Adam Delgado v. U.S. Department of Justice

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).