UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CHARLES DERECK ADAMS,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DC-3443-15-0768-I-1

DATE: October 27, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Charles Dereck Adams, Herndon, Virginia, pro se.

James J. Delduco, Esquire, Redstone Arsenal, Alabama, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such 

as this one only when: the initial decision contains erroneous findings of material 

fact; the initial decision is based on an erroneous interpretation of statute or 

regulation or the erroneous application of the law to the facts of the case; the 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

administrative judge’s rulings during either the course of the appeal or the initial 

decision were not consistent with required procedures or involved an abuse of 

discretion, and the resulting error affected the outcome of the case; or new and 

material evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. See Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 On May 26, 2015, the appellant filed an appeal in which he alleged that in 

2009, the agency had illegally “pull[ed him] back” from an IT Specialist position 

with its “OUSD” (Comptroller) after he had been formally “out processed” from 

his previous position with the agency’s Missile Defense Agency (MDA) and after 

he had reported for duty at the new job. Initial Appeal File (IAF), Tab 1 at 4. In 

support, he submitted a copy of the agency’s January 23, 2009 letter confirming 

the offer of employment for the position of IT Specialist. Id. at 5. The letter 

stated that the effective date of the appellant’s reassignment was February 1, 

2009, and that he should report on February 2, 2009. Id. The appellant also 

submitted documents showing that he was processed out of his previous job on 

January 30, 2009. Id. at 6-11. He claimed that the agency’s action was “a clear 

violation of prohibited personnel actions.” Id. at 4.

¶3 In acknowledging the appeal, the administrative judge ordered the appellant

to file evidence and argument showing that his reassignment to another position 

without a loss of grade or pay is within the Board’s jurisdiction. IAF, Tab 2. She 

also ordered him to file evidence and argument showing that his appeal was 

timely filed or that good cause existed for the delay. Id. 

¶4 In response, the appellant alleged that he had been subjected to 

discrimination, disparate treatment, and retaliation by the MDA, and that its bad 
3

faith and behavior “nullifie[d]” the timeliness and jurisdictional requirements.

2

 

IAF, Tab 6 at 8, Tab 8 at 8. He also claimed that there were numerous conflicts 

of interest and “Cultural/Organizational Bias.” IAF, Tab 6 at 12, Tab 8 at 12. He 

stated that the basis of the appeal was employer discrimination by the MDA, and 

claimed that the case should go forward, timeliness and jurisdiction 

notwithstanding. IAF, Tab 6 at 20, Tab 8 at 20. The appellant referenced equal 

employment opportunity complaints and other Board appeals he had filed, IAF, 

Tab 6 at 5, 23, Tab 8 at 5, 23, and he included 24 attachments, IAF, Tab 6

at 35-240, Tab 7 at 7-22, Tab 8 at 35-240, Tab 9 at 7-22. 

¶5 The agency moved that the appeal be dismissed for lack of jurisdiction and 

as untimely filed. IAF, Tabs 3, 10.

¶6 In her initial decision, the administrative judge dismissed the appeal for 

lack of jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1, 4. She found that the 

appellant’s pleadings did not clearly or concisely identify the agency action he 

was contesting, although he emphasized discriminatory acts by the agency, and 

she further found that the appellant did not respond to her order on timeliness.

3

 

ID at 2 n.1. The administrative judge acknowledged the appellant’s claim that he 

was indefinitely suspended in 2009, but she found that he failed to nonfrivolously 

allege that the Board has jurisdiction over the indefinite suspension or any other 

agency action. 4

 ID at 3. Because she dismissed the appeal for lack of 

jurisdiction, she deemed it unnecessary to address the timeliness issue. ID at 4.

 2 The appellant’s purported response on timeliness was identical to his purported 

response on jurisdiction, compare IAF, Tab 6, with IAF, Tab 8, as were the attachments

to those responses, compare IAF, Tabs 6-7, with IAF, Tabs 8-9.

3 As noted, the appellant did, in fact, file a pleading that purported to address the matter 

of timeliness, but it was nonresponsive as to that issue. IAF, Tab 6.

4 In fact, the appellant previously filed an appeal to the Board of his indefinite 

suspension, an action that occurred after the matters that gave rise to the instant appeal. 

A Board administrative judge affirmed the indefinite suspension, the full Board denied 

the appellant’s petition for review of that decision, Adams v. Department of Defense, 

MSPB Docket No. DC-0752-09-620-I-1, Final Order (Aug. 12, 2009), and the U.S. 
4

¶7 The appellant has filed a petition for review, Petition for Review (PFR) 

File, Tabs 1-2, and the agency has responded in opposition, PFR File, Tab 4. 5

¶8 On review, the appellant argues that the administrative judge failed to 

address his claim that the agency “pulled [him] back” from his new position. 

PFR File, Tab 1 at 4-5. On the contrary, the administrative judge acknowledged 

that that was the subject of this appeal, ID at 1, but she found that the appellant

had failed to nonfrivolously allege that the Board has jurisdiction over such an 

action, ID at 2. Although the appellant argues that the agency acted improperly 

in this regard, the Board does not have jurisdiction over all matters alleged to be 

unfair or incorrect; rather, its jurisdiction is limited to matters over which it has 

been given jurisdiction by statute or regulation. See Johnson v. U.S. Postal 

Service, 67 M.S.P.R. 573, 577 (1995). Here, the appellant has failed to 

nonfrivolously allege that the agency’s act of “pulling [him] back” from the IT 

Specialist position to which he had been reassigned is a matter over which the 

Board has jurisdiction. 6

 See 5 U.S.C. § 7512. Therefore, he has not shown that 

the administrative judge erred in dismissing his appeal on that basis. In the 

absence of jurisdiction, the Board lacks authority to consider the appellant’s 

 

Court of Appeals for the Federal Circuit affirmed the Board’s decision, Adams v. 

Department of Defense, 371 F. App’x 93 (Fed. Cir. 2010). The appellant’s subsequent 

removal also was affirmed by the Board and the court. Adams v. Department of 

Defense, MSPB Docket No. DC-0752-10-0741-I-1, Final Order (Mar. 4, 2011), aff’d, 

688 F.3d 1330 (Fed. Cir. 2012).

5 On September 19, 2015, the appellant filed a pleading titled “Response to Agency’s 

new jurisdiction rea [sic] dated 8/31/2015” and on October 13, 2015, the appellant filed 

a pleading titled “What We’ve Learned In The Past 6 Years.” To the extent that the 

appellant’s September 19, 2015 pleading was intended as his reply to the agency’s 

August 31, 2015 response to the petition for review, his reply is untimely and we do not 

consider it. See 5 C.F.R. § 1201.114(e) (“Any reply to a response to a petition for

review must be filed within 10 days after the date of service of the response to the 

petition for review.”). Furthermore, we do not consider the appellant’s October 13, 

2015 pleading because the appellant failed to comply with the Board’s regulations

which required him to seek leave to file an additional pleading. See 5 C.F.R. 

§ 1201.114(a)(5). 

6 The appellant has submitted no documentary evidence in support of his claim.
5

claims that the agency committed prohibited personnel practices under 5 U.S.C. 

§ 2302(b). Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 

681 F.2d 867, 871-73 (D.C. Cir. 1982).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court’s website, 

www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 

Petitioners and Appellants,” which is contained within the court’s Rules of 

Practice, and Forms 5, 6, and 11.

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 
6

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board