Friday, June 20, 2008
Talk about your rare events, but co-blogger Marcia McCormick just brought to my attention the case of Kahn v. Dept. of Justice (Fed. Cir. June 11, 2008), in which the Federal Circuit reversed and remanded the Merit Systems Protection Board (MSPB) where
the MSPB found it lacked jurisdiction in a whistleblower case.
Significantly, the Federal Circuit found in Kahn:
The AJ dismissed the appeal for lack of jurisdiction after concluding that the disclosures Mr. Kahn [a special agent for the DEA] made were not protected disclosures under the [Whistleblower Protection Act] WPA because they were made as part of his normal duties. 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.
Normal duties? Sounds like Garcetti's First Amendment standard is being incorporated into the WPA.? So much for Justice Kennedy's assurances that whistleblowers may depend on other statutory routes outside of the First Amendment (not that this really comforted anyone in the first place)? Actually, Garcetti followed the Fed Cir.'s lead in Willis v. Dep’t of Agric., 141 F.3d 1139, 1144 (Fed. Cir. 1998), in holding the whistleblowing in connection with assigned normal duties is not a protected disclosure covered by the WPA.
No wonder Garcetti is such a god-awful decision. It follows the Federal Circuit for guidance on constitutional employment law!