Case: 23-1754 Document: 15 Page: 1 Filed: 10/03/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES D. ADAMS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1754
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-21-0372-I-1.
______________________
ON MOTION
______________________
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 for sum-
mary affirmance. Charles D. Adams opposes.
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
Case: 23-1754 Document: 15 Page: 2 Filed: 10/03/2023
2 ADAMS v. MSPB
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rity clearance was revoked, resulting in his removal.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 2021, Mr. Adams filed the underlying appeal at the
Board challenging the revocation of his security clearance
as discriminatory. The Board dismissed the appeal on the
ground that it lacked jurisdiction over an agency’s security
clearance process or its determinations. Mr. Adams then
filed this petition for review. Because Mr. Adams’ filings
indicate that he raised a discrimination claim before the
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 the 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
Case: 23-1754 Document: 15 Page: 3 Filed: 10/03/2023
ADAMS v. MSPB 3
citing 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 case. As in his prior appeals, Mr. Adams’
challenge to the revocation of his security clearance here
does not allege that he was affected by an action appealable
to the Board. Hence, this is not a “[c]ase[] of discrimina-
tion” 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 substantial
question regarding the outcome of the appeal exists” (cita-
tion omitted)). *
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 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.”