The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADETAYO AGBOKE, DOCKET NUMBER
Appellant, SF-0752-19-0574-I-1
v.
DEPARTMENT OF JUSTICE, DATE: April 17, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Adetayo Agboke , Long Beach, California, pro se.
Paul W. Bridenhagen , Esquire, and Sarah Bishop , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
Effective October 5, 2018, the agency removed the appellant from the
position of Auditor (Bankruptcy), GS-0511-14, on charges of unacceptable
conduct, failure to follow instructions, and failure to cooperate with an
investigation. Initial Appeal File (IAF), Tab 17 at 41-48, 50. On appeal, the
administrative judge sustained the charges, found a nexus between the appellant’s
misconduct and the efficiency of the service, and determined that the penalty was
reasonable. IAF, Tab 68, Initial Decision.
On petition for review, the appellant argues, among other things, that the
administrative judge abused her discretion by: (1) denying his motion to sanction
the agency for its failure to comply with deadlines for submission of the agency
file; (2) striking his affirmative defenses; and (3) denying his motion for recusal.
Petition for Review File, Tab 1 at 11-12. For the following reasons, we find no
merit to his assertions.
The administrative judge did not abuse her discretion in denying the appellant’s
motion to sanction the agency.
An administrative judge may impose sanctions on a party as necessary to
serve the interests of justice. 5 C.F.R. § 1201.43. The authority to impose
3
sanctions “covers, but is not limited to,” circumstances including failure to
comply with an order, failure to prosecute or defend an appeal, or failure to make
a timely filing. Id. The imposition of sanctions is a matter within the
administrative judge’s sound discretion. Smets v. Department of the Navy,
117 M.S.P.R. 164, ¶ 11 (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012). Absent an
abuse of discretion, the Board will not reverse an administrative judge’s
determination regarding sanctions. Leseman v. Department of the Army,
122 M.S.P.R. 139, ¶ 6 (2015); Davis v. Department of Commerce, 120 M.S.P.R.
34, ¶ 18 (2013).
Here, the agency twice failed to submit a compliant agency file before the
deadline set forth in the administrative judge’s orders. IAF, Tabs 6, 8, 15-17.
However, the administrative judge reasonably concluded that striking the agency
file as a sanction would not have served the interests of justice, given that the
filing delay of a few hours was de minimis, and that the appellant failed to show
that he was prejudiced by the delay. IAF, Tab 21 at 7-8; see Hay v. U.S. Postal
Service, 106 M.S.P.R. 151, ¶ 10 (2007) (holding that a party is not entitled to
sanctions for the untimely filing of a submission absent a showing of prejudice).
Accordingly, we discern no abuse of discretion in her decision not to impose
sanctions on the agency.
The administrative judge did not abuse her discretion in striking the appellant’s
affirmative defenses.
The appellant further argues that the administrative judge abused her
discretion by striking his affirmative defenses as a sanction for his refusal to
appear for a deposition. We note that the Board has looked with disfavor on
striking affirmative defenses as a sanction for failure to comply with an order
when the same result might be achieved by prohibiting the appellant from
presenting evidence supporting those defenses. Simon v. Department of
Commerce, 111 M.S.P.R. 381, ¶¶ 14-15 (2009); see 5 C.F.R. § 1201.43(a)(2)
(providing that when a party fails to comply with an order, the administrative
4
judge may “[p]rohibit the party failing to comply with the order from introducing
evidence concerning the information sought, or from otherwise relying upon
testimony related to that information”). Furthermore, the appellant’s response to
the affirmative defenses order was not yet due, IAF, Tab 22, and he had given no
indication that he wished to withdraw his defenses, see Simon, 111 M.S.P.R. 381,
¶ 15.
However, even if striking the appellant’s affirmative defenses was not a
well-tailored sanction, we find no abuse of discretion on the part of the
administrative judge, as it would have been well within her authority and
discretion to impose the more severe sanction of dismissal. The sanction of
dismissal with prejudice may be imposed if a party fails to prosecute or defend an
appeal in good faith. Davis, 120 M.S.P.R. 34, ¶¶ 17-19. Such a severe sanction
is appropriate only when necessary to serve the ends of justice and should be
imposed only when: (1) a party has failed to exercise due diligence in complying
with Board orders; or (2) a party has exhibited negligence or bad faith in its
efforts to comply. Id., ¶ 18. Here, the appellant’s refusal to comply with the
order to appear at his deposition was repeated and defiant. Moreover, his
incessant verbal abuse of the administrative judge, including baseless accusations
of racism and corruption, itself shows bad faith warranting dismissal. See Morris
v. Department of the Navy, 123 M.S.P.R. 662, ¶ 15 (2016) (finding that the
appellant’s defiant refusal to comply with directions provided by the Clerk of the
Board, combined with his continual misogynistic invective directed at the Board’s
female staff, warranted dismissal of his petition for review). Considering that the
administrative judge could have properly dismissed the appeal with prejudice, as
the agency requested, we find that she did not abuse her discretion by choosing a
less severe sanction. Cf. Simon, 111 M.S.P.R. 381, ¶ 15 (finding that the
administrative judge abused her discretion in striking the appellant’s affirmative
defenses when the agency had not requested that sanction and a lesser evidentiary
sanction was sufficient).
5
The administrative judge did not abuse her discretion in denying the appellant’s
motion for recusal.
Finally, we have considered the appellant’s contention that the
administrative judge abused her discretion in denying his motion for recusal. The
Board’s regulations provide that a party may file a motion asking the
administrative judge to withdraw “on the basis of personal bias or other
disqualification.” 5 C.F.R. § 1201.42(b).
To the extent the appellant contends that the administrative judge was
biased, we find no merit to his accusation. In making a claim of bias or prejudice
against an administrative judge, a party must overcome the presumption of
honesty and integrity that accompanies administrative adjudicators . Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). The fact that an
administrative judge has ruled against a party in the past, or mere conclusory
statements of bias, do not provide sufficient bases for disqualification. Lee v.
U.S. Postal Service, 48 M.S.P.R. 274, 281 (1991). Rather, the administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). 2 While the appellant
emphatically disagrees with many of the administrative judge’s rulings, he has
not made the required showing. To the contrary, the record shows that the
administrative judge reacted patiently to the appellant’s contumacious conduct at
the telephonic status conference, IAF, Tab 21 at 3-4, and displayed
evenhandedness by ruling against the agency on several occasions, IAF, Tab 6
at 2 (denying the agency’s requested extension of the deadline for submission of
2
One of the attachments to the appellant’s petition is a law review article criticizing the
Liteky decision. See Lori M. Mcpherson, Liteky v. United States: The Supreme Court
Restricts the Disqualification of Biased Federal Judges Under Section 455(a ), 28 U.
Rich. L. Rev. 1427 (1994). Whatever academic merit that article may have, we are
bound to follow U.S. Supreme Court precedent.
6
the agency file), Tab 8 (rejecting a technically deficient agency file), Tab 21 at 8
(admonishing the agency for its failure to strictly comply with her orders), Tab 54
at 9 (denying the agency’s request to dismiss the appeal).
We have also considered the appellant’s contention that the administrative
judge should be disqualified on grounds other than bias. See 5 C.F.R.
§ 1201.42(b) (providing that a party may file a motion asking the administrative
judge to withdraw on the basis of personal bias “or other disqualification”). In
determining whether an administrative judge should be disqualified on grounds
other than bias, the Board’s policy is to follow the standard set out at 28 U.S.C.
§ 455(a). Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 20
(2010); Shoaf v. Department of Agriculture, 97 M.S.P.R. 68, ¶ 7 (2004). The
Board has described that standard as follows:
The goal of section 455(a) is to avoid even the appearance of
partiality. Thus, the test applied is not whether a judge is in fact
biased or prejudiced, but whether a judge’s impartiality might
reasonably be questioned. In enacting section 455(a), Congress
created an objective standard under which disqualification of a
judge is required when a reasonable person, knowing all the facts,
would question the judge’s impartiality. In applying this standard,
it is critically important to identify the facts that might reasonably
cause an objective observer to question the judge’s impartiality.
Shoaf, 97 M.S.P.R. 68, ¶ 7 (internal citations and quotations omitted). Whether
an adjudicator’s impartiality might reasonably be questioned turns upon an
objective evaluation of the facts and circumstances of each case. Acting Special
Counsel v. Sullivan, 4 M.S.P.R. 485, 488-89 (1981).
Here, the appellant has failed to identify any facts whatsoever that would
reasonably cause an objective observer to question the administrative judge’s
impartiality. Under these circumstances, it was not an abuse of discretion for the
administrative judge to deny the appellant’s motion for recusal. Indeed, a judge
“is as much obligated not to recuse himself when it is not called for as he is
obliged to when he is.” Lee, 115 M.S.P.R. 533, ¶ 22 (citing Washington v.
7
Department of the Interior, 81 M.S.P.R. 101, ¶ 15 (1999) (quoting In re Drexel
Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir.1988))).
We have considered the appellant’s remaining arguments and find that they
are either without merit or outside the scope of this appeal. 3
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
3
As the administrative judge correctly found, the Board lacks jurisdiction to consider
the appellant’s challenge to his performance review and the denial of a quality step
increase (QSI). IAF, Tab 54 at 2-4; see Clark v. Department of the Air Force ,
111 M.S.P.R. 477, ¶ 9 (2009) (noting that the Board generally lacks jurisdiction over an
appeal of a performance-based award, such as a QSI); Ariza v. Department of
Education, 36 M.S.P.R. 54, 55 (1988) (noting that the Board generally lacks authority
to hear appeals of performance ratings).
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
9
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
10
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.