Whistleblower Protection Act Violation

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7^th Circuit Court of Appeals

Case Name: Adam Delgado v. Merit Systems Protection Board

Case No.: 16-1313

Officials: ROVNER, WILLIAMS, and HAMILTON, Circuit Judges.

Focus: Whistleblower Protection Act Violation

This federal whistleblower case presents our first review of a decision of the Merit Systems Protection Board since Congress expanded judicial review beyond the Federal Circuit, at least temporarily. Petitioner Adam Delgado is a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives. He alleges that his supervisors retaliated against him after he reported his suspicions that another agent had improperly shot at a fleeing suspect, provided an inaccurate report of the incident, and testified falsely about it in a federal criminal trial.

Delgado filed a whistleblower complaint with the Office of Special Counsel (OSC), the federal office charged with investigating allegations that an agency has violated the Whistleblower Protection Act by retaliating against its employee for, as relevant here, disclosing “any violation of law, rule, or regulation.” See 5 U.S.C. §§ 1214(a)(1)(A), 2302(b)(8). The OSC declined to investigate. It told Delgado that he had not made a disclosure protected by the statute and that he had failed to provide sufficient evidence to support his allegations of retaliation.

Delgado then appealed to the Merit Systems Protection Board, but the Board dismissed his appeal for lack of jurisdiction. The Board reasoned that Delgado had not satisfied the requirement that he “seek corrective action before the Special Counsel before seeking corrective action from the Board.” See 5 U.S.C. § 1214(a)(3). According to the Board, Delgado could not prove that he made a “protected disclosure” or gave the OSC enough information to launch an investigation. Delgado has petitioned for judicial review of the dismissal of his appeal. See 5 U.S.C. § 7703(a). We find that the OSC and the Board applied unduly stringent and, we believe, arbitrary requirements on Delgado. The Board thus erred in finding that Delgado failed to exhaust administrative remedies with the OSC. We grant the petition for review and remand to the Board for further proceedings consistent with this opinion, without commenting on the ultimate merit of Delgado’s underlying accusations or his claim of unlawful retaliation.

Petition Granted

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.