Case: 23-1678 Document: 16 Page: 1 Filed: 10/03/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES DERECK ADAMS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1678
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-18-0288-I-1.
-------------------------------------------------
CHARLES DERECK ADAMS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1698
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-18-0288-I-1.
Case: 23-1678 Document: 16 Page: 2 Filed: 10/03/2023
2 ADAMS v. MSPB
______________________
Before DYK, CUNNINGHAM, and STARK, Circuit Judges.
PER CURIAM.
ORDER
In response to the court’s order to show cause, the
Merit Systems Protection Board (“Board”) urges the court
to assert jurisdiction and summarily affirm the Board’s fi-
nal decision. Charles Dereck Adams urges the court to as-
sert jurisdiction and opposes summary affirmance.
Mr. Adams served as an Information Technology Spe-
cialist with the Missile Defense Agency of the Department
of Defense. His position required him to have and maintain
a Top-Secret security clearance. In 2010, Mr. Adams’ secu-
rity clearance was revoked, resulting in his removal. He
appealed his removal to the Board, which concluded that it
lacked jurisdiction to review the merits of the agency’s de-
cision to remove Mr. Adams for failure to maintain the re-
quired security clearance. We later affirmed the ruling
with respect to the removal. See Adams v. Dep’t of Def., 688
F.3d 1330, 1336 (Fed. Cir. 2012).
In 2018, Mr. Adams filed the underlying appeal chal-
lenging rulings made in the adjudication of his security
clearance. The Board dismissed the appeal on the ground
that it lacks jurisdiction over an agency’s security clear-
ance process or its determinations. Mr. Adams then filed
these petitions for review. 1 Because Mr. Adams’ filings in-
dicate that he raised a discrimination claim before the
1 In the same decision, the Board joined this under-
lying proceeding with another (DC-3443-18-0287-I-1). Mr.
Adams’ petition for judicial review of that matter is sepa-
rately docketed at this court as Appeal No. 2023-1676, and
we do not address that matter in this order.
Case: 23-1678 Document: 16 Page: 3 Filed: 10/03/2023
ADAMS v. MSPB 3
Board and wishes to continue to pursue that claim, we di-
rected the parties to address our jurisdiction.
Under 28 U.S.C. § 1295(a)(9), this court has jurisdic-
tion to review a final order or final decision of the Board
except in “[c]ases of discrimination subject to the provisions
of [5 U.S.C. §] 7702.” 5 U.S.C. § 7703(b)(1)(A), (b)(2). Alt-
hough under Perry v. Merit Systems Protection Board, 582
U.S. 420, 431–32 (2017), we must ordinarily transfer so-
called mixed cases to federal district court even when the
Board dismisses for lack of jurisdiction, such cases must
involve (1) a non-frivolous allegation of “an action which
the employee . . . may appeal to the” Board and (2) “that a
basis for the action was [covered] discrimination.” 5 U.S.C.
§ 7702(a)(1); see Perry, 582 U.S. at 431.
We recently noted in several of Mr. Adams’ other cases
that an appeal to the Board in which discrimination is as-
serted does not constitute a “[c]ase[] of discrimination”
where the petitioner fails to raise a non-frivolous allegation
of Board jurisdiction over revocation of a security clear-
ance. Adams v. Merit Sys. Prot. Bd., Nos. 2023-1212 et al.,
2023 WL 3493689, at *1 (Fed. Cir. May 17, 2023) (first cit-
ing Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988); and
then citing Hesse v. Dep’t of State, 217 F.3d 1372, 1376–77
(Fed. Cir. 2000)). Because it was also clearly correct for the
Board to dismiss such an appeal for lack of jurisdiction, we
summarily affirmed. Id. at *2.
We agree with the Board that the same result is war-
ranted in this matter. As in his prior appeals, Mr. Adams’
challenge to the agency’s revocation of his security clear-
ance here does not allege that he was affected by an action
appealable to the Board. Hence, this is not a “[c]ase[] of
discrimination” that belongs in district court. Summary
affirmance is likewise appropriate here since there is no
non-frivolous basis for the assertion of Board jurisdiction.
Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994)
(finding summary affirmance appropriate where “no
Case: 23-1678 Document: 16 Page: 4 Filed: 10/03/2023
4 ADAMS v. MSPB
substantial question regarding the outcome of the appeal
exists.” (citation omitted)). 2
Accordingly,
IT IS ORDERED THAT:
(1) The decision of the Board underlying Appeal Nos.
2023-1678 and 2023-1698 is summarily affirmed, and each
side shall bear its own costs for those two appeals.
(2) Any pending motions in these appeals are denied
as moot.
FOR THE COURT
October 3, 2023 /s/ Jarrett B. Perlow
Date Jarrett B. Perlow
Clerk of Court
2 For the same reasons, even if this was a “[c]ase[] of
discrimination” where we lacked jurisdiction, transfer un-
der 28 U.S.C. § 1631 to a district court would not be “in the
interest of justice.”