Payton v. Department of Homeland Security , 403 F. App'x 496 ( 2010 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
MARSHA L. PAYTON,
Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
__________________________
2010-3118
__________________________
Petition for review of the Merit Systems Protection
Board in AT-0353-09-0770-I-1.
___________________________
Decided: October 7, 2010
___________________________
MARSHA L. PAYTON, of Holly Hill, Florida, pro se.
JOSHUA E. KURLAND, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,
JR., Assistant Director.
__________________________
PAYTON v. DHS 2
Before DYK, MAYER, and MOORE, Circuit Judges.
PER CURIAM.
Marsha L. Payton (“Payton”) petitions for review of a
final order of the Merit Systems Protection Board
(“Board”); the Board dismissed her appeal for lack of
jurisdiction. Payton v. Dep’t of Homeland Sec., AT-0353-
09-0770-I-1, 113 M.S.P.R. 463 (M.S.P.B. Apr. 1, 2010)
[hereinafter Final Order]. We affirm.
BACKGROUND
Payton was employed as a Management Program
Specialist for U.S. Customs and Border Protection within
the Department of Homeland Security (“DHS”). In 2004,
she was removed from duty on the basis of five charges of
misconduct: absence without leave, failure to follow
instructions, insubordination, unprofessional conduct, and
reckless disregard for the safety of others. Payton ap-
pealed her removal to the Board and, after a hearing, the
Board sustained at least four of the charges and affirmed
the removal. See Payton v. Dep’t of Homeland Sec., AT-
0752-05-0043-I-1, 99 M.S.P.R. 669 (M.S.P.B Sept. 15,
2005) (Table).
Prior to her removal, Payton suffered an employment-
related injury and her claim for compensation for that
injury was accepted by the Office of Workers’ Compensa-
tion Programs. Final Order, 113 M.S.P.R. at 464. In
2009, Payton filed a new appeal with the Board challeng-
ing the agency’s decision not to restore her to duty follow-
ing a medical examination in which she was cleared to
return to work. Id. The Administrative Judge’s initial
decision dismissed the appeal for lack of jurisdiction
because Payton had been removed for cause, rather than
for a compensable injury. See Payton v. Dep’t of Home-
3 PAYTON v. DHS
land Sec., AT-0752-05-0043-I-1, 2009 WL 3424897(M.S.P.B. Sept. 14, 2009). The Board granted review and
the decision was affirmed in a final order finding “that
[Payton’s] assertions, even if substantiated, would not
establish that her removal was based only on reasons
related to her compensable injury.” Final Order, 113
M.S.P.R. at 466–67.
DISCUSSION
We review the Board's decisions about jurisdiction
without deference. Monasteri v. Merit Sys. Prot. Bd., 232
F.3d 1376, 1378 (Fed. Cir. 2000). The burden rests on the
employee to establish that the Board has jurisdiction. 5
C.F.R. § 1201.56(a)(2)(i); Stern v. Dep’t of the Army, 699
F.2d 1312, 1314 (Fed. Cir. 1983). The Board’s jurisdiction
is not plenary, but is “limited to those areas specifically
granted by statute or regulation.” Cowan v. United
States, 710 F.2d 803, 805 (Fed. Cir. 1983).
Payton argues that the Board has jurisdiction over
her appeal because the agency failed to reinstate her even
though her removal was based on a compensable injury.
She further argues that the absence without leave and
insubordination charges are related to her compensable
injury.
An employee whose separation is the result of a com-
pensable injury, and whose full recovery takes longer
than one year from the date she became eligible for com-
pensation, is entitled to priority consideration for restora-
tion to the position she left, or an equivalent one, provided
she applies for restoration in a timely manner. 5 C.F.R. §
353.301(b). Such an employee who has been denied
restoration may appeal to the Board. Id.. § 353.304(b).
However, where an employee has been removed for cause,
unrelated to the employee’s compensable injury, she is not
entitled to restoration, and thus cannot appeal any failure
PAYTON v. DHS 4
to restore. New v. Dep’t of Veterans Affairs, 142 F.3d
1259, 1265 (Fed. Cir. 1998); see also Minor v. Merit Sys.
Prot. Bd., 819 F.2d 280, 282 (Fed. Cir. 1987); Cox v. Merit
Sys. Prot. Bd., 817 F.2d 100, 101 (Fed. Cir. 1987). Where
removal is based on multiple charges, some of which
relate to a compensable injury, the employee is not enti-
tled to restoration if the remaining charges are not re-
lated to the injury. New, 142 F.3d at 1265.
While Payton argues that two of the charges upon
which her removal was based are related to her com-
pensable injury, she does not claim that the remaining
charges relate to that injury. Final Order, 113 M.S.P.R.
at 466. We agree with the Board that “[Payton’s] asser-
tions, even if substantiated, would not establish that her
removal was based only on reasons related to her com-
pensable injury.” Id. at 466–67. Because Payton’s re-
moval was in part based on charges unrelated to her
compensable injury—namely failure to follow instructions
and reckless disregard for the safety of others—she is not
entitled to restoration, and thus possesses no right of
appeal to the Board. As the Board correctly held, she
cannot at this stage challenge the decision affirming
removal, as that decision was sustained in the earlier
Board proceeding. Accordingly, we affirm.
AFFIRMED
COSTS
No costs.