Case: 23-1662 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NOTE: This order is nonprecedential.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
______________________
2023-1662
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-21-0137-I-1.
______________________
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”) moves to sum-
marily affirm. Charles Dereck Adams opposes.
This court previously affirmed Mr. Adams’ removal
from the Department of Defense more than a decade ago
after his security clearance was revoked. See Adams v.
Dep’t of Def., 688 F.3d 1330, 1336 (Fed. Cir. 2012). He sub-
sequently filed this appeal at the Board arguing that the
agency had discriminated against him in issuing a
Case: 23-1662 Document: 16 Page: 2 Filed: 10/03/2023
2 ADAMS v. MSPB
performance appraisal while he worked at the Department
of Defense. The Board dismissed the appeal for lack of ju-
risdiction. Because Mr. Adams alleged discrimination be-
fore the Board and he expressed an interest in pursuing
those allegations on appeal of that dismissal, we directed
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.
This is not such a mixed case because Mr. Adams did
not raise a non-frivolous allegation that he was subjected
to an action appealable to the Board. Under long-standing
precedent, “disagreement with a performance evaluation,
unaccompanied by an otherwise appealable adverse action,
is not independently appealable to the Board,” Manley v.
Dep’t of Air Force, 91 F.3d 117, 119 (Fed. Cir. 1996) (citing
5 U.S.C. § 7512), and Mr. Adams has failed to provide any
cognizable basis to distinguish his case. To the extent that
Mr. Adams contends review of the evaluation can be teth-
ered to his alleged “wrongful and discriminatory revocation
of [his security] clearances,” ECF No. 14 at 1 (emphasis
omitted), we must reject that argument. As we recently
explained to Mr. Adams, the Board also lacks jurisdiction
to review the manner in which the security clearance revo-
cation proceeding was conducted. Adams v. Merit Sys.
Prot. Bd., Nos. 2023-1212 et al., 2023 WL 3493689, at *1
(Fed. Cir. May 17, 2023).
Case: 23-1662 Document: 16 Page: 3 Filed: 10/03/2023
ADAMS v. MSPB 3
We agree with the government that it further follows
that summary affirmance is appropriate here since there is
no non-frivolous basis for the assertion of Board jurisdic-
tion. Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir.
1994) (finding summary affirmance appropriate where “no
substantial question regarding the outcome of the appeal
exists.” (citation omitted)); Manley, 91 F.3d at 119; Adams,
2023 WL 3493689, at *1. *
Accordingly,
IT IS ORDERED THAT:
(1) The decision of the Board is summarily affirmed.
(2) Any pending motions are denied as moot.
(3) Each side shall bear its own costs.
FOR THE COURT
October 3, 2023 /s/ Jarrett B. Perlow
Date Jarrett B. Perlow
Clerk of Court
* For the same reasons, even if this were a mixed
case where we lacked jurisdiction, transfer under 28 U.S.C.
§ 1631 to a district court would not be “in the interest of
justice.”