NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

THOMAS S. BARTON,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2016-1669

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. NY-0353-13-0205-I-4.

______________________ 

Decided: September 8, 2016

______________________ 

THOMAS S. BARTON, East Hampton, NY, pro se.

STEPHEN FUNG, Office of the General Counsel, Merit 

Systems Protection Board, Washington, DC, for respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before MOORE, CHEN, and HUGHES, Circuit Judges.

PER CURIAM. 
2 BARTON v. MSPB

Thomas S. Barton appeals the final decision of the 

Merit Systems Protection Board (“Board”) dismissing his 

appeal for lack of jurisdiction. Because the Board’s dismissal is not arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law, we affirm. 

BACKGROUND

Mr. Barton was employed for over 23 continuous 

years by the United States Postal Service (“the agency”), 

including for over 17 years as a carrier at the East Hampton, New York Post Office. In March 2006, a coworker,

the union representative at the office, accused Mr. Barton 

of vandalizing his personal vehicle. Mr. Barton was 

arrested on a misdemeanor charge of criminal mischief, 

which was later dismissed without a conviction or guilty 

plea. He resigned from his position effective April 14, 

2006.

On March 20, 2013, the United States Department of 

Labor’s Office of Workers’ Compensation Programs 

(“OWCP”) approved Mr. Barton’s claim for PostTraumatic Stress Disorder stemming from the 2006 

incident (“the OWCP Entitlement Decision”). On May 14, 

2013, Mr. Barton sent a letter to the agency requesting 

reinstatement because he had fully recovered from his 

injury. The agency denied the request the next day, 

noting that Mr. Barton’s resignation was voluntary (“the 

Agency Decision”).

On May 29, 2013, Mr. Barton petitioned the Board for 

review, alleging that the agency violated his restoration 

rights when it refused to restore him to his former position. Approximately two months later, OWCP advised 

Mr. Barton that his compensation claim was denied 

because he was unable to submit medical evidence supporting disability during the period claimed (“the OWCP 

Benefit Decision”). In August 2013, Mr. Barton informed 

the Board that he was disputing the OWCP Benefit 

Decision and requested the Board dismiss his appeal of 
BARTON v. MSPB 3

the Agency Decision without prejudice because the OWCP 

Benefit Decision could affect his appeal. The Board 

granted Mr. Barton’s request and dismissed the appeal 

without prejudice.

Mr. Barton’s appeal of the Agency Decision was automatically refiled on October 28, 2014. Again, Mr. Barton requested that his appeal be dismissed without 

prejudice because his dispute of the OWCP Benefit Decision was still pending. The Board granted Mr. Barton’s 

request and dismissed the appeal without prejudice.

On January 22, 2015, Mr. Barton refiled his appeal of 

the Agency Decision, noting that he was receiving medical 

compensation benefits from OWCP. A hearing was 

scheduled for April. However, on March 24, 2015, the 

OWCP issued a notice of proposed rescission of the OWCP 

Entitlement Decision based on evidence that the 2006 

incident occurred outside the workplace and the performance of duty. Upon further review of the evidence, 

OWCP also determined that Mr. Barton had not notified 

the agency of any work-related injury at the time of his 

resignation. Mr. Barton then requested that the Board 

cancel the hearing and dismiss his appeal without prejudice, and the Board granted his request. On April 27, 

2015, the OWCP rescinded the OWCP Entitlement Decision based on error in the original finding.

Mr. Barton’s appeal of the Agency Decision was again 

automatically refiled on October 19, 2015. On December 

21, 2015, the Board issued an initial decision dismissing 

Mr. Barton’s appeal for lack of jurisdiction, holding that 

because the OWCP Entitlement Decision was rescinded, 

Mr. Barton had not proven by a preponderance of evidence that he suffered a compensable injury. Mr. Barton 

did not petition for review of this decision, and the initial 

decision became the Board’s final decision on January 26, 

2016.
4 BARTON v. MSPB

Mr. Barton timely petitioned this court for review. 

We have jurisdiction under 28 U.S.C. § 1295(a)(9).

DISCUSSION

We must affirm the Board’s decision unless 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); Dela Rosa v. Office of Pers. Mgmt., 

583 F.3d 762, 764 (Fed. Cir. 2009). We review a determination of the Board’s jurisdiction de novo as a question of 

law, and review underlying factual findings for substantial evidence. Parrott v. Merit Sys. Prot. Bd., 519 F.3d 

1328, 1334 (Fed. Cir. 2008). Substantial evidence “means 

such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.” Consol. Edison Co. 

v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938). 

Mr. Barton held the burden of establishing the Board’s

jurisdiction by a preponderance of the evidence. 5 C.F.R. 

§ 1201.56(b)(ii)(2)(A).

An employee who fully recovers from a compensable 

injury after one year “is entitled to priority consideration, 

agencywide, for restoration to the position he or she left or 

an equivalent one,” provided he applies for restoration in 

a timely manner. 5 C.F.R. § 353.301(b); 5 U.S.C. 

§ 8151(b)(2). An employee who has been denied restoration may appeal to the Board. 5 C.F.R. § 353.304(b). 

However, the employee is only entitled to restoration if he 

was separated “as a result of a compensable injury.” Id.

§ 353.103(b).

We hold that the Board properly determined it lacked 

jurisdiction on the basis that Mr. Barton was unable to 

show by a preponderance of evidence that he was separated as a result of a compensable injury. Mr. Barton failed 

to demonstrate that he had a compensable injury under 

5 C.F.R. § 353.103. The Board defines “compensable 
BARTON v. MSPB 5

injury” as a condition “that is accepted by the Office of 

Workers’ Compensation Programs as job-related, for 

which medical monetary benefits are payable from the 

Employees’ Compensation Fund.” Norwood v. United 

States Postal Serv., 100 M.S.P.R. 494, 496 (M.S.P.B. 

2005). While the OWCP Entitlement Decision served as 

substantial evidence that Mr. Barton had a compensable 

injury, the OWCP subsequently rescinded that determination. The Board therefore did not commit any error in 

concluding, after rescission of the OWCP Entitlement 

Decision, that Mr. Barton could no longer make a nonfrivolous allegation that he suffered a compensable injury.

We have considered Mr. Barton’s remaining arguments and find them to be without merit.

CONCLUSION

For the foregoing reasons, the decision of the Board is 

affirmed. 

AFFIRMED

COSTS

No costs.