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N OTE: This order is nonprecedential.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
______________________
2025-1040
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-23-0563-I-1.
______________________
ON MOTION
______________________
P ER CURIAM .
O R D E R
In response to the court’s order to show cause, Charles
Dereck Adams urges the court to decide his petition for re-
view. The Department of Defense urges summary affir-
mance or, in the alternative, dismissal. Mr. Adams
separately moves for leave to proceed in forma pauperis.
Years after this court affirmed Mr. Adams’s removal
from the Department of Defense following revocation of his
Case: 25-1040 Document: 11 Page: 1 Filed: 01/14/2025

-- 1 of 3 --

ADAMS v. DEFENSE 2
security clearance1, he filed this appeal at the Merit Sys-
tems Protection Board, asserting that members of federal
agencies committed “misconduct” by “requesting 2 random
Pentagon drug tests within 3 months,” ECF No. 9 at 6
(some capitalization omitted), “and for not intervening and
protecting their employee from discrimination” “[a]nd their
actions directly resulted in him being wrongfully and dis-
criminatorily terminated for the color of his skin,” ECF No.
5 at 8 (capitalization omitted).
The Board dismissed the appeal, concluding that it
lacked jurisdiction over Mr. Adams’s claim of misconduct
and discrimination relating to drug testing and that any
allegation that Mr. Adams was unlawfully removed from
federal employment following his security clearance was
barred by res judicata. Mr. Adams petitions for review and
states that he asserted a discrimination claim before the
Board and does not wish to abandon that claim.
This court has jurisdiction to review final Board deci-
sions 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)(2)—i.e.,
mixed 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] discrimi-
nation.” 5 U.S.C. § 7702(a)(1); see Perry v. Merit Sys. Prot.
Bd., 582 U.S. 420, 431 (2017). We need not definitively re-
solve whether Mr. Adams brought a “[c]ase[] of discrimina-
tion” here because, regardless of how we would answer that
question, we would dismiss.
If we were to look at Mr. Adams’s allegations before the
Board as allegations of “misconduct” associated with drug
1 See Adams v. Dep’t of Def., 688 F.3d 1330, 1336
(Fed. Cir. 2012).
Case: 25-1040 Document: 11 Page: 2 Filed: 01/14/2025

-- 2 of 3 --

ADAMS v. DEFENSE 3
testing or a vague failure to protect, divorced from any per-
sonnel action plausibly appealable to the Board, we would
conclude that this is not a mixed case and that dismissal is
appropriate because Mr. Adams has failed to non-frivo-
lously allege that he was affected by an action appealable
to the Board. See, e.g., 5 U.S.C. § 7512 (“Actions covered”).
We would reach the same outcome if we were to alterna-
tively take the view that Mr. Adams was attempting to re-
litigate his prior removal on the basis of alleged
discrimination, rendering this a mixed case, as it would not
be in the interests of justice to transfer such a frivolous
challenge that was finally adjudicated more than a decade
ago.
Accordingly,
I T I S O RDERED T HAT :
(1) The appeal is dismissed.
(2) All pending motions are denied as moot.
(3) Each side shall bear its own costs.
January 14, 2025
Date
F OR THE COURT
Case: 25-1040 Document: 11 Page: 3 Filed: 01/14/2025

-- 3 of 3 --