N OTE : This disposition is nonprecedential.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

______________________

B ETTEY S UE C RAFT , Tracy, CA, pro se.

K

ATHERINE M ICHELLE S MITH , Office of the General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by

T RISTAN L. L EAVITT

.

______________________

Before M OORE

, Chief Judge

, L INN and C HEN

, Circuit Judges

. Case: 21-1516 Document: 35 Page: 1 Filed: 07/14/2021CRAFT v. MSPB 2

P ER C URIAM

. 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 a lleges retaliation for potential whistleblowing activity

— a claim over which the Board has jurisdiction

— we vacate the decision and remand for further proceedings

.

B ACKGROUND

In 1983, Ms. Craft, an employee of the Defense Information Systems Agency, incurr ed 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 contest ed 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. W hile th at appeal was pending, on September 18, 2020, the OWC terminated Ms. Craft’s worker s’ compensation benefits

, reason ing 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 claim s 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 terminati on on August 11, 2020. Case: 21-1516 Document: 35 Page: 2 Filed: 07/14/2021CRAFT v. MSPB 3

OWC ’s rescissio n of benefits decision was made in retaliat ion for her whistleblowing activities. Resp ’t App ’ x at 21.

T he Board issued a Jurisdiction Order, notifying Ms. Craftthat 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 activit y contributing to th e 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 appeal s. We have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1)(B) and 28 U.S.C. § 1295(a)(9).

D ISCUSSION

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

law in finding it lack ed jurisdiction

. Resp’t Br

. at 8. We

agree.

We may set aside a decision by the Board only when itis 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 c ourt reviews de novo

. § 7703(c) ; see also Herman v. Case: 21-1516 Document: 35 Page: 3 Filed: 07/14/2021CRAFT v. MSPB 4

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

c ourt 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 (F ed. 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, h owever, does not seek review of the underlying merits of the OWC decision, but rather contends that the OWC retaliated against her fo llowing protected whistleblowing activity . This kind of whistleblowing retaliation claim is within the scope o f 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 .” )

.
C ONCLUSION

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

C OSTS

No costs. Case: 21-1516 Document: 35 Page: 4 Filed: 07/14/2021