Bettey S. Craft v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BETTEY S. CRAFT,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2138
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3443-19-0366-I-1.
______________________
Decided: June 5, 2025
______________________
BETTEY SUE CRAFT , McDonough, GA, pro se.
STEPHEN F UNG, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before T ARANTO, STOLL , and STARK, Circuit Judges.
P ER CURIAM .
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CRAFT v. MSPB 2
Bettey Sue Craft was injured while working for the
U.S. Department of Defense (DoD) in 1983 and began re-
ceiving workers’ compensation benefits from the U.S. De-
partment of Labor’s Office of Workers’ Compensation
Programs (OWCP). By her extensive account, submitted
pro se at all stages, Ms. Craft had disputes over the years
with both OWCP (relating, e.g., to benefits owed or re-
ceived) and DoD (relating, e.g., to returning to employ-
ment), and she may have retired and ceased seeking
reemployment years before initiating the present proceed-
ing.
In 2019, Ms. Craft filed an appeal with the Merit Sys-
tems Protection Board (Board), naming DoD as “the agency
that took the action or made the decision [she was] appeal-
ing.” Respondent’s Supplemental Appendix (hereafter
“S. Appx.”) 24. The Board-assigned administrative judge
(AJ) construed Ms. Craft’s arguments as challenges to
OWCP’s decisions regarding her entitlement to workers’
compensation benefits and dismissed the appeal on the
ground that the Board lacked jurisdiction over her appeal
because it was precluded from reviewing OWCP’s decisions
by 5 U.S.C. § 8128. Craft v. Department of Defense, No. AT-
3443-19-0366-I-1, 2019 WL 2017644 (M.S.P.B. Apr. 29,
2019) (Initial Decision); S. Appx. 9–18. Ms. Craft appealed
to the full Board, further arguing, among other things, that
she suffered reprisal for whistleblowing. The full Board af-
firmed, declining to review the whistleblower-reprisal
claim as untimely and agreeing with the AJ that § 8128
precluded the Board from exercising jurisdiction over the
remaining claims. Craft v. Department of Defense, No. AT-
3443-19-0366-I-1, 2024 WL 2291937, at *1 (M.S.P.B. May
20, 2024) (Final Order); S. Appx. 1–8.
Ms. Craft appeals to this court. Because additional
analysis is required for this court to decide even its own
jurisdiction, much less the correctness of the Board’s deci-
sion, we remand the matter for additional proceedings con-
sistent with this opinion.
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CRAFT v. MSPB 3
I
In January 1983, Ms. Craft was employed by the De-
fense Information Services Agency within DoD. S. Appx.
31. On January 8 of that year, she suffered a work-related
injury and soon began receiving workers’ compensation
benefits through OWCP. S. Appx. 31.
On March 19, 2019, Ms. Craft filed an appeal to the
Board, and in the appeal form, she named DoD as the
agency that took the action or made the decision she was
challenging. S. Appx. 24. In the section about what per-
sonnel actions she was appealing, Ms. Craft checked boxes
for the following: (1) “Reduction in grade, pay, or band”;
(2) “Failure to restore/reemploy/reinstate or improper res-
toration/reemployment/reinstatement”; (3) “Denial of
within-grade increase”; and (4) “Other action (describe):
‘Failure Recruitment/Relocation & Retention rule 5 CFR
531.214.” S. Appx. 26 (cleaned up). Ms. Craft also attached
significant briefing in support, in which she appears to
challenge, among other things, various determinations
seemingly made by OWCP, e.g., a temporary termination
of her benefits in 2005, a determination of her earnings for
the purposes of calculating her benefits, a finding that she
was at fault for creating an overpayment for a period, and
a denial of her request for an oral hearing, alleged to be a
due process violation. S. Appx. 54–65; see also S. Appx. 23–
54, 66–85.
On April 29, 2019, the Board-assigned AJ issued an in-
itial decision, whose reasoning takes less than two pages.
Initial Decision, at 1–2; S. Appx. 9–10. The AJ noted that
Ms. Craft had checked the just-noted four boxes on her in-
itial appeal form but determined that Ms. Craft “named
OWCP as the agency she is challenging” and that she was
“challenging four specific OWCP determinations.” Initial
Decision, at 2 & n.2; S. Appx. 10 & n.2. Without further
analysis, the AJ concluded that the Board lacked jurisdic-
tion over OWCP’s determinations and dismissed the
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CRAFT v. MSPB 4
appeal. Initial Decision, at 1–2 (citing Miller v. U.S. Postal
Service, 26 M.S.P.R. 210, 212–13 (1985) (citing 5 U.S.C.
§ 8128)); S. Appx. 9–10.
Ms. Craft filed a petition for review by the full Board
on June 3, 2019. S. Appx. 86–110. She reiterated her ar-
guments, S. Appx. 93–109, and further asserted that she
had a “mixed case” appeal under 29 C.F.R. § 1614.302 and
5 C.F.R. § 1201.151, that OWCP’s determinations consti-
tuted reprisal for whistleblowing, that she had been wrong-
fully subjected to a reduction in grade, and that the
Information Services Agency of DoD had violated her
reemployment rights, S. Appx. 86–90.
On May 20, 2024, the full Board issued a final order
affirming the initial decision and adopting it as the Board’s
final decision. Final Order, at *1; S. Appx. 2. Like the AJ,
the Board characterized all of Ms. Craft’s arguments as
concerning OWCP decisions and proceedings. Id. The
Board held that “OWCP[’s] decisions are final regarding an
employee’s entitlement to workers’ compensation benefits,
and the Board does not have jurisdiction over such claims.”
Id. (citing Lee v. Department of Labor, 76 M.S.P.R. 142, 146
(1997) (citing Miller, 26 M.S.P.R. at 213 (citing 5 U.S.C.
§ 8128))). It stated that Ms. Craft “ha[d] not submitted ev-
idence” that any of the actions she was challenging “oc-
curred outside of the OWCP proceedings.” Id. Regarding
the whistleblower-reprisal claim, the Board ruled that Ms.
Craft failed to make this claim to the AJ and did not ex-
plain why she failed to do so, so it declined to consider the
argument. Id.; S. Appx. 2–3.
Ms. Craft appealed to this court. The Board has not
raised an issue about the timeliness of the appeal. But as
we will discuss, there is an issue about this court’s jurisdic-
tion.
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CRAFT v. MSPB 5
II
If we have jurisdiction over Ms. Craft’s appeal to us, we
must affirm the Board’s decision unless it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). We review the Board’s conclusions of law with-
out deference and its factual findings for substantial-evi-
dence support. McIntosh v. Department of Defense, 53
F.4th 630, 638 (Fed. Cir. 2022).
The Board treated its review authority as a matter of
Board “jurisdiction.” We decide de novo whether the Board
correctly held that it lacked jurisdiction. Hessami v. Merit
Systems Protection Board, 979 F.3d 1362, 1367 (Fed. Cir.
2020); Vesser v. Office of Personnel Management, 29 F.3d
600, 603 (Fed. Cir. 1994). Ms. Craft had the burden to
make a nonfrivolous allegation that the Board had jurisdic-
tion over her appeal; unless she met that standard, she was
not entitled to a hearing. See Garcia v. Department of
Homeland Security, 437 F.3d 1322, 1325 (Fed. Cir. 2006)
(en banc); see also Hessami, 979 F.3d at 1367–68; Cahill v.
Merit Systems Protection Board, 821 F.3d 1370, 1373 (Fed.
Cir. 2016); Johnston v. Merit Systems Protection Board, 518
F.3d 905, 910–11 (Fed. Cir. 2008); Campion v. Merit Sys-
tems Protection Board, 326 F.3d 1210, 1215 (Fed. Cir.
2003).
There is a threshold issue of whether we have jurisdic-
tion over Ms. Craft’s appeal to this court—a different ques-
tion from whether the Board had jurisdiction over her
appeal to it—and we are dutybound to consider our own
jurisdiction before any resolution of the merits of Ms.
Craft’s challenge to the Board’s ruling on its jurisdiction.
The question of this court’s jurisdiction, however, is closely
linked to the Board’s rationale for concluding that it lacked
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CRAFT v. MSPB 6
jurisdiction over Ms. Craft’s non-whistleblower claims.1 In
both respects, as we explain, we are impaired in our ability
to reach a resolution by the combination of (a) the difficulty
of parsing Ms. Craft’s presentation to the Board in her ini-
tial appeal to match particular allegations to the compo-
nents of the relevant legal standards and (b) the brevity of
the Board’s opinion and the AJ’s opinion. We explain why
we need a significantly closer analysis from the Board, and
we remand for further proceedings to supply such an anal-
ysis.
A
In considering what is missing from the Board’s analy-
sis, it is useful to begin by noting a basic distinction be-
tween two kinds of requirements for the Board to have
authority to hear a claim. First, the claim must come
within one of the affirmative grants of authority to the
Board. See 5 U.S.C. § 7701(a); McCoy v. Merit Systems Pro-
tection Board, 121 F.4th 204, 207 (Fed. Cir. 2024); Synan
v. Merit Systems Protection Board, 765 F.2d 1099, 1100
(Fed. Cir. 1985); see also 5 C.F.R. §§ 1201.2, 1201.3.
1 This point does not apply to the Board’s rejection of
Ms. Craft’s whistleblower claim—which it noted Ms. Craft
is free to present separately in an individual right of action
appeal. Final Order, at *1 & n.3; S. Appx. 3 & n.3. The
Board rested that ruling on the familiar principle that a
claimant generally may not, when seeking full Board re-
view of an adverse AJ decision, newly present a claim that
had not been presented to the AJ. See Bosley v. Merit Sys-
tems Protection Board, 162 F.3d 665, 668 (Fed. Cir. 1998);
Meglio v. Merit Systems Protection Board, 758 F.2d 1576,
1577 (Fed. Cir. 1984); Carson v. Department of Energy, 398
F.3d 1369, 1376 (Fed. Cir. 2005); cf. Thomas v. General Ser-
vices Administration, 794 F.2d 661, 666 (Fed. Cir. 1986);
Synan v. Merit Systems Protection Board, 765 F.2d 1099,
1101 (Fed. Cir. 1985).
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CRAFT v. MSPB 7
Second, the Board’s authority to hear the claim must not
otherwise be precluded—as relevant here, it must not be
precluded by a statutory bar on reviewability by the Board.
Here, the Board rested its decision entirely on the second
ground—that 5 U.S.C. § 8128 precludes review by the
Board of OWCP decisions, because it precludes such review
by any tribunal outside the Department of Labor.2 The
Board did not address the first requirement—whether Ms.
Craft’s claims (other than the whistleblower claim the
Board deemed too late) came within an affirmative grant
of authority to the Board.
The AJ recognized that in Ms. Craft’s “initial appeal
form, she checked the boxes for: (1) reduction in grade, pay,
or band; (2) failure to restore/reemploy/reinstate or
2 5 U.S.C. § 8128 reads as follows:
(a) The Secretary of Labor may review an award for
or against payment of compensation at any time on
his own motion or on application. The Secretary,
in accordance with the facts found on review,
may—
(1) end, decrease, or increase the compensation pre-
viously awarded; or
(2) award compensation previously refused or dis-
continued.
(b) The action of the Secretary or his designee in
allowing or denying a payment under this subchap-
ter 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 other-
wise.
Credit shall be allowed in the accounts of a certify-
ing or disbursing official for payments in accord-
ance with that action.
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CRAFT v. MSPB 8
improper restoration/reemployment/reinstatement; (3) de-
nial of with[in]-grade increase; and (4) other action (de-
scribe): ‘failure recruitment/relocation & retention rule 5
CFR 531.214.’” Initial Decision, at 2 n.2; S. Appx. 10 n.2;
see S. Appx. 26 (initial appeal form). The Board, for its
part, recognized that Ms. Craft also asserted in her petition
for review that “she was subjected to a reduction in grade”
and that “the agency violated her reemployment rights.”
Final Order, at *1 (citing S. Appx. 86–90); S. Appx. 2. The
Board did not conclude that, among those identified agency
actions, none could come within 5 U.S.C. § 7512 or some
other category of matters within the Board’s authority.
Nor did the Board reject Ms. Craft’s reduction-in-grade and
reemployment claims as not having been properly pre-
sented to the AJ. See Bosley, 162 F.3d at 668; Meglio, 758
F.2d at 1577; Carson, 398 F.3d at 1376.
The AJ said that, in her initial appeal, Ms. Craft “indi-
cates that she is appealing four decisions from OWCP” and
that she “named OWCP as the agency she is challenging.”
Initial Decision, at 2 & n.2; S. Appx. 10 & n.2. But the
named agency in Ms. Craft’s appeal form is DoD, not
OWCP, S. Appx. 24, as reflected in the caption before the
Board, see Final Order. Moreover, among the above-listed
actions are actions by DoD (her employing agency), not
OWCP.
Considering Ms. Craft’s “narrative statement accompa-
nying the appeal form,” the AJ concluded that it was “clear”
from that narrative that she was “challenging four specific
OWCP determinations.” Initial Decision, at 2 n.2; S. Appx.
10 n.2. In a similar vein, the Board concluded that the
identification of the employing agency’s actions did not en-
able the Board to hear Ms. Craft’s appeal because “she has
not submitted evidence that any such actions occurred out-
side of the OWCP proceedings.” Final Order, at *1;
S. Appx. 2. It appears, in light of Ms. Craft’s narrative,
that both the AJ and the Board were concluding, as the key
basis for their statutory-preclusion rulings, that DoD’s own
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CRAFT v. MSPB 9
employment actions (or inactions) were the result of
OWCP’s rulings on benefits (including receipt of overpay-
ments) and that § 8128 precludes the Board from reviewing
otherwise-reviewable agency actions where the actions re-
lied on OWCP determinations and assessing the employing
agency actions depends on assessing the OWCP determi-
nations. But the AJ and Board did not accompany their
brief assertions on this decisive point with a detailed anal-
ysis of Ms. Craft’s pro se submission in her initial appeal
(i.e., her filing with the AJ) reciting the history and
grounds of her claims at considerable length.
B
That background allows identification of why more
analysis is needed. We begin with the issue of this court’s
(not the Board’s) jurisdiction. Under 5 U.S.C. §§ 7702(a)(1)
and 7703(b)(2), this court, which ordinarily has jurisdiction
to review a decision of the Board on a claimant’s challenge
to agency action, presumptively lacks such jurisdiction
where two things are both true: (1) the agency action at
issue is one that was appealable to the Board (on the as-
sumption that the facts alleged by the claimant are true);
and (2) before the Board, as part of the challenge to that
agency action, the claimant included a claim that the chal-
lenged agency action violated one of certain enumerated
anti-discrimination statutes, including section 717 of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16,
section 501 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 791, and sections 12 and 15 of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 631, 633a. See Perry
v. Merit Systems Protection Board, 582 U.S. 420, 430–32
(2017); Kloeckner v. Solis, 568 U.S. 41, 44 (2012). That sit-
uation presents a “mixed case.” 29 C.F.R. § 1614.302(a)(2).
And the presumptive bar on this court’s jurisdiction in such
a case is an actual bar unless the claimant gives up any
further pursuit of the statutory discrimination claim (in all
possible forums, not just in this court). Harris v. Securities
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CRAFT v. MSPB 10
and Exchange Commission, 972 F.3d 1307, 1317–18 (Fed.
Cir. 2020).
Ms. Craft, in her Form 10 filed in this court, asserted
that this is such a mixed case (alleging race, sex, disability,
and age discrimination and citing Title VII) and that she is
not giving up pursuit of her discrimination claims. ECF
Nos. 3, 12. In response, the Board does not dispute that
Ms. Craft presented discrimination allegations under rele-
vant statutes before the Board. Rather, the Board’s sole
argument against this being a mixed case is that Ms. Craft
is not challenging “an action which [she] may appeal to the
[Board],” 5 U.S.C. § 7702(a)(1)(A), because the only actions
she is challenging are actions by OWCP that are unreview-
able pursuant to 5 U.S.C. § 8128. Respondent’s Br. at 6–8;
see also id. at 9–10. That assertion, as noted above, is just
what the Board (and AJ) said in their very brief opinions
as the basis for dismissing Ms. Craft’s appeal to the Board.
The Board’s opinion (like the AJ’s) is too abbreviated
for us to accept the conclusion—or, therefore, to resolve
both the threshold issue of our jurisdiction over Ms. Craft’s
appeal to us and the issue of the Board’s jurisdiction over
the non-whistleblower claims. We flag some of the matters
that need more attention, without purporting to be exhaus-
tive and without prejudging the precise legal relevance of
the matters noted, which is best assessed only when the
record is better understood (or developed). We remand for
the Board to conduct further analysis, and any needed ad-
ditional proceedings. We recognize that there might be
other grounds for Board decision not yet addressed by the
Board, such as timeliness, see 5 C.F.R. § 1201.22, which the
AJ noted but did not decide, Final Order, at *1 n.4; S. Appx.
3 n.4. We do not preclude the Board from addressing such
grounds.
As noted above, Ms. Craft’s initial appeal names DoD,
not OWCP, as the agency whose actions she appeals, and
the Board does not dispute that Ms. Craft is challenging
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CRAFT v. MSPB 11
certain actions of DoD (or, indeed, that some such actions
are within the Board’s authority but for § 8128). Regarding
her statutory discrimination assertions, it is not clear
whether she alleged discrimination by OWCP, by DoD, or
by both. We presume, without deciding (given the uncer-
tainty of our jurisdiction), that the statutory bar on review
of OWCP determinations outside the Department of Labor,
given the language of § 8128, precludes review of statutory
claims of discrimination by OWCP. Even if so, it is a sepa-
rate question whether the provision precludes review of
statutory claims of discrimination by DoD (which might be
interlinked with or independent of discrimination by
OWCP).
Discrimination aside, we presume, again without de-
ciding (given the uncertainty of our own jurisdiction), that
to the extent that Ms. Craft claims that OWCP determina-
tions on workers’ compensation benefits are incorrect and
should be set aside by the Board, § 8128 bars Board review
of those claims. See, e.g., Kerrigan v. Merit Systems Protec-
tion Board, 833 F.3d 1349, 1353 (Fed. Cir. 2016); Pueschel
v. United States, 297 F.3d 1371, 1374–77 (Fed. Cir. 2002);
Craft v. Merit Systems Protection Board, 860 F. App’x 744,
746 (Fed. Cir. 2021) (non-precedential). But her claims on
their face include claims directed to DoD actions. See, e.g.,
S. Appx. 24, 61; S. Appx. 86–87. And it is not clear pre-
cisely how those claims depend on challenging OWCP de-
terminations. The Board and AJ asserted such dependency
in summary fashion, without clarifying explanation based
on parsing of Ms. Craft’s submission. See Initial Decision,
at 2; S. Appx. 10; Final Order, at *1; S. Appx. 2. They also
did not discuss cases addressing certain issues about the
allocation of decisionmaking authority when Board author-
ity and § 8128 may both be in the picture. See, e.g., Kerri-
gan, 833 F.3d at 1353; Pueschel, 297 F.3d at 1377–78;
Minor v. Merit Systems Protection Board, 819 F.2d 280, 283
(Fed. Cir. 1987).
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CRAFT v. MSPB 12
Further, there is reason to doubt that § 8128 precludes
review of assertions of constitutional violations. See
Pueschel, 297 F.3d at 1374 (noting other circuits’ deci-
sions); cf. Johnson v. Robison, 415 U.S. 361, 367 (1974)
(reading nonreviewability provision not to cover constitu-
tional claims even without textual exceptions); Cuozzo
Speed Technologies, LLC v. Lee, 579 U.S. 261, 275 (2016)
(noting principle of Johnson). Here, one of Ms. Craft’s chal-
lenges to an underlying OWCP ruling alleges an improper
denial of an oral hearing (by OWCP, it appears). Respond-
ent’s Br. at 3; see, e.g., S. Appx. 64 & n.120 (Ms. Craft al-
leging a violation of her “constitutional rights of due
process” and citing the Fifth Amendment). That challenge
(and potentially others) might constitute a constitutional
claim of denial of due process, though not all assertions
that invoke a constitutional label are cognizable constitu-
tional claims, see, e.g., Helfer v. West, 174 F.3d 1332, 1335
(Fed. Cir. 1999), and the opportunity to present oral testi-
mony is not an invariable requirement of due process, see,
e.g., Federal Deposit Insurance Co. v. Mallen, 486 U.S. 230,
247–48 (1988).
The issues we have mentioned require further atten-
tion—in the form of careful examination and explanation
of Ms. Craft’s submission and of relevant legal standards.
As already stated, we have not been exhaustive. Nor do we
preclude the Board from reaching other potentially dispos-
itive issues. At present, we cannot definitively decide our
own jurisdiction or the correctness of the Board’s decision.
III
For the foregoing reasons, we remand the matter to the
Board for further proceedings consistent with this opinion.
The parties shall bear their own costs.
REMANDED
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