  United States Court of Appeals for the Federal Circuit
                                       2008-3001

                               DEMETRIUS W. PALMER,

                                                     Petitioner,

                                           v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                     Respondent,

                                          and

                         UNITED STATES POSTAL SERVICE,

                                                       Intervenor.


      Demetrius W. Palmer, of Bowie, Maryland, pro se.

      Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.

       Matthew H. Solomson, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for intervenor. Also for
intervenor were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director, and Deborah A. Bynum, Assistant Director.

Appealed from: Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit
                                         2008-3001

                                   DEMETRIUS W. PALMER,

                                                            Petitioner,

                                             v

                       MERIT SYSTEMS PROTECTION BOARD,

                                                            Respondent,

                                           and

                          UNITED STATES POSTAL SERVICE,

                                                            Intervenor.


Petition for review of the Merit Systems Protection Board in DC 0353 07 0382 I 1.

                          ______________________________

                            DECIDED: December 31, 2008
                          ______________________________



Before RADER and DYK, Circuit Judges, and WALKER * , Chief District Judge.

WALKER, Chief District Judge.

       Petitioner Demetrius W Palmer (“Palmer”) appeals from a final decision of the

Merit Systems Protection Board (“Board”). The Board dismissed Palmer’s appeal for

lack of jurisdiction. We affirm.


*     Honorable Vaughn R Walker, Chief Judge, United States District Court for the
Northern District of California, sitting by designation.
                                    BACKGROUND

      In November 1998, Palmer, a mail processing clerk in a United States Postal

Service (“USPS”) facility in Capitol Heights, Maryland, suffered an on-the-job injury.

Palmer was placed on non-pay status and received Office of Workers’ Compensation

Programs (“OWCP”) benefits.        After partially recovering from his injury, Palmer

accepted an offer of a modified job assignment and returned to work on July 23, 2005.

      In February 2007, Palmer filed an appeal with the Board, claiming he was entitled

to, but did not accrue annual and sick leave during the time he was on leave without pay

status. On March 14, 2007, an Administrative Judge of the Board ordered Palmer to

submit evidence and argument to support Board jurisdiction over his appeal. Palmer

filed a response, arguing that jurisdiction was proper under the USPS Employee and

Labor Relations Manual.      USPS filed a response, arguing that the Board lacks

jurisdiction over appeals such as Palmer’s. On March 30, 2007, the Administrative

Judge dismissed Palmer’s appeal for lack of jurisdiction. Palmer petitioned the Board

for review, requesting damages of $5.5 million in addition to the previously requested

award of annual and sick leave.     On August 22, 2007, the Board denied Palmer’s

petition for review, and the Administrative Judge’s initial decision became final. This

appeal followed.



                                     DISCUSSION

      Judicial review of Board decisions is limited to whether they are: “(1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained




2008-3001                                  2
without procedures required by law, rule, or regulation having been followed; or (3)

unsupported by substantial evidence.” 5 USC § 7703(c).

       “Whether the [B]oard had jurisdiction to adjudicate a case is a question of law,

which we review de novo.” Forest v Merit Sys Prot Bd, 47 F3d 409, 410 (Fed Cir 1995).

The Board’s jurisdiction is “limited to actions made appealable to it by law, rule or

regulation.”   Id.   Palmer, as the appellant, has the burden of proving the Board’s

jurisdiction by a preponderance of the evidence. See 5 CFR § 1201.56(a)(2).

       In his response to the Administrative Judge’s order to submit evidence and

argument supporting jurisdiction, Palmer argued that the Board has jurisdiction over his

appeal under sections 546.3 and 546.4 of the USPS Employee and Labor Relations

Manual. The cited sections do not purport to create an independent basis for Board

jurisdiction, but merely advise employees who return to employment (or, in the argot of

the regulations, are “restored”) after leave and who believe they were improperly

restored that they may appeal to the Board under the provisions of 5 CFR § 353. See

U S Postal Service, Employee and Labor Relations Manual, §§ 546.3, 546.4 (ELM 17.6,

Feb 15, 2007), available at http://www.usps.com/cpim/manuals/elm/elmarch.htm.

       The Code of Federal Regulations in turn grants the Board jurisdiction over certain

appeals by employees who are partially recovered from a compensable injury and seek

to return to work:

       (a) Except as provided in paragraphs (b) and (c) of this section, an injured
       employee or former employee of an agency in the executive branch
       (including 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.




2008-3001                                   3
      (b) An individual who fully recovers from a compensable injury more than
      1 year after compensation 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 determination of whether the agency is acting
      arbitrarily and capriciously in denying restoration. Upon reemployment, a
      partially recovered employee may also appeal the agency’s failure to
      credit time spent on compensation for purposes of rights and benefits
      based upon length of service.

5 CFR § 353.304 (1999) (emphasis added).

      We examined the substantively identical precursor to this provision in Booker v

Merit Systems Protection Board, 982 F2d 517, 519 (Fed Cir 1992). Compare 5 CFR §

351.401 (1988), with 5 CFR § 353.304 (1999). See also 60 FR 45650 (renumbering 5

CFR § 351.401 as 5 CFR § 353.304). In Booker, a postal employee was injured and

received OWCP benefits before returning to limited duty following a partial recovery.

Booker, 982 F2d at 518. The employee was dissatisfied with the circumstances of her

restoration – specifically, she alleged retaliation for complaints she made about delays

in the completion of her compensation claims and discrimination by USPS’s injury

compensation specialist. Id.

      Although we did not discuss our reasoning at length, we held that the

combination of subsection (a) of the regulation with subsection (c) means that an

employee, “having been restored to duty after a partial recovery, may not appeal the

details or circumstances of her restoration to the board.” Id at 519.       Because the

employee in Booker was not denied restoration and did not allege that USPS failed to

credit the time she spent on compensation for purposes of rights and benefits based

upon length of service, we found that the Board lacked jurisdiction over her appeal.




2008-3001                                   4
       Our holding in Booker was mandated by a fair reading of the regulation. 5 CFR

§ 353.304(a) provides for appeals to the Board of improper restoration “except as

provided below.”    Below, § 353.304(c) states that an individual who is partially

recovered may appeal denials of restoration and failure to credit time spent on

compensation for purposes of rights and benefits based upon length of service.

       The establishment of jurisdiction for failure to credit time spent on compensation

facilitates enforcement of the Federal Employee’s Compensation Act, which provides, in

relevant part:

       In the event the individual resumes employment with the Federal
       Government, the entire time during which the employee was receiving
       compensation under this chapter shall be credited to the employee for the
       purposes of within-grade step increases, retention purposes, and other
       rights and benefits based upon length of service.

5 USC § 8151(a).

        An employee covered by § 353.304(c) cannot appeal “improper restoration”

claims not involving § 8151(a) rights; the employee may appeal only on the limited

grounds enumerated in subsection (c).

       A more recent case, Gallo v United States, 529 F3d 1345 (Fed Cir 2008), may at

first glance seem to contradict the holding of Booker. We wrote:

       The word “except,” as used in section 353.304(a), simply alludes to the
       fact that not all employees to whom sections 353.304(b) and 353.304(c)
       apply have restoration rights in all circumstances. It does not mean that
       any employee who is within the scope of subsection (b) or (c), and is
       granted statutory restoration rights, does not have the right to appeal an
       improper restoration under subsection (a).
              Furthermore, other aspects of the OPM regulations suggest that
       section 353.304(a) applies broadly to all improper restoration claims.
Id at 1351.




2008-3001                                   5
       The facts in Gallo make clear that this language should not be read to suggest

that a partially recovered employee, who, according to Booker, may appeal to the Board

only under 5 CFR § 353.304(c), may also appeal under 5 CFR § 353.304(a) an

allegedly improper restoration not involving rights under 5 USC § 8151(a).

       The employee in Gallo, Jane L Gallo, was an air traffic controller with the Federal

Aviation Administration (“FAA”). Gallo, 529 F3d at 1346. After she suffered an on-the-

job injury in January 1995, Gallo received OWCP benefits until March 1995, when she

returned to light duty. Id. In January 1996, however, an FAA physician determined that

Gallo was indefinitely incapacitated and unable to work as an air traffic controller. Id. In

April 1996, Gallo transferred to another FAA position that did not require medical

certification. Id at 1347 Because the new position did not provide the same pay or

retirement benefits as Gallo’s air traffic controller position, Gallo received differential

OWCP benefits. Id. In April 2000, a physician determined that Gallo had recovered

from her injury. Id. In June 2000, Gallo’s OWCP benefits were terminated, and in

August 2000, Gallo accepted a supervisory air traffic controller position. Id.

       Gallo’s salary for the new position did not take into account pay increases that

had been granted to air traffic controllers while she worked in another position due to

her injury; Gallo apparently alleged that the salary calculation amounted to a failure to

credit her for a right or benefit based upon length of service in violation of 5 USC

§ 8151(a). Id. In Gallo we simply held that employees like Gallo whose recovery took

longer than one year could recover under § 8151(a) and could not bring § 8151(a)

claims in the Court of Federal Claims, “[b]ecause an action under section 8151(a) is

within the Board's appellate jurisdiction under the [Civil Service Reform Act of 1978] and




2008-3001                                    6
the Board’s regulations, the Court of Federal Claims lacks jurisdiction over such an

action.” Id at 1352.

       Gallo should not be read as overruling our earlier holding in Booker.       See

George E Warren Corp v U S, 341 F3d 1348, 1351-52 (Fed Cir 2003) (“[T]o overrule a

precedent, the court must rule en banc.”).        And under Booker, 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 CFR § 353.304(c).

       Palmer, of course, did return to employment and does not allege a denial of

restoration. Nor does Palmer allege that USPS failed to credit his time for purposes of

such a right or benefit. To establish Board jurisdiction based on failure to credit time

spent on compensation, an appellant must:

       allege facts that, if proven, would show that: (1) He was absent from his
       position due to a compensable injury; (2) the agency restored him to duty
       on a part-time basis, to light duty, or to a position with less demanding
       physical requirements; and (3) the agency failed to credit time spent on
       compensation for the purposes of rights and benefits based upon length of
       service.

Foley v U S Postal Serv, 105 MSPR 307, 312 (2007).

       Although Palmer’s allegations are not entirely clear, he apparently alleges that

USPS failed to credit him for annual and sick leave accrued while he was on leave

without pay and receiving OWCP benefits. This is not an allegation of failure to credit

time spent on compensation for purposes of rights and benefits based upon length of

service.    By contrast, that was exactly the claim made in Gallo, a claim for

compensation after restoration based on length of service.      Whether USPS allows

Palmer to accrue leave while on leave without pay is not dependent on his length of

service with USPS. Rather, a set number of hours of leave is accrued during each pay



2008-3001                                   7
period an employee works. See United States Postal Service, Employee and Labor

Relations    Manual,      §   512.311   (ELM       17.6,   Feb   15,   2007),   available   at

http://www.usps.com/cpim/manuals/elm/elmarch.htm. The rate at which leave accrues

during each pay period is a benefit based on length of service. An employee earns four

hours of leave per pay period if he has served fewer than three years, six hours per pay

period if he has served between three years and fifteen years, and eight hours per pay

period if he has served fifteen years or more. Id. But Palmer does not allege that he

currently is accruing leave at the wrong rate. Rather, he alleges that USPS erred by not

allowing him to accrue leave while he was on leave. Because this claim challenges only

a “detail[ ] or circumstance[ ]” of Palmer’s restoration, he has not met his burden of

alleging jurisdictional facts. 1

       Because Palmer was not denied restoration and because he has not alleged that

USPS failed to credit his time for purposes of a right or benefit based on length of

service, the Board was correct that it lacked jurisdiction over Palmer’s appeal.

       In his informal brief, Palmer suggests that Hatch v Office of Personnel

Management, 100 MSPR 204 (2005), somehow supports his position.                     Palmer’s

reliance on Hatch is misplaced. Hatch addressed the issue whether partially recovered

employees who receive OWCP benefits while working part-time should be treated as

full-time employees for the purpose of computing retirement benefits. Id at 207-08. The

Hatch case has no bearing on whether the Board has jurisdiction over Palmer’s appeal.



1
  We note that even if the Board had jurisdiction over an appeal based on Palmer’s
allegation, Palmer’s appeal would likely fail on the merits. “An employee receiving
OWCP benefits is not entitled to accrue sick or annual leave if he is solely in a non-pay
status.” Gullette v United States Postal Service, 86 MSPR 380, 381 (2000) (citing Roja
v Department of the Navy, 55 MSPR 618 (1992)).

2008-3001                                      8
      Accordingly, the decision of the Board is affirmed.

                                         AFFIRMED



                                        COSTS

      No costs.




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