Morales v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANGEL DAVID MORALES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3150
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0353-14-0030-I-1.
______________________
Decided: November 10, 2015
______________________
ANGEL DAVID MORALES, Guaynabo, PR, pro se.
STEPHEN FUNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. POLISUK.
______________________
Before LOURIE, REYNA, and CHEN, Circuit Judges.
2 MORALES v. MSPB
PER CURIAM.
Angel David Morales seeks review of a final decision
of the Merit Systems Protection Board (“Board”) dismiss-
ing his appeal for lack of jurisdiction. Because we find no
error in the Board’s dismissal, we affirm.
BACKGROUND
In February 1997, Mr. Morales was employed by the
United States Postal Service as a Distribution Window
Clerk in San Juan, Puerto Rico. At the time, Mr. Morales
received an annual base salary of $35,409 based on his
status as a Grade 5, Step K employee. On or around
February 27, 1997, Mr. Morales was injured on the job,
after which Mr. Morales applied for and was granted
Office of Workers’ Compensation Programs (OWCP)
benefits based on his compensable injury. Mr. Morales
received OWCP benefits from February 1997 to Septem-
ber 2013, when Mr. Morales requested that he be fully
restored to his former position. The Postal Service re-
stored Mr. Morales to his former position on September
16, 2013, as a Grade 6, Step O employee with an annual
base salary of $54,777. On September 21, 2013, Mr.
Morales bid on and was awarded a position as a Sales and
Distribution Associate at the same grade, step, and annu-
al base salary.
On October 24, 2013, Mr. Morales filed an appeal with
the Board, alleging that his restoration was improper
because the Postal Service failed to credit his time spent
receiving OWCP benefits for purposes of calculating sick
and annual leave, Social Security, Thrift Savings Plan
contributions, Medicare, retirement, and life insurance.
The administrative judge acknowledged the Postal Ser-
vice’s obligation to provide Mr. Morales with all benefits
based on length of service he would have received but for
his compensable injury, but explained that the benefits
Mr. Morales seeks are not benefits based upon length of
service. The administrative judge therefore dismissed the
MORALES v. MSPB 3
appeal for lack of jurisdiction because Mr. Morales had
failed to nonfrivolously allege that the Postal Service’s
restoration was improper.
On August 17, 2014, Mr. Morales petitioned the Board
to review the administrative judge’s initial decision. The
Board explained that under 5 U.S.C. § 8151(a), a restored
employee is entitled to credit for the time during which
the employee received OWCP benefits “for the purposes of
within-grade step increases, retention purposes, and other
rights and benefits based upon length of service.” Be-
cause the benefits Mr. Morales seeks are not contemplat-
ed by § 8151(a), the Board concluded that the Postal
Service’s restoration was not improper. The Board there-
fore dismissed Mr. Morales’ appeal for lack of jurisdiction
on March 31, 2015. Mr. Morales’ appeal to this court
followed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can set aside the Board’s decision
only if it was “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c); Briggs v. Merit Sys. Prot.
Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Whether the Board has jurisdiction is a question of
law reviewed de novo. Forest v. Merit Sys. Prot. Bd., 47
F.3d 409, 410 (Fed. Cir. 1995). The Board’s jurisdiction is
“limited to actions made appealable to it by law, rule or
regulation.” Id. Mr. Morales, as the petitioner, has the
burden of proving the Board’s jurisdiction through non-
frivolous allegations supported by preponderant evidence.
See 5 C.F.R. § 1201.56(a)(2); Coradeschi v. Dep’t of Home-
land Sec., 439 F.3d 1329, 1332 (Fed. Cir. 2006).
4 MORALES v. MSPB
We agree with the Board that Mr. Morales has failed
to meet his burden. As for Mr. Morales’ claim to retire-
ment benefits, this court has held that non-actual service,
such as time spent receiving OWCP benefits, does not
count toward fulfilling retirement annuity credit require-
ments. See True v. Office of Pers. Mgmt., 926 F.2d 1151,
1156 (Fed. Cir. 1991) (“Congress considered and rejected
the possibility of allowing FECA beneficiaries to count
non-actual service toward fulfilling the retirement annui-
ty credit requirements of section 8344(a).”); Gallo v. Dep’t
of Transp., 689 F.3d 1294, 1302–03 (Fed. Cir. 2012)
(“[T]his court unequivocally held in True that § 8151(a)
does not encompass civil service retirement credit, a right
based on actual employment time, not including time that
an employee was receiving OWCP compensation under
FECA.”). Mr. Morales’ claim to sick and annual leave
similarly fails because sick and annual leave are not
rights based upon length of service. Palmer v. Merit Sys.
Prot. Bd., 550 F.3d 1380, 1384 (Fed. Cir. 2008) (failure to
credit sick and annual leave “is not an allegation of fail-
ure to credit time spent on compensation for purposes of
rights and benefits based upon length of service”).
As for Mr. Morales’ claim to Social Security benefits,
Thrift Savings Plan contributions, Medicare, and life
insurance, the Board correctly concluded that these
benefits are beyond the scope of § 8151(a). Social Securi-
ty, Thrift Savings, and Medicare contributions are based
on an employee’s salary. See 5 U.S.C. § 8422 (Thrift
Savings); 26 U.S.C. § 3101 (Social Security and Medicare).
Life insurance contributions, though not directly depend-
ent on salary, are withdrawn from an employee’s regular
pay. See 5 U.S.C. § 8707. Mr. Morales was not earning a
regular salary from the Postal Service during the time he
received OWCP benefits. OWCP benefits are not consid-
ered salary but rather compensation for injury. See 5
U.S.C. §§ 8102(a) and 8101(12); Roja v. Dep’t of Navy, 55
M.S.P.R. 618, 621 (M.S.P.B. Nov. 24, 1992). The Postal
MORALES v. MSPB 5
Service was therefore not required to credit Mr. Morales
with Social Security, Thrift Savings Plan, Medicare, or
life insurance contributions during the time he was re-
ceiving OWCP benefits.
Mr. Morales’ arguments to the contrary are not per-
suasive. Mr. Morales argues that the Board incorrectly
applied 5 U.S.C. § 8332(f), which he argues entitled him
to credit for civil service retirement during his absence
from actual service. A similar argument was considered
and rejected by this court in True. See 926 F.2d at 1156
(“Like section 8151(a), section 8332(f) makes no reference
to . . . civil service retirement annuities . . . .”). It is well-
settled that § 8151(a) does not encompass civil service
retirement credit. Gallo, 689 F.3d at 1302–03.
Mr. Morales also argues that the Board’s electronic
appeal application led him to believe that the Board had
jurisdiction because the application stated that an em-
ployee could appeal a decision by a “Federal Agency
Affecting . . . Rights or Benefits.” A general summary of
the Board’s jurisdiction, however, is not controlling. The
Board’s jurisdiction extends only as far as law, rule, or
regulation allows. See 5 U.S.C. § 7701(a); Forest, 47 F.3d
at 410.
Finally, Mr. Morales argues that the Postal Service
did not credit him with the proper amount of leave based
on his leave accrual rate. The record does not support
this allegation. The record indicates that upon restora-
tion, Mr. Morales’ leave accrual rate was set at the correct
rate of 8 hours per pay period. We therefore affirm the
Board’s decision dismissing Mr. Morales’ appeal.
AFFIRMED