Trevor Kitchen v. Commodity Futures Trading Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2026 Decided June 5, 2026
No. 25-1098
TREVOR KITCHEN,
APPELLANT
v.
COMMODITY FUTURES TRADING COMMISSION,
APPELLEE
Appeal of an Order of the
Commodity Futures Trading Commission
F. Franklin Amanat argued the cause and filed the briefs
for appellant.
Raagnee Beri, Senior Assistant General Counsel, U.S.
Commodity Futures Trading Commission, argued the cause for
appellee. With her on the brief was Anne W. Stukes, Senior
Assistant General Counsel.
Before: HENDERSON, CHILDS and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.

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KAREN LECRAFT HENDERSON, Circuit Judge: Trevor
Kitchen (Kitchen) appeals the final orders of the Commodity
Futures Trading Commission (CFTC or Commission) denying
his application for a whistleblower award. His application
relates to five successful enforcement actions the Commission
brought against banks whose traders manipulated benchmark
rates in the foreign currency exchange market. Kitchen alleges
the Commission’s denial of his application was arbitrary and
capricious but, contrary to his allegation, the enforcement
actions were not based on conduct about which he provided
specific, credible and timely information. See 17 C.F.R.
§ 165.2(i)(1). In addition, there is no evidence he was the
original source of information on which the Commission did
rely. See id. § 165.2(l). Accordingly, we affirm the orders.
I. Background
Kitchen traded within the foreign currency exchange (FX)
market for many years. The FX market enables traders “to buy,
sell, exchange and speculate on currencies.” Record on Appeal
(ROA) 965. Traders aim to profit by forecasting which
currencies will increase or decrease in relative value.
The most common type of FX instrument is “spot” trading,
which involves “immediate delivery of and payment for the
product.” CFTC, Futures Glossary, https://www.cftc.gov/
LearnAndProtect/AdvisoriesAndArticles/CFTCGlossary/inde
x.htm [https://perma.cc/88QV-R9ZF] (last visited Apr. 28,
2026). The exchange rate at any given moment is the “spot
price.” Id. In addition to setting the rate for real-time
transactions, spot prices are used to determine (or “fix”)
“benchmarks” on which traders base the valuation of other
instruments in the FX market.
Benchmarks are based on an evaluation of spot prices over
a set period of time (the “fix period”). ROA 966. For the most

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popular currencies—including the U.S. dollar (USD) and
pound sterling (GBP)—benchmarks are issued every half-hour
as “the median of all trades in a minute-long period starting 30
seconds before the beginning of each half-hour.” ROA 1134.
For less popular currencies, the rates are issued every hour
using a similar process.
The World Market/Reuters Closing Spot Rates (WM/R
Rates) are some of the most popular benchmarks. WM/R Rates
are based primarily on data from platforms that large banks use
to execute their FX instruments. In re Foreign Exch.
Benchmark Rates Antitrust Litig., 74 F. Supp. 3d 581, 587
(S.D.N.Y. 2015). The most frequently referenced WM/R Rate
is the one set at 4:00 p.m. London time (“4 p.m. WM/R fix”).
From 2008 to 2011, Kitchen used an FX trading platform
operated by the Oanda Corporation (Oanda) to conduct his
transactions. Through his account, Kitchen traded the USD,
GBP and euro (EUR) against the Swiss franc (CHF) thousands
of times. In August 2011, Kitchen allegedly “observed a
precipitous drop in the values of the GBP, USD, and EUR[] . . .
relative to the CHF” and thought “that the size of the drop in
the affected currencies could only have been the result of
collusion among market makers.” ROA 18–19. He notified a
variety of regulators, including the CFTC, of his surmise via
email. The message read:
It is my belief Oanda and its counterparts (banks
and other FX traders[)] have together colluded
to destroy Sterling and the US Dollar using the
Swiss franc as the counterpart currency.
To achieve this Oanda have utilised High
frequency trading, various software
programming and black box trading techniques

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that simulate large trades that do not actually
exist in real physical world. . . .
Only large banks with the assistance of FX
traders using mathematical formulas,
algorithms and logarithms . . . can accomplish
this.
ROA 225.
CFTC staff determined Kitchen’s “complaints were
generalized unsupported claims that, beside the specific
complaints about Oanda, were not actionable.” ROA 1544.
Focusing on the Oanda-related claims, it determined “[t]here
was nothing in the account records to support [Kitchen]’s
generalized allegations of market abuse and manipulation.”
ROA 1544. Ultimately, “the investigation was closed with no
action.” ROA 1545.
Nearly two years after Kitchen’s initial contact with
regulators, on June 12, 2013, the news outlet Bloomberg
published an article alleging traders at several large banks were
“rigging WM/Reuters rates.” ROA 1132; Liam Vaughan,
Gavin Finch & Ambereen Choudhury, Traders Said to Rig
Currency Rates to Profit Off Clients, Bloomberg (June 12,
2013, at 14:06 ET), https://www.bloomberg.com/news/
articles/2013-06-11/traders-said-to-rig-currency-rates-to-
profit-off-clients. According to Bloomberg, bank traders were
colluding online to share information about client orders and
concentrate the execution of those orders in order to manipulate
the 4 p.m. WM/R fix up or down. See In re Foreign Exch., 74
F. Supp. 3d at 587–88 (explaining these maneuvers). These
actions enabled trades on the bank’s own accounts to soar in
value.

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The CFTC says it was this Bloomberg article that caused
it to open an investigation into five banks allegedly involved in
the scheme in mid-June 2013. The article also sparked further
media coverage. Bloomberg published a follow-up piece
describing several other benchmark-rate manipulation schemes
two days after its initial article. ROA 366–68; Lindsay
Fortado, Ben Moshinsky & Jesse Hamilton, Currency Rates
Said to Face Global Regulation After Libor Review,
Bloomberg (June 14, 2013, at 21:01 ET), https://www.
bloomberg.com/news/articles/2013-06-13/fx-rates-said-to-
face-global-regulation-in-libor-review. Three days later,
International Business (IB) Times U.K. published an article
stating, “[a] whistleblower alerted regulators . . . in 2011 about
some of the world’s largest trading companies and banks
manipulating benchmark . . . rates.” ROA 391; Lianna
Brinded, FX Fixing Scandal Exclusive: Whistleblower Alerted
US, UK and Swiss Authorities in 2011, Int’l Bus. Times U.K.
(June 17, 2013, at 14:10 BST), https://www.ibtimes.co.uk/fx-
fixing-scandal-market-manipulation-whistleblower-cftc-
479615. The alleged whistleblower was likely Kitchen.
In November 2013, while the CFTC’s investigation was
ongoing, Kitchen submitted a formal Tip, Complaint or
Referral (TCR) Form in which he claimed to have observed
“unprecedented currency manipulation through his personal
trading activity and subsequent research and analysis.” ROA
6. In February and March 2014, Kitchen submitted
supplements with further allegations. The CFTC team
investigating the FX benchmark manipulation was not aware
of the information Kitchen had previously submitted to the
Commission in 2011 until they saw his TCR. None of the
information he provided—via email or TCR—was ever used
by the benchmark investigation team.

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The CFTC ultimately issued orders in five cases (Covered
Actions) announcing settlement terms reached with the target
banks.1 See ROA 963–1048. Monetary penalties totaled
$1.475 billion. The Dodd-Frank Wall Street Reform and
Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376
(2010), instructs that the CFTC “shall pay an award or awards
to 1 or more whistleblowers who voluntarily provided original
information to the Commission that led to the successful
enforcement of the covered judicial or administrative action, or
related action.” Id. § 748, 124 Stat. at 1740 (codified at 7
U.S.C. § 26(b)(1)); see also 17 C.F.R. §§ 165.1–165.20
(“Whistleblower Rules”). Accordingly, the CFTC posted a
notice on its website for each of the Covered Actions that
invited individuals to apply for whistleblower awards.
Kitchen submitted an award application for the Covered
Actions. The CFTC Whistleblower Office notified Kitchen of
its intent to recommend denial of his application and offered
him the opportunity to submit additional information. Kitchen
accepted its offer. The CFTC Claims Review Staff then made
a preliminary decision to deny Kitchen’s award claim. Kitchen
requested reconsideration.
Having not received the Commission’s final decision after
almost three years, Kitchen petitioned for mandamus relief in
this Court. Rather than responding to the petition, the
Commission issued its final orders denying Kitchen’s award
application. Kitchen then moved to dismiss his mandamus
1 The banks were accused of violating sections 6(c), 6(d) and
9(a)(2) of the Commodities Exchange Act in connection with the
benchmark manipulation scheme, which lasted from 2009 to 2012.
ROA 971 (citing 7 U.S.C. §§ 9, 13(a)(2), 13b).

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petition as moot and filed this appeal of the final orders. We
have jurisdiction pursuant to 7 U.S.C. § 26(f)(2).
II. Analysis
A whistleblower determination is made “in the discretion
of the Commission.” 7 U.S.C. § 26(f)(1). We review that
decision under section 706 of the Administrative Procedure Act
(APA). Id. § 26(f)(3). It will be set aside only if “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). “The scope of
review under the ‘arbitrary and capricious’ standard is narrow
and a court is not to substitute its judgment for that of the
agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). “Nevertheless, the agency
must . . . articulate a satisfactory explanation for its action
including a ‘rational connection between the facts found and
the choice made.’” Id. (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)). If we review agency
factfinding—as we do here—“there is no material difference
between the APA’s ‘arbitrary and capricious’ standard and its
‘substantial evidence’ standard.” Crooks v. Mabus, 845 F.3d
412, 423 (D.C. Cir. 2016).
A. Direct Original Source
Kitchen claims that he was the direct source of original
information which led to the Covered Actions. He points to his
2011 emails and 2013 TCR as the relevant original
information. To qualify for a whistleblower award, an
applicant must have (1) “voluntarily provided . . . to the
Commission,” (2) “original information,” which (3) “led to the
successful enforcement of the covered judicial or
administrative action . . . .” 7 U.S.C. § 26(b)(1); accord 17
C.F.R. § 165.5(a). “[F]ailure to satisfy any one of these
statutory requirements dooms [a] whistleblower award

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application.” Ross v. SEC, 34 F.4th 1114, 1119 (D.C. Cir.
2022) (referencing identical SEC whistleblower provision).
Only the third requirement is in issue here.
Subsection 165.2(i) of the Whistleblower Rules sets out
the circumstances in which that requirement is satisfied. First,
original information led to successful enforcement if it “was
sufficiently specific, credible, and timely to cause the
Commission” to open an investigation and if the Commission
brought a successful administrative or judicial action (i.e., a
covered action) “based in whole or in part on conduct that was
the subject of the whistleblower’s original information.” 17
C.F.R. § 165.2(i)(1). Second, if the whistleblower provided
original information about conduct already under investigation,
the information must have “significantly contributed to the
success of the action.” Id. § 165.2(i)(2). Third, a
whistleblower may provide original information to an entity’s
“internal whistleblower, legal, or compliance” mechanism
before or at the same time he provides it to the Commission so
long as one of the other two scenarios is met. Id. § 165.2(i)(3).
Kitchen submitted his initial 2011 email before the
Commission began investigating FX benchmark manipulation
so that the first circumstance applies.2
2 An applicant must “provide[] the Commission original
information in the form and manner that the Commission requires”
under the Whistleblower Rules. 17 C.F.R. § 165.5(b)(1). The TCR
is that required form. Id. § 165.3(a). Kitchen’s 2013 TCR was
submitted after the Commission had already opened an investigation
into the conduct underlying the Covered Actions based on
independent original information. See infra Part II.B. Thus, any
original information in the TCR must meet the “significantly
contributed” standard of paragraph 165.2(i)(2).

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Kitchen argues the CFTC incorrectly applied 17 C.F.R.
§ 165.2(i)(1) to him. He asserts that his submissions
“contained original information” that prompted the
Commission to “open an investigation” and that the Covered
Actions “must have dealt with the ‘same conduct’ as that
reported by [him].” Appellant’s Br. 46–47. The record does
not support Kitchen’s assertion in full. Although his original
information did prompt an investigation, that investigation was
unconnected to the Covered Actions.
Kitchen’s allegations were sufficiently specific, credible
and timely to cause the CFTC to investigate Oanda’s alleged
conduct. See ROA 1543–44 (noting the Commission opened
an investigation upon receipt of Kitchen’s email and conducted
a review of records from Kitchen’s Oanda account). His initial
email—sent the same month that his concern arose—asserted
that Oanda aimed “to destroy Sterling and the US Dollar using
the Swiss franc as the counterpart currency.” ROA 225. He
later submitted data showing losses related to these currencies
on his own account in order to corroborate the claim. He also
described the suspected methods used to achieve the alleged
manipulation: “High frequency trading, various software
programming and black box trading techniques that simulate
The TCR, however, was a formalized version of Kitchen’s
earlier emails, which were sent before the Whistleblower Rules were
promulgated. The Rules permitted applicants to bring their earlier
tips into compliance after the Rules went into effect. See id.
§§ 165.2(k)(5), 165.3(d). Because Kitchen did not submit his TCR
“within 120 days of the effective date” of the Whistleblower Rules,
however, he failed to comply. Id. Nevertheless, the Commission
may waive any procedural requirements. 17 C.F.R. § 165.5(c). In
addition, Kitchen “is not pursuing a Rule 165.2(i)(2) claim on
appeal.” Appellee’s Br. 8 n.4.

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large trades that do not actually exist in real physical world.”
ROA 225. These allegations in fact led to the opening of an
investigation and thus were “sufficient” to do so under
paragraph 165.2(i)(1).
To qualify for a whistleblower award, however, the
Commission must also have brought a successful action “based
in whole or in part” on the actions Kitchen identified. 17
C.F.R. § 165.2(i)(1); see also Whistleblower Incentives and
Protection, 76 Fed. Reg. 53172, 53177 (Aug. 25, 2011) (noting
a whistleblower’s original information should have “a
meaningful nexus to the Commission’s ability to successfully
complete its investigation”). That did not occur. The Oanda-
focused investigation was “closed with no action.” ROA 1545.
And the conduct underlying the Covered Actions substantially
differed from Kitchen’s allegations.
The scheme Kitchen alleged is not the same as the one
described in the Covered Actions. Oanda engaged in retail spot
transactions. But the Covered Actions focused on benchmark,
not spot price, manipulations. These fall within different
features of the CFTC’s enforcement jurisdiction. Compare 7
U.S.C. § 2(a)(1) (granting the CFTC jurisdiction of
commodities), and id. § 1a(19) (defining “excluded
commodity” to cover benchmark rates), with id. § 2(c)(2)(B)–
(D) (granting the CFTC more limited jurisdiction of this retail
FX market); see Oral Arg. at 17:55–18:55 (explaining that
Kitchen’s allegations were “perceived by the CFTC” to refer to
“a different market” or “a different part of the agency’s
jurisdiction”). Kitchen argues his allegations regarding the
manipulation of FX rates necessarily encompass manipulation
of benchmarks. But these measures have different meanings.
Spot prices are a real-time reflection of an exchange rate
whereas benchmarks are reference rates set only periodically.
Regardless, a mere implication of manipulation fails to meet

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paragraph 165.2(i)(1)’s specificity requirement. See 17 C.F.R.
§ 165.2(i)(1). A covered action must have been brought “based
in whole or in part on conduct that was the subject of the
whistleblower’s original information.” Id. That action was
never initiated based on Oanda’s conduct. Thus, Kitchen’s
original information did not lead to a successful enforcement
action.
Kitchen asserts his tips also included information about the
banks’ conduct which underlay the Covered Actions. Even if
we read his submissions to allege manipulation by banks, the
allegations are not nearly specific enough. His email
referenced “counterpart[] []banks” with which Oanda may
have been colluding, ROA 225, but there were no further
specifics. Kitchen’s tips did not reference any particular bank.
Instead, Oanda was his focus. The subject line of his email
read: “OANDA COMPLAINT OF MARKET ABUSE AND
MANIPULATION.” ROA 225 (emphasis added). He called
on regulators to “investigate . . . companies like Oanda.” ROA
226 (emphasis added). The data Kitchen submitted related to
his Oanda account. Commission staff thought that Kitchen’s
tip was unhelpful because “its focus was on Oanda.” ROA
1070; see also ROA 1579 (describing allegations unrelated to
Oanda as “generalized” and “vague”). Thus, the CFTC’s
conclusion that Kitchen’s tip did not lead to a successful
enforcement was “reasonable and supported by the record.”
Lead Indus. Ass’n v. EPA, 647 F.2d 1130, 1160 (D.C. Cir.
1980) (citation omitted).
Kitchen argues that “[t]here is no requirement that the
whistleblower’s allegation of wrongdoing be 100% correct or
complete.” Appellant’s Br. 44. We of course recognize that a
whistleblower does not always know the full picture of a
scheme. But he must provide some actionable detail. See ROA
1579 (“[Kitchen’s] complaints outside of the specific

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allegations against [Oanda] were too generalized and therefore
not actionable.”). To the extent Kitchen provided information
about the banks’ conduct, it was not the type of “high quality,”
“specific[]” information the CFTC’s whistleblower program is
designed to reward. Whistleblower Incentives and Protection,
76 Fed. Reg. at 53177. The Commission’s conclusion that the
Covered Actions were not based on the conduct about which
Kitchen supplied qualifying original information is neither
arbitrary nor capricious and, therefore, he cannot recover a
whistleblower award as a direct original source.
B. Derivative Original Source
Kitchen alternatively argues that he is entitled to a
whistleblower award as the original source of information on
which the Commission did rely for the Covered Actions under
the derivative source rule. The Whistleblower Rules recognize
that individuals can be the original source of “information that
the Commission obtains from another source if the information
the whistleblower provide[d] satisfies the definition of original
information and the other source obtained the information from
the whistleblower or the whistleblower’s representative.” 17
C.F.R. § 165.2(l)(1). An individual claiming to be a derivative
source must prove his status as such “to the Commission’s
satisfaction.” Id. § 165.2(l).
Kitchen claims to be the derivative original source of the
June 12 Bloomberg article which the Commission asserts
triggered its investigation of FX benchmark manipulation.
Nonetheless, the Commission found that “[n]othing in the
record presents evidence to conclude that [Kitchen] was a
source for the Bloomberg article,” ROA 1577, and its
conclusion is well supported. The record does not show that
Kitchen ever communicated with any of the Bloomberg
article’s authors. Although he had previously copied various

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Bloomberg email addresses on his communications with
regulators, none matched the email of the article’s listed
authors. Contrast ROA 258, 264, 268, 408 (including
Bloomberg addresses), with ROA 1066 (listing authors’ email
addresses). And, contrary to Kitchen’s suggestion, we cannot
assume collaboration among Bloomberg staff simply by virtue
of a shared work location.
Moreover, no one from Bloomberg contacted Kitchen
despite the fact that the article was published over a year after
Kitchen’s first email which included a Bloomberg address.
And, as explained supra, the information in Kitchen’s emails
differed markedly from the scheme on which the Bloomberg
article reported. The CFTC’s conclusion that Kitchen was not
a derivative source of the article does not “run[] counter to the
evidence.” State Farm, 463 U.S. at 43. Without establishing
his status as the derivative source of original information about
conduct on which the Covered Actions were based, Kitchen is
not eligible for a whistleblower award. See 17 C.F.R.
§ 165.2(l).
Kitchen also claims he was a derivative original source of
information in the June 14 Bloomberg article and June 17 IB
Times U.K. article. He alleges the Commission “would
invariably have also relied on” these articles in investigating
the conduct underlying the Covered Actions. Appellant’s Br.
33. We need not address this claim. “As a general rule, claims
not presented to the agency may not be made for the first time
to a reviewing court.” Omnipoint Corp. v. FCC, 78 F.3d 620,
635 (D.C. Cir. 1996). Kitchen claims the June 14 Bloomberg
and June 17 IB Times U.K. articles were “the subject of
repeated arguments . . . to the agency.” Appellant’s Br. 33; see
also Oral Arg. at 22:53–23:40. But the argument he made
based on these articles before the Commission is not the same
as the one he makes to us. Before the CFTC, Kitchen used the

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later two articles as evidence that he was a source for the
earlier, June 12 Bloomberg article that began the Commission’s
benchmark investigation. Now, he claims the later articles
themselves were used in the Commission’s investigation and
the Commission’s failure to mention them in its final orders
was arbitrary and capricious. That argument is forfeit.
* * *
For the foregoing reasons, we affirm the Commission’s
five final orders.
So ordered.

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