                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CHARLES DERECK ADAMS,                           DOCKET NUMBER
                  Appellant,                         DC-3443-15-0768-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: October 27, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
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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:                              ______________________________
                                            William D. Spencer
                                            Clerk of the Board
Washington, D.C.
