                    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.




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