Case: 22-1821 Document: 52 Page: 1 Filed: 09/08/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH E. WADE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2022-1821
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-22-0271-I-1.
______________________
Decided: September 8, 2023
______________________
JOSEPH EMANUEL WADE, Miami, FL, pro se.
CALVIN M. MORROW, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON JANE
BOYLE, KATHERINE MICHELLE SMITH.
______________________
Before DYK, PROST, and STOLL, Circuit Judges.
PER CURIAM.
Case: 22-1821 Document: 52 Page: 2 Filed: 09/08/2023
2 WADE v. MSPB
Joseph E. Wade petitions for review of a decision of the
Merit Systems Protection Board (“Board”). Wade v. Dep’t
of Veterans Affairs, No. AT-0752-22-0271-I-1 (M.S.P.B.
Apr. 22, 2022). The Board dismissed Mr. Wade’s appeal,
concluding it lacked jurisdiction because Mr. Wade had not
challenged a final personnel action. We affirm.
BACKGROUND
At the time relevant to this appeal, Mr. Wade was em-
ployed by the Department of Veterans Affairs (the
“agency”) as a Housekeeping Aid Supervisor. On February
28, 2020, the agency proposed to remove Mr. Wade from his
position. Between March 1, 2020, and January 30, 2022,
Mr. Wade filed three Board appeals related to the proposed
removal. Those three appeals were brought as individual
right of action (“IRA”) appeals under the Whistleblower
Protection Act, 5 U.S.C. § 1221(a). The Board dismissed
the first two for a failure to exhaust remedies before the
Office of Special Counsel, and the third as untimely. In the
first two decisions, the Board additionally found that
Mr. Wade had not identified specific protected disclosures
that could reasonably support his vague whistleblower al-
legations.
On March 22, 2022, the agency rescinded its proposed
removal and reissued a new proposed removal, which is the
subject of this petition for review. The March 22, 2022,
proposed removal charged Mr. Wade with Conduct Unbe-
coming of a Supervisory Federal Employee. The proposed
removal was based on allegations that Mr. Wade “en-
gag[ed] in consensual sexual encounters with VA employ-
ees while in the performance of [his] official duties” and
that he “paid employees in the form of cash and/or overtime
pay for hours not worked in return for the sexual encoun-
ters,” S.A. 89, as well as other alleged inappropriate ac-
tions related to those sexual encounters.
On March 24, 2022, Mr. Wade appealed to the Board
alleging the agency had failed to produce evidence
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WADE v. MSPB 3
supporting the new proposed removal and that the pro-
posed removal was improperly based on whistleblowing al-
legations. Mr. Wade did not allege that the agency had
issued a final decision regarding his proposed removal. On
April 22, 2022, an administrative judge, construing
Mr. Wade’s appeal under 5 U.S.C. § 7512, which grants ju-
risdiction to the Board over appeals from final adverse em-
ployment actions, issued an initial decision summarily
dismissing Mr. Wade’s appeal for lack of jurisdiction be-
cause “the agency merely proposed [Mr. Wade’s] removal
but has not issued a decision or effectuated the removal.”
S.A. 3. After Mr. Wade withdrew his petition for review by
the Board, on July 18, 2022, the initial decision was
adopted as the final decision of the Board.
Mr. Wade petitions this court for review of the Board’s
dismissal of his initial appeal.
DISCUSSION
I
As a preliminary matter, we must address whether we
have jurisdiction over Mr. Wade’s petition for review. We
lack jurisdiction to hear petitions for review of Board cases
involving discrimination under federal antidiscrimination
laws. 5 U.S.C. § 7703(b)(1)(B). This includes so-called
“mixed cases”—those “in which a federal employee (1) com-
plains of having suffered a serious adverse personnel ac-
tion appealable to the [Board] and (2) attributes the
adverse action, in whole or in part, to bias prohibited by
federal antidiscrimination laws.” Harris v. Securities &
Exchange Commission, 972 F.3d 1307, 1317 (Fed. Cir.
2020); see Perry v. Merit Systems Protection Board, 582
U.S. 420, 437 (2017) (“[I]n mixed cases, . . . the district
court is the proper forum for judicial review.”).
In his statement concerning discrimination made to
this court, Mr. Wade checked a box indicating that he “did
claim that [he] was discriminated against before the MPSB
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4 WADE v. MSPB
[sic] . . . and [he] do[es] not wish to abandon [his] discrimi-
nation claims.” Fed. Cir. R. 15(c) Statement Concerning
Discrimination 3, ECF No. 8 (June 7, 2022) (emphasis orig-
inal). Mr. Wade wrote that before the Board he claimed
“violation of the diability [sic] act (ADA), violation of Equal
Rights to Employment, . . . and unlawful employment vio-
lations.” Id. at 2; see also Fed. Cir. R. 15(c) Statement Con-
cerning Discrimination, ECF No. 23 (Oct. 4, 2022)
(similar).
On August 31, 2022, we stayed the briefing schedule in
this case and ordered the parties to show cause whether
the case should be dismissed or transferred to a district
court. Order 2, ECF No. 19 (Aug. 31, 2022). On December
29, 2022, after considering the responses of the parties, we
concluded we were “not prepared on the limited record be-
fore [us] to say that [we] lack[] jurisdiction at this time,”
and we lifted the stay of briefing. Order 2, ECF No. 33
(Dec. 29, 2022).
We now conclude that Mr. Wade did not bring a coher-
ent, non-frivolous discrimination claim before the Board
and, accordingly, that we have jurisdiction to hear
Mr. Wade’s petition for review. See Adams v. Merit Sys-
tems Protection Board, No. 2023-1212, 2023 WL 3493689,
at *1 (Fed. Cir. May 17, 2023) (“[The petitioner] did not
bring Board proceedings under [federal antidiscrimination
laws] because he did not raise a non-frivolous basis to in-
voke the Board's jurisdiction.”). Although the complaint
contains conclusory allegations of sexual harassment, his
complaint to the Board alleged that the agency did not have
evidence to support its proposed removal, and that he had
been removed for whistleblowing activity, not that the pro-
posed removal was based on unlawful discrimination. We
have jurisdiction over this petition for review under
5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
Case: 22-1821 Document: 52 Page: 5 Filed: 09/08/2023
WADE v. MSPB 5
II
We will affirm a decision by the Board unless it is:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with the 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); Hornseth v. Dep’t of the Navy, 916 F.3d
1369, 1373 (Fed. Cir. 2019). We review a Board determi-
nation that it lacked jurisdiction de novo. Hessami v. Merit
Systems Protection Board, 979 F.3d 1362, 1367 (Fed. Cir.
2020).
We have held that “[b]ecause mere proposals to remove
are not listed in [5 U.S.C.] § 7512, they are not appealable
adverse actions in themselves and the Board has no juris-
diction over them.” Cruz v. Dep’t of the Navy, 934 F.2d
1240, 1243 (Fed. Cir. 1991); see also Mays v. Dep’t of Trans.,
27 F.3d 1577, 1579 (Fed. Cir. 1994) (jurisdiction under
§ 7512 does not extend to proposed removals). The only ad-
verse employment action Mr. Wade challenges is the
March 22, 2022 proposed removal, and Mr. Wade does not
allege he has actually been removed. Accordingly, the
Board, as it correctly concluded, lacked jurisdiction under
§ 7512.
In his petition for review to this court, Mr. Wade ap-
pears to argue that his initial appeal to the Board should
have been considered an IRA appeal under § 1221(a), ra-
ther than an appeal of an adverse action under § 7512. Un-
like § 7512, § 1221(a) is not restricted to final personnel
actions and grants jurisdiction over IRA appeals with re-
spect to proposed personnel actions as well. See 5 U.S.C.
§ 1221(a) (permitting an employee to appeal to the Board
“with respect to any personnel action taken, or proposed to
be taken”). However, before bringing an IRA appeal to the
Board, an employee must exhaust administrative remedies
before the Office of Special Counsel (“OSC”). 5 U.S.C.
§ 1214(a)(3); see Young v. Merit Systems Protection Board,
Case: 22-1821 Document: 52 Page: 6 Filed: 09/08/2023
6 WADE v. MSPB
961 F.3d 1323, 1328 (Fed. Cir. 2020). Mr. Wade has not
asserted that he brought his claim regarding the March 22,
2022 proposed removal before OSC and has not demon-
strated that the Board erred in evaluating his claim as a
challenge to an adverse action under § 7512 rather than an
IRA appeal under § 1221(a).
We have considered Mr. Wade’s remaining arguments
and find them unpersuasive.
AFFIRMED
COSTS
No costs.