NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

CHARLES G. JOHNSON,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2014-3074

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DE-0353-10-0501-B-1.

______________________ 

Decided: November 7, 2014

______________________ 

CHARLES G. JOHNSON, of Omaha, Nebraska, pro se. 

JEFFREY A. GAUGER, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With him on the brief was BRYAN G.

POLISUK, General Counsel. 

______________________ 

Before TARANTO, BRYSON, and CHEN, Circuit Judges.
2 JOHNSON v. MSPB

PER CURIAM. 

DECISION

Petitioner Charles G. Johnson seeks review of a decision of the Merit Systems Protection Board dismissing his 

restoration claim for lack of jurisdiction. We affirm.

BACKGROUND

Mr. Johnson worked for the United States Postal Service from 1960 until he accepted an early retirement offer 

effective November 20, 1992. The following month, he 

sought workers’ compensation benefits from the Office of 

Workers’ Compensation Programs (“OWCP”) based on an 

injury that he claimed to have suffered during his employment. Mr. Johnson characterized his injury as “tinnitus . . . a permanent condition, with associated hearing 

loss.” His injury had been diagnosed in June 1990. 

On November 18, 1993, OWCP accepted Mr. Johnson’s claim for “mild binaural hearing loss.” In processing 

that claim, however, OWCP found that his hearing loss 

was not severe enough to be considered ratable. Although 

the agency determined that Mr. Johnson was not entitled 

to wage-loss compensation, it determined that he was 

entitled to medical benefits. OWCP made no finding as to 

Mr. Johnson’s claimed injury of tinnitus at that time. 

Over the next several years, Mr. Johnson unsuccessfully litigated in various forums his claims that his retirement was involuntary and that it was the result of age 

discrimination. See Johnson v. U.S. Postal Serv., 66 

M.S.P.R. 604, 606 (1995); Johnson v. Runyon, 96 FEOR 

11108, EEOC Docket No. 01950766 (Apr. 18, 1996); 

Johnson v. Runyon, 137 F.3d 1081 (8th Cir. 1998).

Mr. Johnson also filed several claims with OWCP and 

made multiple appeals to the Employees’ Compensation 

Appeals Board (“ECAB”) seeking compensation for his 

tinnitus. While Mr. Johnson provided both OWCP and 
JOHNSON v. MSPB 3

ECAB with numerous statements from his treating physicians, the agencies found that the evidence did not establish that his tinnitus was work-related or that he was 

disabled as a result of that condition. For those reasons, 

Mr. Johnson was not awarded compensation for tinnitus. 

In 2010, Mr. Johnson wrote to the Postal Service and 

requested restoration to his previous position with the 

Postal Service. He argued that under the applicable 

Postal Service regulations, the Postal Service should have

restored him to employment when it received OWCP’s 

determination as to his December 1992 injury claim. The 

Postal Service denied his request on the grounds that he

had voluntarily retired and that he had not been separated from his position as a result of a compensable injury. 

Mr. Johnson appealed that decision to the Merit Systems 

Protection Board.

After considering evidence from Mr. Johnson, the administrative judge assigned to his case held that Mr. 

Johnson’s appeal was barred by res judicata and collateral estoppel. Mr. Johnson petitioned the full Board for 

review. On review, the Board vacated the initial decision 

but ruled that Mr. Johnson’s reemployment rights had 

not been violated because, even though Mr. Johnson had 

received medical benefits for his injury, the OWCP had 

determined that he was not entitled to wage-loss compensation. Mr. Johnson appealed that decision to this court.

At the Board’s request, this court vacated the Board’s 

decision on the ground that it was contrary to some of the 

Board’s previous decisions holding that an OWCP award 

of medical benefits is sufficient to establish that the 

employee has suffered a “compensable injury” for purposes of entitlement to restoration rights. The court remanded the case to the Board for further proceedings on two 

issues: (1) whether Mr. Johnson’s separation was substantially related to his compensable injury, and (2) if so, 

whether he has fully or partially recovered from his 
4 JOHNSON v. MSPB

injury. Johnson v. Merit Sys. Prot. Bd., 455 F. App’x 984 

(Fed. Cir. 2012).

During the remand proceedings, Mr. Johnson participated in a telephonic status conference with the administrative judge. In the course of that conference, Mr. 

Johnson stated that he had not “fully or partially recovered” from his injury, and he stipulated that he “had not 

recovered sufficiently to return to duty at the agency on a 

part-time basis or to return to work in a position with less 

demanding physical requirements than those previously 

required of him.”

Following the status conference, the administrative 

judge ruled that Mr. Johnson had failed to prove that his 

on-the-job injury was related to his retirement. The

administrative judge found that the reasons for Mr. 

Johnson’s retirement “included another medical condition, 

tinnitus, as well as his desire to avoid a disciplinary 

action.” The administrative judge also found that Mr. 

Johnson had not fully or partially recovered from his 

injury or injuries. The administrative judge therefore 

dismissed Mr. Johnson’s restoration claim for lack of 

jurisdiction.

On review, the Board affirmed the administrative 

judge’s dismissal order. The Board found that Mr. Johnson’s failure to prove that he had partially or fully recovered from his injury was dispositive of the case. In light 

of that ruling, the Board concluded that it was not necessary to determine whether the administrative judge was 

correct in finding that Mr. Johnson’s separation was not 

substantially related to a compensable injury. 

DISCUSSION

A federal employee who is separated from his position 

is entitled to restoration rights if he recovers from his 

injury. The nature of his restoration rights depends on 
JOHNSON v. MSPB 5

the timing and extent of his recovery. See 8 U.S.C. 

§ 8151; 5 C.F.R. § 353.301.

In order to establish the Board’s jurisdiction over an 

appeal from the denial of a restoration request, an employee alleging partial recovery “must prove by preponderant evidence (1) absence due to a compensable injury; 

(2) sufficient recovery from the injury to return to duty on 

at least a part-time basis or in a less physically demanding position; (3) agency denial of a request for restoration; 

and (4) denial of restoration rendered arbitrary and 

capricious by agency failure to perform its obligations 

under 5 C.F.R. § 353.301(d).” Bledsoe v. Merit Sys. Prot. 

Bd., 659 F.3d 1097, 1104 (Fed. Cir. 2011). An employee

alleging full recovery must prove similar elements, including at least (1) absence due to a compensable injury and 

(2) full recovery from his compensable injury. See 5 

C.F.R. § 353.301(a)-(b); Delalat v. Dep't of the Air Force, 

103 M.S.P.R. 448, 453-54 (2006). Whether Mr. Johnson’s 

retirement was the result of his compensable injury and 

whether he had fully or partially recovered were the 

questions before the Board after this court remanded the 

case to the Board on Mr. Johnson’s previous appeal. 

In its final order, the Board affirmed the administrative judge’s determination that Mr. Johnson had not fully 

or partially recovered from his injury. The administrative 

judge based his decision on the medical documentation 

submitted by Mr. Johnson and on Mr. Johnson’s own 

statements that he had not recovered. On appeal, Mr. 

Johnson has not pointed to any evidence contrary to the 

administrative judge’s determination. 

Instead, Mr. Johnson argues that the injury found by 

OWCP was sufficiently minor that it should not have 
6 JOHNSON v. MSPB

prevented the Postal Service from restoring him to duty.1 

But the severity of his original injury is not at issue in 

this restoration proceeding. Given that he sought and 

obtained OWCP benefits for his hearing loss, Mr. Johnson 

was required to prove that he had recovered sufficiently 

from his injury to return to duty. Based on Mr. Johnson’s 

stipulation and the administrative judge’s finding that 

Mr. Johnson had not partially or fully recovered from his 

injury, the Board properly held that it lacked jurisdiction 

over his appeal.

AFFIRMED

1 Mr. Johnson’s other arguments focus on the impairment that he experiences as a result of his tinnitus. 

As he has noted in his prior briefs, however, OWCP has 

not recognized his tinnitus as a compensable injury. Mr. 

Johnson has already litigated the issue of whether his 

tinnitus is disabling and work-related before OWCP and 

ECAB. The correctness of those decisions is not before us.