821 F.3d 1370 (Fed. Cir. 2016), 2015-3152, Cahill v. Merit Systems Protection Board

Docket Nº:2015-3152
Citation:821 F.3d 1370
Opinion Judge:Taranto, Circuit Judge.
Party Name:MATT CAHILL, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent
Attorney: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, ...
Judge Panel:Before PROST, Chief Judge, LOURIE and TARANTO, Circuit Judges.
Case Date:May 10, 2016
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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821 F.3d 1370 (Fed. Cir. 2016)

MATT CAHILL, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent

2015-3152

United States Court of Appeals, Federal Circuit

May 10, 2016

Petition for review of the Merit Systems Protection Board in No. AT-1221-14-0906-W-1.

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.

Before PROST, Chief Judge, LOURIE and TARANTO, Circuit Judges.

OPINION

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Taranto, Circuit Judge.

Matt Cahill was an employee of the United States Department of Health and Human Services in the Centers 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 equipment 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 contractor. 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 Quantitative Science and Data Management Branch (or group) within that division (QSDM or

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QSDMB), but his assignment 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. § 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 alleged: 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, presented 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 Management Appraisal Program review; and that Kim Crenshaw, his supervisor as of June 13, 2013, treated him poorly.

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...

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