Appeals court rules federal agency must hear ATF whistleblower case

A federal appeals court ruled this week the U.S. Merit Systems Protection Board must weigh in on a whistleblower’s allegations of retaliation within the Bureau of Alcohol, Tobacco, Firearms and Explosives.

A panel from the Seventh Circuit of Appeals determined the board and the Office of Special Counsel “applied unduly stringent and … arbitrary requirements” after ATF Special Agent Adam Delgado accused a colleague of improperly firing at a fleeing suspect, falsifying reports about the incident and lying on the stand to cover his impropriety.

Both agencies dismissed Delgado’s claims for insufficient evidence, saying the disclosure wasn’t protected under federal law.

“We hold that, like other statutes with exhaustion provisions, the Whistleblower Protection Act requires only that a complainant fairly present his claim with enough specificity to enable the agency to investigate,” the panel wrote in a decision issued Monday. “The Act itself and its implementing regulations do not require a whistleblower to prove his allegations before the OSC — otherwise, what need could there be for an investigation?”

Delgado transferred to the Chicago Field Division in 2011 after settling a previous whistleblower case in Puerto Rico, according to court documents. He “complained informally” about the hostile work environment he’d endured from day one, including one supervisor’s continued use of the word “rat” whenever Delgado was in earshot.

In December 2012, six months after joining the Chicago office, Delgado said fellow agent Chris Labno fired at a fleeing suspect during an undercover drug deal gone wrong, placing “responding agents and innocent bystanders at risk of being injured.” He filed an incident report immediately following the shooting — a move other agents criticized, according to court documents.

During trial, Delgado says Labno lied about the incident in submitted testimony. His witness account proved so unreliable, defense attorneys pursued an acquittal, according to court documents. A federal judge denied that motion.

After the case, Delgado said the acrimonious behavior escalated. Agents left an instruction manual on his desk about filing incident reports and cut holes in the suit he left hanging in his office, according to court documents.

Delgado reported the behavior and his suspicion of Labno’s perjury to at least two supervisors, but says nothing happened. He accuses the agency of treating Labno with “improper preferential treatment,” while he faced a deteriorating work environment.

“After disclosing his allegations against Labno, Delgado contends, he was routinely excluded from ongoing investigations by his group, threatened with a transfer, denied multiple promotions for which he was highly qualified, demoted from his position as acting group leader, removed from the Joint Terrorism Task Force, and involuntarily detailed to another city for work,” court documents says.

Deglado filed an official complaint with the Office of Special Counsel and invoked the Whistleblower Protection Act. The office closed his case after deciding Labno and ATF supervisors didn’t break any laws — an interpretation Delgado appealed with the merit board.

He provided the board with two letters from the OSC, a 13-page declaration detailing his allegations and a copy of the district court’s order denying acquittal for the armed robbery suspect, “which sets out in great detail the conflicts between the testimony of Labno and Delgado and the other agents.”

The board dismissed Delgado’s complaint over jurisdiction, saying he hadn’t “exhausted all options with the OSC” because he couldn’t retrieve the initial complaint he filed using the office’s webform submission system. The board further determined Delgado didn’t provide sufficient evidence of any crime, despite the corresponding documents he submitted to both agencies with each complaint.

The Seventh Circuit slammed the board’s ruling, saying “it takes bureaucratic rigidity to a dysfunctional level.”

“To invoke the Whistleblower Protection Act’s protections, a whistleblower is not required to claim knowledge that each element of a crime has been committed,” the panel said in its ruling. “The Act forbids retaliation based on any disclosure that an employee ‘reasonably believes evidences’ a violation of law. Delgado alleged he was retaliated against after disclosing what he reasonably believed to be evidence of his co-worker’s willfully false testimony, regardless of whether he could state confidently that the co-worker in fact acted willfully.”

The panel further ruled Delgado satisfied the Whistleblower Protection Act’s exhaustion requirement “by presenting the OSC with sufficient information to permit a legally sophisticated reader to understand his charge of retaliation and to investigate it further.”