Case: 23-1680 Document: 14 Page: 1 Filed: 12/20/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES DERECK ADAMS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1680
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-20-0832-I-1.
______________________
ON MOTION
______________________
Before DYK, BRYSON, and TARANTO, 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after his security clearance was revoked.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.
Case: 23-1680 Document: 14 Page: 2 Filed: 12/20/2023
2 ADAMS v. MSPB
Dep’t of Def., 688 F.3d 1330, 1336 (Fed. Cir. 2012). He sub-
sequently filed this appeal at the Board asserting officials
of his former employing agency aided and abetted discrim-
ination and requesting reinstatement to a job “wrongfully
taken” from him. ECF No. 7 at 6. The Board dismissed the
appeal for lack of jurisdiction. Because Mr. Adams alleged
discrimination before the Board and he expressed an inter-
est in pursuing those allegations on appeal of that dismis-
sal, we directed the parties to address our jurisdiction.
Under 28 U.S.C. § 1295(a)(9), we have jurisdiction to
review final decisions of the Board except in “[c]ases of dis-
crimination subject to the provisions of [5 U.S.C. §] 7702.”
5 U.S.C. § 7703(b)(1)(A), (b)(2). Although under Perry v.
Merit Systems Protection Board, 582 U.S. 420, 431–32
(2017), we lack jurisdiction over so-called mixed cases even
when the Board dismisses for lack of jurisdiction, a mixed
case is one that involves a non-frivolous allegation: (1) of
“an action which the employee . . . may appeal to the” Board
and (2) “that a basis for the action was [covered] discrimi-
nation.” 5 U.S.C. § 7702(a)(1); see Perry, 582 U.S. at 431.
We need not here resolve whether this is a mixed case be-
cause we would dismiss regardless of how we would answer
that question.
If we were to construe Mr. Adams’ allegations before
the Board as allegations of discrimination, divorced from
any personnel action plausibly appealable to the Board, we
would conclude that this is not a mixed case, but that dis-
missal is appropriate. King v. Reid, 59 F.3d 1215, 1217–18
(Fed. Cir. 1995) (“A claim of discrimination, standing alone,
is insufficient to invoke the board’s jurisdiction.” (citation
omitted)). We would reach the same outcome if taking the
view that Mr. Adams’ attempts to relitigate his prior re-
moval rendered this a mixed case, as it would not be in the
interest of justice to transfer such a frivolous challenge
that was adjudicated more than a decade ago.
Accordingly,
Case: 23-1680 Document: 14 Page: 3 Filed: 12/20/2023
ADAMS v. MSPB 3
IT IS ORDERED THAT:
(1) The appeal is dismissed.
(2) All pending motions are denied.
(3) Each side shall bear its own costs.
FOR THE COURT
December 20, 2023
Date