Adetayo Agboke v. Department of Justice

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ADETAYO AGBOKE,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2024-1976
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-19-0574-I-1.
______________________
Decided: July 14, 2025
______________________
ADETAYO AGBOKE, Long Beach, CA, pro se.
MATTHEW J UDE CARHART , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
ELIZABETH M ARIE HOSFORD, P ATRICIA M. MCCARTHY ,
YAAKOV R OTH .
______________________
Before M OORE, Chief Judge, L INN and C UNNINGHAM ,
Circuit Judges.
Case: 24-1976 Document: 20 Page: 1 Filed: 07/14/2025

-- 1 of 6 --

AGBOKE v. DOJ 2
P ER CURIAM .
Adetayo Agboke (“Agboke”) appeals the final decision
of the Merit System Protection Board (“Board”) upholding
his removal by the Department of Justice (“agency”). See
Agboke v. Dep’t of Just., No. SF-0752-19-0574-I-1, 2024 WL
1674285 (M.S.P.B. April 17, 2025) (“Final Order”). For the
following reasons, we affirm the Board’s decision of re-
moval and dismiss Agboke’s due process challenge to the
agency’s delayed response to his Freedom of Information
Act (“FOIA”) request.
BACKGROUND
Agboke worked as an auditor with the agency’s U.S.
Trustee’s Program. Effective October 5, 2018, the agency
removed Agboke from his position based on charges of
(1) inappropriate conduct, (2) failure to follow instructions,
and (3) failure to cooperate with an investigation.
On appeal to the Board, the administrative judge sus-
tained all the agency’s charges, determined that a nexus
existed between Agboke’s misconduct and the efficiency of
the agency, and concluded that the agency’s removal action
was reasonable. The full Board denied Agboke’s petition
for review and the administrative judge’s decision became
the final decision of the Board.
Agboke timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
D ISCUSSION
I
This Court must affirm the Board’s decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). We review the Board’s legal
Case: 24-1976 Document: 20 Page: 2 Filed: 07/14/2025

-- 2 of 6 --

AGBOKE v. DOJ 3
determinations de novo. Vassallo v. Dep’t of Def., 797 F.3d
1327, 1330 (Fed. Cir. 2015).
II
Agboke presents four arguments on appeal: (1) the
Board erred in refusing to disqualify the administrative
judge; (2) the Board’s assessment of the reasonableness of
the removal penalty improperly relied on a reprimand let-
ter that was grieved and rescinded; (3) the agency violated
its own regulations by failing to conduct a performance as-
sessment review for Agboke’s work in 2018; and
(4) Agboke’s November 21, 2019 FOIA request was improp-
erly delayed and denied. We address each argument in
turn.
A
Agboke argues that the Board erred by refusing to dis-
qualify the administrative judge who authored the initial
decision. Agboke asserts that the administrative judge’s
decisions against him “reflect [that] she is a liar, a bigot
and a racist.” Appellant’s Br. 2.1
The Board, however, rejected this argument, conclud-
ing that Agboke “has failed to identify any facts whatsoever
that would reasonably cause an objective observer to ques-
tion the administrative judge’s impartiality.” Final Order,
2024 WL 1674285, at *4. On appeal, Agboke similarly does
not identify evidence or specific conduct—apart from the
fact that the administrative judge ruled against him—that
he believes evinces the administrative judge’s partiality or
prejudice.
Adjudicators are afforded a presumption of honesty
and integrity. Ethicon Endo-Surgery, Inc. v. Covidien LP,
1 Because Agboke did not separately paginate his
brief, we refer to the automatically generated page num-
bers at the top of each page.
Case: 24-1976 Document: 20 Page: 3 Filed: 07/14/2025

-- 3 of 6 --

AGBOKE v. DOJ 4
812 F.3d 1023, 1030 (Fed. Cir. 2016). Because Agboke pre-
sents no evidence showing that the administrative judge
was not impartial, we hold that Agboke’s bare allegation of
bias is insufficient to overcome the presumption of the ad-
ministrative judge’s integrity and affirm the Board’s rejec-
tion of this argument.
B
Agboke next argues that the removal penalty was
tainted by reliance on a reprimand letter that should not
have been considered. While Agboke grieved the repri-
mand letter, the record in his related 2024-1975 appeal in-
dicates that the agency did, in fact, reject Agboke’s
grievance. See Agboke v. Dep’t of Just., No. SF-1221-18-
0106-W-1, 2018 WL 2463281 (M.S.P.B. June 1, 2018) (not-
ing that Agboke’s March 9, 2017 grievance of the repri-
mand letter was denied). Agboke has not shown that the
letter was improperly considered.
C
Agboke argues that the agency violated its own regula-
tions by failing to conduct a performance assessment re-
view regarding his work in 2018, the period during which
he claims he performed his best work.
To the extent that Agboke argues that the agency’s fail-
ure to conduct a performance assessment review is an in-
dependent basis for reversal, the Board lacked jurisdiction
to consider this issue. See Van Warry v. Merit Sys. Prot.
Bd., 995 F.2d 1048, 1050 (Fed. Cir. 1993) ( “A performance
rating, without more, is not appealable to the board, as it
is not listed as an appealable action in sec-
tions 7512, 7513 or 7701(a).”).
To the extent that Agboke contends that his perfor-
mance in 2018 should have mitigated the agency’s penalty
to a measure short of removal, we hold that the agency’s
failure to conduct a performance review was at most harm-
less error. See 28 U.S.C. § 2111 (instructing courts to
Case: 24-1976 Document: 20 Page: 4 Filed: 07/14/2025

-- 4 of 6 --

AGBOKE v. DOJ 5
render judgments “without regard to errors or defects
which do not affect the substantial rights of the parties”).
The agency did not base its removal decision on Agboke’s
lack of technical competence but on his inappropriate con-
duct, his failure to follow instructions, and his failure to
cooperate with an investigation. See Supp. App’x 15.2 Fur-
ther, the agency separately considered Agboke’s excellent
work as an auditor as a mitigating factor. Supp. App’x 47.
Agboke does not explain why the presence of such a perfor-
mance review would have changed the personnel action
here. See Biswas v. Dep’t of Veterans Affs., 127 F.4th 332,
343 (Fed. Cir. 2025) (noting that the party alleging error
has the burden to show prejudice). Thus, Agboke has failed
to meet his burden to show that the absence of a 2018 per-
formance assessment review prejudiced him in the
agency’s removal action.
D
Finally, Agboke appears to argue that his due process
rights were violated because his FOIA request was not pro-
cessed in time for him to receive evidence of the adminis-
trative judge’s bias and was, presumably, incorrectly
denied. The agency argues that neither the Board nor this
Court has jurisdiction to entertain a challenge to a denied
or delayed FOIA request. Appellee’s Br. 15 (citing In re
Wine, 820 F. App’x 1025, 1027 (Fed. Cir. 2020) (“This court
is a court of limited jurisdiction, which does not include ju-
risdiction over FOIA actions.”)).
We agree with the agency that this Court lacks juris-
diction to hear Agboke’s challenge to the response to his
FOIA request. This Court’s jurisdictional statute does not
cover FOIA actions. See 28 U.S.C. § 1295. Instead, Con-
gress has designated the district courts as the proper
2 “Supp. App’x” refers to the appendix filed with the
agency’s response brief.
Case: 24-1976 Document: 20 Page: 5 Filed: 07/14/2025

-- 5 of 6 --

AGBOKE v. DOJ 6
forums in which to address disputes under FOIA. See
5 U.S.C. § 552(a)(4)(B) (“On complaint, the district court of
the United States in the district in which the complainant
resides . . . has jurisdiction to enjoin the agency from with-
holding agency records and to order the production of any
agency records improperly withheld.”). Accordingly, we
dismiss Agboke’s appeal to the extent of his challenge to
the denial or expediency of his FOIA request.
CONCLUSION
We have considered Agboke’s other arguments, but
find none persuasive. For the foregoing reasons, we affirm
the Board’s decision upholding Agboke’s removal and dis-
miss for lack of jurisdiction Agboke’s challenge to the de-
nial of his FOIA request.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
Each party shall bear their own costs.
Case: 24-1976 Document: 20 Page: 6 Filed: 07/14/2025

-- 6 of 6 --