Cahill v. Merit Systems Protection Board

Cahill v. Merit Systems Protection Board
821 F.3d 1370 (Fed. Cir. 2016)
Authored by Gil Landau

Statement of Facts: Between March 2011 and July 2014, Matt Cahill was an employee at the Department of Health and Human Services in the Centers for Disease Control and Prevention (“Agency” or “CDC”). Cahill was an information technology professional who worked for the Quantitative Science and Data Management Branch (“QSDM”) and supported the Behavioral and Clinical Surveillance Branch’s (“BCSB”) data management activities. BCSB collected data for studies via field workers utilizing hand held devices called “Pocket PCs.” Cahill alleged that at a March 22, 2012, meeting, he voiced concerns with BCSB’s data collection processes, including its utilization of Pocket PCs. Cahill alleged that after making this disclosure, he was treated poorly by the Agency, discouraged from participating in his projects, received a negative Performance Management Appraisal Program Review, and was placed on a performance improvement plan.

Procedural History: In February 2014, Cahill filed a complaint with the Office of Special Counsel (“OSC”), alleging that he was retaliated against due to his disclosures which were protected pursuant to 5 U.S.C. § 2302(b)(8)(A). After he exhausted his administrative remedies with the OSC, Cahill filed an Individual Right of Action (“IRA”) before the Merit Systems Protection Board (“MSPB”) pursuant to 5 U.S.C. § 1214(a)(3)(A). The MSPB administrative judge (“AJ”) requested that Cahill show that the MSPB had jurisdiction over his complaint. Upon reviewing Cahill’s response, the AJ found that the MSPB did not have jurisdiction because Cahill had not made non-frivolous allegations of protected disclosures and that the alleged disclosures were not contributing factors to the personnel actions.

Cahill then appealed to the MSPB’s Board. Although the Board reversed some of the AJ’s findings, it affirmed the AJ’s holding. Cahill v. Dep’t of Health & Human Servs., No. AT-1221-14-0906-W-1, 2015 WL 1477814 (M.S.P.B. Apr. 1, 2015). The Board explained that although Cahill had made non-frivolous allegations of gross mismanagement and danger to public health, Cahill had not non-frivolously alleged that they were a contributing factor to his personnel actions. This was because Cahill did not allege that any of the individuals who allegedly retaliated against him attended the March 2012 meeting or knew otherwise about his disclosures. Cahill appealed the Board’s decision to the Federal Circuit.

Question Presented: Did Cahill present to the MSPB a non-frivolous allegation that the agency retaliated against him due to his protected disclosure, despite not explicitly alleging that the retaliating officials knew or attended the meeting in question?

Holding: The Federal Circuit reversed and remanded. The court held that, looking at the context of Cahill’s allegations, he met the jurisdictional threshold of making a non-frivolous allegation that his disclosures during the meeting on March 22, 2012, were a contributing factor to the Agency’s personnel actions, despite not having explicitly alleged that the retaliating officials knew or attended the meeting.

Reasoning: A petitioner establishes that the MSPB has jurisdiction by exhausting his remedies before the OSC as well as non-frivolously alleging that (1) he made a 5 U.S.C. § 2302(b)(8)(A) protected disclosure and that (2) it was a contributing factor for a § 2302(a) prohibited personnel action. Here, the only issue at bar was whether there were sufficient allegations that the protected disclosure was a contributing factor. The court explained this can be established by circumstantial evidence of Agency knowledge of the protected disclosure or temporal proximity of the retaliation to the protected disclosure.

Although Cahill did not explicitly state that the retaliators knew about his protected disclosure because they had attended the March 2012 meeting, the court held that the context of Cahill’s complaint and the written record was sufficient to imply that Cahill alleged that at least one of the retaliators attended the meeting. Cahill’s complaint alleged that “BCSB management, team leads, project leads, and QSDM management” attended the meeting. These general categories encompassed three of the alleged retaliators and only few other Agency staff. Accordingly, the court held that it was reasonable to infer that Cahill was alleging the retaliators were at the March 2012 meeting and thus knew about his protected disclosures.

Further, one of the alleged retaliators had notes indicating that they attended the meeting in question. The court explained that even if the retaliators did not attend in person, the facts in context indicated that the retaliators would have learned what transpired in the meeting. Moreover, the court noted that the agency never raised an issue with Cahill’s allegation that the retaliators knew about the protected disclosures. For the court, this indicated that the Agency understood Cahill’s allegation about the meeting included the retaliators’ presence at the meeting.

Finally, the court noted that the Agency’s silence deprived Cahill of an opportunity to clarify and correct his allegations. The court indicated that, as per Fed. R. Civ. P. 15(a)(2), a petitioner should be given the opportunity to amend a deficient complaint rather than a case being dismissed. In a situation where a petitioner has the ability to make a more specific allegation and does not, dismissal might be appropriate. However, as in Cahill’s case, when a petitioner does not receive notice that a more detailed allegation is required, the absence of detail is an insufficient basis to dismiss a petitioner’s complaint.

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