Agoranos v. Department of Justice
602 F. App'x 795
Fed. Cir.2015Background
- Agoranos served as DEA Intelligence Research Specialist in Chicago from 2001 to 2010 and was removed on Nov. 9, 2010.
- His performance ratings deteriorated starting in 2003, with multiple concerns about work product and interpersonal skills.
- He repeatedly faced written warnings, reassignment, and a 2008 within-grade pay increase denial due to unacceptable performance, followed by a performance improvement plan in 2008–2009.
- From 2007–2009 he sought 31 open positions, all denied, reflecting ongoing morale and performance issues.
- Agoranos disclosed several matters he claimed were whistleblower disclosures (2004 baby-betting pool; 2005 construction-time-use discussion; 2007 Super Bowl bets), which the OSC reviewed but did not find reasonable grounds for prohibited personnel practices.
- On remand, an Administrative Judge (AJ) again upheld the removal, and the Board affirmed, ruling that the agency would have taken the same actions absent the disclosures and that no due process or harmful procedural error occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the WPA burden-shifting framework supports removal despite disclosures. | Agoranos asserts disclosures were contributing factors to adverse actions. | DEA showed by clear and convincing evidence it would have acted anyway. | Yes; agency proved same-action standard. |
| Whether ex parte communications tainted due process. | Reed’s ex parte actions violated notice and could have altered outcome. | Ex parte communications did not introduce new material information nor prejudice decision-making. | No due process violation or harmful error. |
| Whether Carr factors support the agency’s choice to remove. | Disclosures caused retaliation; evidence shows motive to retaliate. | Carr factors favor agency due to strong performance concerns and lack of retaliation motive. | Yes; clear and convincing evidence supports same-action conclusion. |
| Whether the Board properly applied Whitmore and properly weighed countervailing evidence. | Countervailing evidence undermines agency’s claim of necessity of removal. | Board properly applied Whitmore and weighed evidence "in the aggregate." | Yes; substantial evidence supports Board’s conclusions. |
Key Cases Cited
- Whitmore v. Dep't of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (articulates Carr factors and aggregate evidence standard in WPA analysis)
- Carr v. SSA, 185 F.3d 1318 (Fed. Cir. 1999) (three Carr factors for clear-and-convincing rebuttal evidence)
- Stone v. FDIC, 179 F.3d 1368 (Fed. Cir. 1999) (ex parte communications may violate due process if they introduce new material information or prejudice)
- Norris v. Sec. & Exch. Comm’n, 675 F.3d 1349 (Fed. Cir. 2012) (background knowledge raises due process concerns only if it informs merits decision)
- Bieber v. Dep’t of Army, 287 F.3d 1358 (Fed. Cir. 2002) (re-weighing evidence not the court's role; substantial evidence standard applied)