N OTE : This order is nonprecedential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

- 16 78

______________________ Petition for review of the Merit Systems Protection Board in No. DC

- 3443

- 18

- 028 8

- 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

- 028 8

- I

- 1

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

______________________
Before D YK , C UNNINGHAM , and S TARK , Circuit Judges

. P ER C URIA M

. O R D E R In response to the court’s order to show cause, the Merit Systems Protection Board (“Board”) urges the courtto assert jurisdiction and summarily affirm the Board’s final decision. Charles Dere c k 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 Adams’ security clearance was revoked, resulting in his removal.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 conclu ded that itlacked jurisdiction to review the merits of the agency’s decision to remove Mr. Adams for failure to maintain the required security clearance

. W e 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 lack s jurisdiction over an agency’s security clearance p rocess or its determinations. Mr. Adams then filed th ese petition s 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

w e do not address that matter in this order. Case: 23-1678 Document: 16 Page: 2 Filed: 10/03/2023ADAMS 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 Sys tems Prot ection B oar d

, 582 U.S. 420 , 4 31

– 32 (2017) , we must ordinarily transfer so

called 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 casesthat an appeal to the Board in which discrimination is asserted does not constitut e 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. , No s . 2023

- 1212 et al.

, 2023 WL 3493689, at *1 (Fed. Cir. May 17 , 2023) ( fi r st 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 t his matter

. As in his prior appeal s , Mr. Adams’challenge to the agency’s revocation of his security clearance here do es 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 jurisd iction. 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: 10/03/2023ADAMS v. MSPB 4

substantial question regarding the outcome of the appeal exists.” (citation omitted) )

. 2 Accordingly,

I T I S O RDERED T HAT : (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 th e se appeals are denied
as moot

.

Octo ber 3 , 2023 Date F OR THE C OURT

/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 ju risdiction, 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