UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES DERECK ADAMS, DOCKET NUMBER
Appellant, DC-3443-15-0768-I-1
v.
DEPARTMENT OF DEFENSE, DATE: October 27, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Charles Dereck Adams, Herndon, Virginia, pro se.
James J. Delduco, Esquire, Redstone Arsenal, Alabama, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. See 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).
¶2 On May 26, 2015, the appellant filed an appeal in which he alleged that in
2009, the agency had illegally “pull[ed him] back” from an IT Specialist position
with its “OUSD” (Comptroller) after he had been formally “out processed” from
his previous position with the agency’s Missile Defense Agency (MDA) and after
he had reported for duty at the new job. Initial Appeal File (IAF), Tab 1 at 4. In
support, he submitted a copy of the agency’s January 23, 2009 letter confirming
the offer of employment for the position of IT Specialist. Id. at 5. The letter
stated that the effective date of the appellant’s reassignment was February 1,
2009, and that he should report on February 2, 2009. Id. The appellant also
submitted documents showing that he was processed out of his previous job on
January 30, 2009. Id. at 6-11. He claimed that the agency’s action was “a clear
violation of prohibited personnel actions.” Id. at 4.
¶3 In acknowledging the appeal, the administrative judge ordered the appellant
to file evidence and argument showing that his reassignment to another position
without a loss of grade or pay is within the Board’s jurisdiction. IAF, Tab 2. She
also ordered him to file evidence and argument showing that his appeal was
timely filed or that good cause existed for the delay. Id.
¶4 In response, the appellant alleged that he had been subjected to
discrimination, disparate treatment, and retaliation by the MDA, and that its bad
3
faith and behavior “nullifie[d]” the timeliness and jurisdictional requirements. 2
IAF, Tab 6 at 8, Tab 8 at 8. He also claimed that there were numerous conflicts
of interest and “Cultural/Organizational Bias.” IAF, Tab 6 at 12, Tab 8 at 12. He
stated that the basis of the appeal was employer discrimination by the MDA, and
claimed that the case should go forward, timeliness and jurisdiction
notwithstanding. IAF, Tab 6 at 20, Tab 8 at 20. The appellant referenced equal
employment opportunity complaints and other Board appeals he had filed, IAF,
Tab 6 at 5, 23, Tab 8 at 5, 23, and he included 24 attachments, IAF, Tab 6
at 35-240, Tab 7 at 7-22, Tab 8 at 35-240, Tab 9 at 7-22.
¶5 The agency moved that the appeal be dismissed for lack of jurisdiction and
as untimely filed. IAF, Tabs 3, 10.
¶6 In her initial decision, the administrative judge dismissed the appeal for
lack of jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1, 4. She found that the
appellant’s pleadings did not clearly or concisely identify the agency action he
was contesting, although he emphasized discriminatory acts by the agency, and
she further found that the appellant did not respond to her order on timeliness. 3
ID at 2 n.1. The administrative judge acknowledged the appellant’s claim that he
was indefinitely suspended in 2009, but she found that he failed to nonfrivolously
allege that the Board has jurisdiction over the indefinite suspension or any other
agency action. 4 ID at 3. Because she dismissed the appeal for lack of
jurisdiction, she deemed it unnecessary to address the timeliness issue. ID at 4.
2
The appellant’s purported response on timeliness was identical to his purported
response on jurisdiction, compare IAF, Tab 6, with IAF, Tab 8, as were the attachments
to those responses, compare IAF, Tabs 6-7, with IAF, Tabs 8-9.
3
As noted, the appellant did, in fact, file a pleading that purported to address the matter
of timeliness, but it was nonresponsive as to that issue. IAF, Tab 6.
4
In fact, the appellant previously filed an appeal to the Board of his indefinite
suspension, an action that occurred after the matters that gave rise to the instant appeal.
A Board administrative judge affirmed the indefinite suspension, the full Board denied
the appellant’s petition for review of that decision, Adams v. Department of Defense,
MSPB Docket No. DC-0752-09-620-I-1, Final Order (Aug. 12, 2009), and the U.S.
4
¶7 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tabs 1-2, and the agency has responded in opposition, PFR File, Tab 4. 5
¶8 On review, the appellant argues that the administrative judge failed to
address his claim that the agency “pulled [him] back” from his new position.
PFR File, Tab 1 at 4-5. On the contrary, the administrative judge acknowledged
that that was the subject of this appeal, ID at 1, but she found that the appellant
had failed to nonfrivolously allege that the Board has jurisdiction over such an
action, ID at 2. Although the appellant argues that the agency acted improperly
in this regard, the Board does not have jurisdiction over all matters alleged to be
unfair or incorrect; rather, its jurisdiction is limited to matters over which it has
been given jurisdiction by statute or regulation. See Johnson v. U.S. Postal
Service, 67 M.S.P.R. 573, 577 (1995). Here, the appellant has failed to
nonfrivolously allege that the agency’s act of “pulling [him] back” from the IT
Specialist position to which he had been reassigned is a matter over which the
Board has jurisdiction. 6 See 5 U.S.C. § 7512. Therefore, he has not shown that
the administrative judge erred in dismissing his appeal on that basis. In the
absence of jurisdiction, the Board lacks authority to consider the appellant’s
Court of Appeals for the Federal Circuit affirmed the Board’s decision, Adams v.
Department of Defense, 371 F. App’x 93 (Fed. Cir. 2010). The appellant’s subsequent
removal also was affirmed by the Board and the court. Adams v. Department of
Defense, MSPB Docket No. DC-0752-10-0741-I-1, Final Order (Mar. 4, 2011), aff’d,
688 F.3d 1330 (Fed. Cir. 2012).
5
On September 19, 2015, the appellant filed a pleading titled “Response to Agency’s
new jurisdiction rea [sic] dated 8/31/2015” and on October 13, 2015, the appellant filed
a pleading titled “What We’ve Learned In The Past 6 Years.” To the extent that the
appellant’s September 19, 2015 pleading was intended as his reply to the agency’s
August 31, 2015 response to the petition for review, his reply is untimely and we do not
consider it. See 5 C.F.R. § 1201.114(e) (“Any reply to a response to a petition for
review must be filed within 10 days after the date of service of the response to the
petition for review.”). Furthermore, we do not consider the appellant’s October 13,
2015 pleading because the appellant failed to comply with the Board’s regulations
which required him to seek leave to file an additional pleading. See 5 C.F.R.
§ 1201.114(a)(5).
6
The appellant has submitted no documentary evidence in support of his claim.
5
claims that the agency committed prohibited personnel practices under 5 U.S.C.
§ 2302(b). Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d,
681 F.2d 867, 871-73 (D.C. Cir. 1982).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
6
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.