Bledsoe v. Merit Systems Protection Board

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.