NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-3171 NANCY L. FISHER, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

__________________ _________ DECIDED: December 15, 2004

__________________ _________

Before NEWMAN, CLEVENGER, and GAJARSA, Circuit Judges

. PER CURIAM. Nancy L. Fisher (“Fisher”) appeals from the decision of the Merit Systems Protection Board (“Board”) affirming the dism issal of her appeal from a removal action for lack of jurisdiction because her appeal was previously withdrawn. Fisher v. United States Postal Serv. , DE-0752-03-0359-I-1 (M.S. P.B. Jan. 7, 2004) (“Final Decision”). We affirm

.BACKGROUND Fisher, a cr aft employee of the Postal Se rvice, appealed to the Board on June 5, 2003 based on her removal from the United St ates Postal Ser v ice (“Agency”). The appeal included a claim for the A gency’s f a ilure to restore he r to her original position after recov e ry from a compensable injury (“re storation claim”), as well as claims for discrimination and wr ongful te r m ination. On June 30, 2003, the Administ rative Judge (“AJ”) issu ed an order regarding the Board’s ju risdiction (“Order”) over her appeal. The AJ gave Fisher ten days to submit eviden ce and argument regarding juris d iction over the removal action. In the Or der, the AJ informed Fisher that “cr a ft employees of the Postal Service do not have appeal rights fr om removal actions taken under 5 U.S.C. Chapter 75 unless they are ve terans with preference eligibil ity pursuant to 5 U.S.C. §§ 2108 and 7511(a)(1)(B).” Fisher’s appeal form i ndicates that she is not a veteran. On July 9, 2003, the AJ held a teleconf erence with Fisher’s repr esentative and the Agenc y’s representative. During that conference and in wr itten response to the Order, Fisher’s representative conceded that the Board does not have jurisdiction ov er the removal action and withdrew the appeal a fter being informed that the restoration claim would eventually be addressed. In a Ju ly 10, 2003 order, the AJ infor m ed Fisher that her restoration claim would be addresse d in the three restoration claim appeals she had pending. The next day, July 11, the AJ held in Fisher v. United Stats Postal Serv. , DE0752-03-0359-I-1 (M.S.P.B. July 11, 2003) (“I nitial Decis i on”) that the Board lacked appellate jurisdiction over Fisher ’s removal action bec ause it was previously withdrawn. The Initial Decis i on stated:

04-3171 2[t]he appellant has filed three appeals fr om the agency ’ s alleged f a ilure to restore her after her partial recovery from a compensable injury that are currently dismissed without prejudice (DWOP). When these appeals are reinstated, the appellant’s restoration claims may be fully litigated. If the agency erroneously failed to restore the appellant after her partial recovery from a compensable injury, that will of course take precedenc e over and s upersede t he agency’s action in removing her. The ap pellant’s representative was expressly advised of t he foregoing during a status conference on July 9, 2003. Fisher v. United States Postal Serv. , DE-0752-03-0359-I-1 at *1 n.2 (M.S.P.B. July 11, 2003 Initial Decis i on). On January 7, 2004, the Board is sued its Fi nal Dec i sion denying Fisher’s petition for review, concluding that t here was no new, previous ly unavailable evidenc e, and that the AJ made no error in law or regulation t hat affected the outcome. Fisher timely appealed to this court and we have juri sdiction under 28 U.S.C. § 1295(a)(9). DISCUSSI ON We must affirm the Board unles s we determi ne that its decision is (1) arbitrary, capricious, an abuse of discretion, or otherwis e not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having b een followed; or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (2000). The Board’s precedent states that “[g]enerally, an empl oyee’s withdrawal of an appeal is an act of finality that removes the appeal from the B oard’s jurisdiction, and . . . the Board will not reinstat e an appeal onc e it has been wit hdrawn in the absence of unusual cir c umstances such as misinfo rmation or new and material ev idenc e .” Brown v. Dep’t of the Navy , 71 M.S.P.R. 451, 453-54 (1996). Fisher does not present new and material evidence in support of her reques t for reinstatement of her appeal of the removal ac tion. Instead, she ar gues that her representative did not com m unicate the

04-3171 3withdrawal of her appeal to her and that her representat ive c ould not competently respond d ue to illn e ss. It is well settled, however, that “a person is bound by th e consequences of [her] representative’ s conduct, which includes both [her representative’s] ac ts and omissions.” Rowe v. Merit Sys. Prot. Bd. , 802 F.2d 434, 437 (Fed. Cir. 1986) (citing Link v. Wabash R.R. Co. , 370 U.S. 626, 633-34 (1962)). Moreover, Fisher expressly authorized her representative to make decis i ons on he r behalf when she signed Part II of the B oard’s Appeal Form, Designation of Represent ative. Fisher als o argues that her case should not be dis m issed because this is a “mixed cas e ” and she made allegations of di scrimination. The Board does not have jurisdiction over claims of discrimination unl ess the claims are ra ised in connection with an otherwise appealable action. See Cruz v

. Dep’t of Navy , 934 F.2d 1240, 1245 (Fed. Cir. 1991) (en banc). Since the appeal was withdrawn, the Boar d cannot adjudicate Fisher’s allegations of discrimination in this action. We have considered all of Fisher’s ar guments and hold that t he Board properly concluded that it lacked jurisdiction over Fisher’s appeal becaus e it was previous ly withdrawn. 1 Accordingly, we affir m

.

1 According t o the assertions of t he Agency, the three appeals filed by Ms. Fisher alleging that the Agency failed to res t ore her to duty that were dismiss e d without prejudice have been rein stated and adjudicated. See Fisher v. United Sta t es Postal Serv. , M.S

. P.B. Docket Nos. D E -0353-02- 0393- I-1, DE-0353-03-0072-I-3, and DE0353-03-0231-I-3, slip op. (I nitial Decision, June 29, 2004, whic h became the Final Decis i on of the Board on August 3, 2004).

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