NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

CHARLES DERECK ADAMS,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________

2023-1678

______________________

Petition for review of the Merit Systems Protection 

Board in No. DC-3443-18-0288-I-1.

-------------------------------------------------

CHARLES DERECK ADAMS,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________

2023-1698

______________________

Petition for review of the Merit Systems Protection 

Board in No. DC-3443-18-0288-I-1.

Case: 23-1678 Document: 16 Page: 1 Filed: 10/03/2023
2 ADAMS v. MSPB

______________________

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”) urges the court 

to assert jurisdiction and summarily affirm the Board’s final decision. Charles Dereck Adams urges the court to assert jurisdiction and opposes summary affirmance.

Mr. Adams served as an Information Technology Specialist with the Missile Defense Agency of the Department 

of Defense. His position required him to have and maintain 

a Top-Secret security clearance. In 2010, Mr. Adams’ security clearance was revoked, resulting in his removal. He 

appealed his removal to the Board, which concluded that it 

lacked jurisdiction to review the merits of the agency’s decision to remove Mr. Adams for failure to maintain the required security clearance. We later affirmed the ruling 

with respect to the removal. See Adams v. Dep’t of Def., 688 

F.3d 1330, 1336 (Fed. Cir. 2012). 

In 2018, Mr. Adams filed the underlying appeal challenging rulings made in the adjudication of his security 

clearance. The Board dismissed the appeal on the ground 

that it lacks jurisdiction over an agency’s security clearance process or its determinations. Mr. Adams then filed 

these petitions for review.1 Because Mr. Adams’ filings indicate that he raised a discrimination claim before the 

1 In the same decision, the Board joined this underlying proceeding with another (DC-3443-18-0287-I-1). Mr. 

Adams’ petition for judicial review of that matter is separately docketed at this court as Appeal No. 2023-1676, and 

we do not address that matter in this order.

Case: 23-1678 Document: 16 Page: 2 Filed: 10/03/2023
ADAMS v. MSPB 3

Board and wishes to continue to pursue that claim, we directed the parties to address our jurisdiction.

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 recently noted in several of Mr. Adams’ other cases 

that an appeal to the Board in which discrimination is asserted does not constitute a “[c]ase[] of discrimination” 

where the petitioner fails to raise a non-frivolous allegation 

of Board jurisdiction over revocation of a security clearance. Adams v. Merit Sys. Prot. Bd., Nos. 2023-1212 et al., 

2023 WL 3493689, at *1 (Fed. Cir. May 17, 2023) (first citing Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988); and 

then citing Hesse v. Dep’t of State, 217 F.3d 1372, 1376–77 

(Fed. Cir. 2000)). Because it was also clearly correct for the 

Board to dismiss such an appeal for lack of jurisdiction, we 

summarily affirmed. Id. at *2.

We agree with the Board that the same result is warranted in this matter. As in his prior appeals, Mr. Adams’ 

challenge to the agency’s revocation of his security clearance here does not allege that he was affected by an action 

appealable to the Board. Hence, this is not a “[c]ase[] of 

discrimination” that belongs in district court. Summary 

affirmance is likewise appropriate here since there is no 

non-frivolous basis for the assertion of Board jurisdiction. 

Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994)

(finding summary affirmance appropriate where “no 

Case: 23-1678 Document: 16 Page: 3 Filed: 10/03/2023
4 ADAMS v. MSPB

substantial question regarding the outcome of the appeal 

exists.” (citation omitted)).2

Accordingly,

IT IS ORDERED THAT:

(1) The decision of the Board underlying Appeal Nos. 

2023-1678 and 2023-1698 is summarily affirmed, and each 

side shall bear its own costs for those two appeals.

(2) Any pending motions in these appeals are denied

as moot.

October 3, 2023

 Date

FOR THE COURT

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Clerk of Court

2 For the same reasons, even if this was a “[c]ase[] of 

discrimination” where we lacked jurisdiction, transfer under 28 U.S.C. § 1631 to a district court would not be “in the 

interest of justice.” 

Case: 23-1678 Document: 16 Page: 4 Filed: 10/03/2023