NOTE: This order is nonprecedential.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.

O R D E R

In response to the court’s order to show cause, the 

Merit Systems Protection Board (“Board”) moves to dismiss. Charles Dereck Adams opposes dismissal.

This court previously affirmed the Department of Defense’s decision to remove Mr. Adams from his position after his security clearance was revoked. See Adams v. Dep’t 

Case: 23-1695 Document: 15 Page: 1 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 allegedly wrongfully removing him. App. 29. The administrative 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 jurisdiction 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). Although under Perry v. Merit Systems Protection Board, 582 

U.S. 420, 431–32 (2017), we must ordinarily transfer socalled 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 answer that question. 

If we were to look at Mr. Adams’ allegations before the 

Board as naked allegations of “abuse of power” and “obstruction 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 appropriate because Mr. Adams has failed to allege that he was affected 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 

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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 dismissed. 

(2) Any pending motions are denied as moot.

(3) Each side shall bear its own costs.

 October 3, 2023

 Date

FOR THE COURT

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Clerk of Court

Case: 23-1695 Document: 15 Page: 3 Filed: 10/03/2023