NOTE: Pursuant to Fed . Cir. R. 47.6, this dispo s ition is not citable as precede nt. It is a pu blic record. 

## United States Court of Appeals for the Federal Circuit

06-3034 JAMES B. HICKOK, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

______ ____________________ DECIDED: May 8, 2006

______ ____________________ Before SCHALL, Circuit Judge , CLEVENGER, Senior Circuit Judge , and PROST, Circuit Judge

. PER CURIAM.

James B. Hickok seeks review of the final decision of the Merit Systems Protection Board (Board) dismissing his appeal from the refusal of the United States Postal Service (agency) to restore him to his previous EAS-21 level position. Hickok v. U.S. Postal Serv. , No. DE035304225-I-1 (Merit Sys. Prot. Bd. Sept. 12, 2005). We affirm

. I As of October 29, 1999, Mr. Hickok held the position of Man ager of Customer Service at the Sandy, Utah, Post Office. The position carried a pay grade of EAS-21. On that date, Mr. Hickok suffered a panic a ttack which resulted in his absence fromwork for medical reas ons. He remained ab sent until December of 2000 when he was provided a temporary assignment. Informat ion supplied to the agency by Mr. Hickok made it clear that he was unable to return to the Sandy, Utah, location and to perform the duties of his leve l EAS-21 p o sition. Mr. Hickok u n successfully soug ht to establish that his October 29, 1999, panic attack was a compensable injury. On April 23, 2001, the agency issued Mr. Hickok a Notice of Proposed Downgrade and Reas signment, to an EAS-16 pos ition as a S u p e rvisor of Distribution Operations in the agency's Sa lt Lake City facility. The stated reason for the agency's action was Mr. Hickok's inability to perform his Sandy , Utah, position. The propos ed downgrade and reassignment would take effect on June 2, 2001. On June 1, 2001, however, Mr. Hickok suffer ed another panic attack. He file d a worker's compensation claim based on t he June 1 panic attack, which was initially denied by the Office of Workers' Compensat ion Programs in the Department of Labor (OWCP). In further proceedings, however , OWCP on November 24, 2003, accepted the June 1, 2001 incident as a compensable injury. Mr. Hickok thereafter requested the agen cy to restore him to a limited duty assignment . When that effort failed, Mr . Hickok filed his appeal with the Board. II The law pr ovides that an agency must make “every effort to restore in the local commuting area . . . an individual who has partially recovered from a compensable injury and who is able to return to limited dut y . . . ." 5 C.F.R. § 353.301(d) (2005). Mr. Hickok falls within the defin ition of a par tially rec o v e red person, as he has partiall y

06-3034 2recovered from his compensable injury, the J une 1 panic attack, but he is “not ready to resume the full range of his . . . regular duties . . . ." 5 C.F.R. § 353.102 (2005). The appeal rights to t he Bo ard of an employee claim i ng v i olation of restoration rights as a partially rec o vered individual are set forth in 5 C.F.R. § 353.304(c): An indiv i dual who is partially reco vered from a com pensable injury may appeal to [the Board] for a determinat ion of whether the agency is acting arbitrarily and capriciously in denying restoration. The Board has interpreted this regulatio n, specifying the precise showing an employee must make to invoke the Board' s jurisdictio n under section 353.304(c). In particular, to establis h jurisdiction over a restoration claim as a partially recovered employee, the appellant must a llege facts which if proven would show: (1) the appellant was absent from his position due to a compensable injury; (2) sufficient recovery to qualify for either part-time work or less demanding work; (3) the appellant's request for restoration was denied; and (4) the deni al was arbitrary and cap r icious. Chen v. U.S. Postal Serv

. , 97 M.S.P

. R. 527, 533 (2004). III The administrative judge assigned to Mr. Hickok's appeal held that Mr. Hickok failed to make a nonfrivolo us alle gation that he was ab sent from his EAS-21 position in Sandy, Utah, due to a compens able injury. Mr. Hickok had sought to establis h with OWCP that his first panic attack was a compens able injury, but he failed in that effort. The administrative judge found that after Mr. Hickok's fi rst panic attack, he was not capable of ever returning to the EAS-21 posit ion and that the agen cy properly put him in the Salt Lake City pos ition. Further, the administrative judge found that the agency wa s unaware of any compensable injury at the time it proposed and sustained Mr. Hickok's

06-3034 3demotion and reassignment. In short, Mr. Hickok was not absent from his position due to a compensable injury. Consequently, the adm inistr ative judge hel d that Mr. Hickok's asserted violation of restoration rights must fail. His appeal thus was dismissed. Mr. Hickok unsuccessfully sough t review by the Boar d of the initial dec ision by the administrative judge, thereby making t he decision of the administrative judge the final decis ion of the Board for purposes of appeal to this court. Mr. Hickok timely sought review in this court. IV We must affirm the final dec ision of th e Board u n less we det ermine that it is arbitrary, capricious, and abus e of discretion or other wise no t in accordanc e with la w. Where the Board's final decis io n rests on findings of fact, those findings must be supported by substantial evidenc e. 5 U.S.C

. § 7703(c) (2000). In order for Mr. Hickok to establish jurisd iction of the Board over his restoration claim, he must allege facts, which if prov en, would s h ow that he was abs ent from his position due to a c o mpensable injury. The facts found by the Board are that Mr. Hickok' s only com pensable injury occu rred on June 1, 2001, after the agency had proposed and finaliz ed its acti on that demoted and transferred Mr. Hickok. The agency's action resulted from the failure of Mr. Hickok to be able to perform his EAS-21 position. T hat failure may we ll have been due to the c ause and effect of the first panic attack, but the first panic attack has not been credited by OWCP as a compensable injury. The administrative judge expressly f ound that Mr. Hickok did not show that his absence from the EAS-21 position was du e to t he June 1 panic attack. It is clear that Mr. Hickok's absenc e resulted fr om the ear lie r panic attack. Without a compensable

06-3034 4injury as the cause for absence, a claim by a partially recov e red employee for restoration must fail as a matter of law. Mr. Hickok argues that OWCP's determinat ion that the June 1 inc i dent produced
a compens able injury must mean that as of June 1 he qualified fo r restoration as a person who could not work due to a compens able injury. This argument overlooks the fact that Mr. Hickok was un able to perform the EAS-21 pos it ion becaus e of the first panic attack, which was not a compensable in jury. Ev en though Mr. Hickok sustained a compensable injury on June 1, while he was absent from the E AS-21 position, he has not made a nonfrivolous allegation that his continued absence after June 1 was a result of the June 1 panic attack and not a result of the first panic attack. Thus, because Mr. Hickok has not made a nonfrivolous allegat ion that he was absent from his position as a result of a compensable injury, the Boar d correctly determined that it does not have jurisdiction over this case. We discern no error in the law applied by the Board to the facts of this case, and

we conc lude that the facts underlying the Bo ard's decis ion are supported by substantial evidenc e. Mr. Hickok's arguments to the contrary, which we have cons idered, are unavailing. The final decision of the B oard is therefore affirmed.

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