### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-2239

A DAM D ELGADO , Petitioner

,

v.

U NITED S TATES D EPARTMENT OF J USTICE , 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

____________________

A RGUED A PRIL 7, 2020

— D ECIDED J ULY 16, 2020

A MENDED ON P ETITION FOR R EHEARING , O CTOBER 29, 2020

____________________

Before R OVNER and H AMILTON , Circuit Judges

. *

* Then-Circuit Judge Barrett was a member of the original panel but didnot participate in consideration of the petition for rehearing, which is being decided by a quorum of the panel under 28 U.S.C. § 46(d).2 No. 19-2239

H AMILTON , 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 federal Whistleblower Protection Ac t for retaliation he believes he su ff ered after reporting his suspicions that another ATF agent may have commi tt ed 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 Delgado 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 proceedings consistent with our opinion.

On remand, the Board denied re lief. (The Board acted only through an Administrative Jud ge; since early 2017 the Boarditself has lacked a quorum.) Delgado again seeks judicial review. Again, we must fi nd the Board has acted arbitrarily, capriciously, and contrary to law. The Administrative Judge (or AJ) paid only lip-service to our decision, ignoring criticalholdings 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 a ff ected decisions to deny him several promotions. “After concluding that an administrative decision is fl awed, a court of appeals normally must rema nd 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), andNo. 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 obduracy.” Id. We remand once more, but only on the extent of relief for Delgado. The government had the opportunity to o ff er evidence to support its a ffi rmative defense, that it would have made the same decisions anyw ay. The government’s showing on its defense fails as a ma tt er of law, at least as to one March 2014 promotion denial and another in 2016 where Delgado was the only candidate on the “best quali fi ed” list. Delgado is entitled at least to pay and bene fi ts as if he had been promoted to GS-14 e ff ective March 4, 2014. Possible further relief will need to be considered on remand.

I. The Whistleblower Protection Act

We fi rst provide an overview of the Whistleblower Protection Act and how it frames the issues on this petition for judicial review. Covering most federal civil servants, the Act offers relief for employees who have su ff ered adverse personnelactions as a result of making protected disclosures of wrongdoing within their agencies. S ee 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 information by an employee or applicant which the employee or applicant reasonably believes ev idences any violation of any law, rule, or regulation ... .”The Act establishes a procedural obstacle course for employees who invoke its protections. A covered employee who believes he has su ff ered a prohibited personnel practice under the Act must fi rst “seek corrective action from the Special4 No. 19-2239

Counsel before seeking correctiv e action from the [Merit Systems Protection] Board.” § 1214(a)(3). The Special Counselmust investigate any allegation received “to the extent necessary to determine whether there are reasonable grounds tobelieve that a prohibited personnel practice has occurred, exists, 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 fi ndings or recommendations to the [MeritSystems Protection] Board, the agency involved and to the O ffi ce of Personnel Management, and may report such determination, fi ndings and recommendations to the Pr esident.” § 1214(b)(2)(B).

After the O ffi ce of Special Counsel has fi nished 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 o ffi cial taking the personnel action knew of the disclosure or protected activity; and (B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclos ure 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 employee shows that a protected disclosure was a contributingNo. 19-2239 5

factor in the personnel action, the agency may still avoid reliefto the whistleblower by “demonstrat[ing] by clear and convincing 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 Delgado properly exhaust remedies available with the O ffi ce 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 alleged a protected disclosure in 2014, id. at 921–22, and the evidence 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 ou r amazement, though, after our remand the AJ rejected our re asoning and holding and found, for the second time, that none of Delgado’s disclosures were protected. Her theory was thatDelgado had not reported an objectively reasonable belief ofwrongdoing because his account did not foreclose the possibility of an innocent explanation for the di ff erences 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 (describingprocedural rules and precedents used to reject Delgado’s original complaint and appeal).6 No. 19-2239

telling the truth. That was arbit rary, capricious, and contrary to law. Third, did Delgado demonstrat e 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 fi nd that the agency had the oppo rtunity 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 fi rst contested issue is whether Delgado made a protected disclosure. We held in Delgado I that he had properly alleged a protected disclosure in his fi lings with the O ffi ce of Special Counsel and before the Board. Delgado alleged that he met with two supervisors onFebruary 4, 2014 and reported to them his belief that a fe llow agent (Labno) had commi tt ed perjury in a federal criminal tr ial where Delgado, Labno, and other agents had testi fi ed. The testimony concerned an attempted undercover drug buy in which Labno was robbed by the suspected drug dealers. Labno fi red shots at the fl eeing robbers, and whether his shots were justi fi ed was disputed inthe trial of one suspected (then convicted) dealer. The Administrative Judge and Board had he ld that Delgado had not alleged a protected disclosure because he had not told his supervisors that he de fi nitely 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 justi fi ed. 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 de fi nitively 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 fi ndingthat Delgado’s disclosure was not protected. Under paragraph (b)(8), a whistleblower need not assert that he has defi nitive proof of a violation of law, such that he is con fi dent 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 rebu tt al. They areprotected even if a more complete investigation or hearing ultimately 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 reason able suspicions of wrongdoing.After all, managers in federal agencies are supposed to react to and investigate relevant information about their agencies even if—especially if—important facts are not yet known. The O ffi ce of Special Counsel itself is supposed to be in the business of conducting investigations. It should not merelywait for intrepid employees to conduct their own investigations, to prepare complete and de fi nitive investigative reports, delivered to the O ffi ce tied up in ribbons. In Delgado I

, we concluded: “Delgado’s submission to the Board makes clear that he informed his AT F supervisors that Labno might8 No. 19-2239

well have commi tt ed perjury and that an investigation was called for. That is su ffi cient 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 fi nding that employee’s disclosure was not protected because it did not defi nitively show violation of law). In holding that, contrary to the Board’s view, Delgado had

su ffi ciently alleged a protected disclosure in his administrative fi lings, we did not and could not fi nd that he had proven it. That was a question for th e evidentiary hearing after our remand. One can imagine, after all, that the ATF supervisors might have testi fi ed credibly that Delgado made no such disclosure. That is not what happened. Delgado’s supervisors agreed in substance with his a ccount of his disclosure. They took his report seriously enough that they relayed it to the ATF’s Special Agent in Charge inChicago and to the United States A tt orney’s O ffi ce. There was no factual dispute material to whether his February 4, 2014 disclosure was protected.

One would think, therefore, th at the question of protected disclosure would not have been di ffi cult 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 e arlier analysis, which the Board had adopted and which we had reversed, asserting that the disclosure was not protected because Delgado had not claimed de fi nitively that Labno had commi tt ed 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 commi tt ed perjury or whether the discrepancies between his testimonyNo. 19-2239 9

and other agents’ were more lik ely the result of honest di ff erences in memory and perspective. See Short App. 44–48. (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, un explained, and astonishing example of administrative obduracy.

Under the Act itself, and under our decision in Delgado I

, the role of the Administrative Judge was not to decide yearsafter the event whether she was dealing with perjury or honest mistakes. The possibility of honest mistakes was well known to everyone involved. Th ey were all experienced law enforcement o ffi cers, and the di ff erence between deliberate lies and honest mistakes is always an issue when perjury is possible. That possibility did no t 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 ofevents was contradicted by other agents as well as by Delgado, and served to justify Labno’s shooting of his fi rearm in controversial circumstances. Th e facts known to Delgado did not de fi nitively prove perjury, but they provided reasonableevidence to believe that it occurred and that further investigation would have been warranted.)

In fi nding that Delgado’s disclosure was not protected, the Administrative Judge also relied inpart 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 con fl icts. That portion10 No. 19-2239

of the AJ’s decision re fl ected another legal error. The Act provides speci fi cally: “A disclosure shall not be excluded from subsection (b)(8) because of th e employee’s or applicant’s motive for making the disclosur e.” 5 U.S.C. § 2302(f)(1)(C). Again, the central issue under th e Act is not the motive for adisclosure or friction between employees, but whether managers 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 acourt’s decision on judicial review may appeal further or perhaps 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 thelaw of the case, which “prohibits a lower court from reconsidering 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-casedoctrine applies to judicial review of administrative decisions. 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 Ci r. 1953). The law-of-thecase doctrine is a corollary of the mandate rule, which “requires a lower court”—here, an administrative tribunal—“to adhere to the commands of a higher court on remand.” Adams , 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 infl exible. They may bend in “su ffi ciently compelling circumstances,” 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 fl out our order. Delgado’s February 4, 2014 disclosure that he suspected perjury by Labno wa s a protected disclosure under § 2302(b)(8).We must note here a procedural complication. The AJ actually decided not one but two cases involving Delgado, which the parties call the 2014 Case and the 2018 Case. The2014 Case is the same one that we remanded before, stemming from Delgado’s 2014 complaint to the O ffi ce of Special Counsel. While his fi rst petition for judicial review was pending, Delgado fi led a new complaint with the O ffi ce of Special Counsel that has become the 2018 Case. In the 2018 Case, Delgado asserted that he had been retaliated against again when he was denied promotions he sought in 2016. The AJ issued separate wri tt en decisions on the two cases on successivedays, and Delgado’s current petition for judicial review challenges both. The treatment of the protec ted disclosure issue was not any be tt er with Delgado’s 2018 Case. The AdministrativeJudge’s separate order on the 2018 Case repeated her adherence 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 decision arbitrary, capricious, an d contrary to law for the reasons that also apply to the 2014 Case. There are a couple of additional wrinkles to the 2018 Case. The Administrative Judge focuse d on Delgado’s email on November 13, 2016 to A tt orney General Lynch, the O ffi ce of Inspector General, and several members of Congress. Delgado sent that email after the key alle ged acts of retaliation he alleged: denial of promotions fo r which Delgado interviewed in August and October 2016. The AJ found that the timing prevented this later disclosure fr om being a protected disclosure under the statute. Short App. 38.That reliance on sequence is usually reasonable in evaluating retaliation claims. The problem here is that Administrative Judge erred in thinking that Delgado’s 2018 Case was limited to the November 13, 2016 email. Throughout 2014, 2015,and 2016, Delgado had been emailing and speaking with various ASACs (assistant special agents in charge) and SACs (special agents in charge) be fore his November 13, 2016 email. Those earlier disclosures were protected under the Act just like his original disclosure on February 4, 2014. The decisionmakers in the 2016 promotion de nials knew about the larger history of Delgado’s earlier disclosures. To the extent the AJ held otherwise, that holdin g was also arbitrary and capricious. It failed to come to grips with Delgado’s actual allegations 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 signi fi cant 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 quali fi ed? The Administrative Judge did her job properly on this issue, at least with respect to the 2014 Case, hearing testimony and making the necessary fi ndings. Those fi ndings 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 fi rst protected disclosure. Such a promotion would havecome with a pay increase and placed Delgado in a supervisory capacity over groups of ATF special agents. (The details vary, of course, based on the speci fi c 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 quali fi cations. We focus on two promotions that Delgado did not receive in early 2014. Before those speci fi cs, though, a word about therather formal interview and promotion process at ATF. Interviews are conducted by a Merit Promotion Board comprised of four people, one of whom must be the “receiving manager” for the position, meaning the su pervisor 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 meetsformally and deliberates on the record. The receiving manager speaks last so as not to bias the others’ views. Despite14 No. 19-2239

these formal procedures, the panel may discuss each candidate immediately following the interview. Those discussions

are o ff 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 fi rst 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 foun d that Delgado’s non-selections for both of the GS-14 pr omotions 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 sixweeks after the appellant made the alleged protected disclosure, satisfying the requirement that personnel actions occur “within a period oftime such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.” Short App. 7, citing Carey v. Department of Veterans A ff

airs , 93 M.S.P.R. 676, ¶ 11 (2003), and Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 19 (2014).No. 19-2239 15

If the Administrative Judge had ruled correctly that Delgado’s disclosure was protected, her ruling on that point coupled with her fi nding that his disclosure was a contributing factor in his non-selections would have been enough, as a

ma tt er of law, to fi nd 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 rebu tt al 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 andhere on judicial review focus primarily on his 2016 applications to serve as the resident agent-in-charge of the Rockford, Illinois o ffi ce, and for another group supervisor position in the Chicago Field Division. By 2016, the leadership of the Chicago Field Division o ffi ce had been replaced: the SAC and two ASACs were all new to the o ffi ce. Yet all three new managerswere aware of the January 2012 incident and Delgado’s disclosures 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 po sition on October 24, 2016. ASAC Lauder was the receiving manager on the fi rst panel, and ASAC Fragoso was the rece iving manager on the other. Delgado was not chosen for either— even though he was the only candidate on the Best Quali fi ed List for the Chicago position

.16 No. 19-2239

The agency did not dispute evid ence that showed that the

o ffi cials 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 o ffi cials, theSAC and both ASACs, talked with Delgado about those disclosures only a few months before making decisions not topromote him. Contrary to the AJ’s ruling, that’s all that Delgado needed to show to satisfy the knowledge/timing test and to carry his burden of proof as to whether his protected disclosures 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 Rebu tt al

Cu tt ing through the Administrative Judge’s failures to comply with our remand order, we fi nd that the combination of our prior decision, Delgado’ s evidence at the hearing, and the AJ’s fi ndings on causation in the 2014 Case establish together that Delgado carried his burden of proof for both the 2014 and 2018 Cases. He made pr otected disclosures, he suffered adverse actions, he exhausted his remedies before the O ffi ce 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 2014and again in 2016. Accordingly, he is entitled to corrective action unless “the agency demons trate[d] by clear and convincing evidence that it would have taken the same personnel action in the absence of such di sclosure.” 5 U.S.C. § 1221(e)(2). The Administrative Judge did not make fi ndings on whether the agency carried its rebu tt al burden because she found, arbitrarily, capriciously, and in de fi ance of our remandNo. 19-2239 17

order, that Delgado had not even made any protected disclosures. The government argues that if we fi nd that the AJ’s decisions under review cannot be a ffi rmed, we should remand yet again so that the AJ can make fi ndings on the agency’s rebu tt al case. We are mindful of the agency’s statutory right, but

we fi nd 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 promotions and especially as to the 2016 promotion Delgado was denied despite being the only quali fi ed 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 expected the parties to o ff er their evidence on all the issues, including the agency’s a ffi rmative defense. 3 The AJ ended the evidentiary hearing by ordering the parties to submit their closing arguments in the form of wri tt en briefs, due nearly three months after the hearing. In its wri tt en closing argument, the agency argued: “The undisputed evidence of record also shows that the Agency de monstrated by clear and convincing evidence that it would have taken the same personnelactions—non-selecting Appellant for the three positions—regardless 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 clea r 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 it s best arguments in favor of its rebu tt al burden. In short, the agency’s rebu tt al 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 rebu tt al 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-A tt orney General Lynch and others could not have in fl uenced his non-selection for the 2016 GS-14 vacancies because memb ers of the interview panel were unaware of this email. This is a rehash of the knowledge/timing analysis that we rejected above. The decision-makers were not aware of th at particular email, but theywere certainly aware of Delgado’s history of protected disclosures on exactly the same issue. The agency then touted the quali fi cations of the other agents who were selected for th ose positions. We might need to remand for further fi ndings as to some of the promotions if the case depended on them. We are convinced, however, thatsuch a remand is not appropriate at this stage of this longterm litigation siege.

First, we cannot overlook the Board’s inexplicable refusalto comply with our previous remand order, nor the ATF’s successful e ff orts to persuade the Board to fl out 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 convincing evidence” needed to establish the a ffi rmative defense. See Miller v. Dep’t of Justice , 842 F.3d 1252, 1257–58 (Fed. Cir. 2016) (reversing Board fi nding 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 fi nding that agency had proven thisdefense; Board erroneously excluded or ignored critical evidence). The Federal Circuit, which hears most federal whistleblower cases, has explained:

Whether evidence is su ffi ciently clear and convincing 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 despitethe evidence that fairly detracts from that conclusion.

Whitmore , 680 F.3d at 1368. Reviewing the record as a whole, we fi nd that one of the most striking points is Delgado’ s status as the only candidate on the Best Quali fi ed List for the October 2016 promotion. This fact did not, by itself, en title Delgado to the promotion, but there was more. Delgado had previously led the Chicago group in an acting position. An d 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 o ff ered an undisputed a ffi davit from a senior ATF o ffi cial stating that a month20 No. 19-2239

or two before the 2016 decision not to promote Delgado, the special agent in charge of the Chicago o ffi ce 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 without 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 fi nd it hard to imagine that the special agent in charge had not made those views about Delgado known to his assistan t 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 reasonsfor not promoting Delgado was so inconsistent with the record that it could support a fi nding of pretext. Considering the

4 Other portions of the official’s af fidavit provided substantial evidence that hostility to Delgado in the Chicago office was widespread in the wake of the Labno incident. When the offi cial 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 denial could not reasonably be deemed to clear the high bar of “clear and convincing evidence” needed to establish the affi rmative defense. Regarding the March 2014 deci sions not to promote Delgado, the then-assistant special agent in charge, who had been angry about Delgado’s protecte d disclosure regarding Labno, was on the promotion panel. Evidence from both Delgado and the panel showed that th e assistant special agent incharge set ground rules for Delgado’s interview that prevented him from answering questions based on his extensive experience with the United Stat es Air Force. That put Delgado at a signi fi cant disadvantage. Pet’r’s App. 221–22 & 232. Oneof the two selected candidates had less, and less relevant, experience. 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 quali fi ed 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 quali fi ed for but denied in the wake of his protected disclosure weighs against the a ffi rmative defense. Perhaps one or two might be explained away. But there is ample evidence here of widespread resentment of Delgado’s protected disclosure and too many denials to accept all of the agency’s explanations as clear and convincing. After his protected disclosure, Delgado’s career was going nowhere. Reviewing the record as a whole, we conclude that a remand on the agency’s

a ffi rmative defense would waste both judicial and the parties’22 No. 19-2239

resources. Moreover, based on the response to our fi rst remand, we must say with regret that we are not con fi dent that such an order would be faithfully implemented.Accordingly, we VACATE the decision of the Merit Systems Protection Board in both cases under review. We REMAND only for calculation of damages based on salary and bene fi ts 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 en titled 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 di ff erent 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 a tt orney’s fees pursuant to 5 U.S.C. § 1221(g)(1)(B)(3).