Charles Dereck Adams v. Department of Defense

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES DERECK ADAMS,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2023-1676
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-18-0287-I-1.
-------------------------------------------------
CHARLES DERECK ADAMS,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2023-1681
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-21-0051-I-1.
Case: 23-1676 Document: 16 Page: 1 Filed: 10/18/2023

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ADAMS v. DEFENSE 2
______________________
Before D YK, C UNNINGHAM , and STARK, Circuit Judges.
P ER CURIAM .
O R D E R
Having considered the parties’ responses to this court’s
May 10, 2023, show cause order, the court dismisses the
above-captioned petitions for review.
In 2016, Charles Dereck Adams filed an appeal at the
Merit Systems Protection Board challenging the Depart-
ment of Defense’s denial of his request for early retirement
under the agency’s Voluntary Early Retirement Authority
(“VERA”) as discriminatory. The Board issued a final de-
cision rejecting Mr. Adams’ argument that the agency
knowingly withheld information, including a hard drive,
relevant to his claims.
Mr. Adams then brought suit before the United States
District Court for the Eastern District of Virginia, where
he argued, among other things, that the agency concealed
“[m]y complete Uncensored Unclassified Profile or H:
drive” and “EEO Records concerning the Discriminators
and the Key Decision-maker in this case.” Compl. at 21,
Adams v. Dep’t of Def., No. 1:16-cv-01468 (E.D. Va. Mar.
16, 2017), ECF No. 11 at 21. The Eastern District of Vir-
ginia ultimately entered judgment against Mr. Adams in
the case, Adams v. Dep’t of Def., No. 1:16-cv-01468 (E.D.
Va. Sept. 29, 2017), and Mr. Adams’ appeal was subse-
quently dismissed as untimely by the United States Court
of Appeals for the Fourth Circuit. Adams v. Dep’t of Def.,
No. 17-2383, slip op. at 2 (4th Cir. Jan. 22, 2018).
Years later, Mr. Adams filed the two underlying ap-
peals at the Board reasserting that the Department of De-
fense improperly withheld the hard drive evidence and
EEO records and statistics relevant to his prior VERA ap-
peal and a similar claim raised before the Equal
Case: 23-1676 Document: 16 Page: 2 Filed: 10/18/2023

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ADAMS v. DEFENSE 3
Employment Opportunity Commission. The Board con-
cluded that Mr. Adams was barred from rechallenging the
denial of his request for early retirement under VERA and
that the Board otherwise lacked jurisdiction over his
claims.* Mr. Adams then filed these petitions. Because he
asserted that he raised a discrimination claim before the
Board and did not want to abandon that claim, we directed
the parties to address our jurisdiction.
We have jurisdiction to review final decisions from the
Board, except in “[c]ases of discrimination subject to the
provisions of [5 U.S.C. §] 7702,” 5 U.S.C. §§ 7703(b)(2),
(b)(1)(A). Those so-called mixed cases, which involve ap-
peals to the Board and allegations of covered discrimina-
tion, 5 U.S.C. § 7702(a)(1), instead belong in district court.
5 U.S.C. § 7703(b)(2); Perry v. Merit Sys. Prot. Bd., 582 U.S.
420, 432 (2017). When this court lacks jurisdiction, we can
transfer to another court where the case “could have been
brought at the time it was filed,” but only if transfer is “in
the interest of justice.” 28 U.S.C. § 1631. We need not
reach any definitive resolution on the issue of whether
Mr. Adams brings mixed cases because, regardless of how
we would answer that question, we would dismiss.
If we construe Mr. Adams’ contentions here as only
raising allegations that the agency improperly withheld in-
formation, divorced from any personnel action plausibly
appealable to the Board, we would conclude that dismissal
is appropriate because Mr. Adams has failed to identify any
arguable basis for the Board’s jurisdiction. See, e.g., 5
U.S.C. § 7512. We would reach the same outcome if we
were to alternatively take the view that Mr. Adams is
* In the same decisions, the Board joined these pro-
ceedings with other appeals filed by Mr. Adams. Mr. Ad-
ams’ petitions for judicial review of those matters are
separately docketed. This order addresses only DC-3443-
18-0287-I-1 and DC-3443-21-0051-I-1.
Case: 23-1676 Document: 16 Page: 3 Filed: 10/18/2023

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ADAMS v. DEFENSE 4
trying to relitigate his prior mixed case. It would not be in
the interest of justice to transfer after Mr. Adams already
fully litigated, and lost, these same claims in his prior case
regarding the same VERA dispute.
Accordingly,
I T I S O RDERED T HAT :
(1) These petitions for review are dismissed.
(2) Each side shall bear its own costs.
October 18, 2023
Date
F OR THE COURT
/s/ Jarrett B. Perlow
Jarrett B. Perlow
Clerk of Court
Case: 23-1676 Document: 16 Page: 4 Filed: 10/18/2023

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