Case: 21-2235 Document: 27 Page: 1 Filed: 04/08/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GENNETT M. HOLMES-SMITH,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-2235
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3443-21-0379-I-1.
______________________
Decided: April 8, 2022
______________________
GENNETT M. HOLMES-SMITH, Stockbridge, GA, pro se.
CALVIN M. MORROW, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by TRISTAN L. LEAVITT,
KATHERINE MICHELLE SMITH.
______________________
Before PROST, MAYER, and TARANTO, Circuit Judges.
PER CURIAM.
Case: 21-2235 Document: 27 Page: 2 Filed: 04/08/2022
2 HOLMES-SMITH v. MSPB
Ms. Holmes-Smith sought monetary benefits for an in-
jury that she alleges resulted from her work as an em-
ployee of the Department of Veterans Affairs. After her
claim was denied by the Office of Workers’ Compensation
Programs (“OWCP”), Ms. Holmes-Smith appealed the deci-
sion to the Merit Systems Protection Board (“Board”). The
Board dismissed her appeal for lack of jurisdiction under
5 U.S.C. § 8128(b). Ms. Holmes-Smith now appeals to this
court. We affirm the Board’s dismissal because the Board
properly determined that it lacked jurisdiction.
BACKGROUND
Ms. Holmes-Smith filed a claim for workers’ compensa-
tion with the Department of Labor, which referred her
claim to OWCP. OWCP then denied the claim both upon
initial filing and upon reconsideration. Ms. Holmes-Smith
appealed OWCP’s denial upon reconsideration to the
Board, and the Board dismissed. The Board determined
that it lacked jurisdiction to review OWCP’s denial of
Ms. Holmes-Smith’s claim under
5 U.S.C. § 8128.
Ms. Holmes-Smith appeals.
DISCUSSION
Federal courts are courts of limited jurisdiction—
meaning they cannot hear a case unless they have been
given the authority to do so by Congress or the Constitu-
tion. See Gunn v. Minton,
568 U.S. 251, 256 (2013). We
have subject matter jurisdiction over this appeal under
28 U.S.C. § 1295(a)(9), which grants the Federal Circuit
the ability to review appeals from final decisions of the
Board. But our review of the Board is also limited by law:
we must affirm the Board unless its decision is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.”
5 U.S.C.
§ 7703(c).
Case: 21-2235 Document: 27 Page: 3 Filed: 04/08/2022
HOLMES-SMITH v. MSPB 3
The question on appeal is whether the Board had juris-
diction to hear Ms. Holmes-Smith’s case. This is a legal
question that we review without deference to the Board’s
answer. Forest v. Merit Sys. Prot. Bd.,
47 F.3d 409, 410
(Fed. Cir. 1995). Since we conclude that the Board did in-
deed lack jurisdiction, we affirm.
The Board, similar to federal courts, cannot hear every
claim brought before it. See Maddox v. Merit Sys. Prot. Bd.,
759 F.2d 9, 10 (Fed. Cir. 1985). Congress can deny the
Board the authority to hear certain cases, and
5 U.S.C.
§ 8128 is an example of a law that does just that: it says
that the denial of a payment by OWCP, which is part of the
Department of Labor, is “not subject to review by another
official of the United States or by a court by mandamus or
otherwise.” The Board falls within the broad scope of those
unable to review OWCP’s denial of benefits under this law.
And Ms. Holmes-Smith’s appeal to the Board sought ex-
actly what the law precludes—review of a denial of benefits
by OWCP—so the Board was correct to dismiss her appeal
for lack of jurisdiction.
CONCLUSION
For the foregoing reasons, we affirm the Board’s dis-
missal because it lacked jurisdiction to review
Ms. Holmes-Smith’s appeal.
AFFIRMED
COSTS
No costs.
