Case: 23-1695 Document: 15 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NOTE: This order is nonprecedential.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
______________________
2023-1695
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-20-0303-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 to dis-
miss. Charles Dereck Adams opposes dismissal.
This court previously affirmed the Department of De-
fense’s decision to remove Mr. Adams from his position af-
ter his security clearance was revoked. See Adams v. Dep’t
Case: 23-1695 Document: 15 Page: 2 Filed: 10/03/2023
2 ADAMS v. MSPB
of Def., 688 F.3d 1330, 1336 (Fed. Cir. 2012). Years later,
he filed the underlying appeal at the Board asserting that
members of the agency committed an “Abuse of Power and
Obstruction of Evidence[] [and] discrimination” by alleg-
edly wrongfully removing him. App. 29. The administra-
tive judge dismissed for lack of jurisdiction. Mr. Adams
filed a petition for review from that decision to the Board,
but that petition was dismissed as untimely. Mr. Adams
then filed this petition for review and has indicated in his
filings that he does not wish to abandon his discrimination
claims.
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 need not reach
any definitive resolution as to whether this is a mixed case
because we would dismiss regardless of how we would an-
swer that question.
If we were to look at Mr. Adams’ allegations before the
Board as naked allegations of “abuse of power” and “ob-
struction of justice,” divorced from any personnel action
plausibly appealable to the Board, we would conclude that
this is not a mixed case but that dismissal is still appropri-
ate because Mr. Adams has failed to allege that he was af-
fected by an action appealable to the Board. See, e.g., 5
U.S.C. § 7512 (“Actions covered”). We would reach the
same outcome if we were to alternatively take the view that
Mr. Adams was attempting to relitigate his prior removal,
rendering this a mixed case, as it would not be in the
Case: 23-1695 Document: 15 Page: 3 Filed: 10/03/2023
ADAMS v. MSPB 3
interest of justice to transfer such a frivolous challenge
that was adjudicated more than a decade ago.
Accordingly,
IT IS ORDERED THAT:
(1) The Board’s motion is granted. This case is dis-
missed.
(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