Johnson v. Merit Systems Protection Board , 455 F. App'x 984 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CHARLES G. JOHNSON,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3130
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DE0353100501-I-1.
___________________________
Decided: January 4, 2012
___________________________
CHARLES G. JOHNSON, of Omaha, Nebraska, pro se.
JEFFREY A. GAUGER, Attorney, 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.
__________________________
JOHNSON v. MSPB 2
Before LOURIE, BRYSON, and MOORE, Circuit Judges.
PER CURIAM.
DECISION
Petitioner Charles G. Johnson seeks review of a deci-
sion of the Merit Systems Protection Board dismissing his
case for lack of jurisdiction. We vacate and remand.
BACKGROUND
Mr. Johnson worked for the United States Postal Ser-
vice from 1960 until he accepted an early retirement offer
in 1992. In 1990, Mr. Johnson suffered an injury while
working. He sought workers’ compensation benefits from
the Office of Workers’ Compensation Program (“OWCP”).
OWCP accepted his claim for mild binaural hearing loss
but did not grant him wage-loss compensation. Over the
next several years, Mr. Johnson unsuccessfully litigated
in various forums the question of whether his retirement
was involuntary or was the result of age discrimination.
In March 2010, Mr. Johnson asked to be restored to
employment with the Postal Service. The Postal Service
denied his request on the ground that Mr. Johnson had
voluntarily retired and had not been separated from his
position as a result of a compensable injury. Mr. Johnson
appealed that decision to the Merit Systems Protection
Board. After considering evidence from Mr. Johnson on
the issue of the Board’s jurisdiction over the appeal, the
administrative judge who was assigned to the case held
that his appeal was barred by claim preclusion and issue
preclusion.
On Mr. Johnson’s petition for review, the full Board
vacated the administrative judge’s ground of decision but
3 JOHNSON v. MSPB
nonetheless dismissed the appeal for lack of jurisdiction.
The Board held that an employee may appeal a denial of
restoration only if his reemployment rights have been
violated and that reemployment rights are triggered
under 5 C.F.R. part 353 only if the employee has suffered
a cessation of periodic support or wage loss compensation.
Mr. Johnson had no appeal rights, the Board ruled,
because it was undisputed that he never received periodic
support payments or wage loss compensation from
OWCP.
DISCUSSION
A federal employee who has been separated from his
position because of a compensable injury enjoys certain
rights to restoration to his prior position or an equivalent
position when he fully or partially recovers from the
condition that had kept him from working. 5 U.S.C.
§ 8151; 5 C.F.R. § 353.301.
The full Board dismissed Mr. Johnson’s appeal on the
ground that “it is only the cessation of periodic support or
wage loss compensation, not the termination of payment
of scheduled compensation awards or medical benefits,
that triggers an individual’s entitlement to restoration
rights under [5 C.F.R. part 353].” Upon reviewing the
briefs in this case, this court noted that certain previous
decisions by the Board seemed to be contrary to the
Board’s ground of decision in this case. See Bartol v. U.S.
Postal Serv., 69 M.S.P.R. 106, 108-09 (1995) (holding that
“the payment of medical expenses . . . is sufficient to make
the injury a compensable injury within the meaning of 5
U.S.C. § 8151 and would entitle the appellant to restora-
tion rights”); Mobley v. U.S. Postal Serv., 86 M.S.P.R. 161,
164 (2000); Tat v. U.S. Postal Serv., 109 M.S.P.R. 562,
566-67 (2008); Young v. U.S. Postal Serv., 45 M.S.P.R.
JOHNSON v. MSPB 4
424, 430 (2010). Accordingly, the court requested that the
Board submit a supplement brief to address that seeming
inconsistency. Mr. Johnson was also given the right to
make a supplemental submission on that issue.
In a supplemental brief filed in response to the court’s
request, the Board’s General Counsel acknowledged that
the Board erred in applying its precedents. The General
Counsel explained that the cases relied on by the Board in
its opinion, Nixon v. Dep’t of the Treasury, 104 M.S.P.R.
189 (2006), and Carter v. U.S. Postal Serv., 27 M.S.P.R.
252 (1985), concerned the issue of whether an employee
has fully or partially recovered from a compensable
injury, rather than whether an employee has suffered a
compensable injury in the first place. Under the govern-
ing precedents in the Bartol line of cases, cited above, the
General Counsel concluded that Mr. Johnson had a “com-
pensable injury” for purposes of 5 C.F.R. § 353.301 be-
cause he had a “medical condition accepted by the OWCP
to be job-related and for which medical or monetary
benefits are payable from the Employees’ Compensation
Fund.” Tat, 109 M.S.P.R. at 567. The General Counsel
added that because Mr. Johnson suffered a “compensable
injury,” the Board must determine whether his separation
resulted from or was substantially related to his com-
pensable injury. See Minor v. Merit Sys. Prot. Bd., 819
F.2d 280, 282 n.3 (Fed. Cir. 1987). The General Counsel
further explained that the Board has not determined
whether Mr. Johnson’s separation was substantially
related to his compensable injury or whether he has fully
recovered or partially recovered from his compensable
injury. Based on the legal analysis in his supplemental
brief, the General Counsel requested that the court re-
mand this case to allow the Board to further develop the
record, as needed, and then to address those two issues—
whether Mr. Johnson’s separation was substantially
5 JOHNSON v. MSPB
related to his compensable injury, and if so, whether he
has fully or partially recovered from his compensable
injury.
In light of the position taken by the Board’s General
Counsel in the supplemental briefing, we agree that it is
appropriate to vacate the Board’s order on appeal and
remand this case for further proceedings before the Board
on the two issues identified by the Board’s General Coun-
sel: whether Mr. Johnson has shown that his separation
was substantially related to his compensable injury and,
if so, whether he has fully or partially recovered from his
injury. Resolution of one or both of those issues will
enable the Board to determine whether Mr. Johnson is
entitled to restoration rights under 5 U.S.C. § 8151 and
the implementing regulations.
Costs to Mr. Johnson.
VACATED AND REMANDED