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 being 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 federal 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 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 relief. (The Board acted only 

through an Administrative Judge; since early 2017 the Board 

itself has lacked a quorum.) Delgado again seeks judicial review. 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. “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 obduracy.” Id. 

We remand once more, but only on the extent of relief for 

Delgado. The government had the opportunity to offer evidence 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 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 suffered adverse personnel 

actions as a result of making protected disclosures of wrongdoing 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 information 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 employees 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 Systems Protection] Board.” § 1214(a)(3). The Special Counsel 

must investigate any allegation received “to the extent necessary to determine whether there are reasonable grounds to 

believe 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 findings or 

recommendations to the [Merit Systems Protection] Board, 

the agency involved and to the Office of Personnel Management, and may report such determination, findings and recommendations 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 disclosure or protected activity; and (B) the personnel action occurred 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 employee 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 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 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 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 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 account did not foreclose the possibility of an innocent explanation 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 complaint 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 protected 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 attempted 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 Administrative Judge and Board had held that Delgado had not alleged a protected disclosure because he had not told his supervisors 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 paragraph (b)(8), a whistleblower need not assert that he has definitive 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 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 reasonable 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 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 investigations, to prepare complete and definitive investigative reports, 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 employee’s disclosure was not protected because it did not definitively show violation of law). 

In holding that, contrary to the Board’s view, Delgado had 

sufficiently alleged a protected disclosure in his administrative 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 disclosure. 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 differences 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, unexplained, 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 years 

after the event whether she was dealing with perjury or honest 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 Delgado, 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 investigation 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 provides specifically: “A disclosure shall not be excluded from 

subsection (b)(8) because of the employee’s or applicant’s motive 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 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 a 

court’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 the 

law 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-case 

doctrine 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 Cir. 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 inflexible. They may bend in “sufficiently 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 

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 actually 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, stemming from Delgado’s 2014 complaint to the Office of Special 

Counsel. While his first petition for judicial review was pending, Delgado filed a new complaint with the Office 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 written decisions on the two cases on successive 

days, and Delgado’s current petition for judicial review challenges 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 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, and 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 focused on Delgado’s email on November 13, 2016 to Attorney General Lynch, the Office of Inspector General, and several members of Congress. Delgado 

sent that email after the key alleged acts of retaliation he alleged: denial of promotions for which Delgado interviewed in 

August and October 2016. The AJ found that the timing prevented this later disclosure from 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) before 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 denials knew about the larger 

history of Delgado’s earlier disclosures. To the extent the AJ 

held otherwise, that holding 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 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 supervisory 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 qualifications. 

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. 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 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 manager speaks last so as not to bias the others’ views. Despite 
14 No. 19-2239 

these formal procedures, the panel may discuss each candidate 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-selections 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 protected disclosure, satisfying the requirement 

that personnel actions occur “within a period of 

time 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 Affairs, 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 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 applications 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 Chicago 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 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 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 disclosures only a few months before making decisions not to 

promote 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 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 together that Delgado carried his burden of proof for both the 

2014 and 2018 Cases. He made protected disclosures, he suffered 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 action unless “the agency demonstrate[d] 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). 

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 disclosures. The government argues that if we find that the AJ’s decisions under review cannot be affirmed, we should remand 

yet again so that the AJ can make findings on the agency’s rebuttal 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 promotions 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 expected the parties to offer their evidence on all the issues, including 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 argument, the agency argued: “The undisputed evidence of record 

also shows that the Agency demonstrated by clear and convincing evidence that it would have taken the same personnel 

actions—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 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 decision-makers were not aware of that particular email, but they 

were certainly aware of Delgado’s history of protected disclosures 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 longterm litigation siege. 

First, we cannot overlook the Board’s inexplicable refusal 

to comply with our previous remand order, nor the ATF’s successful 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 convincing 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 evidence). The Federal Circuit, which hears most federal whistleblower cases, has explained: 

Whether evidence is sufficiently 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 despite 

the evidence that fairly detracts from that conclusion. 

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 undisputed 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 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 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 record 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 denial could not reasonably be deemed to clear the high bar of 

“clear and convincing evidence” needed to establish the affirmative defense. 

Regarding the March 2014 decisions not to promote Delgado, 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 prevented 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, 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 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 disclosure 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 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 

affirmative defense would waste both judicial and the parties’ 
22 No. 19-2239 

resources. Moreover, based on the response to our first remand, 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 Systems 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).