N OTE : This order is nonprecedential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 D YK

, B RYSON

, and T ARANTO

, Circuit Judges

.
P ER C URIAM

.
O R D E R

In response to the court’s order to show cause, theMerit 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 Adams’ removal from the Department of Defense more t han a decade ago after his security clearance was revoked. See Adams v. Case: 23-1680 Document: 14 Page: 1 Filed: 12/20/2023ADAMS v. M S PB 2

Dep’t of Def. , 688 F.3d 1330, 1336 (Fed. Cir. 2012). H e subsequently filed th is appeal at the Board asserting officialsof his former employing agency aided and abetted discriminatio n 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 allegeddiscrimination before the Board and he expressed an interest in pursuing those allega tions on appeal of that dismissal, we directed the parties to address our jurisdiction.

Under 28 U.S.C. § 1295(a)(9), we ha ve jurisdiction to
review final decision s 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” Boardand (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 reso lve 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,

i s insufficient to invoke the board’s jurisdiction .” (citation omitted)). We would reach the same outcome if tak ing the
view that Mr. Adams ’ attempt s to relitigate his prior removal render ed 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: 12/20/2023ADAMS v. MSPB 3

I T I S O RDERED T HAT :

(1) The appeal is dismissed.

(2) All pending motions are denied.

(3) Each side shall bear its own costs.

December 20 , 2023
Date F OR THE C OURT Case: 23-1680 Document: 14 Page: 3 Filed: 12/20/2023