Adetayo Agboke v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ADETAYO AGBOKE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1975
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-18-0106-W-1.
______________________
Decided: July 14, 2025
______________________
ADETAYO AGBOKE, Long Beach, CA, pro se.
K ELLY WINSHIP , Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before M OORE, Chief Judge, L INN and C UNNINGHAM ,
Circuit Judges.
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AGBOKE v. MSPB 2
P ER CURIAM .
Adetayo Agboke (“Agboke”) appeals the final decision
of the Merit System Protection Board (“Board”), dismissing
his individual right of action (“IRA”) appeal for a lack of
jurisdiction. See Agboke v. Dep’t of Just., No. SF-1221-18-
0106-W-1, 2024 WL 1674424, at *1 (M.S.P.B. April 17,
2024) (“Final Order”). For the following reasons, we affirm.
BACKGROUND
Agboke worked as an auditor with the U.S. Trustees
Program within the U.S. Department of Justice (“agency”).
Agboke filed an IRA appeal, alleging that the agency took
several actions against him in retaliation for his protected
activity. The administrative judge issued an Order on Ju-
risdiction, providing Agboke with an opportunity to demon-
strate that the Board had jurisdiction over his appeal. The
agency subsequently filed a motion to dismiss for lack of
jurisdiction; Agboke responded by submitting evidence of
four complaints he filed with the Office of Special Counsel
(“OSC”).
In his first complaint (MA-17-2480), Agboke alleged
that his supervisor, Jill Sturtevant, engaged in abusive and
discriminatory behavior in retaliation for his filing of a
grievance indicating that she included false information in
his 2015–16 performance assessment review. Final Order,
2024 WL 1674424, at *1.
In his second and third complaints (MA-17-5458 and
MA-17-5869), Agboke alleged that the agency proposed to
suspend him for seven days in retaliation for filing an equal
opportunity complaint and grievances regarding his perfor-
mance assessment review and a February 22, 2017 repri-
mand letter. See id. at *1–2.
In his fourth complaint (MA-18-1924), Agboke raised
new claims of whistleblowing reprisal, alleging that the
agency denied him access to his office and placed him on
indefinite telework in retaliation for disclosing that the
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AGBOKE v. MSPB 3
agency’s trial attorneys improperly closed a case despite
evidence of bankruptcy fraud. Id. at *2.
The administrative judge concluded that Agboke did
not timely appeal his first complaint from the adverse de-
cision by the special counsel and, therefore, dismissed
Agboke’s contentions in that complaint for lack of jurisdic-
tion. The administrative judge next held that Agboke’s sec-
ond and third complaints failed to allege a non-frivolous
protected disclosure. As to the fourth complaint, the ad-
ministrative judge concluded that Agboke failed to exhaust
proceedings before the agency and dismissed Agboke’s ap-
peal for lack of jurisdiction.
The full Board modified the initial decision to reflect
that Agboke’s first complaint should have been dismissed
as untimely, rather than for lack of jurisdiction. Id.
at *1, 4. But the Board otherwise affirmed the administra-
tive judge’s decision and denied Agboke’s petition for re-
view. Id. at *1.
Agboke appeals. 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). “Whether the Board has jurisdiction
over an appeal is a question of law that we review de novo,
and we review the Board’s underlying factual findings for
substantial evidence.” Bryant v. Merit Sys. Prot. Bd., 878
F.3d 1320, 1325 (Fed. Cir. 2017) (internal citations omit-
ted).
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AGBOKE v. MSPB 4
The Board has jurisdiction over an IRA appeal “if the
appellant has exhausted his administrative remedies be-
fore the OSC and makes ‘non-frivolous allegations’ that
(1) he engaged in whistleblowing activity by making a pro-
tected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the
disclosure was a contributing factor in the agency’s deci-
sion to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a).” Yunus v. Dep’t of Veterans Affs., 242
F.3d 1367, 1371 (Fed. Cir. 2001).
II
A
Agboke argues that the administrative judge erred in
considering his reprimand letter because it was not
properly in the record, the content of the letter was untrue,
and the administrative judge’s consideration of the repri-
mand letter amounted to an ex parte communication.
The administrative judge considered the reprimand
letter in the context of assessing Agboke’s arguments that
the agency proposed that he be suspended for seven days
in retaliation for protected disclosures he made in his griev-
ances. See Supp. App’x 34–35.1 Specifically, the adminis-
trative judge noted that Agboke refers to two
grievances: the first contesting his performance assess-
ment review and the second contesting the reprimand let-
ter. Id. at 34. The administrative judge concluded that
Agboke’s second grievance could be construed as disclosing
a violation of Title VII but that such disclosures do not sup-
port IRA jurisdiction. Id. at 35. Thus, the admission of the
reprimand letter was at best harmless error.
1 “Supp. App’x” refers to the supplemental appendix,
Dkt. No. 21, that the respondent filed along with its infor-
mal brief.
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AGBOKE v. MSPB 5
B
Agboke contends that the administrative judge abused
her discretion by allowing the agency to untimely respond
to the Order on Jurisdiction. Agboke argues that the
agency filed a portion of its response to the order on Janu-
ary 9, 2018 (a day after the January 8, 2018 due date) and
that the administrative judge accepted this late filing in
violation of the rules.
Evidentiary issues are committed to the sound discre-
tion of the Board. Curtin v. Off. of Pers. Mgmt., 846 F.2d
1373, 1378 (Fed. Cir. 1988). It is generally not an abuse of
discretion for adjudicators to disregard harmless errors.
Agboke does not explain why the agency’s one-day delay in
filing the second part of its response to the Jurisdiction Or-
der prejudiced him. Accordingly, Agboke has failed to show
that the administrative judge abused her discretion by ad-
mitting the agency’s late filing.
C
Agboke argues that the administrative judge erred in
holding that she lacked jurisdiction. Specifically, Agboke
contends that IRA jurisdiction exists because he made non-
frivolous protected disclosures that DOJ “trial attorneys”
violated the law by: forcing him to sign false statements;
closing cases even though he produced evidence of bank-
ruptcy fraud; and making racist remarks in the workplace.
We affirm the Board’s holding that Agboke failed to es-
tablish IRA jurisdiction. First, Agboke’s complaints do not
expressly allege that he disclosed that he was forced to sign
false statements. On appeal he does not point to any spe-
cific false statements he was forced to sign. To the extent
that Agboke refers to his contention in his second and third
complaints that his performance assessment review con-
tained false statements, we affirm the Board’s holding that
Agboke’s allegations do not non-frivolously allege protected
disclosures. The Board construed Agboke as alleging an
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AGBOKE v. MSPB 6
abuse of authority. Final Order, 2024 WL 1674424, at *5.
The Board has interpreted an abuse of authority as “an ar-
bitrary or capricious exercise of power by a federal official
or employee that adversely affects the rights of any person
or that results in personal gain or advantage to himself or
to preferred other persons.” Wheeler v. Dep’t of Veterans
Affs., 88 M.S.P.R. 236, 241 (2001) (internal quotation
marks omitted). Here, with respect to Agboke’s allegations
that he disclosed that the agency relied on false state-
ments, the Board concluded that he “failed to allege facts
that, if proven, would show that a reasonable person would
find that [his supervisor’s] actions evidenced such an arbi-
trary or capricious exercise of power.” Final Order, 2024
WL 1674424, at *5. Agboke’s grievance reflected that he
disagreed with the bases for his successful rating and be-
lieved that he should have received an outstanding rating.
As the administrative judge reasonably concluded, how-
ever, Agboke’s “disagreement[s] with his supervisor’s ap-
praisal of his performance . . . are nothing more than
perceptual disagreements about internal workplace rules,
not protected disclosures.” Supp. App’x 33. Accordingly,
we agree with the Board that Agboke’s allegations, even
when taken as true, do not reasonably evince the arbitrary
or capricious exercise of power required to prove an abuse
of authority.
Second, as to Agboke’s contention that he reasonably
believed that his disclosure of the trial attorneys’ closure of
cases involving bankruptcy fraud constituted a violation of
law, Agboke first made that allegation in his fourth com-
plaint. See Final Order, 2024 WL 1674424, at *2 (noting
that Agboke’s fourth complaint “raised new claims of whis-
tleblowing reprisal,” including that “he disclosed to the
[trustee] that a trial attorney in [the agency] improperly
closed a case despite evidence of bankruptcy fraud”). But
Agboke argued to the Board (and continues to argue to this
Court) that his appeal does not encompass his fourth com-
plaint. Thus, Agboke has waived this argument. Even if
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AGBOKE v. MSPB 7
we excused the waiver, Agboke does not dispute the admin-
istrative judge’s conclusion that the Board lacked jurisdic-
tion over his fourth complaint as he failed to exhaust
proceedings before the agency.
Third, with respect to Agboke’s allegations that he dis-
closed that his supervisor made racist remarks, allegations
of discrimination under Title VII fall under the jurisdiction
of the Equal Employment Opportunity Commission, not
the Board. See Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679,
692 (Fed. Cir. 1992); Young v. Merit Sys. Prot. Bd., 961 F.3d
1323, 1329 (Fed. Cir. 2020) (“Allegations of retaliation for
exercising a Title VII right, however, do not fall within the
scope of section 2302(b)(8) of the Whistleblower Protection
Act and are therefore not proper subjects for inclusion in
an IRA appeal on that ground.”).
Consequently, we identify no error in the Board’s dis-
missal of his complaints for lack of jurisdiction.
D
Agboke argues the Board failed to consider the fact that
the agency retaliated against him by denying his request
to present the Young Government Leaders award. But the
Board concluded that it lacked jurisdiction over Agboke’s
IRA appeal because he did not make a non-frivolous pro-
tected disclosure. Thus, even if correct, Agboke’s argument
fails to show reversible error.
CONCLUSION
We have considered Agboke’s other arguments but find
them unpersuasive. For the foregoing reasons, the decision
of the Board is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
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