Seventh Circuit Rebukes MSPB AJ’s Whistleblower Findings, Remands Again for Damages
In 2018, the United States Court of Appeals for the Seventh Circuit held the MSPB acted arbitrarily and capriciously when it dismissed an ATF employee’s Individual Right of Action appeal. The Seventh Circuit’s 2018 opinion found that the employee “properly alleged a ‘protected disclosure’ and exhausted his administrative remedies so that the Board had jurisdiction to evaluate the merits of his claim.” The MSPB AJ denied relief, and the employee appealed to the Seventh Circuit again. On July 16, 2020, the appeals court again held that the MSPB acted arbitrarily, capriciously, and contrary to law. This time, the remand to the MSPB was only on the extent of relief to the employee.
In its July 16, 2020 opinion, the appeals court stated that “the Administrative Judge (or AJ) paid only lip-service to [its] decision, ignoring critical holdings and reasoning.” And finding that the record was developed enough to render a decision on its own, the appeals court deviated from normal practice and made a finding on its own that the agency had not met its burden under the Whistleblower Protection Act to show by clear and convincing evidence that it would not have selected the employee for a series of positions even if the employee had never made protected disclosures about purported perjury by one of his fellow agents.
According to the appeals court, it was proper to circumvent normal remand procedures, given the MSPB Administrative Judge’s refusal to accept the appeals court’s analysis on whether the employee had a “reasonable belief” that his disclosure evidenced a violation of the law. The appeals court likened its position to that in Baez-Sanchez v. Barr, 947 F.3d 1033, 1036 (7th Cir. 2020), where the court “[had] already remanded, only to be met by obduracy.”
Although the appeals court’s 2018 opinion clearly held that the employee made a protected disclosure, the MSPB AJ on remand ruled that the employee did not make a protected disclosure. According to the appeals court, the MSPB AJ “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 [the employee] had not claimed definitively that [the fellow agent] had committed perjury,” and made several “oddly mistaken” factual findings. The appeals court concluded that the AJ’s treatment of this issue was “an obvious, unexplained, and astonishing example of administrative obduracy.”
Therefore, the appeals court found that the agency 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.”
Although the appeals court found that the AJ properly considered whether the disclosure was a factor in the non-selections at issue in finding that the disclosure was a contributing factor, it noted that because the AJ improperly held that there was no protected disclosure, the AJ did not address whether the government could carry its burden to rebut the employee’s prima facie case of retaliation.
Here, the appeals court observed, the “agency’s rebuttal was on the record and was fully before the Administrative Judge.” The appeals court held that “[o]n 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.
For the above stated reasons, the Seventh Circuit Court of Appeals remanded the case to the MSPB only for calculation of damages based on salary and benefits as if the employee had been promoted, “as he should have been.” The appeals court “strongly urge[d] the Board to assign a new administrative judge to this case,” and invited the employee to submit a motion to the appeals court for attorney’s fees pursuant to 5 U.S.C. § 1221(g)(1)(B)(3).
Read the full case: Delgado v. Department of Justice.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.