[00:00:08] Speaker 02:
The next case for argument is 15-3152, Ethel versus MSPB.

[00:00:22] Speaker 02:
I'm going to let Ms.

[00:00:29] Speaker 02:
Lederer unpack.

[00:00:44] Speaker 02:
OK, Mr. Romer.

[00:00:45] Speaker 00:
May it please the court, Jason Romer on behalf of petitioner Matt Cahill.

[00:00:50] Speaker 00:
At its core, the central issue here is whether or not Mr. Cahill is entitled to a hearing and opportunity to prove his case on the merits.

[00:00:58] Speaker 00:
The board does not dispute that a March 2012 meeting took place.

[00:01:03] Speaker 00:
And in fact, the board held that Mr. Cahill's allegations are sufficient, taken as true, to establish that he made a protected disclosure at that March 2012 meeting.

[00:01:12] Speaker 00:
a protected disclosure regarding the agency's data collection and data management failures in the national campaign against HIV AIDS.

[00:01:20] Speaker 00:
In fact, the board does not retreat from its statement in its final order that it goes without saying that the potential harm raised by Mr. Cahill's allegations is serious.

[00:01:29] Speaker 00:
And the board does not dispute that Mr. Cahill sufficiently alleged that adverse actions were taken against him within a reasonable time of this protected disclosure.

[00:01:41] Speaker 00:
The only issue here,

[00:01:42] Speaker 00:
is whether or not Mr. Cahill sufficiently alleged that the individuals who retaliated against him, in fact, had knowledge of his protected disclosure.

[00:01:50] Speaker 02:
And he didn't specifically allege that, right?

[00:01:53] Speaker 00:
Mr. Cahill specifically alleged that he made his protected disclosure at the March 2012 meeting and that that meeting was attended by several specific individuals or titles of individuals.

[00:02:05] Speaker 00:
For example, Mr. Cahill alleged that

[00:02:07] Speaker 00:
The March 2012 meeting was attended.

[00:02:09] Speaker 02:
Yeah, but some of the alleged action that was taken against him included what his supervisor, who was not at the meeting, and I think we all agree that, right?

[00:02:17] Speaker 02:
His new supervisor was not at the meeting, and he alleges that her conduct was in retaliation for that conversation.

[00:02:24] Speaker 02:
How do we get from point A to point B with respect to at least the action she took?

[00:02:28] Speaker 00:
Right.

[00:02:28] Speaker 00:
That's true, Chief Judge Proce, that in fact Ms.

[00:02:33] Speaker 00:
Crenshaw was a later supervisor and was therefore not at this meeting.

[00:02:37] Speaker 00:
But given her role at the agency as a qualitative science and data management team lead, and given the severity of Mr. Cahill's allegation, indeed they go to the very heart of the data collection and data management responsibilities of the agency, that certainly is enough to impute knowledge to her, a constructive knowledge of Mr. Cahill's allegations.

[00:02:59] Speaker 03:
Can I just ask, we're basically talking about a jurisdictional determination, is that done

[00:03:07] Speaker 03:
I don't know, kind of adverse action by adverse action, or is it enough to say as long as there is jurisdiction over a claim, the individual right of action claim?

[00:03:22] Speaker 03:
And let's say Ms.

[00:03:25] Speaker 03:
Gnesda, is that how one says her name?

[00:03:27] Speaker 00:
Ms.

[00:03:27] Speaker 00:
Gnesda, I believe.

[00:03:28] Speaker 03:
Gnesda and Dr. Skarbinski.

[00:03:31] Speaker 03:
Correct.

[00:03:32] Speaker 03:
If we concluded either as to one or both of them,

[00:03:35] Speaker 03:
that there was a sufficient allegation, would there not be board jurisdiction to hear the whole claim in which you could then prove what may be all by itself you haven't sufficiently alleged that Ms.

[00:03:47] Speaker 03:
Crenshaw also would know?

[00:03:50] Speaker 00:
That is exactly correct, Your Honor.

[00:03:51] Speaker 00:
It only takes one non-frivolous allegation to establish jurisdiction at this point.

[00:03:57] Speaker 03:
And the board hasn't treated this as kind of individual action by individual action for jurisdictional purposes?

[00:04:04] Speaker 00:
No.

[00:04:06] Speaker 00:
In fact, I know we cite a precedent on this point in our brief, but for example, in Ontivero v. Department of Homeland Security, that's 117 NSPR 600.

[00:04:22] Speaker 00:
The board specifically spells that out, that it will take one allegation at a time in determining the non-frivolous allegation.

[00:04:28] Speaker 03:
It doesn't lump them together and require that all of- I'm sorry, but does that case say if we find one allegation is enough, then the whole case will come in front of us even?

[00:04:38] Speaker 03:
Or does it go on and separate and say, okay, you've got a case only as the allegation number one, the rest?

[00:04:46] Speaker 00:
We believe that here,

[00:04:48] Speaker 00:
One non-frivolous allegation is enough to establish jurisdiction.

[00:04:52] Speaker 00:
And if Mr. Cahill is able to prove at a hearing on the merits that other individuals retaliated against him had knowledge of his protected disclosure, then those would be considered at a hearing on the merits.

[00:05:04] Speaker 00:
But I think it's important to note that the non-frivolous allegation standard at this point doesn't require Mr. Cahill to actually prove his case.

[00:05:12] Speaker 00:
And further on your point, Judge Toronto,

[00:05:17] Speaker 00:
The individuals, many individuals that Mr. Gaithill did identify as retaliating against him fit squarely into the titles of individuals that were in fact at the March 2012 meeting.

[00:05:31] Speaker 03:
Can I just double check something that at least registered as significant to me when I first came across?

[00:05:37] Speaker 03:
There are only two or three people under those either titles or there's one of the management or something and there are only two managers or

[00:05:47] Speaker 03:
There are two divisions.

[00:05:49] Speaker 03:
I don't know if division is the right term.

[00:05:50] Speaker 00:
Correct.

[00:05:51] Speaker 00:
Correct.

[00:05:52] Speaker 00:
So what we're talking about here are two specific groups, the Behavioral and Clinical Surveillance Branch, BCSB, and the Quantitative Science and Data Management Group, or QSDM.

[00:06:02] Speaker 00:
And these are actually specifically defined groups within the Center for Disease Control's National Center for HIV AIDS, which is obviously a branch of the CDC.

[00:06:14] Speaker 00:
Now, managers.

[00:06:17] Speaker 00:
of course, connotates someone in a hierarchy that has control or directs the group.

[00:06:24] Speaker 00:
And there are really only two people for each of these branches that fall under those categories.

[00:06:29] Speaker 00:
For QSDM, there's a branch chief.

[00:06:32] Speaker 04:
Well, I understand that what you're saying is that there is more than one assistant branch chief.

[00:06:38] Speaker 04:
It sounds like there may be two.

[00:06:40] Speaker 04:
So it doesn't necessarily identify one individual

[00:06:45] Speaker 00:
It's true that there's a branch chief and an assistant branch chief, Your Honor.

[00:06:49] Speaker 04:
Oh, in other words, there's one assistant branch chief stating that title identifies the individual.

[00:06:58] Speaker 00:
Stating an assistant branch chief would, for example, BCSB or QSDM would identify that individual.

[00:07:05] Speaker 00:
I would note that Mr. Cahill's allegation here was that QSDM management and BCSB management was in attendance at the meeting.

[00:07:14] Speaker 04:
I'm hearing a little lack of clarity.

[00:07:17] Speaker 04:
Let me move to the next title.

[00:07:20] Speaker 04:
Deputy branch chief of QSDM.

[00:07:22] Speaker 04:
Is that one person?

[00:07:24] Speaker 00:
Your Honor, we believe that that was a misstatement in the record by the board to call that person the deputy branch chief.

[00:07:32] Speaker 00:
Other parts of the record clearly identify that person as the assistant.

[00:07:35] Speaker 04:
How about branch chief of QSDM?

[00:07:37] Speaker 04:
Is that one person?

[00:07:37] Speaker 04:
That is one person.

[00:07:38] Speaker 04:
That's one person.

[00:07:40] Speaker 00:
Yes.

[00:07:41] Speaker 04:
And the BCSB clinical outcomes team lead, is that one person?

[00:07:46] Speaker 00:
That is one person.

[00:07:48] Speaker 00:
That is one person.

[00:07:49] Speaker 02:
But I think the original point is that your allegation goes to BCSB management, QSDM management, and you're saying that that doesn't necessarily, isn't confined to one individual, but there are only a couple that could be.

[00:08:05] Speaker 00:
That's correct.

[00:08:06] Speaker 00:
That's correct.

[00:08:07] Speaker 02:
It's a narrow universe.

[00:08:08] Speaker 02:
What are we to make of what, let's assume we look at this and we think we need that extra evidence, which is that email, which at least identified, gave some further meat to the bones of this identification.

[00:08:20] Speaker 02:
The government makes an argument, I think, that that shouldn't be something that you can necessarily rely on in establishing jurisdiction.

[00:08:27] Speaker 02:
So let's say you.

[00:08:28] Speaker 00:
I believe Your Honor is referring to the evidence submitted by the agency itself, Ms.

[00:08:32] Speaker 00:
Guiness's personal notes.

[00:08:34] Speaker 02:
Yeah, the note identifying who was at the meeting.

[00:08:36] Speaker 00:
Your Honor, certainly the non-frivolous allegations standard is designed to test the sufficiency of Mr. Cahill's allegations.

[00:08:46] Speaker 00:
And it is our position that the sufficiency of his allegations is enough to pass muster under the non-frivolous allegations standard.

[00:08:53] Speaker 00:
Taken as true, his allegation that BCSB managers, team leads, project leads, and QSDM management were at this meeting is enough to establish at least a non-frivolous allegation that

[00:09:06] Speaker 00:
three of the four alleged retaliators had direct knowledge.

[00:09:09] Speaker 00:
Ms.

[00:09:10] Speaker 00:
Ganezda's notes further add to that and show that his allegation is indeed not frivolous because they, in fact, confirm, one, that Ms.

[00:09:19] Speaker 00:
Ganezda herself personally had knowledge of the disclosure.

[00:09:22] Speaker 00:
Whether or not she was at the meeting herself or was simply told about this, her role as an assistant branch chief, she may have been told about this by the actual branch chief.

[00:09:34] Speaker 00:
whether she found about it one way or the other is really besides the point.

[00:09:38] Speaker 00:
It's the adequacy of Mr. Cahill's allegation.

[00:09:41] Speaker 00:
He's not required to prove it at this point.

[00:09:44] Speaker 00:
So to answer your question, Your Honor, Ms.

[00:09:46] Speaker 00:
Ganesse's notes are certainly helpful.

[00:09:49] Speaker 00:
And this court has held in cases, for example, like Doral, that the board may consider evidence submitted by the agency

[00:10:01] Speaker 00:
in deciding the non-frivolous jurisdictional standard.

[00:10:05] Speaker 00:
But at the end of the day, it's really the sufficiency of the allegations in Mr. Cahill's complaint.

[00:10:14] Speaker 00:
Moving on a little bit to the board's actual application of the non-frivolous allegations standard.

[00:10:20] Speaker 00:
Your Honors, it's difficult to imagine a legal standard that is lower, in fact, than the non-frivolous allegations standard.

[00:10:30] Speaker 00:
And here, the board essentially required Mr. Cahill to prove the sufficiency of his allegation.

[00:10:36] Speaker 00:
But this court's case law, and the board's case law in its own regulations, clearly established that the non-firmness allegation is merely an assertion that, if proven, could establish the matter at issue.

[00:10:48] Speaker 00:
Mr. Cahill's allegation that these individuals were at the meeting is enough to establish on its face that the alleged retaliators, specifically Dr. Skarbinski and

[00:11:00] Speaker 00:
Assistant Branch Chief Ms.

[00:11:01] Speaker 00:
Ganesda and Branch Chief Timothy Green, at the very least, had knowledge of his protected disclosure.

[00:11:08] Speaker 00:
And I'd like to reserve the rest of my time for rebuttal.

[00:11:10] Speaker 00:
Thank you.

[00:11:10] Speaker 02:
Good morning.

[00:11:10] Speaker 02:
Good morning.

[00:11:21] Speaker 01:
May it please the court?

[00:11:22] Speaker 01:
The question in this case is whether Petitioner met his burden to make a non-privilege allegation

[00:11:27] Speaker 01:
that the agency managers who allegedly retaliated against him actually knew of his protected whistleblowing disclosures.

[00:11:34] Speaker 01:
And to establish board jurisdiction over his IRA appeal, petitioner must satisfy the board's knowledge and timing test.

[00:11:40] Speaker 01:
This test has two parts.

[00:11:41] Speaker 01:
Petitioner must make a non-for-loss allegation that the deciding officials knew of his disclosures.

[00:11:47] Speaker 01:
And also, petitioner must show that the adverse action was initiated within a reasonable time of those disclosures.

[00:11:52] Speaker 02:
Can I just step back a minute?

[00:11:56] Speaker 02:
As I read the record, it appears that this issue was never brought to the fore until the board actually decided this appeal.

[00:12:04] Speaker 02:
We considered the AJ's opinion, right?

[00:12:07] Speaker 02:
I mean, the AJ decided this case on different grounds when he rejected the claim.

[00:12:13] Speaker 02:
And the government, I guess, at least filed briefs or the agency had some submission.

[00:12:19] Speaker 02:
in at least two parts, before the AJ and then before the board.

[00:12:23] Speaker 02:
And never in my reading the records, you can correct me if I'm wrong, did the government, did the agency bring forward the paucity of the evidence with regard to whether or not these individuals were at the meeting?

[00:12:35] Speaker 02:
The people who took action against him knew about it, right?

[00:12:38] Speaker 01:
Correct.

[00:12:38] Speaker 01:
The agency did not make this argument.

[00:12:40] Speaker 01:
The board considered the evidence and made its own determination on this issue that.

[00:12:46] Speaker 01:
Isn't that a bit problematic?

[00:12:48] Speaker 02:
I mean, it seems like the other side then, I mean, obviously there's a little confusion even to this day in the government's brief about what all people were talking about and what individuals were involved.

[00:13:02] Speaker 02:
Isn't that a risk and really a problem for the board to have raised this in the first instance on their own in its decision where this issue was never discussed or debated or raised in the briefing below?

[00:13:13] Speaker 01:
Well, if I could point out,

[00:13:15] Speaker 01:
The administrative judge issued a jurisdictional order in the underlying case.

[00:13:20] Speaker 01:
And that's at page A-76 of the record, the relevant language, notifying petitioner of his burden to establish a jurisdiction over his IRA claim.

[00:13:38] Speaker 01:
It's the second paragraph down on this page.

[00:13:40] Speaker 01:
says a non-frivolous allegation that a protected disclosure or activity was a contributing factor in the decision to take or fail to take a personal action against you is a detailed factual allegation that you disclosed one of the above matters or engaged in one of the protected activities and that agency officials responsible for the personal action were aware of your disclosure or activity and acted within such a time that a reasonable person could find that the disclosure or activity contributed to the action.

[00:14:09] Speaker 01:
And then in response to that order, Petitioner, who was represented by council both before the AEJ and before the board, submitted a jurisdictional brief.

[00:14:20] Speaker 01:
Relevant part is on page A91, where he just reiterates item line 35.

[00:14:26] Speaker 01:
On March 22, 2012, there was a group meeting with BCSB management, team leads, project leads, and QSDM management, which is the exact same language he uses in all his filings before the board.

[00:14:37] Speaker 01:
making no attempt to further elaborate or specify.

[00:14:41] Speaker 01:
And then what did the agency say?

[00:14:45] Speaker 01:
The agency, I believe, responded.

[00:14:46] Speaker 01:
And I don't believe the agency addressed that issue in its brief.

[00:14:51] Speaker 03:
Right, but I kind of take it that that's the point, at least, I was getting from the chief judge.

[00:14:58] Speaker 03:
He has this allegations, this is A145, the attachment to the OSC complaint, I assume.

[00:15:04] Speaker 03:
Was that before the AJ at the stage?

[00:15:08] Speaker 03:
Yes, yeah, so I mean he said it's all about this sentence about the March 22nd group meeting how to interpret that and then he's told by the AJ you got to establish jurisdiction he says I Said this the agency doesn't come back and say who the heck are these people management?

[00:15:27] Speaker 03:
It's not even a number adjective in front of it could be any number of people why at that point?

[00:15:34] Speaker 03:
Can he later then be held against him that he didn't provide further specificity when this point is just uncontested?

[00:15:43] Speaker 01:
Well, it was contested because it's an element of petitioner's burden to establish the board's jurisdiction.

[00:15:48] Speaker 03:
I'm sorry.

[00:15:48] Speaker 03:
Was not specifically contested as to this issue by the agency saying, ooh, these people might be anybody.

[00:15:56] Speaker 03:
It wouldn't be Ms.

[00:15:57] Speaker 03:
Ganesha or et cetera.

[00:15:59] Speaker 01:
I can't explain why the agency didn't emphasize that in its brief.

[00:16:03] Speaker 01:
More of the focus at that time was discussing whether the disclosure with themselves were protected.

[00:16:08] Speaker 02:
Or did the administrative judge, when he issued his decision, or she issued her decision, right, one of the bases for rejecting the claim was not the fight we're having now over those people at the meeting, right?

[00:16:24] Speaker 01:
Correct.

[00:16:24] Speaker 01:
The administrative judge found that the disclosures were not protected.

[00:16:28] Speaker 01:
The board modified that decision to find that the disclosures were protected, but that he didn't establish the knowledge timing test.

[00:16:36] Speaker 01:
Right.

[00:16:37] Speaker 02:
So you pointed us to this proof of claim, which cites kind of boilerplate what he needs to prove.

[00:16:43] Speaker 02:
But Judge Toronto pointed out the agency didn't go to the AJ and say, look, their claim is deficient in that regard.

[00:16:50] Speaker 02:
And the administrative judge didn't say,

[00:16:52] Speaker 02:
the claim is deficient in that regard, right?

[00:16:55] Speaker 01:
Correct, Your Honor.

[00:16:55] Speaker 01:
But the decision under review here is the board's decision, which did go into that issue and make that determination.

[00:17:01] Speaker 01:
So we would argue that the sufficiency of the board's decision, which modified the AJ's decision, should be what's the focus of the analysis here.

[00:17:09] Speaker 03:
Can I ask you the same question about all or nothing or separateness?

[00:17:15] Speaker 03:
What's the board's practice or position, I guess, as you stand here today, about

[00:17:22] Speaker 03:
what would happen on this assumption that there's enough evidence for a non-fertilized allegation that Ms.

[00:17:31] Speaker 03:
Ganezda knew.

[00:17:32] Speaker 03:
At that point, does Cahill's whole case go forward, or does one say, yes, OK?

[00:17:41] Speaker 01:
One allegation of non-fertilized will be sufficient to establish jurisdiction.

[00:17:45] Speaker 01:
However, in this case,

[00:17:47] Speaker 01:
Given his generalized assertions, petitioner did not meet the standard of specificity for either proving direct knowledge for any of these alleged retaliators or even imputing knowledge to them.

[00:18:02] Speaker 02:
Well, wait.

[00:18:02] Speaker 02:
There's at least one person where it's pretty clear that one individual was there, right?

[00:18:08] Speaker 02:
I can't remember which one.

[00:18:11] Speaker 02:
But I mean, these were BC SB team leaders.

[00:18:16] Speaker 02:
And one individual that was alleged to have taken action against him was one of those team leads, right?

[00:18:23] Speaker 01:
Correct.

[00:18:24] Speaker 01:
But from his unspecific allegations, it's impossible to tell which team leads were there.

[00:18:29] Speaker 01:
He just says team leads.

[00:18:30] Speaker 01:
So it could have been this person.

[00:18:32] Speaker 01:
It could have been another team.

[00:18:33] Speaker 02:
Do you know how many, does it reflect how many BCSB team leads there are?

[00:18:39] Speaker 01:
It might be better directed to petitioner for that.

[00:18:41] Speaker 01:
I'm not sure.

[00:18:42] Speaker 01:
But there's definitely more than one.

[00:18:44] Speaker 02:
And so if there's more than one, he says, in plural, team lead.

[00:18:48] Speaker 02:
So that means if there are two of them, they were both there.

[00:18:51] Speaker 02:
Right?

[00:18:53] Speaker 01:
If there were only two team leads, I believe that you could imply that both of them were there from the phrase team leads.

[00:19:00] Speaker 01:
Well, there's nothing in the record.

[00:19:01] Speaker 01:
There's nothing in the record indicating.

[00:19:03] Speaker 02:
That there are more than two.

[00:19:04] Speaker 01:
If there were two or more than two.

[00:19:06] Speaker 01:
I don't believe that's in the record.

[00:19:07] Speaker 03:
Do we even know if there's more than one lead per team, or is there

[00:19:11] Speaker 03:
a one-to-one correspondence between leads and teams.

[00:19:14] Speaker 01:
I believe there's one lead per team.

[00:19:17] Speaker 01:
But there might be a bunch of teams.

[00:19:19] Speaker 01:
But I might ask for clarification on that.

[00:19:23] Speaker 01:
OK.

[00:19:23] Speaker 01:
So the standard for a non-privilege allegation, as petitioner points out, is lower than the standard for proof on merits, which is preponderance of evidence.

[00:19:33] Speaker 01:
However, the board's regulations do require that.

[00:19:37] Speaker 01:
An unfrivolous allegation be more than conclusory, plausible on its face, and material to the legal issues.

[00:19:43] Speaker 01:
It also must provide sufficient evidence to create a material fact issue relating to the board's jurisdiction.

[00:19:50] Speaker 01:
Here, when we just have a generalized assertion that these groups of people were at this meeting, that does not meet the standard of providing sufficient evidence to create a material fact issue of board jurisdiction.

[00:20:03] Speaker 01:
The cases that Petitioner relies on in order to support his claim are actually involved in much more specific allegations than this case.

[00:20:14] Speaker 01:
For example, the Colbert case, Petitioner alleges that in that case the appellant did not identify any supervisors by name, but in fact he did.

[00:20:22] Speaker 01:
They're identified by initials in the decision.

[00:20:25] Speaker 01:
He stated that his nursing supervisor was identified as VB.

[00:20:29] Speaker 01:
that he told his nursing supervisor he was going to contact OSC about his complaints, and that her input was used on his performance evaluation, which is a pretty direct allegation of knowledge.

[00:20:41] Speaker 01:
He also identified another supervisor and manager called LG, and it appeared that that supervisor had requested a summary review board of the appellant.

[00:20:52] Speaker 01:
Likewise, in the Daniels case,

[00:20:55] Speaker 01:
Petitioner alleges that the appellant in Daniels only alleged that her quote managers knew of the disclosures.

[00:21:00] Speaker 01:
But she was actually much more specific.

[00:21:02] Speaker 01:
Again, she said she had discussed her disclosures to OIG with the regional office director, who she identified by name, during a meeting.

[00:21:11] Speaker 01:
And that that person, whose name was Jensen, acknowledged knowing about the investigation.

[00:21:16] Speaker 01:
And that she had also authorized OIG to reveal her identity.

[00:21:21] Speaker 01:
And agency officials had admitted to accessing her email.

[00:21:25] Speaker 01:
presuming that they knew about her disclosure.

[00:21:27] Speaker 02:
Well, that seems to be pretty dispositive of the final issue in litigation.

[00:21:32] Speaker 02:
I mean, he's not required here to establish the thing that did it.

[00:21:37] Speaker 02:
It seems like the scenarios you're painting are pretty dispositive.

[00:21:41] Speaker 02:
I mean, it's the end of the case.

[00:21:44] Speaker 02:
Yes, they knew.

[00:21:44] Speaker 02:
He's proven they knew.

[00:21:46] Speaker 02:
Something less is required in this context, is it not?

[00:21:49] Speaker 01:
Well, we are not aware of any precedent where

[00:21:53] Speaker 01:
board or this court has found that the sort of general allegations of knowledge in this case, as in this case, were enough to meet the non-privilege standard.

[00:22:03] Speaker 01:
Petitioner hasn't cited any and we're not aware of any.

[00:22:06] Speaker 01:
So in the Colbert and Daniels cases, those involved the non-privilege allegation burden of proof.

[00:22:16] Speaker 01:
So whether or not the appellants would have prevailed on the merits, they certainly met

[00:22:22] Speaker 01:
non-frivolous allegations standard in those cases.

[00:22:24] Speaker 02:
Well, it's hard to have a lot of cases where the government finds where they prevail.

[00:22:29] Speaker 02:
I mean, if the board says this is a non-frivolous allegation and we're going forward, there can't be a lot of cases like that, because only then would it be up to the agency to appeal that.

[00:22:39] Speaker 02:
And presumably we'll do that very often, right?

[00:22:43] Speaker 01:
Perhaps.

[00:22:44] Speaker 01:
But essentially, given the standard which is stated in the regulations,

[00:22:52] Speaker 01:
we would ask this court to find that a more specific allegation than the one presented by a petitioner is required to prove the non-frivolous allegation.

[00:23:01] Speaker 01:
For the non-frivolous standard to have meaning, it can't just be any allegation.

[00:23:05] Speaker 01:
It has to mean something.

[00:23:07] Speaker 01:
If the word non-frivolous is in there, it can't just be a generalized allegation.

[00:23:12] Speaker 01:
And we would also argue that accepting such a generalized allegation, as in this case, would only encourage

[00:23:19] Speaker 03:
Appellants to be as broad as possible when they're describing who knew of their disclosures just cover everybody Why not just say the entire agency was at this meeting and therefore anybody who retaliated against me that I guess is where at least in part the Distinctiveness of the fact that the agency didn't challenge the specificity of this allegation If it were in another case highly general

[00:23:47] Speaker 03:
let's call this general or something more general, and the agency says, that's not enough, then the claimant has an opportunity to try to be more specific.

[00:23:58] Speaker 03:
And if he or she can't, that tells you something.

[00:24:01] Speaker 03:
But here, we don't have the inference that might be drawn from the inability to get more specific, because there wasn't an opportunity.

[00:24:11] Speaker 01:
Right.

[00:24:12] Speaker 01:
Well, again, I would emphasize that petitioner was represented by an attorney.

[00:24:16] Speaker 01:
The judge issued a jurisdictional order, which was very detailed as to all the elements of his burden.

[00:24:20] Speaker 01:
And that attorney, it was his responsibility to make a specific pleading.

[00:24:25] Speaker 02:
The fact that the case- Yeah, but just suggesting that he should have known that his allegations were insufficient, even recognizing that the agency counsel didn't recognize or have any problem with his allegations with regard to that issue.

[00:24:39] Speaker 01:
Well, I don't know that I would say the agency counsel didn't recognize it.

[00:24:42] Speaker 01:
The focus of the analysis was on the

[00:24:45] Speaker 01:
preliminary issue of whether the disclosures were protected and they just never reached the issue of whether the knowledge timing test was met.

[00:24:53] Speaker 01:
I don't know if that was a specific strategy on the part of the agency or just that was the main issue before them at the time.

[00:25:00] Speaker 01:
Once that issue was resolved and it was determined that the disclosures were protected before the board, the next part of the test comes into play.

[00:25:09] Speaker 01:
So I would be wary of drawing any conclusions from the fact that this wasn't briefed before the A.J.

[00:25:14] Speaker 01:
because that wasn't the focus of the arguments there.

[00:25:20] Speaker 01:
But Petitioner was informed of his burden, and he had the opportunity to brief any issues that he wished to brief and present any evidence that he had.

[00:25:28] Speaker 01:
I also note that the notes from Ms.

[00:25:32] Speaker 01:
Ganesda that he attempts to rely on now were part of the agency file.

[00:25:36] Speaker 01:
They weren't brought forward by Petitioner's attorney at any point as dispositive evidence that

[00:25:42] Speaker 01:
he met his non-fribalist allegation burden.

[00:25:44] Speaker 03:
And what is your position about what, if any, treatment of those notes we should give?

[00:25:53] Speaker 01:
Well, under the summary judgment standard that the board and this court uses, the agency or the board can consider evidence submitted by the agency to shed light on the sufficiency of petitioners' allegations.

[00:26:05] Speaker 01:
If I could just say something quickly about regard to those notes, though.

[00:26:10] Speaker 01:
They're on page 8, 322 of the record.

[00:26:12] Speaker 01:
the March 22, 2012 bullet point.

[00:26:17] Speaker 01:
Some of the individuals that she identifies as being at the meeting are different from the categories that Petitioner identifies.

[00:26:23] Speaker 01:
For example, she doesn't identify any QSDM managers as being at the meeting, and most of the people that are the alleged retaliators in this case are QSDM managers.

[00:26:35] Speaker 01:
So as far as the value of this evidence is for shedding light on

[00:26:41] Speaker 01:
sufficiency of the allegations, it's questionable whether they're even talking about the same people.

[00:26:45] Speaker 01:
Time's up.

[00:26:50] Speaker 01:
Thank you.

[00:27:04] Speaker 00:
So to be clear, these allegations that Mr. Cahill made were not, in fact, generalized allegations.

[00:27:11] Speaker 00:
They were specific.

[00:27:12] Speaker 00:
They identified specific titles of individuals who were at the meeting at the March 2012 meeting.

[00:27:18] Speaker 00:
A conclusory or generalized allegation would be one in which Mr. Cahill would simply state, the retaliators had knowledge of my protected disclosure.

[00:27:25] Speaker 00:
But Mr. Cahill did much more than that.

[00:27:26] Speaker 00:
He specifically specified how they had knowledge of the retaliation, that there was a meeting.

[00:27:32] Speaker 00:
where he made his disclosures and he identified specific groups of people that were at that meeting.

[00:27:38] Speaker 00:
So my friend suggests that a reversal here would somehow open the floodgates for the MSPB to receive all sorts of unspecified and generalized allegations.

[00:27:50] Speaker 00:
I would respectfully disagree with that conclusion.

[00:27:53] Speaker 00:
I also think it's telling that the agency never did dispute the sufficiency of Mr. Cahill's allegations.

[00:27:58] Speaker 00:
And I think Ms.

[00:27:58] Speaker 00:
Ganez's notes reflect why.

[00:28:01] Speaker 00:
Mrs. Ganezda specifically stated in her personal notes that the meeting was attended not just by BCSB team leads, but by all BCSB team leads, which would have necessarily included... Do you know how many teams there are?

[00:28:14] Speaker 00:
My understanding is that there are approximately two to three teams within BCSB, but that's not reflected in the record exactly how many teams there are.

[00:28:22] Speaker 03:
And your understanding, again, not reflected in the record is one lead per team?

[00:28:27] Speaker 03:
Yes.

[00:28:28] Speaker 03:
So we're talking about a

[00:28:30] Speaker 03:
a number of people who could fall into this category, again, on the record, less than a half.

[00:28:36] Speaker 00:
Right, right.

[00:28:37] Speaker 00:
But I think it's important to note that an allegation that the meeting was attended by BCSB team leads or managers is at least plausible in its face that these alleged retaliators, like Dr. Skarbinski, Ms.

[00:28:48] Speaker 00:
Ganesda, would have knowledge of these protected disclosures, whether they were one of the team leads or managers that was actually there, or whether they heard about it,

[00:28:57] Speaker 00:
It was imputed to them from people who were actually in attendance.

[00:29:01] Speaker 00:
These are small groups within a group within the CDC, within the agency.

[00:29:07] Speaker 00:
So it's certainly plausible on its face, and a reasonable inference could be drawn, especially.

[00:29:12] Speaker 02:
Well, we don't have any information, though, about how large this whole unit is, right?

[00:29:16] Speaker 02:
I mean, yeah, you're right.

[00:29:18] Speaker 02:
If the unit contains all of 20 people, then it's very likely to assume that people, if 10 of them were at the meeting, that those 10 talk to the other 10 about what happened.

[00:29:28] Speaker 02:
But we don't have any of those numbers, right?

[00:29:30] Speaker 00:
There's nothing specific in the record that identifies that.

[00:29:33] Speaker 00:
On the management side, we do know

[00:29:37] Speaker 00:
From the emails that Mr. Cahill submitted in response to the order to show jurisdiction, there's emails and performance evaluations signed by the branch chief and the assistant branch chief of QSDM, for example.

[00:29:53] Speaker 00:
So we know that those individuals are specifically identified as ones who would fall under the management title.

[00:29:58] Speaker 00:
But we don't have specific numbers of who's

[00:30:01] Speaker 00:
is in these groups.

[00:30:04] Speaker 00:
But I do think it's important that the agency never disputed the sufficiency of this allegation.

[00:30:09] Speaker 00:
And in fact, if you look at Ms.

[00:30:11] Speaker 00:
Ganez's notes, she uses similar types of descriptors to identify these people, BCSB team leads, BCSB branch chief.

[00:30:20] Speaker 00:
This was typical parlance within the agency to describe people in this manner.

[00:30:24] Speaker 00:
And if the board, in fact, had a question as to whether or not these allegations were specific enough to identify people,

[00:30:30] Speaker 00:
The appropriate remedy would have been to remand back to the administrative law judge to reopen the record to address the specific issue, especially given that it was never contested by the agency and there was not a proper opportunity for Mr. Cahill to appropriately develop the record on that point.

[00:30:45] Speaker 02:
But you'd much prefer that we did not do that and that we just reverse and say there's jurisdiction.

[00:30:51] Speaker 00:
At this point, I think it's clear for all the reasons stated in our brief and today that there is enough of an allegation in his complaint

[00:30:59] Speaker 00:
to establish jurisdiction and that judicial efficiency would best be served by allowing him to proceed forward with a hearing on the merits.

[00:31:07] Speaker 00:
That's really what he's entitled to.

[00:31:09] Speaker 00:
I would just address shortly to even on a motion to dismiss standard, which we argue is the appropriate standard comparator to the non-frivolous allegations standard.

[00:31:20] Speaker 00:
It's the comparator that the Fifth Circuit has recently accepted in the Alavez case.

[00:31:27] Speaker 00:
elements outside of the complaints can still be considered.

[00:31:30] Speaker 00:
That routinely happens on motions to dismiss where the court takes judicial notice of something or some sort of form of uncontested fact is admitted into the record.

[00:31:38] Speaker 00:
So there's nothing prohibiting this court or the board from considering misconstrued notes.

[00:31:42] Speaker 00:
In fact, they were submitted to rebut Mr. Cahill's allegation that there was, in fact, a protective disclosure made.

[00:31:51] Speaker 00:
I see that my time is up.

[00:31:53] Speaker 00:
Thank you.

[00:31:53] Speaker 02:
Thank you very much.

[00:31:54] Speaker 02:
We thank both sides and the cases.