NOTE: This order is nonprecedential.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.

O R D E R

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

Merit Systems Protection Board (“Board”) moves to summarily 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after his security clearance was revoked.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: 1 Filed: 12/20/2023
2 ADAMS v. MSPB

Dep’t of Def., 688 F.3d 1330, 1336 (Fed. Cir. 2012). He subsequently filed this appeal at the Board asserting officials 

of his former employing agency aided and abetted discrimination 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 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), we have jurisdiction to 

review final decisions 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 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] discrimination.” 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 because 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 dismissal 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 removal 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: 2 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.

December 20, 2023

 Date

FOR THE COURT

Case: 23-1680 Document: 14 Page: 3 Filed: 12/20/2023