United States Court of Appeals for the Federal Circuit
October 8, 1999
UNITED STATES POSTAL SERVICE, RESPONDENT
Before Plager, Schall, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Robert Taylor petitions for review of the final decision of the Merit Systems Protection Board ("Board") dismissing his appeal for lack of jurisdiction. The Board held that Mr. Taylor was not entitled to appeal the United States Postal Service's ("agency's") alleged refusal to return him to duty following his recovery from a compensable injury. See Taylor v. United States Postal Serv., No. SF-0353-98-0553-I-1 (Feb. 16, 1999). The August 24, 1998 initial decision of the administrative Judge ("AJ") became the final decision of the Board on February 16, 1999, when the Board denied Mr. Taylor's petition for review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115. We affirm.
Mr. Taylor was employed by the agency as a letter carrier in Los Angeles, California. During his employment, he suffered from a pre-existing diabetic condition. In 1992, he was diagnosed as having a diabetic ulceration of the right great toe, and between August of 1992 and April of 1997 he was periodically incapacitated from duty or was assigned to light duty due to aggravation of the ulceration. On April 1, 1997, the Office of Worker's Compensation Programs ("OWCP") accepted a temporary aggravation of the ulceration as a work-related, compensable injury. Consequently, Mr. Taylor ceased working and began receiving worker's compensation payments under the Federal Employees Compensation Act, 5 U.S.C. Chapter 81.
More than one year later, on April 15, 1998, OWCP proposed to terminate Mr. Taylor's compensation because the weight of medical evidence established that the work-related temporary aggravation had ceased. That same day, the agency offered Mr. Taylor limited duty consisting of sedentary work only. Mr. Taylor responded, however, that he could not accept the offer because his doctor had him "on total disability."
On May 19, 1998, OWCP disallowed Mr. Taylor's claim for continuing compensation benefits because the weight of medical evidence established that the work-related temporary aggravation from which he had suffered had ceased. On May 22, 1998, the agency notified Mr. Taylor that he was obligated to report for active duty immediately because OWCP had denied his claim for continuing benefits.
According to Mr. Taylor, he responded to the agency's notice by reporting for work the following week, but was told that there was no work available. Mr. Taylor's representative, however, gave a somewhat different version of what took place. In a telephone status conference, he asserted to the AJ that when Mr. Taylor reported for work, he was told that he first needed to be cleared by the medical clinic. He also asserted that when Mr. Taylor reported to the medical clinic, he was told that there was no one available to clear him and that he would have to make an appointment. In any event, shortly thereafter Mr. Taylor retired, and at about the same time he lodged an appeal with the Board.
In his appeal to the Board, Mr. Taylor claimed that his restoration rights had been violated by the agency's refusal to return him to duty. He also claimed that he had been forced to retire against his will. However, he later acknowledged that he had no right of appeal to the Board on the retirement issue because he was a nonpreference eligible employee. Therefore, his appeal to the Board was based solely on the alleged violation of his restoration rights.
In her initial decision, the AJ noted that an individual who has fully recovered*fn1 from an on-the-job injury more than one year after compensation for the injury began has a right of appeal to the Board if he believes that his restoration rights have been violated by the employment of another person. She also noted that the appeal right is limited to individuals who are separated because of their compensable injury. Since it was undisputed that Mr. Taylor was never separated as a result of his compensable injury, but remained on the agency's rolls, the AJ held that he could not meet his burden of establishing Board jurisdiction.
Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703; Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). The decision of the Board in this case is none of these.
Mr. Taylor had the burden of establishing Board jurisdiction over his appeal. See 5 C.F.R. § 1201.56(a)(2); Minor v. Merit Sys. Protection Bd., 819 F.2d 280, 282 (Fed. Cir. 1987). Pursuant to 5 U.S.C. § 7701(a), "[a]n employee . . . 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." Under 5 C.F.R. § 353.301(b), "[a]n employee who separated because of a compensable injury and whose full recovery takes longer than 1 year from the date eligibility for compensation began . . . is entitled to priority consideration, agencywide, for restoration to the position he or she left . . . ." At the same time, under 5 C.F.R. § 302.501, "[a]n individual who is . . . entitled to priority consideration . . . may appeal a violation of his/her restoration rights to the Merit Systems Protection Board . . . by presenting factual information that he or she was denied restoration rights because of the employment of another person." By regulation, "[a]n individual who is entitled to priority consideration" is "a person who was furloughed or separated . . . because of a compensable injury." 5 C.F.R. § 302.103. Thus, to be eligible to appeal to the Board, an employee must have been furloughed or separated because of a compensable injury.
Mr. Taylor has never alleged that he was furloughed, and on appeal he has not demonstrated error in the Board's determination that he was not separated because of his injury, but remained on the agency's rolls until he retired. Under these circumstances, we see no reason to disturb the Board's decision.
Mr. Taylor's reliance on Raicovich v. United States Postal Serv., 675 F.2d 417 (D.C. Cir. 1982), is misplaced. In Raicovich, the court held that an employee who fully recovers from a compensable injury after one year "must be placed on an appropriate priority list and reemployed when vacancies arise." Id. at 425. Such an employee "may only be disqualified from restoration for the same conduct that would have justified his discharge if he were continuously employed." Id. In this case, Mr. Taylor retired approximately one month after OWCP canceled his benefits. In addition, the agency never took any action to disqualify him from restoration.
For the foregoing reasons, the decision of the Board dismissing Mr. Taylor's appeal for lack of jurisdiction is affirmed.
Each party shall bear its own costs.