United States Court of Appeals for the Federal Circuit
2008-3001
DEMETRIUS W. PALMER,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
UNITED STATES POSTAL SERVICE,
Intervenor.
Demetrius W. Palmer, of Bowie, Maryland, pro se.
Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.
Matthew H. Solomson, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for intervenor. Also for
intervenor were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director, and Deborah A. Bynum, Assistant Director.
Appealed from: Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
2008-3001
DEMETRIUS W. PALMER,
Petitioner,
v
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
UNITED STATES POSTAL SERVICE,
Intervenor.
Petition for review of the Merit Systems Protection Board in DC 0353 07 0382 I 1.
______________________________
DECIDED: December 31, 2008
______________________________
Before RADER and DYK, Circuit Judges, and WALKER * , Chief District Judge.
WALKER, Chief District Judge.
Petitioner Demetrius W Palmer (“Palmer”) appeals from a final decision of the
Merit Systems Protection Board (“Board”). The Board dismissed Palmer’s appeal for
lack of jurisdiction. We affirm.
* Honorable Vaughn R Walker, Chief Judge, United States District Court for the
Northern District of California, sitting by designation.
BACKGROUND
In November 1998, Palmer, a mail processing clerk in a United States Postal
Service (“USPS”) facility in Capitol Heights, Maryland, suffered an on-the-job injury.
Palmer was placed on non-pay status and received Office of Workers’ Compensation
Programs (“OWCP”) benefits. After partially recovering from his injury, Palmer
accepted an offer of a modified job assignment and returned to work on July 23, 2005.
In February 2007, Palmer filed an appeal with the Board, claiming he was entitled
to, but did not accrue annual and sick leave during the time he was on leave without pay
status. On March 14, 2007, an Administrative Judge of the Board ordered Palmer to
submit evidence and argument to support Board jurisdiction over his appeal. Palmer
filed a response, arguing that jurisdiction was proper under the USPS Employee and
Labor Relations Manual. USPS filed a response, arguing that the Board lacks
jurisdiction over appeals such as Palmer’s. On March 30, 2007, the Administrative
Judge dismissed Palmer’s appeal for lack of jurisdiction. Palmer petitioned the Board
for review, requesting damages of $5.5 million in addition to the previously requested
award of annual and sick leave. On August 22, 2007, the Board denied Palmer’s
petition for review, and the Administrative Judge’s initial decision became final. This
appeal followed.
DISCUSSION
Judicial review of Board decisions is limited to whether they are: “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained
2008-3001 2
without procedures required by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” 5 USC § 7703(c).
“Whether the [B]oard had jurisdiction to adjudicate a case is a question of law,
which we review de novo.” Forest v Merit Sys Prot Bd, 47 F3d 409, 410 (Fed Cir 1995).
The Board’s jurisdiction is “limited to actions made appealable to it by law, rule or
regulation.” Id. Palmer, as the appellant, has the burden of proving the Board’s
jurisdiction by a preponderance of the evidence. See 5 CFR § 1201.56(a)(2).
In his response to the Administrative Judge’s order to submit evidence and
argument supporting jurisdiction, Palmer argued that the Board has jurisdiction over his
appeal under sections 546.3 and 546.4 of the USPS Employee and Labor Relations
Manual. The cited sections do not purport to create an independent basis for Board
jurisdiction, but merely advise employees who return to employment (or, in the argot of
the regulations, are “restored”) after leave and who believe they were improperly
restored that they may appeal to the Board under the provisions of 5 CFR § 353. See
U S Postal Service, Employee and Labor Relations Manual, §§ 546.3, 546.4 (ELM 17.6,
Feb 15, 2007), available at http://www.usps.com/cpim/manuals/elm/elmarch.htm.
The Code of Federal Regulations in turn grants the Board jurisdiction over certain
appeals by employees who are partially recovered from a compensable injury and seek
to return to work:
(a) Except as provided in paragraphs (b) and (c) of this section, an injured
employee or former employee of an agency in the executive branch
(including the U.S. Postal Service and the Postal Rate Commission) may
appeal to the MSPB an agency’s failure to restore, improper restoration, or
failure to return an employee following a leave of absence. All appeals
must be submitted in accordance with MSPB's regulations.
2008-3001 3
(b) An individual who fully recovers from a compensable injury more than
1 year after compensation begins may appeal to MSPB as provided for in
parts 302 and 330 of this chapter for excepted and competitive service
employees, respectively.
(c) An individual who is partially recovered from a compensable injury may
appeal to MSPB for a determination of whether the agency is acting
arbitrarily and capriciously in denying restoration. Upon reemployment, a
partially recovered employee may also appeal the agency’s failure to
credit time spent on compensation for purposes of rights and benefits
based upon length of service.
5 CFR § 353.304 (1999) (emphasis added).
We examined the substantively identical precursor to this provision in Booker v
Merit Systems Protection Board, 982 F2d 517, 519 (Fed Cir 1992). Compare 5 CFR §
351.401 (1988), with 5 CFR § 353.304 (1999). See also 60 FR 45650 (renumbering 5
CFR § 351.401 as 5 CFR § 353.304). In Booker, a postal employee was injured and
received OWCP benefits before returning to limited duty following a partial recovery.
Booker, 982 F2d at 518. The employee was dissatisfied with the circumstances of her
restoration – specifically, she alleged retaliation for complaints she made about delays
in the completion of her compensation claims and discrimination by USPS’s injury
compensation specialist. Id.
Although we did not discuss our reasoning at length, we held that the
combination of subsection (a) of the regulation with subsection (c) means that an
employee, “having been restored to duty after a partial recovery, may not appeal the
details or circumstances of her restoration to the board.” Id at 519. Because the
employee in Booker was not denied restoration and did not allege that USPS failed to
credit the time she spent on compensation for purposes of rights and benefits based
upon length of service, we found that the Board lacked jurisdiction over her appeal.
2008-3001 4
Our holding in Booker was mandated by a fair reading of the regulation. 5 CFR
§ 353.304(a) provides for appeals to the Board of improper restoration “except as
provided below.” Below, § 353.304(c) states that an individual who is partially
recovered may appeal denials of restoration and failure to credit time spent on
compensation for purposes of rights and benefits based upon length of service.
The establishment of jurisdiction for failure to credit time spent on compensation
facilitates enforcement of the Federal Employee’s Compensation Act, which provides, in
relevant part:
In the event the individual resumes employment with the Federal
Government, the entire time during which the employee was receiving
compensation under this chapter shall be credited to the employee for the
purposes of within-grade step increases, retention purposes, and other
rights and benefits based upon length of service.
5 USC § 8151(a).
An employee covered by § 353.304(c) cannot appeal “improper restoration”
claims not involving § 8151(a) rights; the employee may appeal only on the limited
grounds enumerated in subsection (c).
A more recent case, Gallo v United States, 529 F3d 1345 (Fed Cir 2008), may at
first glance seem to contradict the holding of Booker. We wrote:
The word “except,” as used in section 353.304(a), simply alludes to the
fact that not all employees to whom sections 353.304(b) and 353.304(c)
apply have restoration rights in all circumstances. It does not mean that
any employee who is within the scope of subsection (b) or (c), and is
granted statutory restoration rights, does not have the right to appeal an
improper restoration under subsection (a).
Furthermore, other aspects of the OPM regulations suggest that
section 353.304(a) applies broadly to all improper restoration claims.
Id at 1351.
2008-3001 5
The facts in Gallo make clear that this language should not be read to suggest
that a partially recovered employee, who, according to Booker, may appeal to the Board
only under 5 CFR § 353.304(c), may also appeal under 5 CFR § 353.304(a) an
allegedly improper restoration not involving rights under 5 USC § 8151(a).
The employee in Gallo, Jane L Gallo, was an air traffic controller with the Federal
Aviation Administration (“FAA”). Gallo, 529 F3d at 1346. After she suffered an on-the-
job injury in January 1995, Gallo received OWCP benefits until March 1995, when she
returned to light duty. Id. In January 1996, however, an FAA physician determined that
Gallo was indefinitely incapacitated and unable to work as an air traffic controller. Id. In
April 1996, Gallo transferred to another FAA position that did not require medical
certification. Id at 1347 Because the new position did not provide the same pay or
retirement benefits as Gallo’s air traffic controller position, Gallo received differential
OWCP benefits. Id. In April 2000, a physician determined that Gallo had recovered
from her injury. Id. In June 2000, Gallo’s OWCP benefits were terminated, and in
August 2000, Gallo accepted a supervisory air traffic controller position. Id.
Gallo’s salary for the new position did not take into account pay increases that
had been granted to air traffic controllers while she worked in another position due to
her injury; Gallo apparently alleged that the salary calculation amounted to a failure to
credit her for a right or benefit based upon length of service in violation of 5 USC
§ 8151(a). Id. In Gallo we simply held that employees like Gallo whose recovery took
longer than one year could recover under § 8151(a) and could not bring § 8151(a)
claims in the Court of Federal Claims, “[b]ecause an action under section 8151(a) is
within the Board's appellate jurisdiction under the [Civil Service Reform Act of 1978] and
2008-3001 6
the Board’s regulations, the Court of Federal Claims lacks jurisdiction over such an
action.” Id at 1352.
Gallo should not be read as overruling our earlier holding in Booker. See
George E Warren Corp v U S, 341 F3d 1348, 1351-52 (Fed Cir 2003) (“[T]o overrule a
precedent, the court must rule en banc.”). And under Booker, the Board has
jurisdiction over a restoration appeal by an employee who has partially recovered from
an injury only in the situations enumerated in 5 CFR § 353.304(c).
Palmer, of course, did return to employment and does not allege a denial of
restoration. Nor does Palmer allege that USPS failed to credit his time for purposes of
such a right or benefit. To establish Board jurisdiction based on failure to credit time
spent on compensation, an appellant must:
allege facts that, if proven, would show that: (1) He was absent from his
position due to a compensable injury; (2) the agency restored him to duty
on a part-time basis, to light duty, or to a position with less demanding
physical requirements; and (3) the agency failed to credit time spent on
compensation for the purposes of rights and benefits based upon length of
service.
Foley v U S Postal Serv, 105 MSPR 307, 312 (2007).
Although Palmer’s allegations are not entirely clear, he apparently alleges that
USPS failed to credit him for annual and sick leave accrued while he was on leave
without pay and receiving OWCP benefits. This is not an allegation of failure to credit
time spent on compensation for purposes of rights and benefits based upon length of
service. By contrast, that was exactly the claim made in Gallo, a claim for
compensation after restoration based on length of service. Whether USPS allows
Palmer to accrue leave while on leave without pay is not dependent on his length of
service with USPS. Rather, a set number of hours of leave is accrued during each pay
2008-3001 7
period an employee works. See United States Postal Service, Employee and Labor
Relations Manual, § 512.311 (ELM 17.6, Feb 15, 2007), available at
http://www.usps.com/cpim/manuals/elm/elmarch.htm. The rate at which leave accrues
during each pay period is a benefit based on length of service. An employee earns four
hours of leave per pay period if he has served fewer than three years, six hours per pay
period if he has served between three years and fifteen years, and eight hours per pay
period if he has served fifteen years or more. Id. But Palmer does not allege that he
currently is accruing leave at the wrong rate. Rather, he alleges that USPS erred by not
allowing him to accrue leave while he was on leave. Because this claim challenges only
a “detail[ ] or circumstance[ ]” of Palmer’s restoration, he has not met his burden of
alleging jurisdictional facts. 1
Because Palmer was not denied restoration and because he has not alleged that
USPS failed to credit his time for purposes of a right or benefit based on length of
service, the Board was correct that it lacked jurisdiction over Palmer’s appeal.
In his informal brief, Palmer suggests that Hatch v Office of Personnel
Management, 100 MSPR 204 (2005), somehow supports his position. Palmer’s
reliance on Hatch is misplaced. Hatch addressed the issue whether partially recovered
employees who receive OWCP benefits while working part-time should be treated as
full-time employees for the purpose of computing retirement benefits. Id at 207-08. The
Hatch case has no bearing on whether the Board has jurisdiction over Palmer’s appeal.
1
We note that even if the Board had jurisdiction over an appeal based on Palmer’s
allegation, Palmer’s appeal would likely fail on the merits. “An employee receiving
OWCP benefits is not entitled to accrue sick or annual leave if he is solely in a non-pay
status.” Gullette v United States Postal Service, 86 MSPR 380, 381 (2000) (citing Roja
v Department of the Navy, 55 MSPR 618 (1992)).
2008-3001 8
Accordingly, the decision of the Board is affirmed.
AFFIRMED
COSTS
No costs.
2008-3001 9