Blair v. Office of Personnel Management

31 F. App'x 646
CourtCourt of Appeals for the Federal Circuit
DecidedMarch 11, 2002
DocketNo. 01-3381
StatusPublished
Cited by2 cases

This text of 31 F. App'x 646 (Blair v. Office of Personnel Management) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blair v. Office of Personnel Management, 31 F. App'x 646 (Fed. Cir. 2002).

Opinion

RADER, Circuit Judge.

Perry E. Blair appeals the July 19, 2001 final decision of the Merit Systems Protection Board (Board) denying Mr. Blair’s petition for review in one of three consolidated cases, DE-844E-92-0092-C-3, 89 M.S.P.R. 113, and dismissing his petitions for review in the remaining two cases as untimely filed without a showing of good cause, DE-844E-92-0092-I-1, DE-844E92-0092-C-I. All three cases relate to Mr. Blair’s disability benefits. Because the decision of the Board is in accordance with law and not an abuse of discretion, this court affirms.

BACKGROUND

Before 1990, Mr. Blair worked as a Food Service Worker at the Department of Veterans Affairs Medical Center in Denver, Colorado. After sustaining a work-related arm injury, Mr. Blair applied to the Office of Personnel Management (OPM) for disability retirement benefits under the Federal Employees Retirement System (FERS). OPM denied Mr. Blair’s application. He appealed to the Board.

In an initial decision issued February 14, 1992, the administrative judge reversed and ordered OPM to grant Mr. Blair’s application for FERS benefits. This initial decision became final on March 20, 1992. OPM later notified the Board that OPM had approved Mr. Blair’s application.

On August 18, 1992, before receiving any FERS payments, Mr. Blair elected to receive Federal Employee Compensation Act (FECA) benefits for disability under 5 [648]*648U.S.C. §§ 8101-8193 (1992). As indicated on the election form signed by Mr. Blair, his election to receive FECA disability benefits operated in lieu of any FERS retirement benefits to which he may have otherwise been entitled (except for benefits payable by the Thrift Savings Plan). The Department of Labor informed OPM of Mr. Blair’s election. OPM then sent Mr. Blair a letter stating that his FERS benefit payments would be suspended while he received FECA benefits from the Department of Labor.

After receipt of OPM’s letter, Mr. Blair filed a petition for enforcement with the Board, alleging that OPM did not comply with the Board’s February 14, 1992 decision. In a November 16, 1992 opinion, which became final on December 21, 1992, the administrative judge held that OPM’s refusal to pay FERS benefits did not constitute noncomplianee with the Board’s February 14, 1992 decision because Mr. Blair elected to receive FECA benefits instead of FERS benefits.

Mr. Blair subsequently filed another petition for enforcement to compel OPM to retroactively restore his FERS benefits or order the Department of Labor to pay him a lump-sum benefits payment. Mr. Blair’s petition also objected to the reduction of his FECA payments by the amount of his Social Security disability benefit. On October 26, 2000, the administrative judge dismissed this petition on the grounds that the Board lacked jurisdiction over the FECA claim and lacked authority to retroactively award FERS benefits because Mr. Blair was still receiving FECA benefits.

Mr. Blair filed a petition with the Board on December 1, 2000, seeking review of the October 26, 2000 decision. Based upon a review of the December 1, 2000 filing, the Clerk for the Board notified Mr. Blair that his December 1, 2000 petition would be treated as additionally incorporating petitions for review of the February 14, 1992 and November 16, 1992 decisions. On July 19, 2001, the Board denied the petition for review of the October 26, 2000 decision on the merits, and dismissed the petitions for review of the February 14, 1992 and November 26, 1992 decisions as untimely.

DISCUSSION

This court must affirm the Board’s decision unless it is: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000).

A determination of whether the Board has jurisdiction to address a particular petition for review is a question of law, which this court reviews without deference. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed.Cir.1999). The Board’s jurisdiction is limited to those actions specifically granted by some law, rule, or regulation. 5 U.S.C. § 7701(a) (2000); Antolin v. Dep’t of Justice, 895 F.2d 1395, 1396 (Fed.Cir. 1989) (citing Cowan v. United States, 710 F.2d 803, 805 (Fed.Cir.1983)). A petitioner must establish that the Board possesses jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2) (2001); Van Wersch v. Dep’t of Health and Human Servs., 197 F.3d 1144, 1147 (Fed.Cir. 1999) (citing Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.Cir.1995)).

A.

No law, rule, or regulation grants the Board jurisdiction to review the Department of Labor’s decisions regarding FECA benefits. Rather, the law expressly denies such jurisdiction. Specifically, 5 U.S.C. § 8128(b) (1988) (emphasis added), [649]*649which governs a review of compensation payments for work-related injuries, provides, in relevant part:

The action of the Secretary or his designee in allowing or denying a payment under this subchapter is (1) final and conclusive for all purposes and with respect to all questions of law and fact; and (2) not subject to review by another official of the United States or by a court by mandamus or otherwise.

Accordingly, the Board correctly held that it lacks jurisdiction to review the Department of Labor’s decisions regarding FECA benefits.

The Board’s decision denying retroactive restoration of Mr. Blair’s FERS benefits lost during the period in which he received FECA benefits is also clearly in accordance with law. Under the applicable statutes, 5 U.S.C. §§ 8116(a), 8337(f) and 8464a (1988), Mr. Blair is not entitled to both FERS disability retirement benefits and FECA benefits for permanent total or partial disability under 5 U.S.C. §§ 8101-8193. Specifically, 5 U.S.C. § 8464a

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31 F. App'x 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blair-v-office-of-personnel-management-cafc-2002.