United States Court of Appeals
for the Federal Circuit
__________________________
SHIRLEY J. BLEDSOE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
UNITED STATES POSTAL SERVICE,
Intervenor.
__________________________
2011-3054
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH0353100935-I-1.
__________________________
Decided: October 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.
2 BLEDSOE v. MSPB
CARRIE A. DUNSMORE, Trial Attorney, commercial
Litigation Branch, Civil Division, United States Depart-
ment 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 deci-
sion 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 Auto-
mation 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
BLEDSOE v. MSPB 3
June 2010, pursuant to the National Reassessment Proc-
ess, 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 juris-
diction.
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 arbitrar-
ily 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 confer-
ence. On October 14, the Board issued an order summa-
rizing 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 Process-
ing 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-
4 BLEDSOE v. MSPB
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 non-
frivolous 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 iden-
tifying 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 restric-
tions.” 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 refer-
ence 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.
BLEDSOE v. MSPB 5
The Board’s decision dismissing Bledsoe’s appeal be-
came final on December 10, 2010. Bledsoe timely ap-
pealed, 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 substan-
tial 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 adjudi-
cate 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 . . . . Ap-
peals shall be processed in accordance with regu-
lations prescribed by the Board.
6 BLEDSOE v. MSPB
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 ‘di-
rectly spoken’ to an employee’s burden of proof for estab-
lishing the Board’s jurisdiction.” Garcia, 437 F.3d at 1338
(quoting Chevron v. Natural Res. Def. Council, 467 U.S.
837, 842 (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 evi-
dence, with respect to . . . [i]ssues of jurisdiction.” In
Garcia, this court held that this regulation is “neither
‘arbitrary, capricious, or manifestly contrary to the stat-
ute,’ 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.
BLEDSOE v. MSPB 7
In Garcia, this court distinguished numerous cases
regarding Article III jurisdiction as inapposite in rejecting
the view that Board “jurisdiction attaches when an em-
ployee makes non-frivolous claims.” Id. at 1335 (citing
Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438
U.S. 59 (1978); Montana-Dakota Utils. Co. v. Nw. Pub.
Serv. Co., 341 U.S. 246 (1951); Bell v. Hood, 327 U.S. 678
(1946); The Fair v. Kohler Die & Specialty Co., 228 U.S.
22 (1913)). Cf. Arbaugh v. Y&H Corp., 546 U.S. 500
(2006).
Rather, in Garcia, this court explained that “[t]here is
nothing in the plain language of the statute requiring or
even suggesting a non-frivolous standard . . . [nor that]
Congress intended that, in cases in which jurisdictional
issues and merits issues overlap, the Board is required to
follow the standards for jurisdiction applicable to Article
III courts.” 437 F.3d at 1336. “[I]nasmuch as the Board
is not an Article III court, we fail to see how the backdrop
of standards applicable to Article III court jurisdiction
suggests that Congress intended those standards to apply
to this quasi-judicial administrative agency.” Id. at 1337
(also finding “suggestions that Congress specifically did
not intend concepts from Article III courts to be used by
the Board.”).
As this court further explained in Garcia, establishing
jurisdiction at the Board is a two-step process. First, a
petitioner must meet the threshold requirement of mak-
ing non-frivolous allegations of fact which, if true, would
be sufficient to establish the Board’s jurisdiction. Id. at
1330. If the petitioner makes non-frivolous allegations to
support jurisdiction, then and only then will the peti-
tioner be entitled to a jurisdictional hearing at which the
petitioner must prove jurisdiction by preponderant evi-
dence. See id. at 1344 (“[O]nce a claimant makes non-
frivolous claims of Board jurisdiction, namely claims that,
if proven, establish the Board’s jurisdiction, then the
claimant has a right to a hearing. At the hearing, the
8 BLEDSOE v. MSPB
claimant must prove jurisdiction by a preponderance of
the evidence.”). After the petitioner has proven jurisdic-
tion by preponderant evidence, then and only then is the
Board free to reach the merits of the petitioner’s appeal.
“If the Board determines that the claimant fails to prove
jurisdiction by a preponderance of the evidence, then the
Board does not have jurisdiction and the case is dismissed
for lack of jurisdiction.” Id. When the Board lacks juris-
diction, “it cannot decide the merits of the case.” Id. at
1340.
Because the Board’s jurisdiction is limited rather than
plenary, and because the petitioner must prove jurisdic-
tion by preponderant evidence, including on issues that
overlap with the merits, it is crucial to identify at the
outset the jurisdictional requirements of any given ap-
peal.
2. Jurisdiction in Partial Recovery Restoration Appeals
5 C.F.R. § 1201.3, entitled “appellate jurisdiction,”
states, in relevant part, that the “Board has jurisdiction
over appeals from agency actions when the appeals are
authorized by law, rule, or regulation . . . [including
f]ailure to restore . . . following partial or full recovery
from a compensable injury (5 C.F.R. 353.304).” Thus, the
Board’s jurisdiction over appeals from certain denials of
restoration is established by 5 C.F.R. § 353.304, which
provides (emphasis added):
(a) Except as provided in paragraphs (b) and (c) of
this section, an injured employee or former em-
ployee of an agency in the executive branch (in-
cluding 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 accor-
dance with MSPB’s regulations.
BLEDSOE v. MSPB 9
(b) An individual who fully recovers from a com-
pensable injury more than 1 year after compensa-
tion 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 de-
termination of whether the agency is acting arbi-
trarily and capriciously in denying restoration.
Upon reemployment, a partially recovered em-
ployee may also appeal the agency’s failure to
credit time spent on compensation for purposes of
rights and benefits based on length of service.
Thus, subsection (c) limits the otherwise broad juris-
diction established by subsection (a) in the case of an
employee who is only partially recovered from a com-
pensable injury. The Board has held that in order to
establish jurisdiction under 5 C.F.R. § 353.304(c), a peti-
tioner must prove that:
(1) [s]he was absent from her position due to a
compensable injury; (2) she recovered sufficiently
to return to duty on a part-time basis, or to return
to work in a position with less demanding physical
requirements than those previously required of
her; (3) the agency denied her request for restora-
tion; and (4) the denial was arbitrary and capri-
cious.
Chen v. U.S. Postal Serv., 97 M.S.P.R. 527, 533 (2004)
(quotation omitted).
The basis for jurisdiction established by 5 C.F.R.
§ 353.304(c) reflects the limited substantive right enjoyed
by partially recovered employees. Employees who recover
fully within a year have the unconditional right to resto-
ration under 5 C.F.R. § 353.301(a) and 5 U.S.C.
§ 8151(b)(1). See Gallo v. United States, 529 F.3d 1345,
10 BLEDSOE v. MSPB
1349 (Fed. Cir. 2008) (explaining that section 8151 “pro-
vides an absolute right to an employee who is injured and
who recovers within one year . . . [to] return to his old job
or an equivalent position.” (emphasis added) (quoting S.
Rep. No. 93-1081, as reprinted in 1974 U.S.C.C.A.N. 5341,
5352)). By contrast, partially recovered employees only
enjoy a right to have the agency make “every effort to
restore” them “in the local commuting area” and “accord-
ing to the circumstances in each case.” 5 C.F.R.
§ 353.301(d). In other words, partially recovered employ-
ees do not have an absolute or unconditional right to
restoration; and a partially recovered petitioner alleging
nothing more than that she has been denied restoration,
has not invoked a legally protected interest before the
Board.
Because partially recovered employees do not have an
unconditional right to restoration, they do not have the
right to appeal every denial of restoration. The “arbitrar-
ily and capriciously” requirement of section 353.304(c)
limits jurisdiction to appeals where the substantive rights
of partially recovered petitioners under section 353.301(d)
are actually alleged to have been violated. See, e.g.,
Palmer v. Merit Sys. Prot. Bd., 550 F.3d 1380, 1383-4
(Fed. Cir. 2008) (“The word ‘except,’ as used in section
353.304(a), simply alludes to the fact that not all employ-
ees to whom sections 353.304(b) and 353.304(c) apply
have restoration rights in all circumstances . . .” and “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 C.F.R. § 353.304(c).”
(quotations and citations omitted; emphasis added));
Sanchez v. U.S. Postal Serv., 114 M.S.P.R. 345, 350 (2010)
(finding jurisdiction because “[e]vidence that the agency
failed to search the commuting area as required by 5
C.F.R. 353.301(d) constitutes a nonfrivolous allegation
that the agency acted arbitrarily and capriciously in
denying restoration.”).
BLEDSOE v. MSPB 11
While it might seem natural, at first blush, to view
subsection 353.304(c)’s inclusion of the term “arbitrarily
and capriciously” to be nothing more than a “standard of
review,” rather than a jurisdictional requirement, to do so
would be to ignore the text of sections 353.301(d) and
353.304(a) and (c) and would foist jurisdiction upon the
Board over appeals brought by partially recovered peti-
tioners who do not even allege that they did not receive
the requisite “effort to restore.” The Board would then
have jurisdiction to decide the merits of a right-to-
restoration claim that does not actually exist. Not even
the Article III jurisdiction cases, cited above, support such
a result. Cf. Reed Elsevier, Inc. v. Muchnick, 130 S. Ct.
1237, 1247 (2010) (holding, in Article III context, that
copyright “registration requirement . . . imposes a precon-
dition to filing a claim that is not clearly labeled jurisdic-
tional, is not located in a jurisdiction-granting provision,
and admits of congressionally authorized exceptions . . .
[and] thus imposes a type of precondition to suit that
supports nonjurisdictional treatment.”); Arbaugh, 546
U.S. at 515 (also in Article III context, holding statutory
element that “appears in a separate [statutory] provision
that does not speak in jurisdictional terms or refer in any
way to the jurisdiction of the district courts” to be non-
jurisdictional (quotation omitted)).
Accordingly, we hold that to establish jurisdiction un-
der 5 C.F.R. § 353.304(c) the petitioner must prove by
preponderant evidence: (1) absence due to a compensable
injury; (2) sufficient recovery from the injury to return to
duty on a part time basis or in a less physically demand-
ing position; (3) agency denial of a request for restoration;
and (4) denial of restoration rendered arbitrary and
capricious by agency failure to perform its obligations
under 5 C.F.R. 353.301(d).
12 BLEDSOE v. MSPB
3. Bledsoe’s Failure to Establish Jurisdiction
In the present case, the Board found that Bledsoe had
carried her burden as to the first three jurisdictional
elements, but had not carried it as to the fourth. Specifi-
cally, the Board acknowledged that the Postal Service had
fulfilled its duty to conduct a search for vacant positions
in Bledsoe’s local commuting area that she would be able
to perform and found none. Bledsoe failed to allege any
facts to refute that showing. The Board thus concluded
that Bledsoe had failed to make a non-frivolous allegation
of fact showing the Postal Service’s action to be arbitrary
and capricious and determined that it lacked jurisdiction
over Bledsoe’s appeal.
On appeal to this court, Bledsoe argues only that the
Board erred because the Postal Service did not offer her a
“light duty assignment” and because “there was work
available in the facility.” Petitioner Br. 1-2. The only
factual averment potentially bearing on that argument is
Bledsoe’s supplemental jurisdictional statement contend-
ing that three door monitor positions were “Necessary
Work.” Respondent App’x. 28. As noted above, this
statement was filed not only after the close of record date
established by the Board for the issue of jurisdiction, but
after the Board had already dismissed Bledsoe’s appeal
for lack of jurisdiction.
5 C.F.R. § 1201.58(c) states, in relevant part, that
“[o]nce the record closes, no additional evidence or argu-
ment will be accepted unless the party submitting it
shows that the evidence was not readily available before
the record closed.” The Board repeatedly informed
Bledsoe that no evidence would be accepted after the close
of record on the issue of jurisdiction absent a showing of
good cause, and even extended the close of record by a
month so that Bledsoe could provide jurisdictional allega-
tions. Bledsoe’s supplemental statement was untimely
and included no showing of good cause. Indeed, while
BLEDSOE v. MSPB 13
Bledsoe’s untimely submission states that the information
contained therein was requested from the Postal Service
on August 6, 2010, it contains no statement of when
Bledsoe received the information. The submission makes
reference to an “Exhibit B” apparently containing the
Postal Service’s response; but this court sees no such
exhibit in the record on appeal. Thus, this court has no
basis upon which to conclude that the information was
not readily available prior to the close of record on juris-
diction.
Moreover, Bledsoe’s submission was after the initial
order dismissing for lack of jurisdiction. 5 C.F.R.
§ 1201.111(a) states in part that the “judge will prepare
an initial decision after the record closes.” 5 C.F.R.
§ 1201.112(a), further provides that “[a]fter issuing the
initial decision, the judge will retain jurisdiction over a
case only to the extent necessary to” perform enumerated
functions not including consideration of untimely eviden-
tiary submissions. Thus, the administrative judge lacked
jurisdiction to consider the evidence in Bledsoe’s untimely
submission.
Pursuant to 5 C.F.R. § 1201.114, Bledsoe could have
petitioned for review by the Board of the initial decision
dismissing her appeal for lack of jurisdiction. But there is
no evidence in the record on appeal that Bledsoe did so.
And even if Bledsoe’s “Amended Jurisdictional Order”
were liberally construed to constitute such a petition, it
would not have entitled Bledsoe to reopen her appeal at
the Board. 5 C.F.R. § 1201.115(d) provides in relevant
part that the Board “may grant a petition for review when
it is established that . . . [n]ew and material evidence is
available that, despite due diligence, was not available
when the record closed.” See also Brenneman v. Office of
Pers. Mgmt., 439 F.3d 1325, 1328 (Fed. Cir. 2006) (“Both
this court and the Board have held that a party submit-
ting new evidence in connection with a petition for review
must satisfy the burden of showing that the evidence is
14 BLEDSOE v. MSPB
material and that it could not have been obtained earlier
with the exercise of due diligence.”). Bledsoe’s “Amended
Jurisdictional Order” contains no statement that the
information was not available when the record closed, nor
does it evidence diligence on Bledsoe’s part in obtaining
the information.
Because Bledsoe submitted new evidence after the
close of record and after the initial decision dismissing her
appeal, without a showing of good cause or a petition for
review, the Board could not, and did not, consider it in
rendering its jurisdictional decision. Bledsoe’s untimely
submission is therefore irrelevant to this court’s substan-
tial-evidence review of the Board’s fact finding.
This court finds no error in the Board’s conclusion
that it lacked jurisdiction. The Board applied the correct
legal standard in determining its own jurisdiction, and its
factual determinations were supported by substantial
evidence. Bledsoe did not identify any vacant position
which was available within her commuting area and
which she was able to perform. Nor did she in any other
way make a non-frivolous allegation that the Postal
Service acted arbitrarily and capriciously in not restoring
her, even after the Board specifically ordered Bledsoe to
make such a showing and afforded her the opportunity to
do so.
The Board’s dismissal of Bledsoe’s pendent discrimi-
nation claim was also correct in view of the above analy-
sis. See Garcia, 437 F.3d at 1331 (explaining that the
Board’s pendent jurisdiction over discrimination claims is
“solely determined by considering the Board’s jurisdiction
over the adverse action alone” (citing 5 U.S.C. § 7702)).
III. CONCLUSION
For the reasons explained above, this court agrees
with the Board that Bledsoe has not made non-frivolous
allegations which, if true, would establish that the Postal
BLEDSOE v. MSPB 15
Service acted arbitrarily and capriciously and thus entitle
Bledsoe to a jurisdictional hearing. The Board’s dismissal
is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
United States Court of Appeals
for the Federal Circuit
__________________________
SHIRLEY J. BLEDSOE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
AND
UNITED STATES POSTAL SERVICE,
Intervenor.
__________________________
2011-3054
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. CH0353100935-I-1.
__________________________
NEWMAN, Circuit Judge, dissenting from the dismissal for
lack of jurisdiction.
Ms. Bledsoe appealed to the Merit Systems Protection
Board, requesting review of the Postal Service’s denial of
her request for restoration to light duty service. The Board
held a telephonic conference, requested evidence on the
relevant factors, and upon consideration of the evidence and
argument, and application of the prescribed standard of
review, the Board concluded that the agency’s decision
BLEDSOE v. MSPB 2
should be affirmed. The Board then, curiously, did not
affirm the agency’s decision, but instead dismissed the
appeal for lack of jurisdiction. This inapt and illogical
resolution “obscures the issue,” as the Supreme Court
remarked in Arbaugh v. Y & H Corp., 546 U.S. 500 (2006),
counseling against “unrefined” jurisdictional rulings:
Judicial opinions, the Second Circuit incisively ob-
served, “often obscure the issue by stating that the
court is dismissing ‘for lack of jurisdiction’ when
some threshold fact has not been established, with-
out explicitly considering whether the dismissal
should be for lack of subject matter jurisdiction or
for failure to state a claim.” Da Silva, 229 F.3d, at
361. We have described such unrefined dispositions
as “drive-by jurisdictional rulings” that should be
accorded “no precedential effect” on the question
whether the federal court had authority to adjudi-
cate the claim in suit. Steel Co., 523 U.S. at 91, 118
S.Ct. 1003.
546 U.S. at 511. As in Arbaugh, the issue here is not
whether the Board had authority to adjudicate Ms.
Bledsoe’s claim, but whether her claim was properly denied
on the merits. As in Arbaugh, the dismissal of the claim as
outside the Board’s jurisdiction “obscures the issue.” Id.
The Board undoubtedly has jurisdiction to decide whether to
sustain the agency’s denial of restoration, for the Board is
assigned this jurisdiction by statute.
5 U.S.C. §8151 provides certain restoration rights to
employees who suffer on-the-job compensable injuries. 5
U.S.C. §7701(a) provides that an employee has the right of
appeal to the Board “from any action which is appealable to
the Board under any law, rule, or regulation.” The Postal
Service’s failure to restore a partially recovered employee is
3 BLEDSOE v. MSPB
the subject of 5 C.F.R. §1201.3, which explicitly provides for
appeals to the Board from such agency action:
(a) Generally. The Board has jurisdiction over ap-
peals from agency actions when the appeals are au-
thorized by law, rule, or regulation. These include
appeals from the following actions:
....
(12) Failure to restore, improper restoration
of, or failure to return following a leave of
absence an employee or former employee of
an agency in the executive branch (includ-
ing the U.S. Postal Service and the Postal
Rate Commission) following partial or full
recovery from a compensable injury (5 CFR
§353.304)[.]
Regulation 5 C.F.R. §353.304 in subsection (c) specifies the
standard by which the agency’s refusal to restore a partially
recovered employee is reviewed by the MSPB:
(a) Except as provided in paragraphs (b) and (c) of
this section, an injured employee or former em-
ployee of an agency in the executive branch (includ-
ing 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.
....
(c) An individual who is partially recovered from a
compensable injury may appeal to MSPB for a de-
termination of whether the agency is acting arbi-
trarily and capriciously in denying restoration. . . .
BLEDSOE v. MSPB 4
Several other regulations contain provisions applicable to
partially recovered employees, such as 5 C.F.R. §353.301:
(d) Partially recovered. Agencies must make every
effort to restore in the local commuting area, ac-
cording to the circumstances in each case, an indi-
vidual who has partially recovered from a
compensable injury and who is able to return to
limited duty.
In order to appeal to the Board, the partially recovered
employee must make non-frivolous allegations of the ele-
ments of the claim, viz., “that: (1) he was separated from his
position due to a compensable injury; (2) he partially recov-
ered from the injury; (3) he requested restoration within
certain limitations; and, (4) the agency denied that request.”
Walley v. Dep’t of Veterans Affairs, 279 F.3d 1010, 1019
(Fed. Cir. 2002).
The MSPB found that Ms. Bledsoe had made non-
frivolous allegations of the elements of her claim and con-
sidered the reasons given by the Postal Service for denying
restoration. The Postal Service stated that there was no
“necessary and productive work available” within Ms.
Bledsoe’s medical restrictions. The administrative judge, at
a status conference with the parties, stated that “in order to
raise a non-frivolous allegation that denial of restoration
was arbitrary and capricious, the appellant must identify a
vacant position, or positions, within 50 miles” of her former
work location, as this would constitute “specific, independ-
ent evidence corroborating her allegation that the denial
was arbitrary and capricious.” Ms. Bledsoe, aided by a
union representative, identified three “door monitor” posi-
tions at her prior location, provided a description of the
duties of this position, and explained why Ms. Bledsoe could
perform those duties within her medical limitations. She
5 BLEDSOE v. MSPB
also presented evidence and argument as to the seniority of
various employees at that location, as well as medical
evidence of her partial recovery. The Postal Service and Ms.
Bledsoe presented opposing evidence and argument as to
the availability of suitable positions within the commuting
area and Ms. Bledsoe’s suitability for those positions.
The panel majority states that the Board did not con-
sider this record evidence, which was submitted thirty-two
days before final decision. However, the Board did not
exclude the evidence, nor put Ms. Bledsoe on notice of its
purported procedural defects. This would be a different
case, if the administrative judge had refused to consider the
evidence that it requested and that was provided. See
Frampton v. Dep’t of Interior, 811 F.2d 1486, 1489 (Fed. Cir.
1987) (“A fair hearing for employees who appeal to the
MSPB from agency decisions is the basic cornerstone of
employee rights.”); accord Schucker v. Fed. Ins. Deposit
Corp., 401 F.3d 1347 (Fed. Cir. 2005) (“[F]airness in adjudi-
cating employee’s rights is a cornerstone of proceedings
before the Board.”).
The administrative judge decided that, on the regulatory
standard for review of agency actions involving partially
recovered employees, the decision of the Postal Service
should be sustained. That is, in view of the highly deferen-
tial “arbitrary and capricious” standard specified by
§353.304(c) for partially recovered employees, the agency’s
determination is not easily second-guessed. However, it
does not follow that jurisdiction is lost, on affirming the
merits of an appeal whose jurisdiction is assigned to the
Board by statute. Such incorrect invocation of “jurisdiction”
for a decision on the merits is confusing, error-prone, and
subject to abuse. See Do-Well Mach. Shop, Inc. v. United
States, 870 F.2d 637, 640 (Fed. Cir. 1989) (“To master this
distinction [between dismissal on the merits and dismissal
BLEDSOE v. MSPB 6
for want of jurisdiction] is not merely an intellectual exer-
cise without practical utility.”).
The Court emphasized in Henderson v. Shinseki, _ U.S.
_, 131 S. Ct. 1197 (2011) that judges should exercise “disci-
pline” when using the term jurisdiction, for “the conse-
quences that attach to the jurisdictional label may be so
drastic,” including “alter[ing] the normal operation of our
adversarial system,” “wast[ing] of judicial resources,” and
“unfairly prejudic[ing] litigants.” 131 S. Ct. at 1202. Mis-
designation of “jurisdiction” should not be condoned, for it
can be invoked to abuse, for example to avoid the conse-
quences of res judicata, or to change the standard of review,
or to enable an untimely change of position or withdrawal of
a concession, or to permit insertion of new issues after a
deadline, or to shift the burdens or presumptions in mid-
stream—for the rule appears to be inviolate that “jurisdic-
tion” can be raised at any time.
The Court has often reminded the lower courts and the
administrative tribunals that “the term ‘jurisdictional’
properly applies only to ‘prescriptions delineating the
classes of cases (subject-matter jurisdiction) and the persons
(personal jurisdiction)’ implicating that authority.” Reed
Elsevier, Inc. v. Muchnick, _ U.S. _, 130 S. Ct. 1237, 1243
(2010) (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)).
In Reed Elsevier the Court reiterated the inaptness of
“drive-by jurisdictional rulings”:
In Arbaugh, we described the general approach to
distinguish “jurisdictional” conditions from claim-
processing requirements or elements of a claim: “If
the Legislature clearly states that a threshold limi-
tation on a statute’s scope shall count as jurisdic-
tional, then courts and litigants will be duly
instructed and will not be left to wrestle with the is-
7 BLEDSOE v. MSPB
sue. But when Congress does not rank a statutory
limitation on coverage as jurisdictional, courts
should treat the restriction as nonjurisdictional in
character.”
Id. at 1244 (quoting Arbaugh, 546 U.S. at 515-16); see also
Bell v. Hood, 327 U.S. 678, 682 (1946) (“Jurisdiction, there-
fore, is not defeated as respondents seem to contend, by the
possibility that the averments might fail to state a cause of
action on which petitioners could actually recover.”). The
standard of review is not an element of jurisdiction. The
standard of “arbitrary and capricious” is deferential, not
jurisdictional. In Spruill v. Merit Systems Protection Board,
978 F.2d 679 (Fed. Cir. 1992) this court explained that: “The
forum had jurisdiction to hear the matter in the first in-
stance—that is, subject-matter jurisdiction existed—as long
as the petitioner asserted nonfrivolous claims,” id. at 687-
88, and pointed out that: “Sometimes the question of subject
matter jurisdiction gets confused with the question of enti-
tlement to relief, that is, whether a cause of action has been
stated in the complaint, or later proved.” Id. at 686. Such
confusion is here apparent.
Entitlement to relief was the dispute in Ms. Bledsoe’s
appeal to the MSPB, not subject matter jurisdiction or
personal jurisdiction. In Union Pacific Railroad Co. v.
Brotherhood of Locomotive Engineers & Trainmen, _ U.S. _,
130 S. Ct. 584 (2009), where the agency was the National
Railroad Adjustment Board, the Court explained that “there
is surely a starting presumption that when jurisdiction is
conferred, a court may not decline to exercise it. The gen-
eral rule applicable to courts also holds for administrative
agencies directed by Congress to adjudicate particular
controversies.” Id. at 590 (citation omitted); see also Pruidze
v. Holder, 632 F.3d 234, 240 (6th Cir. 2011) (“[A]n agency
BLEDSOE v. MSPB 8
cannot contract its power to hear claims that fall plainly
within its statutory jurisdiction.”).
The Board’s jurisdiction is set by statute. No statute
states that jurisdiction is ousted if the petitioner does not
make her case. The standard by which the Board reviews
agency action is not a matter of jurisdiction, but of proce-
dural law. A review of the evidence going to the merits
leads to a decision on the merits, not denial or grant of
jurisdiction depending on whether the petitioner wins or
loses. See Bell, 327 U.S. at 682 (“[I]t is well settled that the
failure to state a proper cause of action calls for a judgment
on the merits and not for a dismissal for want of jurisdic-
tion.”); Spruill, 978 F.2d at 687 (“[F]ailure of proof of an
element of the cause of action means the petitioner is not
entitled to the relief he seeks.”). The Board incorrectly
characterized its decision as jurisdictional, denying its own
jurisdiction assigned by 5 U.S.C. §7701(a) and 5 C.F.R.
§353.304(c). This court compounds the error. From this
court’s flawed “drive-by jurisdictional” analysis, I must,
respectfully, dissent.