Cahill v. MSPB , 821 F.3d 1370 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
MATT CAHILL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3152
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-14-0906-W-1.
______________________
Decided: May 10, 2016
______________________
JASON LEE ROMRELL, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, Washington, DC, argued for
petitioner. Also represented by JAMES R. BARNEY; J.
DEREK MCCORQUINDALE, DANIEL CRAIG COOLEY, Reston,
VA.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, argued
for respondent. Also represented by BRYAN G. POLISUK.
______________________
2 CAHILL v. MSPB
Before PROST, Chief Judge, LOURIE and TARANTO, Circuit
Judges.
TARANTO, Circuit Judge.
Matt Cahill was an employee of the United States
Department of Health and Human Services in the Cen-
ters for Disease Control and Prevention from March 2011
until July 2014. In February 2014, he complained that
agency officials had taken personnel actions against him
in retaliation for his having raised concerns, at a March
2012 meeting, about his agency’s data-gathering equip-
ment and procedures. When he brought that complaint to
the Merit Systems Protection Board, the Board concluded
that it lacked jurisdiction to hear it because Mr. Cahill
had not presented nonfrivolous allegations that his March
2012 disclosure was known to at least one of the agency
officials he charged with taking the challenged personnel
actions. We conclude otherwise, and we therefore reverse
and remand.
BACKGROUND
From December 2003 until March 2008, Mr. Cahill
did information-technology work for the Centers for
Disease Control and Prevention as an independent con-
tractor. In March 2011, the agency hired him as an
employee within a division having the prevention of
HIV/AIDS as its mission. His job was within the Quanti-
tative Science and Data Management Branch (or group)
within that division (QSDM or QSDMB), but his assign-
ment was “to support Data Management activities” of
another part of the same division, i.e., the Behavioral and
Clinical Surveillance Branch (BCSB), which, among other
things, conducts studies for which its field workers use
hand-held devices called “Pocket PCs” to collect data. J.A.
90–91, 144.
On February 27, 2014, Mr. Cahill filed a complaint
with the Office of Special Counsel, 5 U.S.C.
CAHILL v. MSPB 3
§ 1214(a)(1)(A), alleging that agency officials had violated
the whistleblower protections of 5 U.S.C. § 2302(b)(8)(A)
by taking personnel actions against him as a result of a
disclosure about agency practices that he had made at a
March 2012 meeting. 1 In his complaint, Mr. Cahill al-
leged:
On March 22, 2012, there was a group meeting
with BCSB management, team leads, project
leads, and QSDM management.
J.A. 145. At that meeting, Mr. Cahill alleged, he voiced
his concerns about some of the agency’s data-collection
instruments and procedures, including that the Pocket
PCs were outdated, had bad batteries, lost data, present-
ed data-entry problems, and generally did not work
properly. Mr. Cahill contended that his supervisors began
treating him differently after that meeting; that he was
not invited to BCSB meetings, was discouraged from
participating in projects to which he was assigned, and
was eventually placed on a Performance Action Plan; that
he “had problems with Assistant Branch Chief, Dawn
Gnesda,” J.A. 145, who purportedly retaliated against
him by changing his telework agreement and providing
him with negative feedback; that he received a September
2012 email asking him not to participate in certain BCSB
activities; that he received a negative Performance Man-
agement Appraisal Program review; and that Kim Cren-
shaw, his supervisor as of June 13, 2013, treated him
poorly.
1 Mr. Cahill also alleged that the agency had im-
properly reduced his pay in 2008 as a result of a disclo-
sure he had made in 2004 when he served as an
independent contractor. The Board found no jurisdiction
over that allegation, and Mr. Cahill does not challenge
that ruling here.
4 CAHILL v. MSPB
The Office of Special Counsel found an insufficient
basis to pursue detailed investigation of Mr. Cahill’s claim
and so closed its file on the matter. Mr. Cahill then filed
an individual-right-of-action appeal with the Board under
5 U.S.C. §§ 1214(a)(3)(A), 1221(a). After receiving Mr.
Cahill’s brief, which largely reiterated his allegations to
the Office of Special Counsel, an administrative judge
ordered Mr. Cahill to show why his appeal should not be
dismissed for lack of jurisdiction. In response, Mr. Cahill
repeated much of his complaint to the Office of Special
Counsel, including the above-quoted passage. He also
added several exhibits, including a Performance Man-
agement Appraisal Program document reviewed by Timo-
thy Green and a Performance Assistance Plan
memorandum written by Mr. Green (identified by the
memorandum as chief of QSDMB), as well as an email
from Dr. Jacek Skarbinski (identified in the signature
block as team lead of the BCSB Clinical Outcomes Team)
informing Mr. Cahill that his support would not be need-
ed for certain agency projects. The administrative judge
concluded that Mr. Cahill had not presented enough to
constitute nonfrivolous allegations of various elements of
a whistleblower claim under 5 U.S.C. § 2302(b)(8)(A), and
the judge therefore dismissed the appeal for lack of Board
jurisdiction.
On review under 5 C.F.R. § 1201.114(c), the Board
modified but ultimately affirmed the administrative
judge’s decision. Disagreeing with the administrative
judge, the Board concluded that Mr. Cahill had nonfrivo-
lously contended that his March 2012 disclosure was
protected: his disclosure was of information he reasonably
believed evinced gross mismanagement and presented a
substantial and specific danger to public health and
safety. The Board also determined that Mr. Cahill had
alleged at least one statutorily covered personnel action
(placement on a performance plan) and that more such
actions may exist, including the alleged performance
CAHILL v. MSPB 5
evaluation and a significant change in duties, responsibil-
ities, or working conditions. See 5 U.S.C.
§ 2302(a)(2)(A)(viii), (xii). According to the Board, howev-
er, where Mr. Cahill failed was in adequately connecting
those allegations. Specifically, the Board concluded that
Mr. Cahill had failed nonfrivolously to allege that “his
2012 disclosure was a contributing factor in a personnel
action” for one reason: he lacked a nonfrivolous allegation
that any of the officials involved in the personnel actions
knew of his March 2012 disclosure. J.A. 2, 11. On that
sole basis, the Board determined that it lacked jurisdic-
tion and dismissed the appeal. See 5 U.S.C. § 1221(e)(1).
Mr. Cahill appealed to this court. Id. § 7703(b)(1).
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We review de novo the Board’s determinations as to
its jurisdiction. Kahn v. Dep’t of Justice, 528 F.3d 1336,
1341 (Fed. Cir. 2008).
To establish the Board’s jurisdiction in an individual-
right-of-action appeal, it suffices that an appellant ex-
haust his remedies before the Office of Special Counsel
and present “non-frivolous allegations” that (1) he made a
protected disclosure under 5 U.S.C. §§ 2302(b)(8) or
2302(b)(9)(A)(i), (B), (C), or (D) and that (2) the disclosure
was a contributing factor in the agency’s decision to take
or fail to take a personnel action as defined by 5 U.S.C.
§ 2302(a). See 5 U.S.C. § 1221(e)(1); Kahn, 528 F.3d at
1341; Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679 (Fed.
Cir. 1992). And the court has long treated “a non-
frivolous allegation” of an element required for Board
jurisdiction as one that, “if proven, can establish the
Board’s jurisdiction” insofar as that element is concerned.
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1330
(Fed. Cir. 2006) (en banc) (constructive discharge context);
id. at 1344; Dumas v. Merit Sys. Prot. Bd., 789 F.2d 892,
894 (Fed. Cir. 1986) (“non-frivolous allegation” of jurisdic-
6 CAHILL v. MSPB
tional element is one that “if proven could make a prima
facie case” on that element).
In this case, there is no dispute about exhaustion,
about the protected character of the March 2012 disclo-
sure, or about the existence of one or more personnel
actions taken against Mr. Cahill. The dispute is limited
to the “contributing factor” element. Accordingly, we need
only analyze whether Mr. Cahill has nonfrivolously
alleged that his March 2012 disclosure was a contributing
factor in at least one such personnel action.
The statute expressly addresses how the “contributing
factor” element of the whistleblower claim can be estab-
lished. It can be established “through circumstantial
evidence, such as evidence that (A) the official taking the
personnel action knew of the disclosure . . . ; and (B) the
personnel action occurred within a period of time such
that a reasonable person could conclude that the disclo-
sure . . . was a contributing factor in the personnel ac-
tion.” 5 U.S.C. § 1221(e)(1). And as this case comes to us,
the only disputed issue is whether any of the agency
officials taking the challenged personnel actions knew of
the March 2012 disclosure.
Accordingly, the question at this stage is whether Mr.
Cahill has nonfrivolously alleged such knowledge. On
that question, we reach a conclusion different from that of
the Board. Reading Mr. Cahill’s assertions in light of the
entire “written record,” Kahn, 528 F.3d at 1341, we con-
clude that Mr. Cahill has sufficiently alleged that such an
agency official did have such knowledge.
In the key sentence set out above, Mr. Cahill alleged
that “[o]n March 22, 2012, there was a group meeting
with BCSB management, team leads, project leads, and
QSDM management.” J.A. 145. He did not give the
names of the meeting’s attendees; elaborate on how many
people fit each of the descriptions “BCSB management,”
“team leads,” “project leads,” and “QSDM management”;
CAHILL v. MSPB 7
or expressly state that the particular officials he alleged
to have committed the personnel actions at issue knew of
the March 2012 disclosure. Nevertheless, when read with
an eye on likely inferences appropriate to the context, Mr.
Cahill’s allegations are sufficiently specific and plausible
to constitute nonfrivolous assertions that at least one, and
perhaps three, of the officials charged with the personnel
actions at issue attended the March 2012 meeting or at
least knew what Mr. Cahill disclosed there.
One such official is Ms. Gnesda, who, the Board’s brief
to us indicates, served as Assistant Branch Chief of the
BCSB, MSPB Br. 24, and hence was “BCSB manage-
ment,” J.A. 145. The written record before the Board
included Mr. Cahill’s identification of Ms. Gnesda as
“Assistant Branch Chief,” id., along with his explanation
that, though his job was in the QSDMB, his assignment
in that job was to provide data-management support for
BCSB, id.; J.A. 90–91, ¶¶ 25–27. That Ms. Gnesda’s
position was in BCSB in particular (not QSDMB) is
consistent with Mr. Cahill’s description of the alleged
personnel actions that she took after the March 2012
meeting: changing his telework agreement, providing him
with negative feedback, and instructing him to stop
participating in the BCSB’s Medical Monitoring Project.
And the record before the Board also included notes made
by Ms. Gnesda, recording: “March 22, 2012—Meeting
with all BCSB team leaders, BCSB Branch Chief, BCSB
Associate Chief for Science, Matt [Cahill], and Thom
Sukalac.” J.A. 322.
A second pertinent official is Mr. Green, whom Mr.
Cahill accused of taking personnel actions against him
after the March 2012 meeting. The record makes clear
that Mr. Green was “Chief, Quantitative Sciences and
Data Management Branch (QSDMB), Division of
HIV/AIDS Prevention.” J.A. 125. That is, Mr. Green was
“QSDM management,” J.A. 145; he was the head of the
branch for which Mr. Cahill formally worked. Ms.
8 CAHILL v. MSPB
Gnesda’s notes also indicate that Mr. Green was the
Branch Chief for QSDM. J.A. 323.
The third pertinent official is Dr. Skarbinski. Mr.
Cahill charged that, after the March 2012 meeting, Dr.
Skarbinski newly excluded him from various BCSB
meetings and activities. The record indicates that Dr.
Skarbinski was “Team Lead, Clinical Outcomes Team,
Behavioral and Clinical Surveillance Branch.” J.A. 117.
“Team leads” is one of the categories of asserted partici-
pants in the March 2012 meeting. J.A. 145.
Whether Mr. Cahill has nonfrivolously alleged facts
sufficient to establish the Board’s jurisdiction depends on
how his allegations would be understood in context,
especially by the responding agency. See Middleton v.
Dep’t of Def., 185 F.3d 1374, 1379–81 (Fed. Cir. 1999).
Here, it is notable that in the proceedings before the
administrative judge and the Board, the agency, while
challenging Mr. Cahill’s allegations regarding several
elements of the whistleblower claim, did not contend that
Mr. Cahill had inadequately alleged that any of the
officials charged with the personnel actions knew of Mr.
Cahill’s disclosures at the March 2012 meeting. See Oral
Arg. at 11:55–12:45, 13:15–16:10; J.A. 442–49. The
agency’s silence on that issue is significant to our assess-
ment of the adequacy of Mr. Cahill’s allegations.
The silence suggests that, read in context, Mr. Cahill’s
allegations adequately communicated that Ms. Gnesda,
Mr. Green, Dr. Skarbinski, or all three attended the
March 2012 meeting or knew what was said there. In
particular, it suggests that there were so few leaders of
the branches and teams identified by Mr. Cahill that his
allegations about “a group meeting with BCSB manage-
ment, team leads, project leads, and QSDM manage-
ment,” J.A. 145, adequately conveyed a contention that at
least Ms. Gnesda, Mr. Green, or Dr. Skarbinski, or all
three, either attended or would have learned of what
CAHILL v. MSPB 9
transpired at that meeting. Moreover, the agency would
have known, or been able readily to check, both the organ-
izational facts and the roles and knowledge of the three
individuals. Indeed, nothing in the record indicates that
there is more than one branch chief or assistant chief, see,
e.g., J.A. 421 (identifying Sam Costa as “[t]he QSDM
assistant branch chief”) (emphasis added), and the Board
at oral argument before us confirmed its belief that each
team has only one team lead, Oral Arg. at 19:08–18.
The agency’s silence on the point is significant in a
second way: it deprived Mr. Cahill of notice that his
allegations might require greater specificity—which he
might well have provided if the need had been identified.
The importance of notice of deficiencies before a claim is
finally dismissed is reflected in district courts’ common
practice of providing an opportunity to amend an insuffi-
ciently specific complaint after the deficiencies have been
identified. 2 The Board itself has permitted an agency to
2 See, e.g., Fed. R. Civ. P. 15(a)(2) (“The court
should freely give leave [to amend] when justice so re-
quires.”); 5 Charles Alan Wright et al., Federal Practice
and Procedure § 1216 (3rd ed. 2004) (“The pleader is
entitled to considerable latitude regarding the mode of
stating a claim for relief, provided the pleading gives
reasonable notice of the claims that are being asserted.
. . . [I]f the requisite allegations are not in the complaint
and a motion to dismiss for failure to state a claim upon
which relief may be granted is made . . . the pleader
should be given the opportunity to amend the complaint,
if she can, to show the existence of the missing ele-
ments.”); 10A Wright et al., supra, § 2722 (“[W]hen plain-
tiff’s motion to amend the complaint and defendant’s
motion for summary judgment are presented together, the
court may consider the latter as addressed to the com-
plaint in the form in which it is sought to be amended. . . .
10 CAHILL v. MSPB
seek a more definite statement where necessary, Zim-
merman v. Dep’t of Hous. & Urban Dev., 61 M.S.P.R. 75,
77 (1994), and permitted claimants in other contexts to
amend their pleadings, Shelton v. Office of Pers. Mgmt.,
38 M.S.P.R. 280, 283 (1988) (citing as guidance Federal
Rule of Civil Procedure 15(a)); see also Balagot v. Dep’t of
Def., 102 M.S.P.R. 96, 98–99 (2006). But without an
objection from the agency as to the specificity of his alle-
gations concerning agency officials’ knowledge, Mr. Cahill
was not on notice that his allegations should be made
more specific, such as by giving the names of the March
2012 meeting participants or the number of individuals
who could fit the categories of participants (e.g., “BCSB
management”) or by otherwise indicating why Ms.
Gnesda, Mr. Green, or Dr. Skarbinski would likely have
known of his March 2012 disclosure. Thus, this is not a
case in which the absence of readily available details
highlights the inadequacy of what is alleged; here, given
the lack of notice of a problem and an opportunity to cure,
the absence of greater detail provides no support for
judging the allegations Mr. Cahill did make to be inade-
quate.
We conclude that Mr. Cahill nonfrivolously alleged
that at least one of Ms. Gnesda, Mr. Green, and Dr.
Skarbinski knew of his March 2012 disclosure. We need
not consider the sufficiency of Mr. Cahill’s allegations as
to other agency officials. We hold that the Board erred in
dismissing his appeal for lack of jurisdiction.
[I]f an amendment would change the result on the [sum-
mary judgment] motion, it should be permitted and
summary judgment denied.”).
CAHILL v. MSPB 11
CONCLUSION
For the foregoing reasons, we reverse the Board’s
dismissal of Mr. Cahill’s petition and remand for further
appropriate proceedings.
Costs awarded to Mr. Cahill.
REVERSED AND REMANDED