Adam Delgado v. U.S. Department of Justice ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2239
ADAM DELGADO,
Petitioner,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Respondent.
____________________
Petition for Review from the Merit Systems Protection Board in
Docket No. CH-1221-14-0737-M-1
Docket No. CH-1221-18-0149-W-2
____________________
ARGUED APRIL 7, 2020 — DECIDED JULY 16, 2020
AMENDED ON PETITION FOR REHEARING, OCTOBER 29, 2020
____________________
Before ROVNER and HAMILTON, Circuit Judges.*
* Then-Circuit Judge Barrett was a member of the original panel but did
not participate in consideration of the petition for rehearing, which is be-
ing decided by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 19-2239
HAMILTON, Circuit Judge. Petitioner Adam Delgado is a
special agent with the Bureau of Alcohol, Tobacco, Firearms,
and Explosives. Since 2014, he has sought relief under the fed-
eral Whistleblower Protection Act for retaliation he believes
he suffered after reporting his suspicions that another ATF
agent may have committed perjury during a federal criminal
trial. See 5 U.S.C. §§ 1214(a)(1)(A), 2302(b)(8).
This is Delgado’s second trip to this court. Two years ago,
we held that the Merit Systems Protection Board had acted
arbitrarily and capriciously in dismissing his administrative
appeal under the Act. Delgado v. Merit Systems Protection Bd.,
880 F.3d 913 (7th Cir. 2018) (“Delgado I”). We held that Del-
gado had properly alleged “a protected disclosure” and had
exhausted his administrative remedies so that the Board had
jurisdiction to evaluate the merits of his claim. See id. at 916,
920. We remanded the case to the Board for further proceed-
ings consistent with our opinion.
On remand, the Board denied relief. (The Board acted only
through an Administrative Judge; since early 2017 the Board
itself has lacked a quorum.) Delgado again seeks judicial re-
view. Again, we must find the Board has acted arbitrarily, ca-
priciously, and contrary to law. The Administrative Judge (or
AJ) paid only lip-service to our decision, ignoring critical
holdings and reasoning. Delgado proved that he made a dis-
closure that was in fact protected under the Act. He also
proved retaliation for his protected disclosure, which affected
decisions to deny him several promotions. “After concluding
that an administrative decision is flawed, a court of appeals
normally must remand to the agency.” Baez-Sanchez v. Barr,
947 F.3d 1033, 1036 (7th Cir. 2020), citing Negusie v. Holder, 555
U.S. 511 (2009), Gonzales v. Thomas, 547 U.S. 183 (2006), and
No. 19-2239 3
INS v. Orlando Ventura, 537 U.S. 12 (2002). As in Baez-Sanchez,
however, “we have already remanded, only to be met by ob-
duracy.” Id.
We remand once more, but only on the extent of relief for
Delgado. The government had the opportunity to offer evi-
dence to support its affirmative defense, that it would have
made the same decisions anyway. The government’s showing
on its defense fails as a matter of law, at least as to one March
2014 promotion denial and another in 2016 where Delgado
was the only candidate on the “best qualified” list. Delgado is
entitled at least to pay and benefits as if he had been promoted
to GS-14 effective March 4, 2014. Possible further relief will
need to be considered on remand.
I. The Whistleblower Protection Act
We first provide an overview of the Whistleblower Protec-
tion Act and how it frames the issues on this petition for judi-
cial review. Covering most federal civil servants, the Act of-
fers relief for employees who have suffered adverse personnel
actions as a result of making protected disclosures of wrong-
doing within their agencies. See 5 U.S.C. § 2302(a)(2)(B) and
(b)(8). The disclosure at issue in this appeal falls under
§ 2302(b)(8)(A)(i), which protects “any disclosure of infor-
mation by an employee or applicant which the employee or
applicant reasonably believes evidences any violation of any
law, rule, or regulation … .”
The Act establishes a procedural obstacle course for em-
ployees who invoke its protections. A covered employee who
believes he has suffered a prohibited personnel practice under
the Act must first “seek corrective action from the Special
4 No. 19-2239
Counsel before seeking corrective action from the [Merit Sys-
tems Protection] Board.” § 1214(a)(3). The Special Counsel
must investigate any allegation received “to the extent neces-
sary to determine whether there are reasonable grounds to
believe that a prohibited personnel practice has occurred, ex-
ists, or is to be taken.” § 1214(a)(1)(A). If the Special Counsel
“determines that there are reasonable grounds to believe that
a prohibited personnel practice has occurred, exists, or is to
be taken which requires corrective action, the Special Counsel
shall report the determination together with any findings or
recommendations to the [Merit Systems Protection] Board,
the agency involved and to the Office of Personnel Manage-
ment, and may report such determination, findings and rec-
ommendations to the President.” § 1214(b)(2)(B).
After the Office of Special Counsel has finished with the
case, an employee may seek corrective action from the Merit
Systems Protection Board. § 1221(a). The Board must order
appropriate corrective action if the employee demonstrates
that a protected disclosure “was a contributing factor in the
personnel action which was taken or is to be taken against
such employee … .” § 1221(e)(1). The employee may do so by
means of “circumstantial evidence, such as evidence that—
(A) the official taking the personnel action knew of the disclo-
sure or protected activity; and (B) the personnel action oc-
curred within a period of time such that a reasonable person
could conclude that the disclosure or protected activity was a
contributing factor in the personnel action.” Id. (This
“knowledge/timing test” plays a key role in this case. See, e.g.,
Powers v. Dep’t of the Navy, 97 M.S.P.R. 554, 561 (2004); Grubb
v. Dep’t of the Interior, 96 M.S.P.R. 377, 395 (2004); Redschlag v.
Dep’t of the Army, 89 M.S.P.R. 589, 634–35 (2001).) If the em-
ployee shows that a protected disclosure was a contributing
No. 19-2239 5
factor in the personnel action, the agency may still avoid relief
to the whistleblower by “demonstrat[ing] by clear and con-
vincing evidence that it would have taken the same personnel
action in the absence of such disclosure.” 5 U.S.C.
§ 1221(e)(2).1
These statutes frame four key issues here. First, did Del-
gado properly exhaust remedies available with the Office of
Special Counsel? We held in Delgado I that he did. 880 F.3d at
920–21. The Administrative Judge was not happy with that
holding, but because she did not base her new decisions on
this issue, we say no more about it.
Second, did Delgado make a protected disclosure within
the meaning of the statute? We held in Delgado I that he al-
leged a protected disclosure in 2014, id. at 921–22, and the ev-
idence at the hearing shows that he in fact made a protected
disclosure. We explained that the AJ and Board had applied
the wrong standard in their original decision. Id. Our same
reasoning applies to Delgado’s later disclosures on the same
subject in 2015 and 2016. To our amazement, though, after our
remand the AJ rejected our reasoning and holding and found,
for the second time, that none of Delgado’s disclosures were
protected. Her theory was that Delgado had not reported an
objectively reasonable belief of wrongdoing because his ac-
count did not foreclose the possibility of an innocent explana-
tion for the differences in testimony, and the circumstances
were such that his colleague Chris Labno had probably been
1 The procedural obstacle course also includes a number of deadly pitfalls,
at least as the statutes are interpreted and applied by the administering
agencies. See generally Delgado I, 880 F.3d at 920–21, 923–27 (describing
procedural rules and precedents used to reject Delgado’s original com-
plaint and appeal).
6 No. 19-2239
telling the truth. That was arbitrary, capricious, and contrary
to law.
Third, did Delgado demonstrate that his disclosure was a
contributing factor in his failure to be promoted on numerous
occasions? The AJ found on remand that he did, at least for
two promotions denied in 2014. And fourth, has the agency
shown by clear and convincing evidence that it would not
have promoted Delgado regardless of these disclosures? The
AJ took evidence on this question but did not answer it. We
find that the agency had the opportunity to make its case and
failed to do so; there is no need for a further hearing on it.
II. Delgado’s Protected Disclosures
The first contested issue is whether Delgado made a pro-
tected disclosure. We held in Delgado I that he had properly
alleged a protected disclosure in his filings with the Office of
Special Counsel and before the Board. Delgado alleged that
he met with two supervisors on February 4, 2014 and reported
to them his belief that a fellow agent (Labno) had committed
perjury in a federal criminal trial where Delgado, Labno, and
other agents had testified. The testimony concerned an at-
tempted undercover drug buy in which Labno was robbed by
the suspected drug dealers. Labno fired shots at the fleeing
robbers, and whether his shots were justified was disputed in
the trial of one suspected (then convicted) dealer. The Admin-
istrative Judge and Board had held that Delgado had not al-
leged a protected disclosure because he had not told his su-
pervisors that he definitely believed Labno had acted with the
mens rea necessary for perjury, and his disclosure left open
the possibility that Labno had been honestly mistaken on
some key details in his testimony relevant to whether the
shooting was justified. 880 F.3d at 921.
No. 19-2239 7
As we explained in Delgado I, the relevant language of the
Act does not require a disclosure to assert a violation of law
as definitively as the Board had required of Delgado. The Act
protects a disclosure that the employee “reasonably believes
evidences” a violation of the law. 5 U.S.C. § 2302(b)(8). Our
decision squarely rejected the Board’s rationale for finding
that Delgado’s disclosure was not protected. Under para-
graph (b)(8), a whistleblower need not assert that he has de-
finitive proof of a violation of law, such that he is confident
that all innocent explanations can be refuted. 880 F.3d at 922.
Under the federal Act, whistleblowers are protected even
if their disclosures fall short of a complete investigative report
that leaves no room for disagreement or rebuttal. They are
protected even if a more complete investigation or hearing ul-
timately shows that their suspicions were not correct. The Act
leaves federal managers and supervisors with the power and
responsibility to choose whether to investigate and ultimately
to decide whether reported suspicions were correct. What the
Act prohibits is retaliation—punishment—for employees
who speak up about their reasonable suspicions of wrongdo-
ing.
After all, managers in federal agencies are supposed to re-
act to and investigate relevant information about their agen-
cies even if—especially if—important facts are not yet known.
The Office of Special Counsel itself is supposed to be in the
business of conducting investigations. It should not merely
wait for intrepid employees to conduct their own investiga-
tions, to prepare complete and definitive investigative re-
ports, delivered to the Office tied up in ribbons. In Delgado I,
we concluded: “Delgado’s submission to the Board makes
clear that he informed his ATF supervisors that Labno might
8 No. 19-2239
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).” 880 F.3d at 922–23; accord, e.g.,
Drake v. Agency for International Development, 543 F.3d 1377,
1382 (Fed. Cir. 2008) (reversing Board’s finding that em-
ployee’s disclosure was not protected because it did not de-
finitively show violation of law).
In holding that, contrary to the Board’s view, Delgado had
sufficiently alleged a protected disclosure in his administra-
tive filings, we did not and could not find that he had proven
it. That was a question for the evidentiary hearing after our
remand. One can imagine, after all, that the ATF supervisors
might have testified credibly that Delgado made no such dis-
closure. That is not what happened. Delgado’s supervisors
agreed in substance with his account of his disclosure. They
took his report seriously enough that they relayed it to the
ATF’s Special Agent in Charge in Chicago and to the United
States Attorney’s Office. There was no factual dispute material
to whether his February 4, 2014 disclosure was protected.
One would think, therefore, that the question of protected
disclosure would not have been difficult on remand. To our
amazement, however, the Administrative Judge ignored our
analysis and decision on this issue in Delgado I. She repeated
at considerable length her earlier analysis, which the Board
had adopted and which we had reversed, asserting that the
disclosure was not protected because Delgado had not
claimed definitively that Labno had committed perjury. She
also conducted a detailed (but oddly mistaken) evaluation of
the details of the unsuccessful controlled buy in Chicago and
the shooting to decide whether Labno had actually committed
perjury or whether the discrepancies between his testimony
No. 19-2239 9
and other agents’ were more likely the result of honest differ-
ences in memory and perspective. See Short App. 44–48. (We
say oddly mistaken because the AJ said four times in her opin-
ion that the events occurred at night, a fact she used to dis-
count Delgado’s observations and to add to the risk of honest
mistakes. Everyone else agrees that the events occurred in the
middle of the day.) The Administrative Judge’s treatment of
this issue was an obvious, unexplained, and astonishing ex-
ample of administrative obduracy.
Under the Act itself, and under our decision in Delgado I,
the role of the Administrative Judge was not to decide years
after the event whether she was dealing with perjury or hon-
est mistakes. The possibility of honest mistakes was well
known to everyone involved. They were all experienced law
enforcement officers, and the difference between deliberate
lies and honest mistakes is always an issue when perjury is
possible. That possibility did not bar protection for Delgado’s
report. (And for what it’s worth, Delgado had a clear view of
the relevant events, in broad daylight, and Labno’s version of
events was contradicted by other agents as well as by Del-
gado, and served to justify Labno’s shooting of his firearm in
controversial circumstances. The facts known to Delgado did
not definitively prove perjury, but they provided reasonable
evidence to believe that it occurred and that further investiga-
tion would have been warranted.)
In finding that Delgado’s disclosure was not protected, the
Administrative Judge also relied in part on the fact that there
had been a history of friction between Delgado and Labno,
and she wrote that the Whistleblower Protection Act was not
intended as a vehicle for resolving such conflicts. That portion
10 No. 19-2239
of the AJ’s decision reflected another legal error. The Act pro-
vides specifically: “A disclosure shall not be excluded from
subsection (b)(8) because of the employee’s or applicant’s mo-
tive for making the disclosure.” 5 U.S.C. § 2302(f)(1)(C).
Again, the central issue under the Act is not the motive for a
disclosure or friction between employees, but whether man-
agers retaliated against an employee for making a protected
disclosure.
In Baez-Sanchez v. Barr, we summarized the basic rules
here: Under the rule of law, an agency that is unhappy with a
court’s decision on judicial review may appeal further or per-
haps seek legislation to change the applicable law for future
cases. The agency may not pretend the court did not make its
decision. See 947 F.3d at 1036.
In more doctrinal terms, the agency here disregarded the
law of the case, which “prohibits a lower court from reconsid-
ering on remand an issue expressly or impliedly decided by a
higher court absent certain circumstances.” United States v.
Adams, 746 F.3d 734, 744 (7th Cir. 2014), quoting United States
v. Polland, 56 F.3d 776, 779 (7th Cir. 1995). The law-of-the-case
doctrine applies to judicial review of administrative deci-
sions. Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998), citing
Chicago & Nw. Transp. Co. v. United States, 574 F.2d 926, 929–
30 (7th Cir. 1978), citing in turn Morand Bros. Beverage Co. v.
NLRB, 204 F.2d 529, 532–33 (7th Cir. 1953). The law-of-the-
case doctrine is a corollary of the mandate rule, which “re-
quires a lower court”—here, an administrative tribunal—“to
adhere to the commands of a higher court on remand.” Ad-
ams, 746 F.3d at 744; accord, Baez-Sanchez, 947 F.3d at 1036.
No. 19-2239 11
The law-of-the-case doctrine and mandate rule are not in-
flexible. They may bend in “sufficiently compelling circum-
stances,” such as “subsequent factual discoveries or changes
in the law.” Carmody v. Bd. of Trustees, 893 F.3d 397, 407–08
(7th Cir. 2018), citing EEOC v. Sears, Roebuck & Co., 417 F.3d
789, 796 (7th Cir. 2005). The Administrative Judge did not,
however, rely on any new evidence or intervening changes in
law. Instead, she repeated her earlier and erroneous analysis,
as if we had not ruled. We did not remand so that the AJ could
flout our order. Delgado’s February 4, 2014 disclosure that he
suspected perjury by Labno was a protected disclosure under
§ 2302(b)(8).
We must note here a procedural complication. The AJ ac-
tually decided not one but two cases involving Delgado,
which the parties call the 2014 Case and the 2018 Case. The
2014 Case is the same one that we remanded before, stem-
ming from Delgado’s 2014 complaint to the Office of Special
Counsel. While his first petition for judicial review was pend-
ing, Delgado filed a new complaint with the Office of Special
Counsel that has become the 2018 Case. In the 2018 Case, Del-
gado asserted that he had been retaliated against again when
he was denied promotions he sought in 2016. The AJ issued
separate written decisions on the two cases on successive
days, and Delgado’s current petition for judicial review chal-
lenges both.
The treatment of the protected disclosure issue was not
any better with Delgado’s 2018 Case. The Administrative
Judge’s separate order on the 2018 Case repeated her adher-
ence to the reasoning we had reversed in Delgado I. She held
that Delgado had made no protected disclosure. The AJ re-
12 No. 19-2239
fused to follow the law of the case, making her 2018 Case de-
cision arbitrary, capricious, and contrary to law for the rea-
sons that also apply to the 2014 Case.
There are a couple of additional wrinkles to the 2018 Case.
The Administrative Judge focused on Delgado’s email on No-
vember 13, 2016 to Attorney General Lynch, the Office of In-
spector General, and several members of Congress. Delgado
sent that email after the key alleged acts of retaliation he al-
leged: denial of promotions for which Delgado interviewed in
August and October 2016. The AJ found that the timing pre-
vented this later disclosure from being a protected disclosure
under the statute. Short App. 38.
That reliance on sequence is usually reasonable in evalu-
ating retaliation claims. The problem here is that Administra-
tive Judge erred in thinking that Delgado’s 2018 Case was lim-
ited to the November 13, 2016 email. Throughout 2014, 2015,
and 2016, Delgado had been emailing and speaking with var-
ious ASACs (assistant special agents in charge) and SACs
(special agents in charge) before his November 13, 2016 email.
Those earlier disclosures were protected under the Act just
like his original disclosure on February 4, 2014. The decision-
makers in the 2016 promotion denials knew about the larger
history of Delgado’s earlier disclosures. To the extent the AJ
held otherwise, that holding was also arbitrary and capri-
cious. It failed to come to grips with Delgado’s actual allega-
tions and evidence.2
2 Delgado’s November 2016 email and his administrative complaints also
alleged some additional, more recent incidents of suspected wrongdoing
within the agency. The AJ found that those disclosures were not protected,
and Delgado has not pursued those matters before us.
No. 19-2239 13
III. Causation of Denied Promotions
The most significant issue for remand was causation:
could Delgado show that his protected disclosure was a factor
in any adverse employment decisions, and in particular in
any decisions not to promote him to positions for which he
was qualified? The Administrative Judge did her job properly
on this issue, at least with respect to the 2014 Case, hearing
testimony and making the necessary findings. Those findings
favored Delgado.
After his original disclosure to the ASACs, Delgado
sought promotions from his GS-13 position. He applied for
several GS-14 jobs beginning in March 2014, just a month after
his first protected disclosure. Such a promotion would have
come with a pay increase and placed Delgado in a supervi-
sory capacity over groups of ATF special agents. (The details
vary, of course, based on the specific positions.) From 2014 to
the time of his hearing in 2018, Delgado continued to apply
for dozens of GS-14 positions. He was not selected for any of
them despite, he argues, having all of the required qualifica-
tions.
We focus on two promotions that Delgado did not receive
in early 2014. Before those specifics, though, a word about the
rather formal interview and promotion process at ATF. Inter-
views are conducted by a Merit Promotion Board comprised
of four people, one of whom must be the “receiving manager”
for the position, meaning the supervisor who will manage the
selected applicant. Each candidate is asked a predetermined
set of questions, and each interviewer scores each candidate’s
answers. After all interviews are complete, the panel meets
formally and deliberates on the record. The receiving man-
ager speaks last so as not to bias the others’ views. Despite
14 No. 19-2239
these formal procedures, the panel may discuss each candi-
date immediately following the interview. Those discussions
are off the record, and panel members may change their
scores during this time.
In March 2014 Delgado interviewed but was not selected
for two GS-14 Group Supervisor positions (in the intelligence
group and the joint terrorism task force, respectively) in ATF’s
Chicago Field Division. ASAC Durastanti, to whom Delgado
made his first protected disclosure on February 4, 2014,
served as the receiving manager on the Merit Promotion
Board evaluating Delgado for both positions. Delgado argues
that ASAC Durastanti decided not to promote him to these
positions because of his protected disclosure about Labno.
The Administrative Judge found that Delgado’s non-selec-
tions for both of the GS-14 promotions in early 2014 were
caused by his disclosure:
Applying the knowledge/timing test, ASAC
Durastanti was a member of the selection panel
for both vacancies, and was aware of the alleged
protected disclosure because it was made to
him. The non-selections took place within six
weeks after the appellant made the alleged pro-
tected disclosure, satisfying the requirement
that personnel actions occur “within a period of
time such that a reasonable person could con-
clude that the disclosure was a contributing fac-
tor in the personnel action.”
Short App. 7, citing Carey v. Department of Veterans Affairs, 93
M.S.P.R. 676, ¶ 11 (2003), and Aquino v. Department of Home-
land Security, 121 M.S.P.R. 35, ¶ 19 (2014).
No. 19-2239 15
If the Administrative Judge had ruled correctly that Del-
gado’s disclosure was protected, her ruling on that point cou-
pled with her finding that his disclosure was a contributing
factor in his non-selections would have been enough, as a
matter of law, to find that Delgado had carried his burden
with respect to the March 2014 denials of promotions. All that
should have been left for the AJ to do was to allow the agency
to present its rebuttal case and then render a full decision on
the merits.
While Delgado’s 2014 formal complaint was pending, he
continued to apply for promotions, leading to the 2018 Case.
His more recent claims before the Administrative Judge and
here on judicial review focus primarily on his 2016 applica-
tions to serve as the resident agent-in-charge of the Rockford,
Illinois office, and for another group supervisor position in
the Chicago Field Division. By 2016, the leadership of the Chi-
cago Field Division office had been replaced: the SAC and two
ASACs were all new to the office. Yet all three new managers
were aware of the January 2012 incident and Delgado’s dis-
closures about Labno. In September 2016, the new SAC had
even talked with Delgado’s former supervisor, Nicholas
Starcevic (who by 2016 had transferred to ATF headquarters
in Washington), about the possibility of promoting Delgado.
The new SAC said he could not promote Delgado because
“[i]t would kill the morale of the Division.”
Delgado interviewed for the Rockford position on August
26, 2016 and for the Chicago position on October 24, 2016.
ASAC Lauder was the receiving manager on the first panel,
and ASAC Fragoso was the receiving manager on the other.
Delgado was not chosen for either—even though he was the only
candidate on the Best Qualified List for the Chicago position.
16 No. 19-2239
The agency did not dispute evidence that showed that the
officials on the interview panel for the GS-14 positions in 2016
knew about Delgado’s history of disclosures pertaining to
Labno’s testimony at the dealer’s trial. Those officials, the
SAC and both ASACs, talked with Delgado about those dis-
closures only a few months before making decisions not to
promote him. Contrary to the AJ’s ruling, that’s all that Del-
gado needed to show to satisfy the knowledge/timing test and
to carry his burden of proof as to whether his protected dis-
closures were a contributing factor in the adverse personnel
actions taken against him. The AJ’s decision on this point was
also arbitrary and capricious.
IV. The Agency’s Right of Rebuttal
Cutting through the Administrative Judge’s failures to
comply with our remand order, we find that the combination
of our prior decision, Delgado’s evidence at the hearing, and
the AJ’s findings on causation in the 2014 Case establish to-
gether that Delgado carried his burden of proof for both the
2014 and 2018 Cases. He made protected disclosures, he suf-
fered adverse actions, he exhausted his remedies before the
Office of Special Counsel, and he has shown via the
knowledge/timing test that his protected disclosure was a
contributing factor in his not being promoted to GS-14 in 2014
and again in 2016. Accordingly, he is entitled to corrective ac-
tion unless “the agency demonstrate[d] by clear and convinc-
ing evidence that it would have taken the same personnel ac-
tion in the absence of such disclosure.” 5 U.S.C. § 1221(e)(2).
The Administrative Judge did not make findings on
whether the agency carried its rebuttal burden because she
found, arbitrarily, capriciously, and in defiance of our remand
No. 19-2239 17
order, that Delgado had not even made any protected disclo-
sures. The government argues that if we find that the AJ’s de-
cisions under review cannot be affirmed, we should remand
yet again so that the AJ can make findings on the agency’s re-
buttal case. We are mindful of the agency’s statutory right, but
we find such a remand unnecessary. The agency’s evidence
and arguments have already been heard. Its evidence fell
short of satisfying the defense, both as to the March 2014 pro-
motions and especially as to the 2016 promotion Delgado was
denied despite being the only qualified candidate.
The Administrative Judge held a three-day evidentiary
hearing with numerous witnesses. Neither party argues here
that the record is incomplete. The AJ made clear that she ex-
pected the parties to offer their evidence on all the issues, in-
cluding the agency’s affirmative defense.3 The AJ ended the
evidentiary hearing by ordering the parties to submit their
closing arguments in the form of written briefs, due nearly
three months after the hearing. In its written closing argu-
ment, the agency argued: “The undisputed evidence of record
also shows that the Agency demonstrated by clear and con-
vincing evidence that it would have taken the same personnel
actions—non-selecting Appellant for the three positions—re-
gardless of the Appellant’s protected disclosure.” The
3 For example, at one point in the hearing the agency objected to Delgado’s
testimony regarding his opinion of another applicant for one of the GS-14
positions. The AJ allowed that testimony, saying, “Okay, I’m going to
have to allow this because, you know, if the Appellant meets all of his
burden, as we’ve discussed and is in the pre-hearing conference order,
then the Agency has to show, by clear and convincing evidence, that it
would have taken the same actions anyway. So, I think the Appellant’s
opinion here is relevant to that. So, I’m going to allow some leeway.”
18 No. 19-2239
agency’s brief then marshaled its best arguments in favor of
its rebuttal burden.
In short, the agency’s rebuttal was on the record and was
fully before the Administrative Judge. She did not reach that
issue only because of the errors in her analysis of Delgado’s
prima facie case. On review, however, it is apparent that the
agency’s evidence and rebuttal arguments fall well short of a
“clear and convincing” showing required by statute. The
agency’s closing brief of February 2019 made three primary
arguments. The agency argued that the November 13, 2016
email that Delgado sent to then-Attorney General Lynch and
others could not have influenced his non-selection for the
2016 GS-14 vacancies because members of the interview panel
were unaware of this email. This is a rehash of the
knowledge/timing analysis that we rejected above. The deci-
sion-makers were not aware of that particular email, but they
were certainly aware of Delgado’s history of protected disclo-
sures on exactly the same issue.
The agency then touted the qualifications of the other
agents who were selected for those positions. We might need
to remand for further findings as to some of the promotions if
the case depended on them. We are convinced, however, that
such a remand is not appropriate at this stage of this long-
term litigation siege.
First, we cannot overlook the Board’s inexplicable refusal
to comply with our previous remand order, nor the ATF’s suc-
cessful efforts to persuade the Board to flout the law of this
case on whether Delgado engaged in protected activity.
No. 19-2239 19
Second, our review of the record persuades us that the
agency’s evidence cannot meet the high bar of “clear and con-
vincing evidence” needed to establish the affirmative defense.
See Miller v. Dep’t of Justice, 842 F.3d 1252, 1257–58 (Fed. Cir.
2016) (reversing Board finding that agency had proven this
defense, which was not supported by substantial evidence),
quoting Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed.
Cir. 2012) (vacating Board finding that agency had proven this
defense; Board erroneously excluded or ignored critical evi-
dence). The Federal Circuit, which hears most federal whistle-
blower cases, has explained:
Whether evidence is sufficiently clear and con-
vincing to carry this burden of proof cannot be
evaluated by looking only at the evidence that
supports the conclusion reached. Evidence only
clearly and convincingly supports a conclusion
when it does so in the aggregate considering all
the pertinent evidence in the record, and despite
the evidence that fairly detracts from that con-
clusion.
Whitmore, 680 F.3d at 1368.
Reviewing the record as a whole, we find that one of the
most striking points is Delgado’s status as the only candidate
on the Best Qualified List for the October 2016 promotion.
This fact did not, by itself, entitle Delgado to the promotion,
but there was more. Delgado had previously led the Chicago
group in an acting position. And the receiving manager on the
promotion panel was one of the assistant special agents in
charge in Chicago, who reported to the special agent in
charge. This is relevant because Delgado offered an undis-
puted affidavit from a senior ATF official stating that a month
20 No. 19-2239
or two before the 2016 decision not to promote Delgado, the
special agent in charge of the Chicago office told him, “I can’t
promote this guy. It would kill the morale of the Division.”
Pet’r’s App. 208–09. (By the time of the hearing, the special
agent in charge had retired. He refused to testify voluntarily;
neither side subpoenaed him.)
The Administrative Judge discounted this testimony with-
out a more explicit link between this comment and the actions
of the assistant special agent in charge on the promotion
panel. With respect, since the special agent in charge had such
strong feelings on the subject as to volunteer his views to a
colleague at ATF headquarters, we find it hard to imagine that
the special agent in charge had not made those views about
Delgado known to his assistant special agent in charge.4
The evidence from that 2016 promotion board indicates
that the assistant special agent in charge played a decisive role
in convincing the panel not to promote Delgado. Two of the
other three members of the panel actually scratched out and
lowered their scores for Delgado’s answers after the assistant
special assistant in charge explained his views to them. See
Pet’r’s App. 120–21, 338–43, 373–75. Moreover, the testimony
of the assistant special agent in charge explaining his reasons
for not promoting Delgado was so inconsistent with the rec-
ord that it could support a finding of pretext. Considering the
4 Other portions of the official’s affidavit provided substantial evidence
that hostility to Delgado in the Chicago office was widespread in the wake
of the Labno incident. When the official started in Chicago, “numerous
personnel” advised him to stay away from Delgado, and key supervisors
refused to support Delgado’s investigations. The hostility stemmed from
the Labno shooting incident. Pet’r’s App. 208.
No. 19-2239 21
record as a whole, the ATF’s evidence regarding the 2016 de-
nial could not reasonably be deemed to clear the high bar of
“clear and convincing evidence” needed to establish the af-
firmative defense.
Regarding the March 2014 decisions not to promote Del-
gado, the then-assistant special agent in charge, who had been
angry about Delgado’s protected disclosure regarding Labno,
was on the promotion panel. Evidence from both Delgado
and the panel showed that the assistant special agent in
charge set ground rules for Delgado’s interview that pre-
vented him from answering questions based on his extensive
experience with the United States Air Force. That put Delgado
at a significant disadvantage. Pet’r’s App. 221–22 & 232. One
of the two selected candidates had less, and less relevant, ex-
perience. And the panel members described the other as “a bit
rough around the edges.” Administrative R. 188, ECF No. 51-
4. Overall, the agency’s highly subjective explanations for not
promoting the qualified and more experienced Delgado just
weeks after his whistleblowing also cannot clear the high bar
of “clear and convincing evidence.”
Finally, the sheer number of promotions Delgado was
qualified for but denied in the wake of his protected disclo-
sure weighs against the affirmative defense. Perhaps one or
two might be explained away. But there is ample evidence
here of widespread resentment of Delgado’s protected disclo-
sure and too many denials to accept all of the agency’s expla-
nations as clear and convincing. After his protected disclo-
sure, Delgado’s career was going nowhere. Reviewing the rec-
ord as a whole, we conclude that a remand on the agency’s
affirmative defense would waste both judicial and the parties’
22 No. 19-2239
resources. Moreover, based on the response to our first re-
mand, we must say with regret that we are not confident that
such an order would be faithfully implemented.
Accordingly, we VACATE the decision of the Merit Sys-
tems Protection Board in both cases under review. We
REMAND only for calculation of damages based on salary
and benefits as if Delgado had been promoted, as he should
have been, to GS-14 as of March 4, 2014, and for a decision on
the merits as to whether he is entitled to any additional relief,
including whether he would have received any subsequent
promotion to GS-15. If we were remanding to a U.S. district
court, we would ensure that a different judge would preside.
See Cir. R. 36. Here that choice is left to the Board’s discretion,
but we strongly urge the Board to assign a new administrative
judge to this case. See Georgis v. Ashcroft, 328 F.3d 962, 970 (7th
Cir. 2003). Finally, we invite Mr. Delgado to submit a motion
to this court for attorney’s fees pursuant to 5 U.S.C.
§ 1221(g)(1)(B)(3).