Adam Delgado v. Merit Systems Protection Board , 880 F.3d 913 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1313
ADAM DELGADO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
____________________
Petition for Review of a Decision of the
Merit Systems Protection Board.
No. CH-1221-14-0737-W-1
____________________
SUBMITTED OCTOBER 31, 2016 — DECIDED JANUARY 29, 2018
____________________
Before ROVNER, WILLIAMS,** and HAMILTON, Circuit Judges.
 We have agreed to decide this case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. See Fed. R. App.
P. 34(a)(2)(C).
** Circuit Judge Williams retired on January 16, 2018 and did not par-
ticipate in the decision of this appeal. The petition for review is being re-
solved by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 16-1313
HAMILTON, Circuit Judge. This federal whistleblower case
presents our first review of a decision of the Merit Systems
Protection Board since Congress expanded judicial review be-
yond the Federal Circuit, at least temporarily. Petitioner
Adam Delgado is a special agent with the Bureau of Alcohol,
Tobacco, Firearms and Explosives. He alleges that his super-
visors retaliated against him after he reported his suspicions
that another agent had improperly shot at a fleeing suspect,
provided an inaccurate report of the incident, and testified
falsely about it in a federal criminal trial.
Delgado filed a whistleblower complaint with the Office
of Special Counsel (OSC), the federal office charged with in-
vestigating allegations that an agency has violated the Whis-
tleblower Protection Act by retaliating against its employee
for, as relevant here, disclosing “any violation of law, rule, or
regulation.” See 5 U.S.C. §§ 1214(a)(1)(A), 2302(b)(8). The
OSC declined to investigate. It told Delgado that he had not
made a disclosure protected by the statute and that he had
failed to provide sufficient evidence to support his allegations
of retaliation.
Delgado then appealed to the Merit Systems Protection
Board, but the Board dismissed his appeal for lack of jurisdic-
tion. The Board reasoned that Delgado had not satisfied the
requirement that he “seek corrective action before the Special
Counsel before seeking corrective action from the Board.” See
5 U.S.C. § 1214(a)(3). According to the Board, Delgado could
not prove that he made a “protected disclosure” or gave the
OSC enough information to launch an investigation. Delgado
has petitioned for judicial review of the dismissal of his ap-
peal. See 5 U.S.C. § 7703(a). We find that the OSC and the
No. 16-1313 3
Board applied unduly stringent and, we believe, arbitrary re-
quirements on Delgado.
First, the Board dismissed Delgado’s appeal because he
did not include a copy of his complaint to the OSC. Applicable
statutes and rules do not impose that requirement, and if
there were any question about what Delgado submitted to the
OSC, the easiest way to answer it would be to obtain the com-
plaint from the OSC itself.
Second, the OSC rejected Delgado’s complaint on the
ground that he failed to offer sufficient evidence that he made
a disclosure protected under 5 U.S.C. § 2302(b)(8). We disa-
gree. Delgado’s disclosure of suspected wrongdoing either ex-
plicitly accused another federal employee of perjury or pro-
vided sufficient evidence to justify such a suspicion worthy of
consideration by superiors. Either version would be a pro-
tected disclosure.
Third, the OSC rejected Delgado’s complaint because he
did not provide definitive proof that he was a victim of retal-
iation. We hold that, like other statutes with exhaustion pro-
visions, the Whistleblower Protection Act requires only that a
complainant fairly present his claim with enough specificity
to enable the agency to investigate. The Act itself and its im-
plementing regulations do not require a whistleblower to
prove his allegations before the OSC—otherwise, what need
could there be for an investigation? The Board thus erred in
finding that Delgado failed to exhaust administrative reme-
dies with the OSC. We grant the petition for review and re-
mand to the Board for further proceedings consistent with
this opinion, without commenting on the ultimate merit of
Delgado’s underlying accusations or his claim of unlawful re-
taliation.
4 No. 16-1313
I. Factual and Procedural Background
The “All-Circuit Review” provision of the Whistleblower
Protection Enhancement Act took effect in December 2012.
See 5 U.S.C. § 7703(b)(1)(B). It expanded judicial review from
the Federal Circuit to “any court of appeals of competent ju-
risdiction” beginning December 2012, subject to a five-year
sunset. The statute instructs us to review the record and to set
aside any Board action, findings, or conclusions found to be
arbitrary, capricious, an abuse of discretion, not in accordance
with law, obtained without proper procedures, or unsup-
ported by substantial evidence. § 7703(c). The Board’s conclu-
sion that Delgado failed to exhaust his remedies before the
OSC was not based on any factual findings made after an ev-
identiary hearing, so whether the issue is treated as jurisdic-
tional or not, we review the conclusion de novo. See Waldau v.
Merit Sys. Prot. Bd., 19 F.3d 1395, 1398 (Fed. Cir. 1994); see also
Aviles v. Merit Sys. Prot. Bd., 799 F.3d 457, 461–62 (5th Cir.
2015).
A. Delgado’s Disclosures of Alleged Wrongdoing
This case is not Delgado’s first experience with whistle-
blowing at ATF. In 2011 the agency settled a previous case
Delgado had brought before the Board concerning events in
Puerto Rico. As part of the settlement, ATF agreed to transfer
him to the Chicago Field Division. Delgado contends that he
has endured a hostile work environment from the start and
learned shortly after arriving that a former co-worker in
Puerto Rico had tipped off a Chicago agent, Chris Labno,
about the reason for his transfer. Delgado says that his fellow
agents’ acrimonious behavior, including one supervisor’s fre-
quent use of the word “rat” while he was in earshot, led him
to complain informally soon after arriving.
No. 16-1313 5
Delgado’s current complaint stems from an incident in
January 2012, about six months after he joined ATF in Chi-
cago. Delgado was conducting surveillance with other agents
while Special Agent Labno, who was undercover, tried to buy
heroin from one Robert Jefferson. Delgado watched as two
other men (not Jefferson) approached Labno in his under-
cover vehicle and robbed him of the purchase money at gun-
point before any heroin was delivered. Delgado reports that
he then saw Labno jump from the car and shoot twice in the
direction of the fleeing thieves, an action he believes was “not
justified and … could have placed responding agents and in-
nocent bystanders at risk of being injured.”
The armed robber was caught, but federal prosecutors
concluded that he had colluded with Jefferson, the original
target of the undercover operation. Both men were charged
with robbing Special Agent Labno of money belonging to the
United States. See 18 U.S.C. § 2114(a). At Jefferson’s trial, pros-
ecutors called as witnesses Delgado, Labno, and two other
agents who had participated in the surveillance. The agents
were not permitted to hear one another’s testimony, but dur-
ing closing arguments, Delgado learned that Labno’s version
of events differed significantly from that of his colleagues. Jef-
ferson’s defense lawyer outlined the discrepancies and, ac-
cording to Delgado, said “something along the lines of, ‘I am
not saying Labno is lying but … .” Delgado also reports that
a court security officer approached him during a break from
closing arguments and criticized the agents for being unable
to “get your stories straight.”
Although Delgado never obtained a transcript of Labno’s
testimony, he learned more about its substance when he
found online the district court’s decision denying a motion for
6 No. 16-1313
acquittal that Jefferson had filed. Jefferson’s motion had ar-
gued that the “degree to which the testimony of the govern-
ment’s own witnesses completely contradicted Agent Labno
… renders this portion of [his] testimony so unreliable that no
reasonable jury could have relied upon it.” See United States
v. Jefferson, No. 12 CR 50, 2014 WL 222726, at *8 (N.D. Ill. Jan.
21, 2014). The district judge agreed that Labno’s testimony
conflicted with that of his colleagues, but she denied the mo-
tion because it was “not for the court to assess the credibility
of witnesses.” Id.
Delgado had written an incident report immediately after
the shooting. Even before Jefferson’s trial, he says, other
agents were critical of his report. Then, shortly after Jeffer-
son’s conviction, someone left at his desk training materials
on report writing, which he interpreted as dissatisfaction with
his report. He also found holes that appeared to have been
made with a knife in a suit he left hanging in his office. Del-
gado further alleges that after the trial, Labno created a
presentation based on the incident to train fellow agents on
the use of weapons. He included a slide labeling the United
States Attorney’s Office for the Northern District of Illinois
“Cowards-R-US” because it did not charge all of the defend-
ants with the charges Labno deemed appropriate.
By Delgado’s account, on more than one occasion he re-
ported all of this to his supervisors but nothing was done. On
one occasion that has been the focus of the administrative pro-
cess, Delgado told two superiors, John Durastanti and Ray-
field Roundtree, of Special Agent Labno’s conflicting sworn
testimony. Delgado says that he made clear to his superiors at
least that he believed Labno might have committed perjury in
his trial testimony. In at least one version submitted to the
No. 16-1313 7
Board itself, Delgado told the Board he believed Labno did
commit perjury.
Two days later, Roundtree called Delgado to his office to
tell him that his own boss, the Special Agent in Charge of the
Chicago Field Division, had been informed about Delgado’s
allegation but declined to pursue the matter because Delgado
“had no proof” and “did not review the transcript of Labno’s
testimony.” Durastanti then told Delgado not to speak to
other agents about his suspicions and asked whether Delgado
understood the significance of what he was saying. Delgado
confirmed that he did. No investigation was begun or other
action taken. Delgado believes that Labno, who had been
“publicly lauded” by the Special Agent in Charge, may have
received improper preferential treatment.
After disclosing his allegations against Labno, Delgado
contends, he was routinely excluded from ongoing investiga-
tions by his group, threatened with a transfer, denied multiple
promotions for which he was highly qualified, demoted from
his position as acting group leader, removed from the Joint
Terrorism Task Force, and involuntarily detailed to another
city for work.
B. Delgado’s Formal Whistleblower Complaint
Delgado then filed a formal complaint with the Office of
Special Counsel invoking the Whistleblower Protection Act to
seek protection from retaliatory treatment. A critical point in
this appeal is that Delgado’s original complaint itself is not in
the record. Delgado used the OSC’s e-Filing System, which in-
structs whistleblowers to type information into a webform.
See OSC e-Filing, File a Complaint, https://osc.gov/pages/file-
8 No. 16-1313
complaint.aspx (last visited Jan. 26, 2018). The instructions ap-
parently did not then inform the person filing a complaint
that he or she would be unable to retrieve a copy of the com-
plaint when it was filed in this manner, nor did they inform
the person that a copy of the complaint would be needed to
pursue further review before the Merit System Protection
Board. (The on-line instructions now advise the complainant
to save a copy of everything sent to the OSC because it may
be needed in the event of an appeal, but even now they do not
say that an appeal will be dismissed unless the complainant
can produce a copy.)
Delgado asserts that he submitted with his formal com-
plaint a document detailing the substance of the allegations
we have recounted above, along with the court order denying
Jefferson’s motion for acquittal. The OSC complaint process
allows for such additional documents and attachments.
The following month the OSC made a preliminary deter-
mination to close Delgado’s case. It sent him a letter acknowl-
edging his allegations of retaliation and briefly recounting the
underlying factual predicate found in his formal complaint:
In your complaint, you state that in January 2012, you
participated in the surveillance of Agent Labno while
he was conducting an undercover deal with a suspect.
During the surveillance an incident ensued and Agent
Labno discharged his weapon. You prepared a report
documenting your surveillance; you later learned that
some agents were critical of you because of the con-
tents of your report. You state that during the criminal
trial of the suspect in July 2013, the defense attorney
contrasted Agent Labno’s testimony with Agent
Marano’s and your testimony. You state Special Agent
No. 16-1313 9
in Charge (SAC), Ford, Assistant Special Agent
(ASAC), Nichols, and another ASAC were also present
during the closing arguments. To your knowledge, nei-
ther ATF-Internal Affairs (IA) nor any other agency
was contacted concerning these discrepancies. You
again reported the discrepancies between your account
and Labno’s to John Durastanti and Mr. Roundtree on
February 4, 2014.
According to the OSC examiner, however, Delgado did
not allege in his complaint “a disclosure protected by the stat-
ute” because, in the examiner’s view, what Delgado had told
his ATF superiors about Special Agent Labno‘s testimony in-
volved merely an “accounting of events [that] may have dif-
fered,” not a “violation of any law, rule, or regulation.” See 5
U.S.C. § 2302(b)(8) (prohibiting federal agencies from engag-
ing in personnel actions on account of “any disclosure of in-
formation by an employee or applicant which the employee
or applicant reasonably believes … evidences any violation of
any law, rule, or regulation”). In other words, the examiner
concluded on the merits that Delgado’s disclosure was not pro-
tected by the statute. She also told Delgado he had “not
demonstrated a causal connection between the disclosures
you identified and the ATF’s decisions” because “there is no
indication that either [disclosure] resulted in any investiga-
tion, or that any official suffered adverse impact because of
the report.”
Delgado responded, challenging the examiner’s interpre-
tation of his complaint and insisting that he “clearly alleged
… that there may have been a violation of law when SA Labno
provided false testimony.” But the same OSC examiner then
sent a second letter conveying the agency’s final decision to
10 No. 16-1313
close his case. The examiner continued to fault Delgado for
not providing sufficient evidence to demonstrate a nexus be-
tween his disclosure and the retaliatory actions he alleged
were taken against him.
C. Delgado’s Appeal to the Board
Delgado appealed that decision to the Merit Systems Pro-
tection Board, which hears many appeals brought by federal
employees. See 5 U.S.C. §§ 1214(a)(3), 1221. With his appeal,
Delgado tendered the two letters he received from the OSC,
plus a thirteen-page, single-spaced declaration, see 28 U.S.C.
§ 1746, detailing his allegations. He also included a copy of
the district court’s order denying Jefferson’s motion for a judg-
ment of acquittal in the criminal case, which sets out in great
detail the conflicts between the testimony of Labno and Del-
gado and the other agents. Delgado maintains that he submit-
ted all of this same information to the OSC, but he apparently
cannot prove that to the satisfaction of the Board without a
copy of his original complaint to the OSC.
The same day that Delgado filed his appeal, an adminis-
trative judge issued an order stating that “the Board might
dismiss the appeal for lack of jurisdiction without addressing
the merits of the case” and directing Delgado to “file a state-
ment, accompanied by evidence” listing information relevant
to his complaint. Yet all of the information demanded by the
administrative judge already was included in Delgado’s dec-
laration. The order further instructed that, if Delgado did not
submit a copy of his original OSC complaint along with that
agency’s rejection letter (the latter having been tendered al-
ready), then his “response must be in the form of an affidavit,
sworn statement, or declaration under penalty of perjury.”
No. 16-1313 11
Demonstrating what seems like considerable patience by
that point, Delgado did not simply remind the administrative
judge that a declaration with the requested information al-
ready was before the Board. Instead, he submitted an addi-
tional ten-page response relating again all of the requested in-
formation (and all of the factual allegations recited earlier in
this opinion). Delgado also asserted that he had submitted the
same information to the OSC. But unlike Delgado’s initial sub-
mission to the Board, his response to the administrative judge
was not sworn. Delgado also did not submit a copy of the
webform complaint he had filed with the OSC, but he did in-
clude the “e-Filing” confirmation.
With this detailed information available, the administra-
tive judge then dismissed Delgado’s appeal for lack of juris-
diction. The judge concluded that Delgado had failed to prove
that he exhausted his remedies with the OSC as required by 5
U.S.C. § 1214(a)(3). The judge conceded that it was “evident
from the record the appellant asked the OSC to review allega-
tions of reprisal.” But, the judge continued, Delgado had not
provided a copy of his OSC complaint—the one submitted by
webform. Consequently, the judge said: “Nothing in the in-
formation provided indicates the appellant gave the OSC a
sufficient basis to pursue an investigation which might lead
to corrective action.” The administrative judge apparently re-
fused to consider the extensive information Delgado had pro-
vided. The judge instead faulted him for not including a copy
of the webform he completed on the OSC’s website. The judge
justified this refusal by telling Delgado that the “sufficiency
of the appellant’s claim to the OSC must be judged by the
statements he made to the OSC, not a later characterization of
his disclosures to the Board.”
12 No. 16-1313
Delgado petitioned for review by the full Board, which de-
nied his petition and affirmed the administrative judge’s ini-
tial decision. Delgado then filed this petition for judicial re-
view.
II. Analysis
Delgado’s petition for review requires us to address three
distinct aspects of the finding that he did not properly exhaust
remedies before the Office of Special Counsel. The first is
whether the Board properly found that Delgado’s failure to
submit a copy of his original complaint to the OSC was fatal
to his appeal to the Board. We conclude that the Board’s find-
ing was arbitrary and capricious. The second is whether Del-
gado’s complaint to the OSC sufficiently claimed he made a
disclosure protected under 5 U.S.C. § 2302(b)(8). We conclude
that it did. The third is whether Delgado’s complaint to the
OSC sufficiently claimed that he had been the victim of un-
lawful retaliation for his protected disclosure. We find that he
did, at least sufficiently to warrant investigation.
A. The Exhaustion Requirement—Complaint Needed?
The Whistleblower Protection Act instructs a whistle-
blower to “seek corrective action from the Special Counsel be-
fore seeking corrective action from the Board.” 5 U.S.C.
§ 1214(a)(3). The Act itself and Board regulations do not pro-
vide any substantive explication. But the Board, applying its
understanding of Federal Circuit precedents, interprets this
rather unremarkable administrative exhaustion statute in a
manner unlike any we have encountered in other federal stat-
utory schemes.
First, in determining whether a whistleblower has ex-
hausted remedies with the OSC, the Board refuses to consider
No. 16-1313 13
any materials that the complainant cannot prove were submit-
ted to the OSC. This is so, the Board insists, because “the test
of the sufficiency of an employee’s charges of whistleblowing
to the OSC is the statement that the employee makes in the
complaint requesting corrective action … not the employee’s
post hoc characterization of those statements.” See Ellison v.
Merit Sys. Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir. 1993); see also,
e.g., Kukoyi v. Dep’t of Veterans Affairs, 111 M.S.P.R. 404, 409
(MSPB 2009).
That explanation seems reasonable at first. But recall that
the OSC instructs federal employees wishing to file a formal
complaint to type allegations into a webform on the agency’s
website. While saving a copy of the form before submission is
listed as a “best practice” elsewhere on the site (and perhaps
is an obvious step for a lawyer), the agency did not even warn
pro se whistleblowers that failure to do so would risk dismis-
sal of any appeal.
Under the Board’s approach, however, a whistleblower
who failed to anticipate this need (or who overlooked the
lukewarm suggestion added later to the website) would be in
practice unable to appeal an adverse OSC decision. The Board
will refuse to consider the allegations of an appellant who,
like Delgado, attests to the information submitted to the OSC
but lacks a copy of the complaint to corroborate his claim. See,
e.g., Abou-Hussein v. Dep’t of the Navy, No. AT-1221-11-0850-
W-1 (MSPB Aug. 1, 2013) (dismissing for lack of jurisdiction
and declining to consider detailed chronology appellant said
he provided OSC because he lacked “evidence to support his
bare assertion” that OSC received the document); Engler v.
Dep’t of the Navy, 69 M.S.P.R. 109, 113 (MSPB 1995) (declining
14 No. 16-1313
to accept appellant’s affirmation that “Chronology of Events”
attached to appeal was included in OSC complaint).
The Board has issued regulations detailing what must be
included in an appeal to invoke a whistleblower’s right to a
hearing. See 5 C.F.R. §§ 1209.6(a)(1), 1201.24(a)(1)–(9). No-
where do those regulations require a copy of the original com-
plaint submitted to the OSC.
Even if the Board is correct in placing on the appellant the
burden to prove exhaustion, see 5 C.F.R. § 1201.57(c)(1)—ex-
haustion is an affirmative defense in most other contexts, after
all—this approach is not sound. Instructing a whistleblower
to file a complaint via a simple webform and then dismissing
a later appeal because he failed to print and retain a copy sets
an arbitrary trap for unwary federal employees.
And even if we assume the complaint itself is essential, we
cannot understand why the OSC does not or could not simply
forward a copy to the Board from OSC records. We are not
aware of other situations in federal administrative law where
the contents of the record before an agency (here, the OSC)
are determined by what the appealing party submits to the
reviewing body rather than by simply obtaining a copy of the
agency record from the agency itself. (Compare, for example,
the processes for judicial review of decisions by the Commis-
sioner of Social Security or the Board of Immigration Appeals,
where the filing of a petition for judicial review prompts the
agency to forward the agency record to the reviewing court.)
The OSC’s record should be far more reliable than even a
sworn statement from an appealing party about the contents
of that record. No doubt there are other easy solutions to this
apparently fatal defect in appeals to the Board. Without a
clear legal requirement for a copy of the original complaint,
No. 16-1313 15
the Board’s dismissal for failure to include a copy of the orig-
inal complaint was arbitrary, capricious, and an abuse of dis-
cretion. See 5 U.S.C. § 7703(c)(1).
B. Protected Disclosure?
The second issue is whether Delgado claimed sufficiently
to the OSC (and then to the Board) that he made a protected
disclosure under 5 U.S.C. § 2302(b)(8) of information which
Delgado “reasonably believe[d] evidences – any violation of
any law, rule, or regulation … .”
Defending its conclusion that Delgado failed to exhaust
before the OSC, the Board argues:
Contrary to the petitioner’s assertion, he did not al-
lege perjury—which would be a violation of law—to
his supervisors. Perjury is defined as a willful state-
ment under oath that the person giving the testimony
believes to be untrue. See 18 U.S.C. § 1621. Simply
claiming that a difference in testimony exists does not
amount to an accusation of perjury, because it does not
ascribe to the person giving the testimony a willful mo-
tivation to tell a knowingly untrue statement. The pe-
titioner’s claim … left open the possibility that his co-
worker was merely mistaken in his testimony, which
would not have been perjury, or any other violation of
law.
As we read this argument, the Board takes the position that
Delgado failed to make a protected disclosure to his ATF su-
pervisors because he did not allege that Special Agent Labno
had the mens rea necessary for a criminal perjury conviction.
With respect, we must reject that position, which signals
that the Board was applying the wrong standard to Delgado’s
16 No. 16-1313
appeal. See Drake v. White, 543 F.3d 1377, 1382 (Fed. Cir. 2008);
Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999); Mithen
v. Dep’t of Veterans Affairs, 122 M.S.P.R. 489, 500 (MSPB 2015)
(plaintiff’s disclosure was protected where he disclosed per-
ceived abuse of authority; he reasonably believed federal
power was improperly delegated to non-federal employee);
Linder v. Dep’t of Justice, 122 M.S.P.R. 14, 22 (MSPB 2014) (to be
protected, disclosure must be “specific and detailed,” not a
“vague allegation of wrongdoing,” but plaintiff need not cor-
rectly label the legal category of wrongdoing or be ready to
prove action was taken with unlawful intent); Benton-Flores v.
Dep’t of Defense, 121 M.S.P.R. 428, 433–34 & n.3 (MSPB 2014)
(disclosure was protected where plaintiff reasonably believed
information showed risks to safety and security and viola-
tions of unspecified laws, rules, or regulations); Shannon v.
Dep’t of Veterans Affairs, 121 M.S.P.R. 221, 232 (MSPB 2014) (re-
versing dismissal of complaint: “the test for protected status
is not the truth of the matter disclosed but whether it was rea-
sonably believed”), citing S. Rep. No. 112–155, at 8, reprinted
in 2012 U.S.C.C.A.N. 589, 598 (“cornerstone” of § 2302(b)(8) is
that “employee need not ultimately prove any misconduct to
qualify for whistleblower protection. All that is necessary is
for the employee to have a reasonable belief that the infor-
mation disclosed evidences a kind of misconduct listed in sec-
tion 2302(b)(8).”).
To invoke the Whistleblower Protection Act’s protections,
a whistleblower is not required to claim knowledge that each
element of a crime has been committed. The Act forbids retal-
iation based on any disclosure that an employee “reasonably
believes evidences” a violation of law. 5 U.S.C. § 2302(b)(8). Del-
gado alleged he was retaliated against after disclosing what
No. 16-1313 17
he reasonably believed to be evidence of his co-worker’s will-
fully false testimony, regardless of whether he could state con-
fidently that the co-worker in fact acted willfully.
Finally, the Board maintains that its administrative judge
properly refused to consider the lengthy declaration Delgado
tendered with his appeal, even though in it “he did specifi-
cally allege that he disclosed perjury by a co-worker.” The
Board reasoned that the document “contained no indicia of
any kind that it also served as his complaint to OSC.” In other
words, the Board was unwilling to accept Delgado’s sworn as-
sertion that he presented the same substantive allegations to
the OSC, since he cannot prove independently that the docu-
ment contained precisely the same details he submitted to the
OSC. And because on appeal Delgado states candidly that he
made slight corrections and updates to the original document
before submitting it to the Board, the Board insists, “he has
effectively conceded that he failed to meet his burden of proof
regarding exhaustion.”
With respect, we believe this reasoning takes bureaucratic
rigidity to a dysfunctional level. Under 5 U.S.C. § 1214(a)(3),
Delgado had to prove only that he “sought corrective action,”
not that he gave the OSC every scrap of information he pos-
sessed.
Delgado does not claim that he told his ATF supervisors
that he had definitive proof that Labno committed perjury in
the criminal trial. After all, there are many possible explana-
tions for discrepancies between the testimony of different wit-
nesses that do not involve criminal intent to lie. Honest differ-
ences in perception, memory, and viewpoint often produce
differences in testimony, even as between law enforcement of-
ficers trained to observe and to testify accurately.
18 No. 16-1313
Nevertheless, Delgado’s submission to the Board makes
clear that he informed his ATF supervisors that Labno might
well have committed perjury and that an investigation was
called for. That is sufficient for the disclosure to be protected
under 5 U.S.C. § 2302(b)(8). See, e.g., Drake v. Agency for Int’l
Development, 543 F.3d 1377, 1382 (Fed. Cir. 2008) (plaintiff re-
ported activities that could lead observer to conclude that
agency employees were intoxicated on duty; ALJ erred by re-
quiring plaintiff to prove that other employees were actually
intoxicated in violation of law).
C. Applying Exhaustion Requirement to Each Fact?
Delgado’s appeal also failed before the Board for a third
reason, which was also based on an arbitrary requirement im-
posed by the Board’s treatment of the exhaustion require-
ment. The Board relied on a series of Federal Circuit decisions
interpreting the Whistleblower Protection Act’s command to
“seek corrective action from the Special Counsel” to mean
that “the employee must inform the Special Counsel of the
precise ground of his charge.” E.g., Ward v. Merit Sys. Prot. Bd.,
981 F.2d 521, 526 (Fed. Cir. 1992) (emphasis added); see also
Mintzmyer v. Dep’t of the Interior, 84 F.3d 419, 422 (Fed. Cir.
1996) (affirming Board determination that employee failed to
exhaust four specific claims of agency retaliation that were
not included in charge to OSC); Ellison, 7 F.3d at 1036–37
(agreeing that Board lacked jurisdiction because petitioner
failed to inform OSC that claim of reprisal was based on pro-
tected disclosure to Inspector General; employee told OSC
only of unprotected agency grievance). In Ward itself, the
court affirmed the Board’s refusal to consider additional epi-
sodes of allegedly wasted funds on travel by different person
that were not presented in the OSC complaint: “An allegation
No. 16-1313 19
of a specific alleged travel impropriety—here Dr. Kamely’s
authorization of Dr. DeFrank’s trip to Portugal—was not suf-
ficient notice to the Special Counsel that Dr. Ward also was
challenging other travel related activities of Dr. Kamely.” 981
F.2d at 526.
We have no disagreement with that general point, at least
as stated by our colleagues on the Federal Circuit. But as ap-
plied by the Board in Delgado’s case and others, exhaustion
seems to be determined separately for each fact an employee
alleges rather than for each claim of protected disclosure or
retaliation. See, e.g., Daniels v. Dep’t of Veterans Affairs, 105
M.S.P.R. 248, 253–54 (MSPB 2007) (concluding that Board
lacked jurisdiction to review agency’s proposed removal of
whistleblower because it occurred three weeks after OSC
closed her complaint and thus was not specifically presented,
even though removal was consistent with complaint, which
alleged campaign of retaliation including threat of “removal
of all duties”); Reeves v. Dep’t of the Army, 101 M.S.P.R. 337,
341–42 (MSPB 2005) (dismissing for failure to exhaust sol-
dier’s claim that disclosure of gross waste of training funds
resulted in poor performance evaluation because he neglected
to tell OSC “the precise actions he reported” and how he “rea-
soned that the managers’ actions constituted gross waste”).
As the Board applies this framework, a whistleblower effec-
tively forfeits reliance on any factual detail not presented first
to the OSC, and if the facts the employee presents do not es-
tablish a conclusive case, there is no need for the OSC to in-
vestigate. As the Board explained in Delgado’s case, it agreed
with the administrative judge that “nothing [Delgado] had
provided indicated that he gave OSC a sufficient basis to pur-
sue an investigation that might lead to corrective action.”
20 No. 16-1313
The source of this unusually stringent approach is not
clear to us. The exhaustion language in the statute is simple
and brief. The employee must “seek corrective action from the
Special Counsel before seeking corrective action from the
Board.” See 5 U.S.C. § 1214(a)(3). We do not see why this di-
rective should be read to require a federal employee (who typ-
ically is not trained in the law) to present to the OSC a per-
fectly packaged case ready for litigation. The directive surely
cannot mean that an agency whose mission is to investigate
must be given upfront all the information necessary to prove
a complaint.
Another recent case, Clarke v. Department of Veterans Affairs,
illustrates this problem in practice. 121 M.S.P.R. 154, 160–68
(MSPB 2014). Clarke, a physician, filed an OSC complaint con-
taining eight specific disclosures of wrongdoing at the Veter-
ans Administration. The OSC responded with an email seek-
ing “more detailed information” within 10 days. (What ex-
actly the agency wanted is unclear.) Dr. Clarke responded
with a detailed narrative, but it covered only two of the eight
disclosures due to “the time constraints imposed by OSC.”
OSC then declined to investigate—at all.
Dr. Clarke appealed, and the Board affirmed dismissal.
The Board decided that Dr. Clarke had failed to exhaust the
six disclosures not included in his response to the OSC’s
email—over the dissent of the Vice Chairman, who thought
that Dr. Clarke’s initial complaint contained plenty of detail,
regardless of whether the agency had later requested even
more information. Id. at 165–68. Remarkably, however, the
majority grounded its finding of failure to exhaust on the
OSC’s “determination that it might need further information
in order to pursue an investigation,” a conclusion that the
No. 16-1313 21
Board thought should be entitled to deference under Chevron
U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837 (1984). Clarke, 121 M.S.P.R. at 160 n.8.
This novel determination prompted the OSC to file its own
brief as amicus curiae asking the Federal Circuit to overturn
the Board’s conclusion that Dr. Clarke had failed to exhaust.
The OSC contended that the Board had disregarded the un-
ambiguous statutory language of the exhaustion requirement
without understanding “all of the relevant factors that OSC
considers in marshaling its limited resources” when deciding
whether to investigate a particular complaint among the
thousands it receives annually. Brief for U.S. Office of Special
Counsel as Amicus Curiae Supporting Petitioner, Clarke v.
Dep’t of Veterans Affairs, 623 F. App’x 1016 (Fed. Cir. 2015).
The OSC also argued that the Board’s reliance on its deci-
sion not to investigate was untenable for two reasons. First,
the Whistleblower Protection Act itself forbids the Board from
considering such determinations. See 5 U.S.C. §§ 1221(f),
1214(b)(2)(E). Second, Congress specified during passage of
the Act “that whistleblowers who seek the OSC’s help not be
penalized by any OSC decision not to pursue their cases.” See
S. Rep. No. 100-413, at 10 (1988). Notwithstanding the
agency’s opposition, the Federal Circuit summarily affirmed
the Board’s decision that Dr. Clarke had failed to exhaust his
remedies before the OSC, but it did so in a non-precedential
order. Clarke v. Dep’t of Veterans Affairs, 623 F. App’x 1016 (Fed.
Cir. 2015).
As Clarke illustrates, the Board’s stringent application of
the Whistleblower Protection Act’s exhaustion requirement
22 No. 16-1313
can effectively prevent all but the savviest federal whistle-
blowers from receiving a hearing on the merits.1 We think
Congress intended the exhaustion requirement simply to give
the OSC and the employing agency a chance to resolve issues
without litigation.
The correct approach, we conclude, is to interpret the Act’s
requirement more consistently with other statutory exhaus-
tion schemes. The Federal Tort Claims Act, for example, bars
suit against the United States for money damages “unless the
claimant shall have first presented the claim to the appropri-
ate Federal Agency and his claim shall have been finally de-
nied by the agency.” 28 U.S.C. § 2675(a); see 28 C.F.R. § 14.2(a)
(confirming that “claim shall be deemed … presented when a
Federal agency receives from a claimant” notice of the inci-
dent and a sum certain for damages on Standard Form 95).
To satisfy that important requirement, a claimant is not re-
quired to submit evidence or to include every detail that
1This view is supported by a recent report from the Government Ac-
countability Office on the implementation of the Whistleblower Protection
Enhancement Act of 2012—a comprehensive amendment to the Act in-
tended to “clarify the breadth of disclosures that are afforded protection,
expand the right to bring reprisal claims for certain protected activities,
and enhance the remedies available to federal whistleblowers.” U.S. Gov’t
Accountability Office, Whistleblower Protection: Additional Actions
Would Improve Recording and Reporting of Appeals Data (2016), at 1–2,
available at http://www.gao.gov/assets/690/681269.pdf. The GAO found
that, despite the WPEA’s enhanced protections, the Board adjudicated on
the merits only 15% of whistleblower appeals during the three years after
passage of the expansion. Id. at 12–13. To be fair, roughly one third of ap-
peals were either withdrawn or settled. But the data show that the Board
consistently dismissed more than half of all contested appeals without a
hearing. Id.
No. 16-1313 23
might be necessary to prove at trial. Instead, courts construe
pro se administrative complaints generously and deem ex-
hausted any claim fairly implicit in the facts that would be
clear to a legally sophisticated reader. Buechel v. United States,
746 F.3d 753, 760 (7th Cir. 2014); accord, e.g., Lopez v. United
States, 823 F.3d 970, 975–76 (10th Cir. 2016); Goodman v. United
States, 298 F.3d 1048, 1055–57 (9th Cir. 2002) (describing FTCA
notice requirement as “minimal” and confirming that a “skel-
etal” description of the alleged harm will suffice). “All that is
required is sufficient notice to enable the agency to investi-
gate,” Palay v. United States, 349 F.3d 418, 426 (7th Cir. 2003)
(internal quotation marks omitted). A plaintiff is not prohib-
ited from later buttressing the exhausted claim with addi-
tional details or evidence. After the claimant provides enough
information to put a legally sophisticated reader on notice, it
is up to the agency “to fill in the gaps, to the extent possible.”
Buechel, 746 F.3d at 761.
Perhaps even closer to the whistleblower issue is the
standard used to determine whether a particular claim as-
serted in court under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., has been exhausted before the Equal
Employment Opportunity Commission. Like the Whistle-
blower Protection Act’s exhaustion scheme, Title VII requires
a plaintiff to exhaust a discrimination claim through an
agency that is charged with investigating but that will not be
a defendant in a later civil suit on the merits of the claim.
The Supreme Court held long ago that although Title VII
requires the filing of a timely charge with the EEOC before
filing suit, exhaustion is not a jurisdictional requirement and
may thus be waived or subject to estoppel and equitable toll-
ing. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392–98
24 No. 16-1313
(1982). The Court also has instructed that “technicalities are
particularly inappropriate in a statutory scheme in which lay-
men, unassisted by trained lawyers initiate the process.” Lego
v. Twomey, 404 U.S. 522, 527 (1972).2
With these principles in mind we have held that, because
most complaints “are completed by laypersons rather than by
lawyers, a Title VII plaintiff need not allege in an EEOC
charge each and every fact that combines to form the basis of
each claim in her complaint.” Cheek v. Western & Southern Life
Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). We regard “a theory
raised in court to fall within the scope of an administrative
complaint if it is reasonably related to the charges actually set
forth in the administrative filing.” Dear v. Shinseki, 578 F.3d
605, 609 (7th Cir. 2009); accord, e.g., Sydnor v. Fairfax County,
681 F.3d 591, 595–96 (4th Cir. 2012); Williams v. New York City
Housing Auth., 458 F.3d 67, 70–71 (2d Cir. 2006). Even a charge
that is not explicit in an employee’s complaint will be deemed
exhausted if “the current claim reasonably could have devel-
oped from the EEOC’s investigation of the charges before it,”
2The Federal Circuit and the Board treat the exhaustion requirement
in 5 U.S.C. § 1214(a)(3) as jurisdictional. E.g., McCarthy v. Merits Systems
Protection Bd., 809 F.3d 1365, 1374–75 (Fed. Cir. 2016); Miller v. FDIC, 122
M.S.P.R. 3, 9 (MSPB 2014). We see nothing in the statutory language
(“shall seek corrective action from the Special Counsel before seeking cor-
rective action from the Board”) mandating that conclusion, particularly in
light of the Supreme Court’s recent jurisprudence requiring clear signals
that a rule is truly jurisdictional rather than a “case-processing rule” that
need not be enforced as jurisdictional. See, e.g., Reed Elsevier, Inc. v. Much-
nick, 559 U.S. 154 (2010); Arbaugh v. Y & H Corp., 546 U.S. 500 (2006). Cf.
Acha v. Dep’t of Agriculture, 841 F.3d 878, 883 n.3 (10th Cir. 2016) (explain-
ing court’s view that § 1214(a)(3) remains jurisdictional). Neither party has
briefed the question, however, and we need not decide it because we con-
clude Delgado exhausted his claim before the OSC.
No. 16-1313 25
meaning that “the EEOC charge and the complaint must de-
scribe the same conduct and implicate the same individuals.”
Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005). Federal em-
ployees alleging discrimination are subject to additional pre-
conditions within the employing agency, see 42 U.S.C.
§ 2000e-16(c), but since the scope of the exhaustion require-
ment is the same, federal employees’ complaints receive the
same generous construction. Reynolds v. Tangherlini, 737 F.3d
1093, 1099–1100 (7th Cir. 2013). We see no statutory or other
reason it should be substantially more difficult for a federal
employee to exhaust a claim of retaliation under the Whistle-
blower Protection Act than a charge of discrimination under
Title VII.
The OSC examiner also faulted Delgado for not providing
evidence showing “a causal connection between the disclo-
sures you identified and the ATF’s decisions” because “there
is no indication that either [disclosure] resulted in any inves-
tigation, or that any official suffered adverse impact because
of the report.” This conclusion seems to have been worded as
if Delgado were required to allege that Labno suffered ad-
verse impact. That could not be correct. The issue is retaliation
against the alleged whistleblower, not against the target of his
disclosures. “Congress passed the whistleblower statute pre-
cisely because it did not trust agencies to regulate whistle-
blowers within their ranks.” Dep’t of Homeland Security v. Mac-
Lean, 135 S. Ct. 913, 920 (2015).
The pertinent inquiry is of course whether Delgado him-
self suffered adverse action as a result of his disclosures of
Labno’s possible perjury and reckless firing of his weapon.
Delgado’s complaint specifies adverse actions he suffered be-
cause of his disclosures, including denied promotions, a
26 No. 16-1313
threat of an unwelcome transfer, and a hostile work environ-
ment. Neither OSC nor the Board has identified any particular
problem with Delgado’s allegations on this score. He pro-
vided enough specifics for the OSC to investigate if it had cho-
sen to do so, including identifying specific adverse actions
and specific responsible supervisors. Delgado’s complaint
does not prove that the relevant decisions were motivated by
a desire to retaliate against him for his disclosures, but he
needed only to provide a sufficient basis for investigation. He
did so.
It is undisputed that Delgado gave the OSC a copy of the
district court’s order denying Jefferson’s motion for a judg-
ment of acquittal. When the OSC’s initial letter is read in con-
junction with the court’s order, it is clear that the OSC under-
stood that Delgado claimed he suffered retaliation after tell-
ing superiors he suspected that Special Agent Labno had lied
at Jefferson’s trial. Indeed, the OSC’s letter by itself includes
enough information to know Delgado had tried to “seek cor-
rective action” from OSC, as required by the statute. Delgado
even responded to that first letter, challenging the OSC exam-
iner’s understanding of his complaint and insisting that he
“clearly alleged  that there may have been a violation of law
when SA Labno provided false testimony.” Everything else
submitted by Delgado in this case—his declaration to the
Board, his response to the administrative judge’s demand for
information to establish the Board’s jurisdiction, and even his
brief in this court—is consistent with the OSC’s stated under-
standing of Delgado’s complaint.
We hold that Delgado satisfied the Whistleblower Protec-
tion Act’s exhaustion requirement by presenting the OSC with
sufficient information to permit a legally sophisticated reader
No. 16-1313 27
to understand his charge of retaliation and to investigate it
further. The absence of a copy of his initial complaint should
not prove fatal before the Board, at least if other sufficiently
reliable evidence demonstrates exhaustion, such as the OSC’s
response letters, an affidavit or declaration attesting to the
complaint’s substance, or a copy of Delgado’s complaint itself
from the OSC’s own files.
The petition for review is GRANTED, and the case is
REMANDED to the Board for further proceedings consistent
with this opinion.