NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHARON A. STEWART,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3210
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0353110710-I-1.
______________________
Decided: August 14, 2013
______________________
SHARON A. STEWART, of Anaheim, California, pro se.
KATHERINE M. SMITH, Attorney, Office of the General
Counsel, United States Merit Systems Protection Board,
of Washington, DC, for respondent. With her on the brief
were BRYAN G. POLISUK, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
______________________
Before PROST, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
2 STEWART v. MSPB
Sharon Stewart (“Stewart”) appeals from the final de-
cision of the Merit Systems Protection Board (“Board”)
which dismissed her petition for review for lack of juris-
diction. Stewart v. U.S. Postal Serv., No. SF-0353-11-
0710-I-1, 2012 MSPB LEXIS 4305 (M.S.P.B. Jul. 31,
2012) (reported in table format at 118 M.S.P.R. 423)
(“Final Decision”); Stewart v. U.S. Postal Serv., No. SF-
0353-11-0710-I-1, 2011 MSPB LEXIS 6594 (M.S.P.B. Nov.
8, 2011) (“Initial Decision”). Because the Board did not
err in dismissing Stewart’s petition for lack of jurisdiction,
we affirm.
BACKGROUND
Prior to her removal, Stewart was employed as a part-
time flexible City Carrier for the United States Postal
Service (“USPS” or “the agency”) in Panorama City,
California. On June 28, 2006, Stewart sustained a work-
related “lumbar strain,” and subsequently filed a claim for
disability benefits with the Department of Labor’s Office
of Workers’ Compensation Programs (“OWCP”). On
October 25, 2006, the OWCP accepted Stewart’s claim and
began paying her benefits.
In a report dated January 2, 2008, Dr. G.B. Ha’Eri
found that Stewart’s lumbar strain had resolved but that
she had degenerative, non-work-related disk disease and
spondylosis of the lumbosacral spine. Effective May 30,
2008, the OWCP terminated Stewart’s first claim on
grounds that her work-related injury had ceased. In its
termination letter, the OWCP explained that an employee
who recovers from a work-related injury within one year
is entitled to be restored to the job held when injured or
an equivalent job, and that employees are expected to
apply for reemployment immediately upon recovery. It
further explained that an employee who takes longer than
one year to recover is entitled to priority consideration if
she applies for reemployment within 30 days after com-
pensation ends.
STEWART v. MSPB 3
In the interim, Stewart had sustained a second work-
related injury on September 1, 2007, this time suffering
both a lumbosacral strain and shoulder strains. On
September 15, 2008, the OWCP accepted her second
injury claim. 1
Stewart stopped reporting to work on May 21, 2008,
and was placed on leave without pay (“LWOP”) status on
July 19, 2008. 2 In a report dated July 28, 2008, Dr.
Ha’Eri opined that Stewart’s second “lumbosacral strain
had resolved, as well as the temporary aggravation of her
degenerative, non-industrial condition of degenerative
disk disease and spondylosis of the lumbosacral spine.”
Initial Decision, 2011 MSPB LEXIS 6594, at *3.
In September or November 2008—after the OWCP
had accepted her second work-related injury claim—
Stewart applied for light-duty work. The agency denied
Stewart’s request on grounds that: (1) her restrictions
were based solely on the non-work related conditions Dr.
Ha’Eri identified in his report; and (2) “she was not eligi-
ble for permanent light duty under the applicable collec-
tive bargaining agreement because she did not have five
years of service.” Id. at *4. The OWCP terminated Stew-
art’s compensation for her second claim in September
2009, and her last monetary compensation was paid on
October 16, 2009.
Because Stewart had not reported for work since May
21, 2008, and had been in LWOP status for over a year,
1 In February 2009, the OWCP updated Stewart’s
second claim to include a right rotator cuff injury. Initial
Decision, 2011 MSPB LEXIS 6594, at *12.
2 Stewart subsequently filed an equal employment
opportunity (“EEO”) complaint alleging that she was
discriminated against based upon her physical disability.
Initial Decision, 2011 MSPB LEXIS 6594, at *3 n.2.
4 STEWART v. MSPB
the agency issued a notice of proposed separation on April
28, 2010. The proposal specified that Stewart was unable
to perform her job duties due to her non-work-related
injury. In a letter of decision dated June 11, 2010, the
agency removed Stewart.
Stewart filed a grievance challenging her separation.
On June 14, 2011, after conducting a hearing, the arbitra-
tor issued a decision finding that: (1) the agency did not
violate its contractual obligations when it denied Stew-
art’s light duty request; and (2) Stewart’s restrictions
were due to her non-work-related injuries, not her on-the-
job injuries. Initial Decision, 2011 MSPB LEXIS 6594, at
*5-6.
By letter dated June 6, 2011, Stewart requested resto-
ration to her city carrier duties. In support of her request,
Stewart attached a report from Dr. Shirzad Abrams, who
opined that Stewart “is fully capable of resuming her
regular work activities for the United States Postal Ser-
vice.” Respondent’s Appendix (“RA”) 58. On July 6, 2011,
the agency denied Stewart’s request, finding that she was
ineligible for restoration. Specifically, the agency ex-
plained that Stewart was separated because she had been
in LWOP status for more than one year for a non-work-
related injury and her separation was not “substantially
related” to her compensable injury. Initial Decision, 2011
MSPB LEXIS 6594, at *6. The agency further noted that
Stewart’s restoration request was not made within thirty
days from the date she last received compensation for a
compensable injury.
On July 11, 2011, Stewart appealed to the Board, as-
serting that she was “denied priority consideration for
restoration.” RA 20. The administrative judge (“AJ”)
issued an Acknowledgment Order on July 13, 2011,
notifying Stewart that the Board might not have jurisdic-
tion over her appeal and informing her of the applicable
law. In response, Stewart asserted that she fully recov-
ered from her injuries and has no medical restrictions
that would prevent her from returning to work. Although
STEWART v. MSPB 5
Stewart emphasized her lack of any restrictions, she also
argued that she is a “partially recovered” employee will-
ing and able to return to work.
The AJ issued an Initial Decision dismissing Stew-
art’s appeal for failure to establish jurisdiction over her
restoration claim. Specifically, the AJ found that the
OWCP terminated Stewart’s first claim effective May 30,
2008, on grounds that her employment-related disability
had ceased. To be timely with respect to this claim,
Stewart was required to seek restoration within thirty
days from the cessation of her benefits. As to her second
claim, the AJ found that Stewart’s last compensation
payment was made on October 16, 2009, and that she did
not request restoration until June 6, 2011—well-outside
the thirty day period. To the extent Stewart asserted
restoration as a partially recovered employee, the AJ
found that, “[b]ecause her OWCP compensation has
terminated on the basis that she has fully recovered from
her work-related injuries, she cannot claim the restora-
tion rights of a partially recovered employee.” Initial
Decision, 2011 MSPB LEXIS 6594, at *13. Accordingly,
the AJ concluded that Stewart failed to nonfrivolously
allege Board jurisdiction over her restoration claim. 3
Stewart petitioned the Board for review, arguing that:
(1) her second claim remained open because she continued
to receive medical benefits; and (2) the evidence suggested
that her absence was due to her work-related injuries.
Stewart also asserted, for the first time, that her appeal
was a “mixed case” appeal because she filed an EEO
complaint with the agency.
3 Because Stewart failed to establish jurisdiction
over her restoration claim, the AJ did not reach her
allegation of disability discrimination. Initial Decision,
2011 MSPB LEXIS 6594, at *13.
6 STEWART v. MSPB
On July 31, 2012, the Board issued a Final Decision
denying Stewart’s petition for review. First, the Board
declined to consider Stewart’s arguments relating to her
EEO complaint on grounds that they were not raised
below. The Board then rejected Stewart’s claim that the
AJ erred in weighing the evidence, noting that, under
Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325 (1994)—
the case upon which Stewart relied—the Board can con-
sider undisputed documentary evidence to determine
whether an appellant has made nonfrivolous allegations
of jurisdiction.
The Board found that: (1) Stewart was separated from
her position because she had been on LWOP status for
over a year; and (2) her non-work-related injuries pre-
vented her from resuming her duties. As to Stewart’s
assertion that her second claim remained open, the Board
noted that, although the record contains no formal termi-
nation notice for that claim, she received a letter on
September 29, 2009 informing her that the OWCP no
longer considered her medically eligible for wage loss
compensation. The Board also found that, because Stew-
art received notice of her restoration rights in conjunction
with her first claim, she could not reasonably argue that
she was unaware of those rights.
Stewart timely appealed to this court, and we have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from the Board is
limited. We must affirm the Board's decision unless it is:
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with the law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). Whether the Board has juris-
diction to adjudicate a particular appeal is a question of
law, which this court reviews de novo. Herman v. Dep’t of
Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999); Middleton v.
STEWART v. MSPB 7
Dep’t of Defense, 185 F.3d 1374, 1379 (Fed. Cir. 1999). An
appellant has the burden of establishing the Board’s
jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(a)(2); Clark v. U.S. Postal Serv., 989 F.2d 1164,
1167 (Fed. Cir. 1993).
The Federal Employees’ Compensation Act, 5 U.S.C.
§ 8101, provides that federal employees who suffer on-the-
job compensable injuries enjoy certain rights to be re-
stored to their previous or comparable positions. An
injured or former employee of the U.S. Postal Service who
believes that her reemployment priority rights have been
violated may appeal certain denials of restoration to the
Board. See 5 C.F.R. § 353.304.
Establishing Board jurisdiction requires a two-step
inquiry. Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097,
1102 (Fed. Cir. 2011). First, the petitioner “must meet
the threshold requirement of making non-frivolous allega-
tions of fact which, if true, would be sufficient to establish
the Board’s jurisdiction.” Id. (citing Garcia v. Dept. of
Homeland Sec., 437 F.3d 1322, 1330 (Fed. Cir. 2006) (en
banc)). If the petitioner makes nonfrivolous allegations of
jurisdiction, “then and only then will the petitioner be
entitled to a jurisdictional hearing at which the petitioner
must prove jurisdiction by preponderant evidence.” Id.
(citing Garcia, 437 F.3d at 1344). If the petitioner proves
jurisdiction by a preponderance of the evidence, then—
and only then—can the Board reach the merits of the
appeal. Id. As discussed below, the jurisdictional re-
quirements differ based on whether the petitioner is
asserting restoration as a fully-recovered employee or as
an employee who has only partially recovered.
On appeal, Stewart argues that the Board failed to
consider certain facts and applied the wrong law. With
respect to the facts, Stewart alleges that the AJ erred in
failing to conduct a hearing to resolve what Stewart
characterizes as disputed factual issues. She also com-
plains that the AJ did not inform her when the record
would close. As explained below, because Stewart failed
8 STEWART v. MSPB
to make a nonfrivolous allegation of Board jurisdiction,
she was not entitled to a jurisdictional hearing. And,
contrary to Stewart’s assertions, the AJ’s Acknowledg-
ment Order stated that Stewart had the burden to prove
the Board’s jurisdiction, and that the record would close
twenty-five days from the date of the order. RA 27.
With respect to the law, Stewart appears to argue
that she was entitled to restoration under 5 C.F.R.
§ 353.301(b), which provides certain rights for federal
employees who have fully recovered from work-related
injuries. Stewart also seems to argue that she is entitled
to restoration under 5 C.F.R. § 353.301(d), which applies
to employees who have partially recovered from work-
related injuries. For the reasons explained below, Stew-
art’s arguments lack merit.
A. Fully Recovered
First, Stewart asserted Board jurisdiction as a fully
recovered employee. An employee who fully recovers from
a compensable injury after one year is entitled to “priority
consideration, agencywide, for restoration to the position
he or she left or an equivalent one provided he or she
applies for reappointment within 30 days of the cessation
of compensation.” 5 C.F.R. § 353.301(b). “Fully recov-
ered” means “compensation payments have been termi-
nated on the basis that the employee is able to perform all
the duties of the position he or she left or an equivalent
one.” 5 C.F.R. § 353.102.
To establish Board jurisdiction as a fully recovered
employee, Stewart must make nonfrivolous allegations
that: “(1) [s]he was separated because of a compensable
injury; (2) she has fully recovered more than one year
after the date she became eligible for OWCP benefits;
(3) she requested restoration within 30 days after the
cessation of OWCP compensation; and (4) she believes
that the agency violated her reemployment priority
rights.” Nevins v. U.S. Postal Serv., 107 M.S.P.R. 595,
600 (2008).
STEWART v. MSPB 9
Here, the AJ and the Board found that Stewart failed
to carry her burden as to the first and third jurisdictional
elements. As to the first element, the Board found that
the agency “separated her because she had been in LWOP
status for over a year” and her non-work-related injuries
prevented her from fulfilling her work duties. Final
Decision, 2012 MSPB LEXIS 4305, at *4. With respect to
the third element, the AJ found that Stewart failed to
timely request restoration within 30 days after compensa-
tion ended for both of her OWCP claims. Specifically, the
AJ found that the OWCP terminated her first claim
effective May 30, 2008, and her second claim terminated
on October 16, 2009, when she received her last monetary
compensation payment for that claim. Because she failed
to request restoration within 30 days of either date, the
AJ found—and the Board agreed—that Stewart failed to
satisfy the third jurisdictional element. Accordingly, the
Board concluded that Stewart failed to make a nonfrivo-
lous allegation of Board jurisdiction.
In this appeal, Stewart seems to assert most of the
same arguments she made to the Board. 4 First, she
argues that the agency separated her due to her work-
related injuries. As the Board found, however, the evi-
dence of record included medical reports providing that
Stewart’s work-related injuries had ceased and that her
restrictions were due to non-work-related conditions.
Final Decision, 2012 MSPB LEXIS 4305, at *3 (“Nothing
in the record would contradict the medical reports identi-
fying the appellant’s degenerative conditions or outlining
the resultant medical restrictions.”).
Stewart also argues that: (1) she was not fully recov-
ered as of October 16, 2009, because she continued to
receive medical benefits; and (2) she did not receive
4 Stewart does not renew her argument that her
claim presents a “mixed case,” and there is nothing in the
record to indicate that it does.
10 STEWART v. MSPB
sufficient notice that her second claim had terminated.
The Board addressed both of these arguments and found
that they lacked merit. We agree.
As to the first issue, the Board explained that “[e]ven
a fully recovered employee may receive periodic payments
for medical expenses related to the compensable injury.”
Final Decision, 2012 MSPB LEXIS 4305, at *5. Indeed,
under the Board’s case law, “[i]t is the cessation of period-
ic support payments the injured employee received while
temporarily totally or partially disabled, not the termina-
tion of payment of scheduled compensation or medical
benefits, that triggers a finding that the appellant is fully
recovered and entitled to restoration rights.” Nixon v.
Dep’t of Treasury, 104 M.S.P.R. 189, 193 (2006).
It is well-established that “an employee is deemed ful-
ly recovered from work-related injuries when OWCP
benefits cease.” As’Salaam v. U.S. Postal Serv., 85
M.S.P.R. 76, 84 (2000) (citations omitted). The OWCP’s
determination that an employee has fully recovered is
“final and conclusive for all purposes and with respect to
all questions of law and fact.” Id. (quoting 5 U.S.C.
§ 8128(b)(1)).
Here, the OWCP terminated Stewart’s first injury
claim effective May 30, 2008. Although Stewart argues
that the OWCP never terminated her second injury claim,
the Board specifically found that: (1) the “September 29,
2009 letter clearly informed her that the OWCP no longer
considered her medically eligible for wage loss compensa-
tion”; and (2) because she received notice of her restora-
tion rights in connection with her first claim, “she cannot
reasonably argue that she was unaware of those rights.”
Final Decision, 2012 MSPB LEXIS 4305, at *5. We find
no error in the Board’s analysis. Because Stewart did not
seek restoration until June 6, 2011—long after the 30 day
period had expired—she failed to satisfy the third element
of the jurisdictional inquiry. Accordingly, we find no error
in the Board’s conclusion that Stewart failed to make a
STEWART v. MSPB 11
nonfrivolous allegation of jurisdiction as a fully-recovered
employee under 5 C.F.R. § 353.301(b).
B. Partially Recovered
Stewart alternatively suggests that she is a partially
recovered employee who is entitled to have the agency
“make every effort” to restore her to a job in the local
commuting area. See 5 C.F.R. § 353.301(d). To establish
Board jurisdiction over a partial recovery claim, an em-
ployee must prove by preponderant evidence that: (1) she
was separated from her position due to a compensable
injury; (2) she partially recovered from the injury; (3) she
requested restoration; and (4) the agency denied her
request. See Bledsoe, 659 F.3d at 1104.
As the Board correctly found, because the OWCP ter-
minated Stewart’s compensation benefits on grounds that
she fully recovered from her work-related injuries, she
cannot claim restoration rights as a partially recovered
employee. See As’Salaam, 85 M.S.P.R. at 84 (finding that
appellant could not assert restoration rights as a partially
recovered employee where the OWCP determined that he
was fully recovered). In addition, in his March 21, 2011
report, Dr. Shirzad Abrams opined that Stewart was
“fully capable of resuming her regular work activities for
the United States Postal Service.” RA 58. Accordingly,
the Board did not err in finding that Stewart failed to
make nonfrivolous allegation of jurisdiction as a partially
recovered employee.
CONCLUSION
We find no error in the Board’s conclusion that it
lacked jurisdiction in this case. And, because Stewart
failed to raise nonfrivolous issues of fact relating to juris-
diction, the AJ did not err in finding that no hearing was
necessary. See Bledsoe, 659 F.3d at 1102 (“If the petition-
er makes non-frivolous allegations to support jurisdiction,
then and only then will the petitioner be entitled to a
jurisdictional hearing at which the petitioner must prove
jurisdiction by preponderant evidence.”).
12 STEWART v. MSPB
For the foregoing reasons, and because we find that
Stewart’s remaining arguments are without merit, we
affirm the Board’s decision.
AFFIRMED
COSTS
No costs.