NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DEONNE R. NEW-HOWARD,

Petitioner,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

______________________ 

2013-3180

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. PH0752070319-M-1.

______________________ 

Decided: November 10, 2014

______________________ 

DEONNE R. NEW-HOWARD, of Philadelphia, Pennsylvania, pro se. 

ELIZABETH ANNE SPECK, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

her on the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, and 

KIRK T. MANHARDT, Assistant Director. 

______________________ 
2 NEW-HOWARD v. DVA

Before PROST, Chief Judge, NEWMAN and LINN, Circuit 

Judges.

PER CURIAM. 

Deonne New-Howard appeals from an order of the 

Merit Systems Protection Board (“Board”) upholding her 

removal upon finding that the agency properly denied her 

requests for sick leave. See New-Howard v. Dep’t of 

Veterans Affairs, PH0752070319-M-1 (M.S.P.B. June 27, 

2013) (“Board Decision”). Because the Board’s decision is 

supported by substantial evidence and is otherwise in 

accordance with law, we affirm. 

BACKGROUND

The facts of this case have been comprehensively recited by the Board and the district court that Ms. NewHoward previously appealed to. See Board Decision at 2–

9; New-Howard v. Shinseki, No. 09-5350, 2012 WL 

2362546, at *1–5 (E.D. Pa. June 21, 2012). We provide 

here a simplified overview of those facts, as is sufficient 

for resolution of this appeal.

Ms. New-Howard was employed at the U.S. Department of Veterans Affairs (“VA”), where she applied for 

and was denied sick leave several times, including for the 

following two periods: from October 24, 2005, to December 

16, 2005, and from January 17, 2006, to February 27, 

2006. Ms. New-Howard did not work during those periods, and having not been approved for sick leave, the VA 

deemed her absent without leave (“AWOL”). The VA then 

proposed to remove Ms. New-Howard from employment 

based on the charges of AWOL and failure to follow leave 

procedures. On June 30, 2006, the VA sustained the 

charges and imposed the penalty of removal.

Ms. New-Howard filed an appeal challenging her removal. She alleged, among other things, that the VA 

discriminated against her and improperly denied her 
NEW-HOWARD v. DVA 3

requests for sick leave. The Board affirmed the VA’s 

removal and Ms. New-Howard appealed to the U.S. 

District Court for the Eastern District of Pennsylvania. 

The district court ruled against Ms. New-Howard, 

granting summary judgment for the VA on all her claims 

except sick leave. As to sick leave, the district court 

remanded the matter to the Board “solely for the limited 

purpose of making findings regarding the denial of Plaintiff’s requests for sick leave.” New-Howard, 2012 WL 

2362546, at *1.

Upon remand, the Board determined that the VA 

properly denied Ms. New-Howard’s request for sick leave 

and again affirmed her removal. Instead of returning to 

the district court, Ms. New-Howard appeals to this court. 

DISCUSSION

As an initial matter, the VA asserts that this is a 

“mixed case” involving allegations of discrimination and 

that this court consequently does not possess jurisdiction 

to hear this case. See, e.g., Kloeckner v. Solis, 133 S. Ct. 

596, 607 (2012) (holding that “mixed cases” should be 

appealed to the district court and not the Federal Circuit). 

But Ms. New-Howard has expressly “waived her discrimination claim that the agency’s denial of her sick leave was 

motivated by discrimination.” Pet’r’s Reply Br. 1. As 

such, this case is no longer “mixed,” and although it may 

have been more efficient for the district court to hear this 

appeal, we do possess jurisdiction. See 5 U.S.C. § 7703;

Toyama v. Merit Sys. Prot. Bd., 481 F.3d 1361, 1365 (Fed. 

Cir. 2007) (“[P]arties may appeal directly to this court if 

willing to waive discrimination issues.”). 

We turn now to the merits of the appeal. Our review 

of Board decisions is limited by statute. Under 5 U.S.C. 

§ 7703(c), we may only reverse the Board’s decision if we 

find the decision to be (1) arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law; (2) 
4 NEW-HOWARD v. DVA

obtained without procedures required by law; or (3) 

unsupported by substantial evidence. Ward v. U.S. Postal 

Serv., 634 F.3d 1274, 1278 (Fed. Cir. 2011).

It is undisputed that the VA may grant sick leave only 

when the request is supported by “administratively 

acceptable evidence.” 5 C.F.R. § 630.405(a). As correctly 

stated by the Board, “[m]edical documentation which fails 

to, inter alia, inform the employer of an employee’s prognosis, dates of incapacitation, restrictions on performance 

of her duties, and expected return to duty has been 

deemed to be administratively insufficient to support a 

request for sick leave.” Board Opinion at 8 (citing Young 

v. U.S. Postal Serv., 19 M.S.P.R. 25 (1998); Tackett v. 

Dep’t of the Air Force, 76 M.S.P.R. 649, 657–58 (1997); 

Goens v. Dep’t of the Army, 40 M.S.P.R. 456, 460 (1989)). 

According to Ms. New-Howard, her “brief primarily is 

an effort to discredit the [Board’s] conclusion that she did 

not submit proper medical documentation.” Pet’r’s Reply 

Br. 5. But this effort fails. 

As found by the Board, the medical documentation 

that Ms. New-Howard submitted with her sick leave 

requests failed to indicate a prognosis, state that she was 

incapacitated from working, or state when she would be 

able to return to work. For example, to support her 

request for the second period, Ms. New-Howard simply 

provided a short note from her psychologist which stated 

that Ms. New-Howard “was advised by me not to return to 

work as she is not able to handle the demands of the work 

environment.” Resp’t’s App. 152 (Letter from Dr. Melvin 

Rogers, dated 1/17/06). The Board properly concluded 

that such documentation was not administratively acceptable.

Ms. New-Howard also appears to argue that the VA is 

lying when it states that it did not receive any additional 

documentation from her. But Ms. New-Howard presents 

insufficient evidence to support this allegation. 
NEW-HOWARD v. DVA 5

We have considered Ms. New-Howard’s remaining arguments and find them unpersuasive. Indeed, much of 

Ms. New-Howard’s informal briefing appears to address 

issues or claims that do not concern the sole issue properly on appeal: whether the VA properly declined her sick 

leave requests. We thus do not address those arguments. 

In sum, substantial evidence supports the Board’s 

conclusion that Ms. New-Howard was properly denied 

sick leave. And Ms. New-Howard has failed to point to 

any part of the decision that is “arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law.” 5 U.S.C. § 7703(c). 

CONCLUSION

For the foregoing reasons, we affirm the Board’s decision. 

AFFIRMED

COSTS

Each party shall bear its own costs.