Russell Gadsen v. Department of the Army

878 F.2d 1446 Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Russell GADSEN, Petitioner, v. DEPARTMENT OF the ARMY, Respondent. No. 89-3096. United States Court of Appeals, Federal Circuit. May 31, 1989. Rehearing Denied June 30, 1989. Before FRIEDMAN, MAYER and MICHEL, Circuit Judges. PER CURIAM. DECISION [1] The decision of the Merit Systems Protection Board, Docket No. NY315H8810540, dismissing Russell Gadsen's complaint for lack of jurisdiction, is affirmed on the basis of the opinion of the administrative judge. OPINION [2] Although not raised at the administrative level, Gadsen here argues that jurisdiction is proper because his removal was the result of religious discrimination. This argument fails for two reasons. First, a matter not raised before the Board may not be raised before this court. Stokes v. Federal Aviation Admin., 761 F.2d 682, 684 n. 1 (Fed.Cir.1985); Meglio v. Merit Sys. Protection Board, 758 F.2d 1576, 1577 (Fed.Cir.1984). Second, Gadsen was a probationary employee. For the Board to have jurisdiction over a claim of religious discrimination, he must have an independent ground for jurisdiction founded on a non-frivolous claim of discrimination on the basis of marital or partisan political status. See Stokes, 761 F.2d at 685; see also Piskadlo v. Veterans' Admin., 668 F.2d 82, 84 (1st Cir.1982).