Adams v. MSPB

Case: 23-1212 Document: 23 Page: 1 Filed: 05/17/2023
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES DERECK ADAMS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1212
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DC-3443-22-0385-I-1 and DC-3443-22-0387-
I-1.
-------------------------------------------------
CHARLES DERECK ADAMS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1213
______________________
Case: 23-1212 Document: 23 Page: 2 Filed: 05/17/2023
2 ADAMS v. MSPB
Petition for review of the Merit Systems Protection
Board in No. DC-3443-22-0386-I-1.
-------------------------------------------------
CHARLES DERECK ADAMS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1214
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DC-3443-22-0385-I-1 and DC-3443-22-0387-
I-1.
-------------------------------------------------
CHARLES D. ADAMS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-1215
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3443-22-0388-I-1.
______________________
PER CURIAM.
Case: 23-1212 Document: 23 Page: 3 Filed: 05/17/2023
ADAMS v. MSPB 3
ORDER
Having considered the parties’ responses to this court’s
January 30, 2023, show cause order, we summarily affirm.
Charles Dereck Adams served as an Information Tech-
nology 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 Adams’ security clearance was revoked, resulting in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 from the agency. As relevant here, Mr. Adams
appealed his removal to the Merit Systems Protection
Board (“Board”). The Board concluded that it lacked juris-
diction to review the merits of the agency’s decision to re-
move Mr. Adams for failure to maintain the required
security clearance, which we affirmed. See Adams v. Dep’t
of Def., 688 F.3d 1330 (Fed. Cir. 2012).
In April and May 2022, Mr. Adams initiated the four
above-captioned Board proceedings challenging the revoca-
tion of his security clearance as discriminatory and the re-
sult of a biased process. 1 In the two matters underlying
Appeal Nos. 2023-1213 and 2023-1215, the Board dis-
missed for lack of jurisdiction. In the two matters under-
lying Appeal Nos. 2023-1212 and 2023-1214, the Board
dismissed because the appeals raised materially identical
claims to the already-pending appeals. Because Mr. Ad-
ams raised a discrimination claim before the Board and
was interested in seeking judicial review of that claim, we
directed the parties to address our jurisdiction.
We have jurisdiction to review a final decision from the
Board except in “[c]ases of discrimination subject to the
provisions of [5 U.S.C. §] 7702,” which are instead brought
1 Mr. Adams had filed a materially similar appeal
with the Board in April 2021, which was recently denied.
See Adams v. Dep’t of Def., MSPB No. DC-0752-21-0372-
I-1.
Case: 23-1212 Document: 23 Page: 4 Filed: 05/17/2023
4 ADAMS v. MSPB
in district court. 5 U.S.C. § 7703(b)(1)(A), (b)(2); Perry v.
Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1984 (2017). For a
“case[] of discrimination [to be] subject to the provisions of
section 7702,” it must involve both (1) “an action which the
employee [ ] may appeal to the” Board and (2) an “al-
leg[ation] that a basis for the action was [covered] discrim-
ination,” § 7702(a)(1). Here, Mr. Adams did not bring
Board proceedings under § 7702 because he did not raise a
non-frivolous basis to invoke the Board’s jurisdiction.
Mr. Adams’ removal action was resolved in 2012, Ad-
ams, 688 F.3d 1330, and the Board clearly lacks jurisdic-
tion to solely review the manner in which the security
clearance revocation proceeding was conducted. It has long
been settled that “[a] denial of a security clearance is
not . . . an ‘adverse action,’ and by its own force is not sub-
ject to Board review,” Dep’t of Navy v. Egan, 484 U.S. 518,
530 (1988). See Hesse v. Dep’t of State, 217 F.3d 1372,
1376–77 (Fed. Cir. 2000). These petitions also seem to in-
volve the same issue as resolved in our earlier decision,
which is collateral estoppel as to the Board’s jurisdiction
relating to adjudication of his security clearance. See Ad-
ams, 688 F.3d at 1334. In any event—and as already ex-
plained to Mr. Adams in his prior appeal—“neither this
court nor the [Board] has authority to review the charge
that retaliation and discrimination were the reasons for
revocation of the security clearance.” Id.It follows that Mr. Adams’ petitions are not “[c]ases of
discrimination subject to the provisions of [§] 7702,”
§ 7703(b)(2), but instead fall within this court’s jurisdiction
under § 7703(b)(1)(A). See Perry, 137 S. Ct. at 1984 (hold-
ing that a “nonfrivolous” allegation under § 7702 channels
judicial review to district court); cf. Granado v. Dep’t of
Just., 721 F.2d 804, 807 (Fed. Cir. 1983) (dismissing peti-
tion for review for lack of jurisdiction where the allegation
of Board jurisdiction was not found to be frivolous).
Case: 23-1212 Document: 23 Page: 5 Filed: 05/17/2023
ADAMS v. MSPB 5
It further follows that summary affirmance is appro-
priate because “no substantial question regarding the out-
come of the appeal exists.” Joshua v. United States, 17 F.3d
378, 380 (Fed. Cir. 1994). The Board was clearly correct in
its decisions in Appeal Nos. 2023-1213 and 2023-1215 that
it lacked jurisdiction over Mr. Adams’ appeals. Summary
affirmance of the dismissal in Appeal Nos. 2023-1212 and
2023-1214 is likewise appropriate because those cases in-
volved materially similar allegations of Board jurisdiction. 2
Accordingly,
IT IS ORDERED THAT:
(1) The decisions of the Board are summarily affirmed.
(2) All pending motions are denied as moot.
(3) Each side shall bear its own costs.
FOR THE COURT
May 17, 2023 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
2 Under the circumstances, even if we were to con-
clude that we lacked jurisdiction, we would nonetheless de-
cline to transfer these cases because it would not be in the
interest of justice under 28 U.S.C. § 1631 for the reasons
provided above. Cf. Campbell v. McCarthy, 952 F.3d 193,
203 (4th Cir. 2020) (“[W]e have never discerned an unmis-
takable expression of purpose by Congress in Title VII of
the Civil Rights Act of 1964 to subject security clearance
decisions to judicial scrutiny.” (internal quotation marks,
brackets, and citation omitted)).