       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                      CARL FOX,
                       Petitioner,

                           v.

           DEPARTMENT OF DEFENSE,
                   Respondent.
              ______________________

                      2012-3078
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. CH-0752-11-0659-I-1.
                ______________________

              Decided: November 27, 2013
                ______________________

   CARL FOX, of Canton, Mississippi, pro se.

    P. DAVIS OLIVER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were the STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
SCOTT D. AUSTIN, Assistant Director.
                 ______________________

   Before NEWMAN, DYK, and TARANTO, Circuit Judges.
2                                           FOX   v. DEFENSE



PER CURIAM.
     Carl Fox challenges a decision of the Merit Systems
Protection Board that dismissed his appeal to the Board
for lack of jurisdiction. We now dismiss his appeal to this
court, concluding that there is no concrete benefit that a
judgment of this court could confer on Mr. Fox. We have
to consider as a threshold matter whether we have juris-
diction under our own statute, but regardless of how we
were to decide that question, the Board’s determination
that it lacks jurisdiction would stand.
                      BACKGROUND
     On January 7, 2008, Mr. Fox started work as a Tele-
communications Specialist at the Defense Logistics Agen-
cy, in probationary status that was to last one year. Only
six weeks later, on February 20, 2008, Mr. Fox resigned.
      Mr. Fox filed a complaint with the agency alleging
that his resignation was involuntary, resulting from
discrimination and a hostile work environment. The
agency investigated his complaint and found no discrimi-
nation. In December 2010, Mr. Fox attempted to appeal
the agency’s decision to the Equal Employment Oppor-
tunity Commission, but the Commission dismissed his
appeal on the ground that his was a mixed-case complaint
(i.e., “a complaint of employment discrimination filed with
a federal agency . . . stemming from an action that can be
appealed to the Merit Systems Protection Board”, 29
C.F.R. § 1614.302(a)), over which the Commission lacked
jurisdiction, see id. § 1614.302(d)(1)(ii). The Commission
explained that the proper procedure was for Mr. Fox to
appeal directly to the Merit Systems Protection Board.
Id.
    Mr. Fox then filed an appeal with the Board alleging
that his resignation was involuntary. On July 1, 2011,
the Board issued an order informing Mr. Fox that it might
not have jurisdiction over his appeal. The Board ex-
FOX   v. DEFENSE                                          3



plained that probationary employees with less than one
year of service have limited regulatory rights of appeal to
the Board that extend only to termination decisions
“based on partisan political reasons or marital status.” 5
C.F.R. § 315.806(b). The Board provided Mr. Fox with 15
calendar days to establish that it had jurisdiction over his
appeal, by showing either that he was not a probationary
employee or that he had been involuntarily dismissed
based on partisan political reasons or his marital status.
    Mr. Fox did not respond to the order. On August 15,
2011, the Board issued an initial decision dismissing Mr.
Fox’s appeal for lack of jurisdiction. Mr. Fox filed a
petition for review to the full Board, but he made no new
allegations and acknowledged that he was still serving his
probationary period at the time of his resignation. On
January 6, 2012, the Board denied his petition.
    Mr. Fox appeals. In this court, he presented an oral
argument in which he elaborated on the facts that gave
rise to his complaint. Nevertheless, we must leave in
place the Board’s determination that it lacked jurisdiction
given the limited appeal rights of probationary employees
like Mr. Fox.
                       DISCUSSION
     It is incumbent on us to consider as an initial matter
whether Mr. Fox’s appeal comes without our statutory
jurisdiction, i.e., whether his appeal comes within the
authority that Congress granted to this court—here, in 5
U.S.C. § 7703 and 28 U.S.C. § 1295. In this case, howev-
er, regardless of how we were to answer that question, the
answer would not matter to Mr. Fox. In either event, the
Board’s determination of its own lack of jurisdiction to
hear his claim under 5 C.F.R. § 315.806 would stand. In
this circumstance, we dismiss his appeal to this court for
lack of a concrete controversy, because our disposition
could not affect the result for Mr. Fox’s claim.
4                                              FOX   v. DEFENSE



    A conclusion that we have statutory jurisdiction
would follow from applying the most recent Supreme
Court decision in the area. Kloeckner v. Solis, 133 S. Ct.
596, 603-04 (2012), addressed this court’s jurisdiction in a
case of discrimination coming from the Board. The Court
required the jurisdictional analysis to adhere closely and
step by step to the language of the pertinent, interlocking
statutory provisions governing this court’s jurisdiction.
    Under 28 U.S.C. § 1295(a)(9), this court has jurisdic-
tion to review a “final order or final decision” of the Board
pursuant to 5 U.S.C. § 7703(b)(1). The Board’s dismissal
was a final order or final decision. Section 7703(b)(1)
sends the matter to us for review unless a single exception
applies: “[c]ases of discrimination subject to [5 U.S.C.
§ 7702]” fall outside this court’s jurisdiction. See 5 U.S.C.
§ 7703(b)(1)(A) (as relevant here, cases go to this court
“[e]xcept as provided in . . . paragraph (2) of this subsec-
tion”); § 7703(b)(2) (“[c]ases of discrimination subject to
the provisions of section 7702 of this title shall be filed” in
district court under other laws). Under the familiar
principle that “a federal court always has jurisdiction to
determine its own jurisdiction,” United States v. Ruiz, 536
U.S. 622, 628 (2002), we have jurisdiction to decide
whether Mr. Fox’s case is one “subject to” section 7702—a
decision that is necessary for us to determine whether we
have jurisdiction under 28 U.S.C. § 1295(a)(9) and 5
U.S.C. § 7703(b)(1)(A).
     For a case to be “subject to” section 7702, it must,
among other things, involve “an action which the employ-
ee or applicant may appeal to the” Board. 5 U.S.C.
§ 7702(a)(1)(A). Here, the Board held that Mr. Fox’s
resignation was not an action he could appeal to the
Board, because it plainly falls outside the very limited
provision of appeal rights to probationary employees
under 5 C.F.R. § 315.806. Reviewing that determination
in order to determine our own jurisdiction, we agree.
FOX   v. DEFENSE                                            5



    There is no dispute that there were only two ways for
Mr. Fox to establish the Board’s jurisdiction: he could
show that he was not, in fact, a probationary employee, or
he could show that he nevertheless had a regulatory right
to appeal under 5 C.F.R. § 315.806(b). Mr. Fox conceded
that he was a probationary employee at the time of his
allegedly involuntary resignation.       Therefore, Board
jurisdiction depended on whether Mr. Fox claimed that
his removal “was based on partisan political reasons or
marital status.” 5 C.F.R. § 315.806(b). But Mr. Fox has
never made any such allegations.
    Mr. Fox asserts instead that his involuntary resigna-
tion was the result of race and age discrimination and a
hostile work environment. Those allegations do not give
rise to a right to appeal under 5 C.F.R. § 315.806(b). The
Board may not consider a probationary employee’s claims
of age or race discrimination unless they are raised “in
addition to” one of the claims that give rise to Board
jurisdiction under subsection (b) or under subsection (c),
the latter involving procedural error. Id. § 315.806(d).
But Mr. Fox undisputedly has made no allegations falling
within subsections (b) or (c), leaving his discrimination
claim outside the regulatory authorization of appeals to
the Board.
     Under the foregoing analysis, this court would have
statutory jurisdiction to hear Mr. Fox’s appeal. But the
analysis that supports this court’s statutory jurisdiction
rests on, and therefore simultaneously would require
affirming, the Board’s conclusion that it lacked jurisdic-
tion over Mr. Fox’s claim. The result would be to leave
the Board’s determination that it cannot hear Mr. Fox’s
claim in place.
     The same bottom-line result for Mr. Fox’s claim would
follow, of course, if this court lacked statutory jurisdiction
to hear Mr. Fox’s appeal. That possibility is raised, not by
any doubt about how the Kloeckner-directed analysis of
6                                            FOX   v. DEFENSE



our jurisdictional statutes comes out, but by an old prece-
dent of this court. Granado v. Department of Justice, 721
F.2d 804 (Fed. Cir. 1983), held that this court lacked
jurisdiction to review a Board decision that a probation-
ary employee’s appeal alleging national-origin discrimina-
tion must be dismissed as falling outside 5 C.F.R. §
315.806. That precedent appears to be on point in the
present case involving allegations of race and age discrim-
ination.
     On the other hand, there is reason to question wheth-
er Granado is any longer good law insofar as it found this
court to lack jurisdiction. This court has apparently never
relied on Granado for its jurisdictional holding. Moreo-
ver, in unpublished decisions, this court has consistently
affirmed, rather than dismissed appeals from, decisions of
the Board that dismissed appeals of probationary employ-
ees for lack of Board jurisdiction under 5 C.F.R. § 315.806.
See, e.g., Johnson v. Merit Sys. Prot. Bd., 495 F. App’x 68
(Fed. Cir. 2012); Nguyen v. Merit Sys. Prot. Bd., 360 F.
App’x 146 (Fed. Cir. 2010); Jones v. Merit Sys. Prot. Bd.,
241 F. App’x 705 (Fed. Cir. 2007); Sanders v. Merit Sys.
Prot. Bd., 55 F. App’x 917 (Fed. Cir. 2003); Yu v. Dep’t of
Army, 28 F. App’x 968 (Fed. Cir. 2002); Chavez v. Dep’t of
Air Force, 15 F. App’x 869 (Fed. Cir. 2001); Robertson v.
Veterans Admin., 826 F.2d 1072 (Fed. Cir. 1987) (Table);
cf. Stokes v. FAA, 761 F.2d 682, 687-88 (Fed. Cir. 1985)
(court has jurisdiction over the Board’s dismissal of a
probationary employee’s appeal for failure to support the
jurisdictional allegation of marital discrimination). And
the result in Granado stands in stark contrast to this
court’s recent holding in Conforto v. Merit Systems Protec-
tion Board, 713 F.3d 1111 (Fed. Cir. 2013), that this court
has jurisdiction to review the Board’s determination of its
own lack of jurisdiction over an appeal by a (non-
probationary) employee who alleged discrimination.
    This court has recognized that, in appropriate circum-
stances, an earlier panel decision must be treated by a
FOX   v. DEFENSE                                         7



later panel as having been superseded by an intervening
Supreme Court decision. See, e.g., Doe v. United States,
372 F.3d 1347, 1354-56 (Fed. Cir. 2004); Tex. Am. Oil
Corp. v. U.S. Dep’t of Energy, 44 F.3d 1557, 1561 (Fed.
Cir. 1995) (en banc). Perhaps that is so for Kloeckner and
Granado. But we need not say.
    The dispositive point here is that if Granado deprives
us of jurisdiction over Mr. Fox’s appeal, we could not
change the Board’s decision that it lacked jurisdiction
over his claim, which would therefore stand, and the same
result for Mr. Fox’s claim would follow if we recognized
our own statutory jurisdiction, which would also leave the
Board’s decision in place. In these circumstances, we
need not decide the question of our own statutory jurisdic-
tion. No concrete result for Mr. Fox could be altered by
such a decision. His appeal is therefore dismissed for
want of a concrete controversy.
    We note that, with the Board’s dismissal left stand-
ing, perhaps Mr. Fox may return to the Commission with
his discrimination allegations now that the Board, to
which the Commission itself sent him, has indicated that
it cannot hear his allegations. We express no view on
those allegations.
      No costs.
                      DISMISSED
