Charles D. Adams v. Merit Systems Protection Board

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES D. ADAMS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2195
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-23-0141-I-1.
______________________
ON MOTION
______________________
P ER CURIAM .
O R D E R
In response to the court’s order to show cause, Charles
D. Adams urges this court to decide his petition for review
and moves to reform the caption and for leave to proceed in
forma pauperis. The Merit Systems Protection Board
moves to dismiss as untimely or, in the alternative, to sum-
marily affirm its decision.
Case: 24-2195 Document: 26 Page: 1 Filed: 11/18/2024

-- 1 of 3 --

ADAMS v. MSPB 2
Years after this court affirmed Mr. Adams’s removal
from the Department of Defense after revocation of his se-
curity clearance1, he filed the underlying appeal at the
Board, alleging misconduct by the FBI in handling relevant
records and evidence. The Board dismissed his appeal for
lack of jurisdiction, concluding that Mr. Adams was not
challenging a personnel action appealable to the Board
and, to the extent he was attempting to file an individual
right of action (“IRA”) appeal, he had failed to exhaust ad-
ministrative remedies at the Office of Special Counsel
(“OSC”). Mr. Adams petitions for review and states that he
asserted a discrimination claim before the Board and does
not wish to abandon those claims.
This court has jurisdiction to review final Board deci-
sion with one relevant exception: district courts have ju-
risdiction over “[c]ases of discrimination subject to the
provisions of [5 U.S.C. §] 7702.” 5 U.S.C. § 7703(b)(1)(A),
(b)(2)—i.e., cases that 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] dis-
crimination.” 5 U.S.C. § 7702(a)(1); see Perry v. Merit Sys-
tems Protection Board, 582 U.S. 420, 431–32 (2017). We
need not definitively resolve whether Mr. Adams brought
a “case[] of discrimination” here because, regardless of how
we would answer that question, we would dismiss.
If Mr. Adams is only raising allegations 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 except for perhaps as a prohibited per-
sonnel practice and he does not deny failing to first seek
1 See Adams v. Dep’t of Def., 688 F.3d 1330, 1336
(Fed. Cir. 2012).
Case: 24-2195 Document: 26 Page: 2 Filed: 11/18/2024

-- 2 of 3 --

ADAMS v. MSPB 3
corrective action with OSC as required by statute.2, 3 We
would reach the same conclusion if we were to take the
view that Mr. Adams is trying to relitigate his prior case.
It would not be in the interest of justice to transfer after
Mr. Adams already fully litigated, and lost, these claims in
his prior cases.
Accordingly,
I T I S O RDERED T HAT :
(1) The Board’s motion is granted to the extent that
the above-captioned appeal is dismissed.
(2) All remaining pending motions are denied as moot.
(3) Each side shall bear its own costs.
November 18, 2024
Date
F OR THE COURT
2 See 5 U.S.C. § 1214(a)(3) (“Except in a case in which
an employee, former employee, or applicant for employ-
ment has the right to appeal directly to the Merit Systems
Protection Board under any law, rule, or regulation, any
such employee, former employee, or applicant shall seek
corrective action from the Special Counsel before seeking
corrective action from the Board.”)
3 To the extent Mr. Adams intended to file IRA ap-
peals, “IRA appeals . . . by definition are never ‘mixed
cases.’” Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1328
(Fed. Cir. 2020).
Case: 24-2195 Document: 26 Page: 3 Filed: 11/18/2024

-- 3 of 3 --