Adams v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

CHARLES DERECK ADAMS,
Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,
Respondent

DEPARTMENT OF DEFENSE,
Intervenor
______________________

2016-1414
______________________

Petition for review of the Merit Systems Protection
Board in No. DC-3443-15-0768-I-1.
______________________

Decided: June 9, 2016
______________________

CHARLES DERECK ADAMS, Herndon, VA, pro se.

KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
2 ADAMS v. MSPB

CHRISTOPHER L. HARLOW, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for intervenor. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
DEBORAH A. BYNUM.
______________________

Before NEWMAN, DYK, and REYNA, Circuit Judges.
PER CURIAM.
Charles D. Adams appeals pro se a final order of the
Merit Systems Protection Board (“Board”) dismissing his
claims for lack of jurisdiction. The U.S. Department of
Defense purportedly transferred Mr. Adams from one
position to another, and then reassigned him back to his
former position. We conclude that substantial evidence
supports the Board’s findings that both the alleged trans-
fer and reassignment occurred without reducing Mr.
Adams’s grade or pay. We further conclude that the
Board was correct in determining that the reassignment
did not result in justiciable, non-frivolous claims. We
affirm the Board’s final order dismissing the case for lack
of jurisdiction.
BACKGROUND
Mr. Adams worked as an information technology spe-
cialist for the Department of Defense. According to the
evidence submitted by Mr. Adams, the Department of
Defense transferred Mr. Adams to a position at the Pen-
tagon, effective February 1, 2009. Mr. Adams claims that
he out-processed from his former position with the Missile
Defense Agency (“MDA”) in late January, and began
working at his new position at the Pentagon on February
2, 2009. Shortly after starting the new position, Mr.
Adams asserts that he was reassigned back to his former
position with the MDA. Mr. Adams argues that he suf-
fered from a hostile work environment while at the MDA
and was the target of discrimination on the basis of age
ADAMS v. MSPB 3

and race. Mr. Adams asserts that the agency acted un-
lawfully by returning him to this environment. While
working at the MDA—either before the purported trans-
fer to the Pentagon or after returning to the MDA follow-
ing that transfer—Mr. Adams contends that he was
denied a pin and certificate for recognition of 30 years of
government service, could not take use-or-lose leave, was
denied certain benefits others were receiving, was sub-
jected to internal investigations, was terminated for
charging his cell phone, 1 and was lied to about his going-
away party.
On May 26, 2015, Mr. Adams filed an appeal with the
Board. Mr. Adams alleged due process violations, denial
of the right to a jury trial, discrimination, and various
other regulatory and statutory violations. Mr. Adams
sought damages and reinstatement.
An administrative judge ordered Mr. Adams to submit
evidence and argument showing that the Board had
jurisdiction over his claims arising from the reassign-
ment. The order also directed Mr. Adams to submit
evidence and argument showing that his appeal was
timely filed, or that there was good cause for the delay. In
response, Mr. Adams alleged that the reassignment to the
MDA violated his rights, and that bad faith by the MDA
nullified the Board’s timeliness and jurisdictional re-
quirements. He also alleged his prior appeals to the
Board had engendered prejudice against him among the
Board’s administrative judges. The Department of De-
fense moved to dismiss the appeal for lack of jurisdiction
and timeliness.

1 The circumstances of the revocation of Mr. Ad-
ams’s security clearance and his subsequent removal were
considered by this court in Adams v. Dep’t of Def., 371 F.
App’x 93 (Fed. Cir. 2010).
4 ADAMS v. MSPB

In July 2015, the administrative judge issued an ini-
tial decision, dismissing the appeal for lack of jurisdiction.
The administrative judge found that no reduction in grade
or pay had occurred, and that the claims were frivolous
because Mr. Adams failed to support his allegations. In
October 2015, the Board affirmed the administrative
judge’s initial decision and entered a final order dismiss-
ing the case for lack of jurisdiction.
Mr. Adams appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9). See also Conforto v. Merit Sys. Prot.
Bd., 713 F.3d 1111, 1120-21, 1123 (Fed. Cir. 2013) (hold-
ing that Fed. Cir. retains jurisdiction over appeals from
the Board’s final orders dismissing for lack of jurisdic-
tion).
DISCUSSION
We may hold unlawful and set aside an agency action
found to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures 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 to adjudicate an appeal is a question of law,
which we review de novo. Forest v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410 (Fed. Cir. 1995). We are bound by the
Board’s factual findings on which a jurisdictional deter-
mination is based unless those findings are not supported
by substantial evidence. Bolton v. Merit Sys. Prot. Bd.,
154 F.3d 1313, 1316 (Fed. Cir. 1998).
An appellant bears the burden of establishing the
Board’s jurisdiction by preponderant evidence. Fields v.
Dep’t of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 2006); see
also 5 C.F.R. § 1201.56(a)(2). The appellant establishes
jurisdiction by making “non-frivolous allegations of juris-
diction supported by affidavits or other evidence.” Nichols
v. Merit Sys. Prot. Bd., 625 F. App’x 987, 991 (Fed. Cir.
2015) (citations omitted).
ADAMS v. MSPB 5

We conclude that the Board lacked jurisdiction over
Mr. Adams’s appeal because Mr. Adams failed to present
a justiciable claim supported by affidavits or other evi-
dence. Mr. Adams did not present—then or now—any
allegation or evidence that his purported reassignment
resulted in a reduction in grade or pay. Mr. Adams also
failed to proffer competent evidence or sufficient argu-
ment to support his various theories in support of his
claims. Mr. Adams has the burden to establish jurisdic-
tion through non-frivolous allegations, which he failed to
carry in this case. 2
The Board’s final order is supported by substantial ev-
idence, not arbitrary or capricious, and in accordance with
law. We affirm the Board’s final order.
AFFIRMED
COSTS
No costs.

2 Mr. Adams also raises various arguments that
have been disposed of in other cases. Our 2010 decision
held that the agency did not err in declining to retain
Adams or transfer him to another position. Adams v.
Dep’t of Def., 371 F. App’x at 96. A discrimination claim
originally brought at the EEOC has been transferred to
district court. Adams v. Dep’t of Def., No. 15-3161 (Fed.
Cir. Sep. 3, 2015) (order transferring case to E.D. Va.). A
petition for writ of mandamus directing the Board to rule
on Adams’s Voluntary Early Retirement Authority re-
quest was denied. In re Adams, No. 16-101 (Fed. Cir. Dec.
22, 2015) (order).