 2002, the informant obtained an ounce of crack cocaine from the DEA target on consignment and transferred the contraband to Annis. Annis then carried the crack cocaine to the DEA Beaufort Office and demanded that the DEA provide the informant money for the cocaine. With the hope of registering the informant after the fact, Kahn contacted Mitchell to obtain information on the DEA’s policy on using confidential sources “to see what [the DEA] could do to assist this investigation in moving forward.” J.A. 446 (alteration added).
On May 10, 2002, Kahn and Mitchell discussed the DEA’s new rules and regulations regarding confidential sources, which only Mitchell had access to on a DEA computer. Mitchell testified that under DEA regulations, a DEA agent in Annis’s situation would have needed to comply with the following procedures. First, the agent would need to submit an investigative report that included the target of the investigation, the potential source’s duties, and the potential source’s biographical information, including his criminal history. Second, the agent would need to brief the confidential source on his duties in the investigation. Third, the agent would need to obtain written approval from the state parole office before registering an individual with an extensive criminal history on probation as a confidential source. Fourth, the Resident Agent in Charge and the Assistant Special Agent in Charge would need to approve an operational plan that placed any necessary restrictions on using a confidential source with an extensive criminal history. If the Resident Agent in Charge and the Assistant Special Agent in Charge did not approve of an operational plan and state or local officers carriеd out a plan under their own authority, the DEA would not reimburse state or local police departments for expenditures. 2
After reviewing DEA rules for confidential sources, Mitchell and Kahn decided “that there [were] no short cuts that [they] could do to utilize this informant,” and that the DEA could not pay for the crack cocaine unless the informant was registered as a confidential source with the DEA. J.A. 447 (alterations added). Kahn informed Annis of their decision and suggested that he contact the Beaufort County Sheriffs Office to pay for the cocaine. Kahn reported that Annis was displeased with this decision, stating that “it was an embarrassment for the DEA to have to ask the Beaufort County Sheriffs Office for money.” J.A.566.
On May 13, 2002, Annis informed Kahn and Meehan that DEA Special Agent Steve Migioia and Assistant U.S. Attorney Robert Bickerton in Charleston had authorized the DEA to pay for the cocaine. Surprised by the change of plans, Meehan drove to Charleston to further discuss using the informant with Mitchell, leaving Annis and Kahn alone in the office. Kahn reported that he and Annis then engaged in a heated exchange of words. According to Kahn, Annis claimed that the DEA “was a joke” and warned Kahn that he “did not know who [he] was messing with and that [he] better leave him alone.” J.A. 567 (alterations added). At the end of the
Later that day, Annis obtained retroactive permission from Beaufort County Sheriff P.J. Tanner to pay for the cocaine as a one-time-only expenditure. Howеver, Tanner declined to use the individual as an informant because of his criminal history.
At the end of May or beginning of June 2002, 3 Kahn and Meehan met with Ozaluk for lunch. At Ozaluk’s request, Kahn recounted how Annis used an unregistered informant to obtain crack cocaine from a DEA target and how Annis had changed his attitude towards the DEA. Based on Annis’s use of the unregistered informant, Kahn recommended that Ozaluk remove him from the Task Force. Ozaluk agreed and decided to remove Annis because he “tried to circumvent our policies on establishing an individual to become a confidential source of information and had also engagеd in actions with this individual that were undocumented and would have led to problems for them had he been allowed to continue.” J.A. 65. However, Ozaluk did not report the misconduct to the Office of Professional Responsibility (“OPR”) because he felt that Kahn had prevented Annis from violating DEA rules on confidential sources.
On June 14, 2002, Mitchell sent a letter to Tanner requesting that he remove Annis from the Task Force and reassign him to the Beaufort County Sheriffs Office. Tanner granted the request and subsequently removed Annis from the Task Force.
Kahn,
After the removal, relations between the DEA and the U.S. Attorney’s Office in Charleston broke down in a dispute over Kahn. Upset that Annis was removed, Bickerton accused Kahn of being a liar and claimed that Kahn misrepresented facts in his reports. Based on Bickerton’s accusations, OPR and the U.S. Attorney’s Office conducted independent investigations to determine whether Kahn had previously made false statements or misrepresentations. The agencies conducted the investigations in part to determine whether prosecutors using Kahn as a witness would need to disclose evidence that affected his credibility at trial under
Giglio v. United States,
II. Whistleblower Claim
On August 24, 2005, Kahn filed a whistleblower complaint with the Office of Special Counsel (“OSC”).
Kahn,
On remand, the administrative judge held that Kahn failed to establish by a preponderance of the evidence that he made a protected disclosure. First, thе administrative judge found that when Kahn communicated to Mitchell his concerns over Annis’s use of an unregistered informant, he was not sure whether using such an informant constituted a violation of DEA rules. Instead of reporting a violation, the administrative judge found that he was “inquiring as to whether there was a way that ... Annis’[s] interest in using this problematic [informant] could be accommodated within DEA policy.” J.A. 5 (alterations added). In finding against Kahn, the administrative judge emphasized that “[t] he record does not reflect that any violation of DEA policy actually occurred.” J.A. 4. In making these findings, the administrative judge implied that Kahn did not reasonably believe that Annis had violated DEA regulations. Second, the administrative judge held that even if Kahn reasonably believed that he reported a violation of DEA regulations to Mitchell, Kahn’s disclosures were not protected under the WPA because they were made as part of his normal duties through normal channels. “[I]t is readily apparent from all available evidence, including the appellant’s own testimony, that in discussing Mr. Annis’[s] actual or proposed use of the [informant] in question with his superiors, [Kahn] was, in fact, engaged in the core purpose of his position of Criminal. Investigator.... ” J.A. 7 (alterations added). Because Kahn did not request rehearing from the Board, the administrative judge’s decision became the Board’s final decision.
Kahn timely appealed to this court. This court has jurisdiction over Kahn’s appeal pursuant to 28 U.S.C. § 1295(a)(9).
Discussion
The WPA prohibits agencies from taking an adverse personnel action against an employee in retaliation for “any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences ... a violation of any law, rulе, or regulation.” 5 U.S.C. § 2302(b)(8)(A). To make a whistleblower claim under the WPA, a petitioner must first exhaust his administrative remedies and make a non-frivolous allegation of an adverse personnel action based on a protected disclosure.
Yunus v. Dep’t of Veterans Affairs,
Specifically, the petitioner must establish by a preponderance of the evidence the following four elements: (1) the acting official has the authority to take, recommend, or approve any personnel action; (2) the aggrieved employee made a disclosure , protected under 5 U.S.C. § 2302(b)(8)(A); (3) the acting official used his authority to take, or refuse to take, a personnel action against the aggrieved employee; and (4) the protected disclosure was a contributing factor in the agency’s personnel action.
See Chambers v. Dep’t of Interior,
Our review of Board decisions is limited. We may only reverse a Board decision if we find the decision to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law; or unsupported by substantial evidence. 5 U.S.C. § 7703(c).
I. Protected Disclosure
A protected disclosure is, in relevant part, “any disclosure of information by an employee or applicant which the employee or applicant reasonably beliеves evidences ... a violation of any law, rule, or regulation.” 5 U.S.C. § 2302(b)(8)(A). We have interpreted this statutory definition to cover an employee communication (1) that discloses unknown information, (2) that an employee would reasonably believe is unlawful, and (3) that is outside the scope of the employee’s normal duties or communicated outside of normal channels.
First, we have interpreted the term “disclosure” broadly to reflect the WPA’s legislative history.
See Huffman v. Office of Pers. Mgmt.,
Even though the WPA covers a broad swath of communications, the communication must still be a “disclosure” to qualify for protection. We have generally defined the term “disclosure” to mean “to reveal something that was hidden and not known.”
Huffman,
Second, the petitioner must establish that “a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee [would] reasonably conclude that the actions of the government evidence [a violation of any law, rule, or regulation].”
Lachance,
Third, an employee must communicate the information either outside the scope of his normal duties or outside of normal channels to qualify as a protected disclosure. In
Huffman,
we outlined three categories into which an employee’s communications may fall, including (a) disclosures made as part of normal duties through normal channels, (b) disclosures made as part of normal duties outside of normal channels, and (c) disclosures made outside of normal or assigned duties.
Huffman,
In this case, the administrative judge did not err in finding that Kahn’s communications with Mitchell were not protected disclosures because Kahn reported Annis’s conduct to Mitchell as part of normal duties through normal channels.
See Huffman,
Even though Kahn argues on appeal that his role as lead agent only required him to review reports for grammar and DEA format, Mitchell and Ozaluk’s testimony support the administrative judge’s finding that Kahn’s informal responsibilities included reporting to Mitchell on ongoing investigations assigned to other agents, including reports on confidential sources. The administrative judge appears to have credited Mitchell and Ozaluk’s testimony over Kahn’s. We have held that “an evaluation of witness credibility is within the discretion of the Board and that, in general, such evaluations are ‘virtually unreviewable’ on appeal.”
King v. Dep’t of Health & Human Servs.,
In addition to Kahn’s communications with Mitchell, we must also consider his communications with Ozaluk. The government asserts that Kahn has not argued on appeal that the administrative judge erred in finding that his communications with Ozaluk were not prоtected. See Oral Argument at 18:40-18:56, Kahn v. Dep’t of Justice, No.2009-3125 (Fed.Cir. Mar.2, 2010) [hereinafter “Oral Argument”], available at http://oralarguments.eafc. uscourts.gov/mp3/2009-3125.mp3. Since his initial complaints to OSC, however, Kahn has alleged that both his reports to Mitchell and Ozaluk constituted protected disclosures. On appeal, Kahn maintains that he “verbally told ... Mitchell and ... Ozaluk of ... Annis’[s] violations of DEA’s rules and regulations.” Appellant’s Br. 9; see also id. at 10, 27, 33, 41. Because Kahn has consistently maintained that his communications with Ozaluk were protected disclosures, he has not waived an argument as to those communications on appeal.
As for the merits, however, Kahn’s communications with Ozaluk do not qualify as disclosures under our precedent.
See Huffman,
To be sure, we have interpreted the term “disclosure” broadly to include any disclosure.
Id.
at 147-48. Congress inserted the word “any” into § 2302(b)(8)(A) to protect at least some employeеs who report information that agency members already knew when the employees’ disclosures satisfy the other statutory requirements.
See
S.Rep. No. 100-413, at 13 (1988) (“[I]t is inappropriate for disclosures to be protected only if they are made for certain purposes or to certain employees or only if the employee is the first to raise the issue.”). We accounted for this legislative history when we defined disclosure and outlined the three disclosure categories in
Huffman. See
Although we affirm the Board’s judgment, we note that the administrative judge erroneously stressed that Annis did not violate DEA rules. The administrative judge credited Mitchell’s testimony that Annis was “ ‘trying to take of [sic] his hat, I believe, as a task force officer and put it on as a Beaufort County deputy.’ ” J.A. 4 (quoting J.A. 186). According to the administrative judge, Tanner’s after-the-fact, one-time authorization to purchase the cocaine for Annis’s informant technically avoided violating DEA rules. Even if Annis avoided violating DEA rules, the administrative judge failed to analyze Annis’s conduct from a disinterested observer’s perspective. Instead, the administrative judge appears to have “erroneously required [Kahn] to prove that an actual violation occurred,” which is directly contrary to our precedent.
Drake,
II. Contributing Factor
Even though the administrative judge declined to address the issue, Kahn requests that this court find that the government has not shown by clear and convincing evidence that the DEA would. have transferred him to the Atlanta Field Office independent of his communications with Mitchell and Ozaluk. On remand from the previous appeal, the DEA stipulated that Kahn’s communications with his supervisors were a contributing factor to its decision to transfer Kahn.
See
Appellee’s Br. 33 n.6; J.A. 27. Pursuant to 5 U.S.C. § 1221(e)(2), “[i]f the employee or applicant makes out a prima facie whistleblower claim, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure.”
Fellhoelter v. Dep’t of Agricul
However, had we agreed with Kahn in this appeal, we would have again remanded the case to the Board to determine whether the DEA had shown by clear and convincing evidence that it would have transferred Kahn to the Atlanta Field Office independent of his protected disclosure. To avoid such inefficiency in the future, the Board should resolve all contested issues on the merits after a petitioner in a whistleblowing case has established jurisdiction and is entitled to a hearing on the merits.
Cf. Simmons Fastener Corp. v. Ill. Tool Works, Inc.,
Conclusion
For the foregoing reasons, we hold that Kahn’s communications with Mitchell and Ozaluk were not protected disclosures under the WPA.
AFFIRMED
Costs
No Costs.
Notes
. Because the administrative judge did not make findings on the chronology of events and the parties do not dispute chronology, we rely on Kahn's memorandum to Ozaluk for basic dates in our recitation of the facts. See J.A. 565-68. We note, however, that Kahn stipulated that this memorandum is not part of his alleged protected disclosures and thus consider the memorandum as merely evidence of his communications, not as a basis for a protected disclosure.
. Aside from Mitchell's testimony, the parties did not submit evidence of the 2002 DEA rules and regulations for confidential sources in the Beaufort office.
. We note that Mitchell’s account of Kahn’s meeting with Ozaluk differs from the chronology set out in Kahn and Ozaluk's testimonies. Because Mitchell was not present at the meeting, we rely on Kahn and Ozaluk's testimonies for the chronology.
. Under Giglio, the agency would be required to disclose the facts of any of Kahn’s false statements to the defense during prosecution.
. Kahn argues that the government conceded in the first appeal that Kahn reasonably believed that he was reporting a violation of DEA rules or regulations. In support, Kahn cites footnote five of our previous opinion, which states, "On appeal, the government does not dispute the [administrative judge]'s assumption that ... Kahn’s reports constituted disclosures of violations of DEA rules and regulations."
Kahn,