NOTE: This disposition is nonprecedential.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 

______________________ 

NATHANIEL MCDANIEL, of Los Angeles, California, 

pro se. 

CALVIN M. MORROW, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 
2 NATHANIEL MCDANIEL v. MSPB

DC, for respondent. With him on the brief was KEISHA 

DAWN BELL, Acting General Counsel. 

BARBARA E. THOMAS, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for intervenor. With her on 

the brief were STUART F. DELERY, Principal Deputy Assistant Attorney General, JEANNE E. DAVIDSON, Director, and 

STEVEN J. GILLINGHAM, Assistant Director. 

______________________ 

Before LOURIE, BRYSON, and DYK, Circuit Judges.

PER CURIAM. 

Nathaniel McDaniel (“McDaniel”) appeals from the 

final order of the Merit Systems Protection Board (“the 

Board”) 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. 

BACKGROUND

McDaniel was employed as a part-time flexible distribution 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

Without Leave. In August 2003, prior to his removal by the 

Postal Service, McDaniel filed a claim for disability benefits 

with the Department of Labor’s Office of Worker’s Compensation 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 McDaniel’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, McDaniel sent a letter to USPS requesting restoration and citing 

OWCP’s May 29, 2009 letter. On August 11, 2010, McDaniel’s psychiatrist, Dr. Goldsmith, prepared and submitted a 

written report to OWCP stating that McDaniel’s “workrelated 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 

position 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. Goldsmith’s conclusion that he had 

recovered from his adjustment disorder. 

On October 25, 2010, McDaniel appealed 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 response, McDaniel asserted that OWCP’s May 29, 2009 

letter inviting USPS to provide him with light duty constituted a request for restoration and that USPS had arbitrarily 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, the AJ treated that letter as a separate request for restoration and docketed a second appeal. 
4 NATHANIEL MCDANIEL v. MSPB

The AJ subsequently dismissed both appeals for lack of 

jurisdiction. With respect to the first appeal, the AJ, applying the standard to establish jurisdiction for fully recovered 

former employees, determined that McDaniel had failed to 

make a non-frivolous allegation that he had been denied 

restoration 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 August 10, 2010 letter. 167 Initial Decision at 6–7. 

Because the AJ determined that the Board lacked jurisdiction over both appeals, the AJ also dismissed McDaniel’s 

pendent claims alleging that his removal had constituted 

unlawful discrimination on the ground 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 dismissals 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. Nevertheless, the Board concluded that the appeal was properly 

dismissed for lack of jurisdiction because McDaniel had 

failed to make a non-frivolous allegation (sufficient to 

entitle him to a jurisdictional hearing) that USPS’s denial 

of his August 10, 2010 request for restoration was arbitrary 

and capricious. Final Order at 8–9. The initial decisions of 

the AJ, as modified by the Board’s partially recovered 

former employee analysis, thus became the decision of the 

Board.
 NATHANIEL MCDANIEL v. MSPB 5

McDaniel appealed to this court. We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION

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 required 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 particular 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 law, 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 (Fed. 

Cir. 2006) (en banc); 5 C.F.R. § 1201.56(a)(2)(i). A preponderance 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 likely 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 facts. 

Although he states that the Board identified the AJ’s 

application of the wrong legal standard 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 partially recovered individual standard. McDaniel further contends that, in the second appeal, the Board failed to take 
6 NATHANIEL MCDANIEL v. MSPB

into account the fact that he made a request for restoration 

in his August 10, 2010 letter. 

The government responds that the Board correctly dismissed McDaniel’s petitions. The government contends 

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 the basis for the first appeal so the 

Board utilized it in that appeal. The second appeal, however, 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 limited the August 

10, 2010 letter to the first appeal. 

We agree with the government that the Board properly 

denied McDaniel’s petitions for review for lack of jurisdiction. First, although McDaniel argues that the Board 

applied the wrong law, the Board corrected that error by 

analyzing McDaniel’s allegations under the partially recovered standard. Second, in order to establish jurisdiction 

over a restoration claim as a partially recovered individual, 

the appellant must prove by preponderant evidence that, 

among other things, the denial was arbitrary and capricious 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 commuting area[.]” Bledsoe v. Merit 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 indicating 

that McDaniel could assume full work duties. The Board 

held that USPS did not act arbitrarily and capriciously 

when denying McDaniel’s request because they were dealing with conflicting information regarding the petitioner’s 
 NATHANIEL MCDANIEL v. MSPB 7

ability to work. Final 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 commuting 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 stating “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 determination 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 restoration when dismissing the second appeal. The Board dismissed the second appeal because the May 29, 2009 letter

from OWCP, the basis of the second appeal, “did not constitute 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 from McDaniel was separately dealt with in the first appeal. The Board 

specifically noted the differences in these letters when 

stating, in response to McDaniel’s similar allegations to the 

Board, that “the appellant’s August 10, 2010 letter requesting restoration 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. 
8 NATHANIEL MCDANIEL v. MSPB

We have considered McDaniel’s remaining arguments 

and conclude that they are without merit. For the foregoing reasons, the decision of the Board is 

AFFIRMED

COSTS

No costs.