A federal law enforcement agent who filed a whistleblower complaint claiming he was retaliated against after he alleged another agent committed perjury during a criminal trial won his appeal, and the 7th Circuit Court of Appeals harshly criticized a judge it said ignored its orders in a prior remand.
Adam Delgado, a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives, had sought relief since 2014 under the federal Whistleblower Protection Act. He claimed that after he reported his suspicions that another agent committed perjury related to a shooting, he was denied promotions to which he was entitled. In at least one instance, Delgado was the only candidate deemed best qualified.
Delgado first wound up at the 7th Circuit after the Merit Systems Protection Board within the U.S. Department of Justice dismissed his administrative appeal. Two years ago, the 7th Circuit held that the board had acted arbitrarily and capriciously in dismissing Delgado’s appeal. Finding he had properly alleged a “protected disclosure” and exhausted his administrative remedies, the 7th Circuit remanded for the board to evaluate his claim on the merits.
Because the board lacked a quorum, it acted through an administrative judge on remand and again denied Delgado relief, leading to the instant appeal.
“Again, we must find the Board has acted arbitrarily, capriciously, 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 disclosure that was in fact protected under the Act. He also proved retaliation for his protected disclosure, which affected decisions to deny him several promotions,” Judge David Hamilton wrote in an opinion joined by Judge Ilana Rovner. The case was decided by quorum as the third panelist was then-Circuit Judge Amy Coney Barrett, who since has been appointed to the U.S. Supreme Court.
“We remand once more, but only on the extent of relief for Delgado,” Hamilton wrote. “… Delgado is entitled at least to pay and benefits as if he had been promoted … effective March 4, 2014. Possible further relief will need to be considered on remand.”
The alleged perjury involved testimony from Delgado’s colleague Chris Labno regarding a controlled buy in Chicago that resulted in a shooting that later was deemed justified. Delgado’s perjury claim regarding this incident, the panel noted, evidenced “widespread resentment” toward him from agents in the Chicago field office.
Nevertheless, “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,” Hamilton wrote.
“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,” Hamilton wrote. “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 and other agents’ were more likely the result of honest differences in memory and perspective. … (We say oddly mistaken because the AJ said four times in her opinion that the events occurred at night, a fact she used to discount 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 example of administrative obduracy.”
The panel then concluded its opinion with a remarkable rebuke of the administrative judge: “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. … 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).”