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
04-3221
BERNARD S. JENKINS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: March 11, 2005
___________________________
Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit
Judge.
PER CURIAM.
Bernard S. Jenkins (“Jenkins”) seeks review of the Merit Systems Protection
Board (“Board”) decision dismissing his appeal for lack of jurisdiction. Jenkins v. United
States Postal Service, DC-3443-04-0099-I-1 (M.S.P.B. Mar. 1, 2004) (Initial Decision).
We affirm.
We must affirm the Board’s decision unless we determine that it is (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence. See 28 U.S.C. § 7703(c) (2000); Killeen v.
Office of Pers. Management, 382 F.3d 1316, 1320 (Fed. Cir. 2004).
As the petitioner, Jenkins bears the burden of showing that the Board has
jurisdiction in this matter. In order to be entitled to a hearing on jurisdiction, the former
employee must make a non-frivolous allegation that, if proven at an evidentiary hearing,
could establish Board jurisdiction. Staats v. United States Postal Serv., 99 F.3d 1120,
1125 (Fed. Cir. 1996).
Jenkins alleges the AJ failed to consider the totality of the circumstances
surrounding his resignation as well as the events that transpired from December 2000
through September 2001. Also, Jenkins argues that “review of the EEOC investigative
file will clearly show the many abuses of the agency supervisors.” Additionally, he
asserts that “it is within the [Board’s] discretion to give evidentiary weight to prior
events” and “constructive discharge is well within the jurisdiction of the Board.”
Because Jenkins’ allegations do not establish that the Board has jurisdiction over his
appeal, the AJ properly dismissed Jenkins’ appeal for lack of jurisdiction.
Congress provided that the board may decide a claim of discrimination when it
forms a basis for an agency action over which the board otherwise has jurisdiction. See
28 U.S.C. § 7702 (2000); King v. Reid, 59 F.3d 1215, 1218 (Fed. Cir. 1995). A claim of
discrimination standing alone is insufficient to invoke the Board’s jurisdiction, Cruz v.
Dep’t of Navy, 934 F.2d 1240, 1245 (Fed. Cir. 1991). Jenkins is attempting to pursue
his appeal on that basis. Jenkins unequivocally stated to the Board that he was
appealing “the final decision of the postal service in EEOC no. 120-2002-01368X date
September 2002,” a decision dealing solely with Jenkins’ EEO complaint alleging age
04-3221 2
discrimination. Thus, Jenkins’ discrimination claim by itself is insufficient to give the
Board jurisdiction over his appeal. See id. Accordingly, the Board properly required
him to submit evidence and argument to prove that his appeal was within the Board’s
jurisdiction. In response, he submitted evidence and made allegations that were not
relevant for establishing the Board’s jurisdiction. On appeal to this court, Jenkins
continues to advance arguments irrelevant to establishing the Board’s jurisdiction.
While the Board can hear allegations of discrimination in conjunction with an
otherwise appealable action, Jenkins’ response to the AJ’s Acknowledgment Order
does not establish that his allegation of discrimination was in conjunction with an
otherwise appealable action. See 5 U.S.C. § 7702. Specifically, Jenkins asserts that
the Board “failed to consider the totality of the circumstances surrounding [his]
resignation; . . . that the AJ failed to consider events that transpired from December
2000 through September 2001; [and] constructive discharge is well within the
jurisdiction of the Board. These assertions, however, without more, cannot create
jurisdiction. See Cruz, 934 F.2d at 1245 (identifying that a petitioner’s mere assertion
cannot create jurisdiction). Because Jenkins did not meet his burden of showing that
the Board has jurisdiction by raising a non-frivolous allegation of fact, the Board properly
denied Jenkins’ request for a hearing.
Moreover, the circumstances surrounding Jenkins’ resignation are not properly
the subject of this appeal. Jenkins’ attempt to relitigate his constructive discharge claim,
which was the subject of the Board’s 2002 decision that Jenkins did not appeal, in the
guise of an appeal of his discrimination claim, is not proper. Contrary to Jenkins’
assertion that “res judicata . . . is not a basis to dismiss an appeal for lack of
04-3221 3
jurisdiction,” refashioning previously plead facts to constitute a new claim will not create
an appealable issue.
“[A] judgment ‘on the merits’ in a prior suit involving the same parties or their
privies bars a second suit based on the same cause of action.” Lawlor v Nat’l Screen
Serv. Corp., 349 U.S. 322, 326 (1955). Jenkins has previously litigated his claim of
constructive discharge before the Board. The Board, on the merits, determined that
Jenkins was not constructively discharged, and dismissed his action against the Postal
Service. Jenkins v. United States Postal Serv., DC-0752-02-0032-I-1 (M.S.P.B. Jan 9,
2002) (Initial Decision). Res judicata thus bars Jenkins’ attempt to relitigate his
constructive discharge claim against the Postal Service.
We find that the Board’s decision dismissing Jenkins’ appeal for lack of
jurisdiction is supported by substantial evidence. The Board’s decision was not
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
Accordingly, we affirm.
No costs.
04-3221 4