NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

BETTEY SUE CRAFT,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________

2021-1516

______________________

Petition for review of the Merit Systems Protection 

Board in No. AT-1221-20-0829-W-1.

______________________

Decided: July 14, 2021

______________________

BETTEY SUE CRAFT, Tracy, CA, pro se.

 KATHERINE MICHELLE SMITH, Office of the General 

Counsel, United States Merit Systems Protection Board, 

Washington, DC, for respondent. Also represented by 

TRISTAN L. LEAVITT.

 ______________________

Before MOORE, Chief Judge, LINN and CHEN, Circuit 

Judges.

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2 CRAFT v. MSPB

PER CURIAM.

Ms. Bettey Sue Craft appeals from a decision of the 

Merit Systems Protection Board (Board) dismissing her 

whistleblower individual right of action appeal for lack of 

jurisdiction. Because Ms. Craft alleges retaliation for potential whistleblowing activity—a claim over which the 

Board has jurisdiction—we vacate the decision and remand 

for further proceedings. 

BACKGROUND

In 1983, Ms. Craft, an employee of the Defense Information Systems Agency, incurred a work-related injury for 

which she was awarded workers’ compensation benefits by 

the Department of Labor (DOL). Resp’t App’x at 37.1

Ms. Craft has since contested a variety of issues associated 

with this award. Resp’t App’x at 24. On March 19, 2019, 

she filed an appeal with the Board, contesting previous decisions from the DOL’s Office of Workers’ Compensation 

(OWC) that issued between 2001 and 2012. Resp’t App’x

at 69. While that appeal was pending, on September 18, 

2020, the OWC terminated Ms. Craft’s workers’ compensation benefits, reasoning that Ms. Craft had fully recovered 

from her injuries and did not require further compensation.

See Resp’t App’x at 36–39. 

Ms. Craft filed a second (and separate) appeal with the 

Board on September 16, 2020. This second appeal involves 

a whistleblowing individual right of action regarding the 

OWC’s termination decision.2 Ms. Craft claims that the 

1 Citations to “Resp’t App’x at [page number]” refer 

to the appendix submitted with the government’s informal 

brief.

2 Though the OWC did not issue its final termination 

until September 18, 2020, Ms. Craft filed suit after being 

notified of OWC’s consideration of such termination on August 11, 2020.

Case: 21-1516 Document: 35 Page: 2 Filed: 07/14/2021
CRAFT v. MSPB 3

OWC’s rescission of benefits decision was made in retaliation for her whistleblowing activities. Resp’t App’x at 21. 

The Board issued a Jurisdiction Order, notifying Ms. Craft 

that it lacked jurisdiction over her claims unless she provided proof of administrative exhaustion at the Office of 

Special Counsel (OSC) and made nonfrivolous allegations 

that her disclosures were protected whistleblowing activity

contributing to the OWC’s decision. Resp’t App’x at 3. 

Ms. Craft subsequently filed three submissions detailing 

her interactions with OSC, elaborating that, in her belief, 

the OWC’s decision was due to her disclosures and appeals 

of prior determinations. See Resp’t App’x at 49–53. 

On October 15, 2020, the Board dismissed Ms. Craft’s 

appeal for lack of jurisdiction, explaining that “OWC[]’s 

proposed termination of the appellant’s OWC[] benefits 

and its subsequent decision to terminate those benefits[] is 

not a matter that is directly appealable to the Board.”

Resp’t App’x at 3. The Board did not make any factual findings in its decision as to OSC exhaustion, stating that it 

lacked jurisdiction as a matter of law in view of Kerrigan v. 

Dep’t of Labor, 122 M.S.P.R. 545 (2015). Resp’t App’x at 3. 

Ms. Craft timely appeals. We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9).

DISCUSSION

On appeal, the government asks us to vacate and remand, acknowledging that the Board erred as a matter of 

law in finding it lacked jurisdiction. Resp’t Br. at 8. We 

agree.

We may set aside a decision by the Board only when it 

is arbitrary, capricious, an abuse of discretion, does not follow the law, or is not supported by substantial evidence.

See 5 U.S.C. § 7703(c); see also Forest v. Merit Sys. Prot. 

Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). The Board’s determination that it lacks jurisdiction is a legal question that 

this court reviews de novo. § 7703(c); see also Herman v. 

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4 CRAFT v. MSPB

Dep’t of Justice, 193 F.3d 1375, 1378 (Fed. Cir. 1999). This 

court is bound by the Board’s factual findings on which a 

jurisdictional determination is based “unless those findings 

are not supported by substantial evidence.” Bolton v. Merit 

Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). 

The issue of an individual’s entitlement to workers’ 

compensation benefits is within the exclusive jurisdiction 

of the OWC under 5 U.S.C. § 8128(b). See Pueschel v. 

United States, 297 F.3d 1371, 1374–77 (Fed. Cir. 2002). 

Ms. Craft, however, does not seek review of the underlying 

merits of the OWC decision, but rather contends that the 

OWC retaliated against her following protected whistleblowing activity. This kind of whistleblowing retaliation 

claim is within the scope of the Board’s jurisdiction. Kerrigan v. Merit Sys. Prot. Bd., 833 F.3d 1349, 1352 (Fed. Cir. 

2016) (“The question of whether the DOL retaliated 

against Mr. Kerrigan in reprisal for whistleblowing activity is a different one than whether the DOL correctly terminated his benefits for failure to attend vocational 

training. Section 8128(b) only precludes the Board’s review 

of the latter.”). 

CONCLUSION

Because the Board’s decision was contrary to law, the 

decision is vacated and remanded. The Board suggested, 

though it never affirmatively concluded, that Ms. Craft 

may have failed to exhaust administrative remedies at the 

OSC or failed to state a nonfrivolous claim. We remand for 

the Board to make factual findings on these points in the 

first instance.

VACATED AND REMANDED

COSTS

No costs.

Case: 21-1516 Document: 35 Page: 4 Filed: 07/14/2021