May 2016
Federal Circuit Bar Association Pro Bono Digest
By James R. Barney; Jason L. Romrell; Daniel C. Cooley; J. Derek McCorquindale
Authored by James R. Barney, Daniel C. Cooley, J. Derek McCorquindale, and Jason L. Romrell
After receiving a Final Order from the Merit Systems Protection Board (the "Board") dismissing his individual right of action (IRA) appeal for lack of jurisdiction, Mr. Matt Cahill sought pro bono representation. Through the Federal Circuit Bar Association, Mr. Cahill made contact with Finnegan, Henderson, Farabow, Garrett, & Dunner, LLP and engaged the authors of this article as pro bono counsel for his appeal to the United States Court of Appeals for the Federal Circuit. This article summarizes the factual background of Mr. Cahill's appeal and the Federal Circuit's unanimous and precedential decision reversing the Board's ruling.
Mr. Cahill worked for the United States Department of Health and Human Services in the Center for Disease Control and Prevention for several years. Cahill v. Merit Systems Protection Board, No. 2015-3152, Slip Op. at 2 (May 10, 2016). In March 2011, he began a new role at the agency working as a computer scientist assigned to support data management and collection activities at the National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention, Division of HIV/AIDS Prevention. Id. There, Mr. Cahill worked for the Quantitative Science and Data Management ("QSDM") branch, but his assignment was to support data management activities of another group—the Behavioral and Clinical Surveillance Branch ("BCSB"). Id. To better understand the HIV epidemic and help policymakers make informed decisions, BCSB conducts national studies involving field workers using hand-held devices called "Pocket PCs" to collect data. Id.
On February 27, 2014, Mr. Cahill filed a complaint with the Office of Special Counsel alleging that agency officials had violated the whistleblower protections of 5 U.S.C. § 1214(a)(1)(A) by taking personnel actions against him as a result of a disclosure about agency practices that he made at a March 2012 meeting. Id. at 2-3. Specifically, Mr. Cahill alleged that on March 22, 2012, he made a protected disclosure at a group meeting with "BCSB management, team leads, project leads, and QSDM management." Id. at 3. At that meeting, Mr. Cahill disclosed problems with the agency's data-collection instruments and procedures, including "Pocket PCs that were outdated, had bad batteries, lost data, presented data-entry problems, and generally did not work properly." Id. Mr. Cahill further alleged that several officials and supervisors retaliated against him after he made his March 2012 protected disclosure, including the BCSB Assistant Branch Chief, the QSDM Branch Chief, and a BCSB Team Lead. Id. at 7-8.
After the Office of Special Counsel closed its file on the matter, Mr. Cahill filed an IRA appeal with the Board under 5 U.S.C. §§ 1214(a)(3)(A). Id. at 4. After issuing a jurisdictional order, the administrative law judge concluded that Mr. Cahill had not raised nonfrivolous allegations of various elements of a whistleblower claim under 5 U.S.C. § 2302(b)(8)(A). Id. On review under 5 C.F.R. § 1201.114(c), the Board modified but ultimately affirmed the administrative judge's decision. Id. at 4-5. While the Board concluded that Mr. Cahill had nonfrivolously alleged that his March 2012 disclosure was protected and that at least one statutorily covered personnel action was taken against him, the Board held that Mr. Cahill had failed to nonfrivolously allege that his 2012 disclosure was a contributing factor in a personnel action. Id. The sole reason for the Board's decision was that, according to the Board, Mr. Cahill failed to make a nonfrivolous allegation that any of the officials involved in the personnel actions against him knew of his March 2012 disclosure. Id. at 5.
In a unanimous and precedential decision, the Federal Circuit reversed the Board's dismissal of Mr. Cahill's petition and remanded for further appropriate proceedings. As an initial matter, the Federal Circuit reiterated that a "'nonfrivolous allegation' of an element required for Board jurisdiction [is] one that, 'if proven, can establish the Board's jurisdiction' insofar as that element is concerned." Id. (citations omitted). "[W]hen read with an eye on likely inferences appropriate to the context," the Federal Circuit held that "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 know what Mr. Cahill disclosed there." Id. at 7.
First, the Federal Circuit identified the BCSB Assistant Branch Chief as one such official who was not only charged with taking personnel action but also fell under the title "BCSB management" that Mr. Cahill identified as attending the March 2012 meeting. Id. Second, the "QSDM Branch Chief"—another official charged with taking personnel actions—fell under the title "QSDM management" that Mr. Cahill identified as having attended the March 2012 meeting. Id. 7-8. Third, the Federal Circuit found that the "Team Lead, Clinical Outcomes Team, Behavioral and Clinical Surveillance Branch"—another official charged with personnel actions—squarely fell under the "team leads" title that Mr. Cahill identified as having attending the March 2012 meeting. Id. at 8. At bottom, Mr. Cahill had sufficiently alleged that at least one official who took personnel actions against him had knowledge of his protected disclosure.
The Federal Circuit also found it "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." Id. at 8. The Federal Circuit found that the agency's silence suggested that Mr. Cahill's allegations adequately conveyed which officials had knowledge of his protected disclosure. Id. at 8-9. But even more, the agency's silence "deprived Mr. Cahill of notice that his allegations might require greater specificity—which he might well have provided if the need had been identified." Id. at 9. After recognizing the common practice in district court of providing an opportunity to amend an insufficiently specific complaint after the deficiencies have been identified, the Federal Circuit noted that no such notice or opportunity was given to Mr. Cahill. Accordingly, the Federal Circuit held that "the absence of greater detail provides no support for judging the allegations Mr. Cahill did make to be inadequate." Id. at 10. Thus, "understood in context," Mr. Cahill's allegations were sufficient to establish the Board's jurisdiction.
Originally printed in the May 2016 edition of Federal Circuit Bar Association Pro Bono Digest. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.
Lecture
Patent Protection for Software-Related Inventions in Europe and the USA Training Course
June 5, 2024
Hybrid
10th Annual Georgia Asian Pacific American Bar Association Gala
May 29, 2024
Atlanta
Due to international data regulations, we’ve updated our privacy policy. Click here to read our privacy policy in full.
We use cookies on this website to provide you with the best user experience. By accepting cookies, you agree to our use of cookies. Please note that if you opt not to accept or if you disable cookies, the “Your Finnegan” feature on this website will be disabled as well. For more information on how we use cookies, please see our Privacy Policy.
Finnegan is thrilled to announce the launch of our new blog, Ad Law Buzz, devoted solely to breaking news, developments, trends, and analysis in advertising law.