French v. Merit Systems Protection Board

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
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ANTHONY L. FRENCH,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: September 8, 2006
___________________________
Before MICHEL, Chief Judge, DYK and PROST Circuit Judges.
PER CURIAM.
Anthony L. French seeks review of the decision of the Merit Systems Protection
Board (“Board”), which dismissed his appeal for lack of jurisdiction. French v. United
States Postal Service, CH-3443-05-0597-I-1 (MSPB June 28, 2005). We affirm.
BACKGROUND
On January 17, 1998, the United States Postal Service (“Agency”) suspended
French for three days and demoted him from his supervisory position to a part-time
clerk position, based on an altercation that had taken place between French and a
subordinate employee. French initially filed an appeal to the Board of these
employment actions, but ultimately withdrew his appeal on February 8, 1999. French
also filed a complaint in district court, seeking monetary relief for his suspension and
demotion. The district court dismissed French’s demotion claim and granted summary
judgment to the agency on the suspension claim. The Sixth Circuit affirmed.
Years later, on May 4, 2005, French filed an appeal with the Board, alleging that
the Agency improperly suspended him, demoted him, and negatively affected the
calculation of his “high-three” salary for retirement purposes. French also made
conclusory allegations that the Agency failed to restore his position, made a negative
suitability determination, reduced his pay, and tolerated a pattern of discrimination. The
Administrative Judge determined that French had failed to establish Board jurisdiction
and dismissed the appeal without holding a hearing. The full Board denied review. This
petition for review followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
In Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322 (Fed. Cir. 2006) (en banc),
we confirmed that an individual must make a non-frivolous allegation of Board
jurisdiction to receive a hearing before the Board. Id. at 1344. We review without
deference whether an appellant made non-frivolous allegations of a fact necessary to
establish jurisdiction. Coradeschi v. Dep’t of Homeland Sec., 439 F.3d 1329, 1332
(Fed. Cir. 2006).
We conclude that French failed to make a non-frivolous allegation establishing
Board jurisdiction. As the Board explained, it does not have jurisdiction over French’s
demotion and suspension claims, as these had previously been withdrawn.
See Brown v. Dep’t of the Navy, 71 M.S.P.R. 451, 453-54 (1996). As for French’s
retirement claim, he failed to make a non-frivolous allegation of Board jurisdiction
because he has made no allegation that he has retired. In short, French’s appeal in this
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respect was premature because the Agency had taken no appealable action concerning
French’s retirement. To the extent that French asserted other claims of alleged adverse
actions, he failed to submit the evidence that these actions had occurred, and such
evidence (above and beyond French’s bare allegations) was necessary to support
Board jurisdiction. See Dorrall v. Dep’t of Army, 301 F.3d 1375, 1380 (Fed. Cir. 2002).
Finally, the Board lacked jurisdiction over French’s discrimination claims because there
were no other claims over which the Board had jurisdiction, and discrimination claims
cannot provide an independent basis for Board jurisdiction. See 5 U.S.C. § 7702(a)
(2000); Miller v. Merit Sys. Protection Bd., No. 06-3079, slip op. at 6 (Fed. Cir. May 4,
2006); Cruz v. Dep’t of Navy, 934 F.2d 1240, 1248 (Fed. Cir. 1991) (en banc).
For the forgoing reasons, we affirm the Board’s decision.
No costs.
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