July 2020

ATF Agent Wins Appeal in Whistleblower Protection Act Claim

A Faegre Drinker appellate litigation team secured a victory in the United States Court of Appeals for the Seventh Circuit on behalf of Adam Delgado, an agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). This was the second such victory on behalf of Delgado; our firm helped defend a prior Seventh Circuit opinion in Delgado’s favor.  

Both victories stemmed from Delgado’s 2014 allegation that he suffered illegal retaliation after disclosing another ATF agent’s alleged perjury following an undercover drug buy in Chicago. In 2014, Delgado told superiors that he thought a fellow agent had committed perjury. After that disclosure, his superiors failed to promote him. Delgado brought claims under the Whistleblower Protection Act, alleging that he wasn’t promoted because of this protected disclosure. Federal agencies did not investigate, continually saying Delgado had not exhausted his remedies.

Delgado ultimately appealed to the Seventh Circuit. In 2018, the Seventh Circuit held that Delgado had exhausted his remedies. When the government asked for en banc rehearing, the Court asked the firm’s appellate lawyers to defend the result, which we successfully did. The Court remanded so that Mr. Delgado could have his case tried on its merits.

However, rather than follow the Seventh Circuit’s instructions, the same administrative judge dismissed Delgado’s claims for reasons that were essentially the same as those the Seventh Circuit had previously rejected. Faegre Drinker’s appellate lawyers took the case, and again asked the Seventh Circuit to reverse. Faegre Drinker represented Delgado in a telephonic oral argument conducted in the early stages of the pandemic.

On July 16, 2020, the Seventh Circuit held that Delgado had now proved his claim, that the government’s contrary arguments failed and that the government had fallen far short of proving it would not have promoted Delgado had the disclosure never happened. Thus, the Court remanded only so the agency could calculate the right amount of damages to which Delgado was entitled, along with any other relief. The Court also invited Faegre Drinker to submit a motion for attorneys’ fees on appeal.

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