Woods v. MSPB , 587 F. App'x 646 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRENDA WOODS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3098
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0353-12-0684-I-1.
______________________
Decided: October 14, 2014
______________________
BRENDA WOODS, of Memphis, Tennessee, pro se.
STEPHEN FUNG, Attorney, Office of the General Coun-
sel, Merit Systems Protection Board, of Washington, DC,
for respondent. With him on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before MOORE, REYNA, and CHEN, Circuit Judges.
2 WOODS v. MSPB
PER CURIAM.
Petitioner Brenda Woods appeals the final decision of
the Merit Systems Protection Board, which dismissed her
claim for lack of jurisdiction. Ms. Woods argued that the
United States Postal Service (USPS) failed to restore her
to her previous position after she had partially recovered
from a compensable injury. An administrative judge,
however, concluded that Ms. Woods failed to submit
sufficient documentary evidence showing that she had
indeed partially recovered from her injury and dismissed
the case for lack of jurisdiction. The Board affirmed the
administrative judge’s decision. Because substantial
evidence supports the Board’s decision, we affirm.
I
The facts of Ms. Woods’s case have been detailed at
length in Woods v. United States Postal Serv., 188 F.
App’x 1004 (Fed. Cir. 2006), but are briefly summarized
here. Ms. Woods left her position as a Distribution Clerk
at the USPS on April 3, 1989, complaining of stress based
on “constant harassment and discrimination.” Respond-
ent’s Appendix (R.A.) 36. She filed a claim for compensa-
tion for the stress with the Office of Workers’
Compensation Program (OWCP), which was accepted. On
September 13, 1991, OWCP issued a status report, ex-
plaining that Ms. Woods was “totally disabled for any
employment with the USPS” due to a “phobic reaction to
anything related to the agency.” Id. at 27, 39. But it
further stated that she was “capable of employment with
a new employer.” Id. at 27.
On February 5, 1992, she was offered a new position
as a Support Assistant in the United States Army Corps
of Engineers (USACE). The position was created as a
result of an agreement between the USPS and the
USACE to employ workers’ compensation recipients who
were no longer able to work for the USPS. On March 5,
1992, OWCP informed Ms. Woods that the position fit
WOODS v. MSPB 3
within her work restrictions and gave her thirty days to
accept the position or provide an explanation for refusing
it. Ms. Woods did not respond because she considered the
job offer defective. Because she failed to respond, OWCP
considered Ms. Woods as having refused the position.
Five months later, Ms. Woods appeared at USACE and
attempted to begin her employment but USACE refused
due to her previous failure to accept the offer by the
deadline set by OWCP. On April 8, 1993, the USPS
removed Ms. Woods from employment.
Ms. Woods timely appealed to the Board in April
1993, which affirmed her removal as not improper. R.A.
35–49. She appealed that decision to the United States
District Court for the Western District of Tennessee,
which affirmed, and then to the Sixth Circuit, which also
affirmed. R.A. 101. She later appealed to the Board
under the same grounds in 2005. The Board dismissed
her appeal based on the application of res judicata, a
holding that we affirmed. Woods, 188 F. App’x at 1007.
On May 30, 2012, nearly twenty years after her removal,
she filed the current appeal with the Board, alleging for
the first time that the agency failed to restore her follow-
ing her partial recovery from a compensable injury. R.A.
25, 77. An administrative judge, however, concluded that
Ms. Woods had not provided evidence sufficient to prove
she had “partially recovered” for purposes of establishing
the Board’s jurisdiction. R.A. 8–9. The Board affirmed
the dismissal for lack of jurisdiction, and Ms. Woods
appealed to this court. R.A. 3–4. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
II
Whether the Board has jurisdiction to hear an appeal
is a matter of law that this court reviews de novo. Bledsoe
v. Merit Sys. Prot. Bd., 659 F.3d 1097, 1101 (Fed. Cir.
2011). We are bound by the Board’s factual findings
underlying its jurisdictional determination unless those
4 WOODS v. MSPB
findings are not supported by substantial evidence. Id.Ms. Woods bears the burden of establishing jurisdiction
by a preponderance of the evidence. Id. at 1104.
Federal employees who partially recover from an inju-
ry sustained while working have certain rights of restora-
tion to their position. 5 C.F.R. § 353.301(d). If an
employee has partially recovered from her compensable
injury, the agency “must make every effort to restore” her
to work. Id. To establish jurisdiction under a partial
recovery claim, the employee must prove that she partial-
ly recovered, meaning that 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. 1 Bledsoe, 659 F.3d
at 1103; see also 5 C.F.R. § 353.102.
Ms. Woods’s allegation is that she partially recovered
on September 13, 1991. Appellant’s Informal Br. ¶ 2; R.A.
22. The Board, however, found that Ms. Woods failed to
establish partial recovery, concluding that the documents
that she submitted did not sufficiently substantiate her
claim. R.A. 8–9. We agree with the Board.
The OWCP status report of September 13, 1991, on
which Ms. Woods relies, does not indicate that she par-
tially recovered from her disability for work at the USPS.
On the contrary, this report expressly states that “Ms.
Woods is totally disabled for any employment with the
USPS,” R.A. 27 (emphasis added), making her ineligible
for restoration to her employment at this agency.
1 An employee must also prove that: (1) she was ab-
sent from her position due to a compensable injury; (2) the
agency denied her request for restoration; and (3) the
denial was arbitrary and capricious. Bledsoe, 659 F.3d at
1103. We need only address partial recovery here, as that
issue is dispositive.
WOODS v. MSPB 5
No other document that Ms. Woods submitted to the
Board provides evidence that she partially recovered from
her total disability for employment at the USPS. One
document (the undated “list of answers”) stated that Ms.
Woods’s “doctor said [she] could not work at the [USPS].”
R.A. 29. Another (the September 26, 1991 letter) also
indicates that she “[is] not able to return to work with the
[USPS].” R.A. 28. And another document (the September
28, 1992 letter) addressing her potential employment at
USACE stated that the position was specifically designed
for employees who were “otherwise prevented from re-
turning to work at the [USPS].” R.A. 31. We have re-
viewed the remaining documents and find no evidence to
suggest that Ms. Woods partially recovered from her total
disability. We therefore agree with the Board that Ms.
Woods has not made a sufficient claim of partial recovery
in order to establish the Board’s jurisdiction.
III
Ms. Woods has not shown that the Board’s factual
findings related to jurisdiction are unsupported by sub-
stantial evidence. We have considered Ms. Woods’s
remaining arguments and find them unpersuasive. Thus,
the Board’s decision to dismiss the case for lack of juris-
diction is
AFFIRMED
COSTS
No costs.