Case: 21-1516 Document: 35 Page: 1 Filed: 07/14/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BETTEY SUE CRAFT,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-1516
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-20-0829-W-1.
______________________
Decided: July 14, 2021
______________________
BETTEY SUE CRAFT, Tracy, CA, pro se.
KATHERINE MICHELLE SMITH, Office of the General
Counsel, United States Merit Systems Protection Board,
Washington, DC, for respondent. Also represented by
TRISTAN L. LEAVITT.
______________________
Before MOORE, Chief Judge, LINN and CHEN, Circuit
Judges.
Case: 21-1516 Document: 35 Page: 2 Filed: 07/14/2021
2 CRAFT v. MSPB
PER CURIAM.
Ms. Bettey Sue Craft appeals from a decision of the
Merit Systems Protection Board (Board) dismissing her
whistleblower individual right of action appeal for lack of
jurisdiction. Because Ms. Craft alleges retaliation for po-
tential whistleblowing activity—a claim over which the
Board has jurisdiction—we vacate the decision and remand
for further proceedings.
BACKGROUND
In 1983, Ms. Craft, an employee of the Defense Infor-
mation Systems Agency, incurred a work-related injury for
which she was awarded workers’ compensation benefits by
the Department of Labor (DOL). Resp’t App’x at 37. 1
Ms. Craft has since contested a variety of issues associated
with this award. Resp’t App’x at 24. On March 19, 2019,
she filed an appeal with the Board, contesting previous de-
cisions from the DOL’s Office of Workers’ Compensation
(OWC) that issued between 2001 and 2012. Resp’t App’x
at 69. While that appeal was pending, on September 18,
2020, the OWC terminated Ms. Craft’s workers’ compensa-
tion benefits, reasoning that Ms. Craft had fully recovered
from her injuries and did not require further compensation.
See Resp’t App’x at 36–39.
Ms. Craft filed a second (and separate) appeal with the
Board on September 16, 2020. This second appeal involves
a whistleblowing individual right of action regarding the
OWC’s termination decision. 2 Ms. Craft claims that the
1 Citations to “Resp’t App’x at [page number]” refer
to the appendix submitted with the government’s informal
brief.
2 Though the OWC did not issue its final termination
until September 18, 2020, Ms. Craft filed suit after being
notified of OWC’s consideration of such termination on Au-
gust 11, 2020.
Case: 21-1516 Document: 35 Page: 3 Filed: 07/14/2021
CRAFT v. MSPB 3
OWC’s rescission of benefits decision was made in retalia-
tion for her whistleblowing activities. Resp’t App’x at 21.
The Board issued a Jurisdiction Order, notifying Ms. Craft
that it lacked jurisdiction over her claims unless she pro-
vided proof of administrative exhaustion at the Office of
Special Counsel (OSC) and made nonfrivolous allegations
that her disclosures were protected whistleblowing activity
contributing to the OWC’s decision. Resp’t App’x at 3.
Ms. Craft subsequently filed three submissions detailing
her interactions with OSC, elaborating that, in her belief,
the OWC’s decision was due to her disclosures and appeals
of prior determinations. See Resp’t App’x at 49–53.
On October 15, 2020, the Board dismissed Ms. Craft’s
appeal for lack of jurisdiction, explaining that “OWC[]’s
proposed termination of the appellant’s OWC[] benefits
and its subsequent decision to terminate those benefits[] is
not a matter that is directly appealable to the Board.”
Resp’t App’x at 3. The Board did not make any factual find-
ings in its decision as to OSC exhaustion, stating that it
lacked jurisdiction as a matter of law in view of Kerrigan v.
Dep’t of Labor, 122 M.S.P.R. 545 (2015). Resp’t App’x at 3.
Ms. Craft timely appeals. We have jurisdiction pursu-
ant to 5 U.S.C. § 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9).
DISCUSSION
On appeal, the government asks us to vacate and re-
mand, acknowledging that the Board erred as a matter of
law in finding it lacked jurisdiction. Resp’t Br. at 8. We
agree.
We may set aside a decision by the Board only when it
is arbitrary, capricious, an abuse of discretion, does not fol-
low the law, or is not supported by substantial evidence.
See 5 U.S.C. § 7703(c); see also Forest v. Merit Sys. Prot.
Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). The Board’s deter-
mination that it lacks jurisdiction is a legal question that
this court reviews de novo. § 7703(c); see also Herman v.
Case: 21-1516 Document: 35 Page: 4 Filed: 07/14/2021
4 CRAFT v. MSPB
Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999). This
court is bound by the Board’s factual findings on which a
jurisdictional determination is based “unless those findings
are not supported by substantial evidence.” Bolton v. Merit
Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
The issue of an individual’s entitlement to workers’
compensation benefits is within the exclusive jurisdiction
of the OWC under 5 U.S.C. § 8128(b). See Pueschel v.
United States, 297 F.3d 1371, 1374–77 (Fed. Cir. 2002).
Ms. Craft, however, does not seek review of the underlying
merits of the OWC decision, but rather contends that the
OWC retaliated against her following protected whistle-
blowing activity. This kind of whistleblowing retaliation
claim is within the scope of the Board’s jurisdiction. Kerri-
gan v. Merit Sys. Prot. Bd., 833 F.3d 1349, 1352 (Fed. Cir.
2016) (“The question of whether the DOL retaliated
against Mr. Kerrigan in reprisal for whistleblowing activ-
ity is a different one than whether the DOL correctly ter-
minated his benefits for failure to attend vocational
training. Section 8128(b) only precludes the Board’s review
of the latter.”).
CONCLUSION
Because the Board’s decision was contrary to law, the
decision is vacated and remanded. The Board suggested,
though it never affirmatively concluded, that Ms. Craft
may have failed to exhaust administrative remedies at the
OSC or failed to state a nonfrivolous claim. We remand for
the Board to make factual findings on these points in the
first instance.
VACATED AND REMANDED
COSTS
No costs.