                       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

                                           06-3102

                                  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



06-3102
                                        2
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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