Bledsoe v. Merit Sys. Prot. Bd.

• Citation: 659 F.3d 1097,25 A.D. Cases 690
• Decision Date: 03 October 2011
• Docket Number: No. 2011–3054.,2011–3054.
• Parties: Shirley J. BLEDSOE, Petitioner,v.MERIT SYSTEMS PROTECTION BOARD, Respondent,andUnited States Postal Service, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

659 F.3d 1097

25 A.D. Cases 690

Shirley J. BLEDSOE, Petitioner,

v.MERIT SYSTEMS PROTECTION BOARD, Respondent,andUnited States Postal Service, Intervenor.

No. 2011–3054.

United States Court of Appeals, Federal Circuit.

Oct. 3, 2011.

Shirley J. Bledsoe, Country Club Hills, Illinois, pro se.Calvin M. Morrow, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief were James M. Eisenmann, General Counsel, and Keisha Dawn Bell, Deputy General Counsel.Carrie A. Dunsmore, Trial Attorney, commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for intervenor. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director.Before NEWMAN, BRYSON, and LINN, Circuit Judges.Opinion for the court filed by Circuit Judge LINN.Dissenting opinion filed by Circuit Judge NEWMAN.LINN, Circuit Judge.

Shirley Bledsoe (“Bledsoe”) appeals from a final decision of the Merit Systems Protection Board (“the Board”) dismissing her appeal, which alleged, pursuant to 5 C.F.R. § 353.304(c), that the U.S. Postal Service (“the Postal Service”) wrongly denied her restoration following her partial recovery from a compensable injury. See Bledsoe v. U.S. Postal Serv., No. CH–0353–10–0935–I–1 (M.S.P.B. Nov. 5, 2010). For the reasons discussed below, this court affirms.

I. Background

Bledsoe was a non-preference-eligible Level 7 Automation Mail Processing Clerk at the South Suburban Processing and Distribution Center in Bedford Park Illinois. Bledsoe was injured on-duty on February 3, 2005, and filed a claim that was accepted by the Office of Workers' Compensation Programs. Bledsoe partially recovered and, beginning in April 2008, the Postal Service provided her with a modified light duty assignment. In June 2010, pursuant to the National Reassessment Process, the Postal Service informed Bledsoe that work within her medical restrictions was no longer available within her local commuting area. Bledsoe appealed to the Board, and the Postal Service moved to dismiss for lack of jurisdiction.

In its initial acknowledgment order of August 26, 2010, the Board explained that Bledsoe bore the burden of establishing jurisdiction, which required her to provide an evidentiary basis to show that the Postal Service arbitrarily and capriciously denied her restoration. The Board stated, in the same order, that the record on jurisdiction would close twenty-five calendar days following the date of the order, and that “[n]o evidence or argument on the jurisdictional issue filed after the close of record will be accepted unless you show that it is new and material evidence that was unavailable before the record closed.” Bledsoe v. U.S. Postal Serv., No. CH–0353–10–0935–I–1, Acknowledgment Order, 3 (M.S.P.B. Aug. 26, 2010). Bledsoe did not respond, and the Postal Service's response included a motion to dismiss for lack of jurisdiction.

Rather than dismiss Bledsoe's appeal, the Board, on October 13, 2010, conducted a telephone status conference. On October 14, the Board issued an order summarizing the telephone status conference. In that order, the Board reiterated that, to establish jurisdiction, Bledsoe ultimately had to prove by preponderant evidence that the Postal Service arbitrarily and capriciously denied her request for restoration. The Board further explained that this required Bledsoe to “identify a vacant position, or positions, within 50 miles of the South Suburban Processing and Distribution Center that [Bledsoe] could perform with her medical restrictions.” Bledsoe v. U.S. Postal Serv., No. CH–0353–10–0935–I–1, Order and Summary of Status Conference, 4–5 (M.S.P.B. Oct. 14, 2010).

In the same order, the Board stated that “[a] hearing will be scheduled only if the appellant establishes a non-frivolous allegation of jurisdiction over her restoration appeal.” Id. at 6. The Board gave Bledsoe until October 21, 2010, to respond, thus extending the close of record by one month, and admonished Bledsoe that “[n]o evidence or argument filed after that date will be accepted into the record absent a showing of good cause for such untimely filing ... [and that u]nless the appellant provides a nonfrivolous allegation of jurisdiction by no later than the ... close of record date, [the Board] will dismiss her appeal without holding a hearing.” Id. at 5.

On October 21, 2010, Bledsoe responded without identifying any vacant position. On November 5, 2010, the Board issued its initial decision dismissing her appeal for lack of jurisdiction. There the Board found that Bledsoe did not make a non-frivolous allegation that the denial of restoration was arbitrary and capricious because she “did not identify a vacant position within her local commuting area that she can perform within her medical restrictions.” Initial Decision, 5–6. In its decision, the Board explained that “[a]lthough the appellant requested a hearing, she is not entitled to one because she failed to make a non-frivolous allegation the Board has jurisdiction over her appeal.” Id. at 1. The Board therefore stated that “[t]he appeal is adjudicated on the written record.” Id.

On November 8, 2010, after the close of record, and after the initial decision dismissing her appeal, Bledsoe filed an “Amended Jurisdictional Order,” making reference to “three (3) Door Monitor positions which the [Postal Service] declared ‘Necessary Work.’ ” Respondent App'x. 28. Bledsoe did not, however, file a petition for review before the Board.

Bledsoe's appeal to the Board also included a pendent discrimination claim, which the Board also dismissed for lack of jurisdiction due to the absence of an appealable adverse action.

The Board's decision dismissing Bledsoe's appeal became final on December 10, 2010. Bledsoe timely appealed, and this court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II. Discussion

A. Standard of Review

The Board's determination that it lacked jurisdiction to hear Bledsoe's appeal is a legal issue which this court reviews de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.Cir.1995). “Findings of fact underlying the Board's jurisdictional decision are reviewed for substantial evidence.” Parrott v. Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed.Cir.2008) (citing Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed.Cir.1998)).

B. Analysis

1. The Board's Jurisdiction is Limited and Must be Proven by Petitioner

As this court has previously explained, “[t]he Board is an independent, quasi-judicial federal administrative agency ... [with] the responsibility, inter alia, to adjudicate appeals of adverse personnel actions taken by a federal agency against its employees.” Garcia v. Dept. of Homeland Sec., 437 F.3d 1322, 1327 (Fed.Cir.2006) (en banc) (citations omitted).

The Board's jurisdiction is established by statute. 5 U.S.C. § 7701(a) provides:

An employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation.... Appeals shall be processed in accordance with regulations prescribed by the Board.

This court has interpreted this statute to mean that “[t]he jurisdiction of the [Board] is not plenary, but is limited to those areas specifically granted by statute or regulation.... In other words, jurisdiction for the [B]oard to hear a particular type of action must be granted by some law, rule or regulation.” Garcia, 437 F.3d at 1327 (citations omitted); see also Monasteri v. Merit Sys. Prot. Bd., 232 F.3d 1376, 1378 (Fed.Cir.2000) (“This Court has repeatedly recognized that the Board's jurisdiction is not plenary; rather, it is limited to actions designated as appealable to the Board under any law, rule or regulation.” (quotation omitted)); Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10 (Fed.Cir.1985) (same); Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1573 (Fed.Cir.1996) (“The jurisdiction of the Board is not plenary. Rather, it is limited to those matters specifically entrusted to it by statute or regulation.” (emphasis added)).

As this court has explained, “Congress has not ‘directly spoken’ to an employee's burden of proof for establishing the Board's jurisdiction.” Garcia, 437 F.3d at 1338 (quoting Chevron v. Natural Res. Def. Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). But 5 U.S.C. § 7701(k) provides that the “Board may prescribe regulations to carry out the purpose of this section” and, as this court noted in Garcia, “[p]ursuant to this statutory authority, the Board has promulgated regulations to carry out § 7701.” 437 F.3d at 1338. 5 C.F.R. § 1201.56(a)(2) states that the “appellant has the burden of proof, by a preponderance of the evidence, with respect to ... [i]ssues of jurisdiction.” In Garcia, this court held that this regulation is “neither ‘arbitrary, capricious, or manifestly contrary to the statute,’ and is therefore entitled to deference and is lawful.” 437 F.3d at 1338. As this court explained, “the regulation clearly requires that the claimant establish jurisdiction by a preponderance of the evidence, independent of whether facts relevant to deciding the merits overlap with the facts relevant to deciding jurisdiction.” Id. at 1340.

In Garcia, this court distinguished numerous cases regarding Article III jurisdiction as inapposite in rejecting the view that Board “jurisdiction attaches when an employee makes non-frivolous claims.” Id. at 1335 (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Montana–Dakota Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 33 S.Ct. 410, 57 L.Ed. 716 (1913)). Cf. Arbaugh v. Y & H Corp., 546...