N OTE : This disposition is nonprecedential.


# United States **Court of Appeals for**  **the Federal Circuit**

______________________
NATHANIEL MCDANIEL, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent,

AND

UNITED STATES POSTAL SERVICE,
Intervenor

.

______________________

2012

- 3183

______________________

Petition for Review of the Merit Systems Protection Board in No. SF0353110075 -I- 2.

______________________

Decided: March 8 , 2013

______________________

N ATHANIEL M C D ANIEL
, of Los Angeles, California,

pro se.

C ALVIN M. M ORROW
, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington,NATHANIEL MCDANIEL v. MSPB 2

DC, for respondent. With him on the brief was K EISHA D AWN B ELL
, Acting General Counsel.

B ARBARA E. T HOMAS
, Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for intervenor. With her on the brief were S TUART F. D ELERY , Principal Deputy Assi stant Attorney General, J EANNE E. D A VIDSON , Director, and S TEVEN J. G ILLINGHAM , Assistant Director.

______________________

Before L OURIE
, B RYSON
, and D YK
, Circuit Judges.

P ER C URI AM

. Nathaniel McDaniel (“McDaniel”) appeals from the final order of the Merit Systems Protection Board (“the
B oard”) dismissing both of his petitions for review for lack of jurisdiction

. See McDaniel v. United States Postal Serv.

, No. SF

- 0353

- 11

- 0075 -I- 2 (M.S.P.B. Sept. 2, 2011) (“ 075 Initial Decision ”); McDaniel v. United States Postal Serv.

, No. SF

- 353

- 11

- 0167 -I- 2 (M.S.P.B. Sept. 2, 2011) (“ 167 Initial Decision ”); (M.S.P.B. June 28, 2012) (“ Final Order ”). Because the Board did not err in dismissing McDaniel’s petitions for lack of jurisdiction , we affirm

. B ACKGROUND
McDaniel was employed as a p art

- time flexible distr ibution clerk at a United States Postal Service (“USPS”) facility in Altadena, California

. On December 28, 2004, USPS terminated McDaniel based on a charge of Failure to Follow Instructions/Failure to Report as Scheduled/ Absence Wit hout Leave. In August 2003, prior to his rem oval by the Postal Service, McDaniel filed a claim for disability benefits with the Department of Labor’s Office of Worker’s Compe nsation Program (“OWCP” ). On March 17, 2006, OWCP accepted McDaniel’s claim with a May 19, 2003 date of injury

.NATHANIEL MCDANIEL v. MSPB 3
On May 29, 2009, OWCP informed USPS that McDa niel’s treating physician had indicated he could work with restrictions, and it invited USPS to offer McDaniel light duty if such employment was available. USPS did not offer such a position to McDaniel. On August 10, 2010, McDa niel sent a letter to USPS requesting restoration and citing OWCP’s May 29, 2009 letter. On August 11, 2010, McDa niel’s psychiatrist, Dr. Goldsmith, prepared and submitted a written report to OWCP stat ing that McDaniel’s “work

related adjustment disorder ha[d] resolved” and that McDaniel was able to return to work so long as it was in one of three locations : Los Angeles, CA; Manhattan Beach, CA; or El Segundo, CA. USPS searched for an available positi on in those three locations but, on September 16, 2010, notified McDaniel that no positions were available. Further

, on August 20, 2010

, in response to Dr. Goldsmith’s report, OWCP proposed to terminate McDaniel’s disability benefits because of Dr. Goldsm ith’s conclusion that he had recovered from his adjustment disorder.

On October 25, 2010, McDaniel a ppeal ed to the Board

, asserting that the Postal Service impermissibly refused to restore him to employment in response to his August 10, 2010 letter , and that his removal constituted unlawful discrimination

. The administrative judge (“AJ”) issued an Order to Show Cause on December 2, 2010, notifying the petitioner that the Board may lack jurisdiction over his appeal and informing him of the applicable law

. In r esponse , McDaniel asserted that OWCP’s May 29, 2009 letter inviting USPS to provide him with light duty const ituted a request for restoration and that USPS had arbitra rily and capriciously denied that request. Because OWCP’ s letter included restrictions according to which McDaniel could return to light duty work and encouraged USPS to offer him such work, t he AJ treated that letter as a sep arate request for restoration and docketed a second appeal.NATHANIEL MCDANIEL v. MSPB 4

The AJ subsequently dismissed both appeal s for lack of jurisdiction. With respect to the first appeal, the AJ , appl ying the standard to establish jurisdiction for fully recovered former employees, determined that Mc Daniel had failed to make a non

- frivolous allegation that he had been denied

rest oration due to the employment of another person over himself

. 075 Initial Decision at 8. With respect to the second appeal, the AJ determined that because OWCP’s May 29, 2009 letter to USPS, which formed the basis of the second appeal, was a request by OWCP and was not a request by McDaniel, he had failed to make non -frivolous allegations that he , himself

, had requested restoration prior

to his Augu st 10, 2010 letter

. 167 Initial Decision at 6

– 7. Be cause the AJ determined that the Board lacked jurisdi ction over both appeals, the AJ also dismissed McDaniel’s pende nt claims alleging that his removal had constituted unlawful discrimination on the grou nd that the Board lacked independent jurisdiction over those affirmative defenses

. 075 Initial Decision at 10; 167 Initial Decision at
6.

McDaniel petitioned for review by the full Board. After consolidating both appeals, the Board affirmed both di smi ssal s for lack of jurisdiction. Final Order at 9, 11. With respect to the first appeal, however, the Board added that the proper legal standard governing McDaniel’s claim was that which is applicable to partially recovered

— not fully recovered— former employees. Final Order at 7. Neverth eless , t he Board concluded that the appeal was properly dismissed for lack of jurisdiction because McDani el had failed to make a non

- frivolous allegation (sufficient to entitle him to a jurisdictional hearing) t hat USPS ’s denial of his August 10, 2010 request for restoration was arbitrary and capricious. Final Order at 8

– 9. The initial decision s of the AJ , as modified by the Board’s partially recovered former employee analysis, thus became the decision of the
B oard.NATHANIEL MCDANIEL v. MSPB 5

McDaniel appealed to this court. We have juris diction pursuant to 28 U.S.C. § 1295(a)( 9).

D ISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures requir ed by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit. Sys. Prot. Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003). Whether the Board has jurisdiction to adjudicate a partic ular appeal is a question of law, which we review without deference. Kelley v. Merit Sys. Prot. Bd. , 241 F.3d 1368, 1369 (Fed. Cir. 2001). The Board’s jurisdiction is not plenary, but is limited to those matters over which it has been given jurisdiction by l aw, rule, or regulation. Johnston v. Merit Sys. Prot. Bd. , 518 F.3d 905, 909 (Fed. Cir. 2008). An appellant has the burden to establish the Board’s jurisdiction by a preponderance of the evidence. Garcia v. Dep’t of Homeland Sec. , 437 F.3d 1322, 1344 (F ed. Cir. 2006) (en banc); 5 C.F.R. § 1201.56(a)(2)(i). A prepo nderance of the evidence is that “degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likel y to be true than untrue.” 5 C.F.R. § 1201.56(c)(2).

On appeal, McDaniel argues that the Board applied the wrong law and failed to take into account relevant fact s

. Although h e states that the Board identified the AJ’s application of the wrong legal sta ndard in the first appeal

, that of a fully recovered individual

, he does not point to any

error in the Board’s subsequent analysis under the partia lly recovered individual standard. McDaniel further co ntends that , in the second appeal, the Board failed to takeNATHANIEL MCDANIEL v. MSPB 6

into account the fact that he made a request for r estora tion
i n his August 10, 2010 letter

. The government responds that the Board correctly di smissed McDaniel’s petition s . The government contend s that

, although the Board acknowledged the AJ’s use of the

wrong standard, the Board remedied that by applying the partially recovered individual standard. The government further notes that McDaniel appears to be conflating the appeals. The government contends that the August 10, 2010 letter formed th e basis for the first appeal so the Board utilized it in that appeal. The second appeal , howe ver, dealt with the May 29, 2009 letter from OWCP that was treated as a separate request for restoration. Thus, the government states, the Board correctly limite d the August 10, 2010 letter to the first appeal.

We agree with the government that the Board properly denied McDaniel’s petition s for review for lack of jurisdi ction

. First, a lthough McDaniel argues that the Board applied the wrong law, the Board corrected that error by analyzing McDaniel’s allegations under the partially reco vered standard. Second, in order to establish jurisdiction over a restoration claim as a partially recovered individual, the appellant must prove by preponderan t evidence that

, among other things, the denial was arbitrary and capr icious because of USPS ’s failure to perform its obligations under 5 C.F.R. § 353.301(d) , requiring USPS to “make every effort to restore [the employee] in the local commu ting area[.] ” Bledsoe v. M er it Sys. Prot. Bd. , 659 F.3d 1097, 1104 (Fed. Cir. 2011). The Board found that USPS had received McDaniel’s August 10, 2010 letter stating that he could return to partial work and

, immediately thereafter, received Dr. Goldsmith’s August 11, 2010 report ind icating that McDaniel could assume full work duties. T he Board held that USPS did not act arbitrarily and capriciously when denying McDaniel’s request because they were dea ling with conflicting information regarding the petitioner’sNATHANIEL MCDANIEL v. MSPB 7

ability to work

. Fina l Order at 8 (citing Hardy v. U.S.P.S.

, 104 M.S.P.R. 387, ¶21, aff’d , 250 F. App’x 332 (Fed. Cir. 2007); Bynum v. U.S.P.S. , 112 M.S.P.R. 403, ¶22 (2009), aff’d , 382 F. App’x 934 (Fed. Cir. 2010)).

Further, 5 C.F.R. § 353.30(d) requires USPS to “make every effort to restore [the employee] in the local commu ting area [.] ” However, as the Board noted, no positions were available in the relevant area at the time of McDaniel’s request. See Final Order at 10 (citing a sworn declaration by USPS st ating “that [USPS] has not hired in any relevant positions at the three relevant facilities since August 2007” ). We see no reason to disturb the Board’s determin ation that McDaniel failed to make a non

- frivolous allegation of jurisdiction.

McDaniel further argues that the Board failed to take into account his August 10, 2010 letter requesting restor ation when dismissing the second appeal . The Board di smissed the second appeal because the M ay 29, 2009 letter from OWCP , the basis of the second appeal, “did not const itute a request for restoration because it was not a letter from [McDaniel]

. ” Final Order at 11 (citing Wright v. U.S. Postal. Serv. , 62 M.S.P.R. 122, 126, aff’d , 42 F.3d 1410 (Fed. Cir. 1994)). The August 10, 2010 letter fro m McDa niel was separately dealt with in the first appeal. The Board specifically noted the differ ences in these letters when stating , in response to McDaniel’s similar allegations to the Board, that “the appellant’s August 10, 2010 letter reques ting resto ration is the subject of the [first] appeal and is irrelevant to the [second] appeal.” Final Order at 10. The Board thus properly dealt with the August 10, 2010 letter and we see no reason to disturb the Board’s determination.NATHANIEL MCDANIEL v. MSPB 8

We have considered McDa niel’s remaining arguments and conclude that they are without merit. For the foreg oing reasons, the decision of the Board is

AFFIRMED

C OSTS

No costs.