Adam Delgado v. Merit Systems Protection Board

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16-1313 ADAM DELGADO, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. ____________________ Petition for Review of a Decision of the Merit Systems Protection Board. No. CH-1221-14-0737-W-1 ____________________ SUBMITTED OCTOBER 31, 2016 — DECIDED JANUARY 29, 2018 ____________________ Before ROVNER, WILLIAMS,** and HAMILTON, Circuit Judges.  We have agreed to decide this case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. See Fed. R. App. P. 34(a)(2)(C). ** Circuit Judge Williams retired on January 16, 2018 and did not par- ticipate in the decision of this appeal. The petition for review is being re- solved by a quorum of the panel under 28 U.S.C. § 46(d). 2 No. 16-1313 HAMILTON, Circuit Judge. This federal whistleblower case presents our first review of a decision of the Merit Systems Protection Board since Congress expanded judicial review be- yond 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 super- visors 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 in- vestigating allegations that an agency has violated the Whis- tleblower 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 jurisdic- tion. 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 ap- peal. See 5 U.S.C. § 7703(a). We find that the OSC and the No. 16-1313 3 Board applied unduly stringent and, we believe, arbitrary re- quirements on Delgado. First, the Board dismissed Delgado’s appeal because he did not include a copy of his complaint to the OSC. Applicable statutes and rules do not impose that requirement, and if there were any question about what Delgado submitted to the OSC, the easiest way to answer it would be to obtain the com- plaint from the OSC itself. Second, the OSC rejected Delgado’s complaint on the ground that he failed to offer ...

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