NOTE: This disposition is nonprecedential 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 Litigation 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 appealed 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., AT0752-05-0043-I-1, 99 M.S.P.R. 669 (M.S.P.B Sept. 15, 

2005) (Table). 

Prior to her removal, Payton suffered an employmentrelated injury and her claim for compensation for that 

injury was accepted by the Office of Workers’ Compensation Programs. Final Order, 113 M.S.P.R. at 464. In 

2009, Payton filed a new appeal with the Board challenging the agency’s decision not to restore her to duty following 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 compensable injury, and whose full recovery takes longer 

than one year from the date she became eligible for compensation, is entitled to priority consideration for restoration 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 entitled to restoration if the remaining charges are not related 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 compensable 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] assertions, even if substantiated, would not establish that her 

removal was based only on reasons related to her compensable injury.” Id. at 466–67. Because Payton’s removal 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.