NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

DAVID SHU,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2017-1440

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0353-15-0515-I-1.

______________________ 

Decided: May 12, 2017

______________________ 

DAVID SHU, Las Vegas, NV, pro se.

SARA B. REARDEN, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by BRYAN G. POLISUK, 

KATHERINE M. SMITH. 

______________________ 

Before PROST, Chief Judge, LOURIE, and STOLL, Circuit Judges.
2 SHU v. MSPB

PER CURIAM. 

David Shu appeals a final decision of the Merit Systems Protection Board. Because the Board properly 

dismissed Mr. Shu’s claims for lack of jurisdiction, we 

affirm.

BACKGROUND

The facts related to this appeal involve several prior 

or overlapping proceedings. Mr. Shu began working for 

the United States Postal Service as a Part-Time Flexible 

Letter Carrier in March 2002. In 2003, he suffered a 

compensable injury, after which he was absent from work 

and removed by the agency without leave for irregular 

attendance/absence. Mr. Shu requested reinstatement in 

March 2009 and ultimately returned to duty as a FullTime Letter Carrier in November 2010. After multiple 

appeals and remands, the Administrative Judge (“AJ”) in 

Mr. Shu’s case ordered, inter alia, that the Postal Service 

provide Mr. Shu service credit for the entire period of 

absence, from December 12, 2003 to November 6, 2010. 

Shu v. U.S. Postal Serv., SF-0353-11-0065-B-2, slip op. 

(M.S.P.B. Sept. 25, 2014) (“Shu B-2”). The AJ’s initial 

decision became the final decision of the Board on October 

30, 2014. Mr. Shu later filed a petition for enforcement

challenging the Postal Service’s compliance with the 

decision in Shu B-2, which as of December 21, 2016, is 

still pending before the Board. 

On September 27, 2013, the Postal Service issued 

Mr. Shu an Emergency Placement in Off-Duty Status 

letter for failure to report a September 21, 2013 vehicle 

accident involving an agency vehicle and a privately 

owned vehicle. Shu v. U.S. Postal Serv., SF-0752-14-

0011-I-1, 2014 WL 5424298, at *2 (M.S.P.B. Oct. 23, 

2014). Mr. Shu appealed to the Board, asserting, inter 

alia, that his prior failure to restore claim was the real 

reason for the emergency placement. The AJ dismissed 

the appeal, finding that Mr. Shu had failed to nonfrivo-
SHU v. MSPB 3

lously allege jurisdiction over the appealed matter on any 

basis. Specifically, as to Mr. Shu’s allegation that the 

emergency placement was connected to his pending 

restoration claim, the AJ found that the “record reflect[ed] 

that the emergency placement was based on an unreported September 21, 2013 motor vehicle accident in a government vehicle, a matter substantially unrelated to a 

compensable injury.” Id. at *3. The Board affirmed the 

AJ’s dismissal of the appeal.

On November 4, 2013, Mr. Shu was issued a notice of 

removal for Unacceptable Conduct/Failure to Report an 

Accident occurring on September 21, 2013. In 2015, an 

arbitrator found just cause for the removal. Mr. Shu then 

appealed his removal to the Board. After receiving an 

order setting forth the jurisdictional burdens, Mr. Shu 

argued that the Board had jurisdiction under 5 C.F.R. 

§ 353.304 because his appealed removal “was not substantially unrelated to his injury and/or the agency had improperly rescinded its prior restoration.” Shu v. U.S. 

Postal Serv., SF-0353-15-0515-I-1, slip op. (M.S.P.B. June 

21, 2016). The AJ issued an order to show cause, explaining that the Board did not appear to have jurisdiction 

over his removal on any basis and ordered Mr. Shu to file 

evidence and/or argument on the issue of jurisdiction.

After receiving Mr. Shu’s response, the AJ issued an 

initial decision dismissing Mr. Shu’s appeal for lack of 

jurisdiction. The AJ found that Mr. Shu failed to nonfrivolously allege Board jurisdiction over his removal as an 

adverse action under Chapter 75 of Title 5. The AJ 

additionally found that the Board did not have jurisdiction over Mr. Shu’s restoration claim because there was 

no evidence in the record to indicate that he suffered a 

compensable injury following his return to work on November 6, 2010, and the record reflected that his removal 

was based on the unreported September 21, 2013 motor 

vehicle accident, a matter substantially unrelated to a 

compensable injury. Mr. Shu petitioned the Board for 
4 SHU v. MSPB

review, but in December 2016 the Board denied the 

petition and affirmed the initial decision. Shu v. U.S. 

Postal Serv., SF-0353-15-0515-I-1, 2016 WL 7335242, at 

*1 (M.S.P.B. Dec. 2, 2016).

Mr. Shu appealed the Board’s December 2016 decision to this court, and we have jurisdiction under 

28 U.S.C. § 1295(a)(9).

DISCUSSION

We review decisions of the Board on a limited basis, 

setting aside Board actions, findings, or conclusions only 

if we find them to be “(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). Whether the 

Board had jurisdiction over Mr. Shu’s claims is a question 

of law that this court reviews de novo. Whiteman v. Dep’t 

of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). Mr. Shu 

bears the burden of establishing the Board’s jurisdiction 

by a preponderance of the evidence. Kahn v. Dep’t of 

Justice, 528 F.3d 1336, 1341 (Fed. Cir. 2008).

The Board’s jurisdiction is limited to those matters 

over which it has been specifically granted jurisdiction by 

a law, rule, or regulation. 5 U.S.C. § 7701(a); Prewitt v. 

Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed. Cir. 1998). 

We find that the Board properly dismissed Mr. Shu’s 

appeal for lack of jurisdiction.

I.

“As a general matter, the Board does not have jurisdiction over adverse actions taken against employees of 

the postal service.” Bolton v. Merit Sys. Prot. Bd., 

154 F.3d 1313, 1316 (Fed. Cir. 1998); see also 5 U.S.C. 

§ 7511(b)(8). In certain circumstances, however, Congress 

has extended Title 5 to cover Postal Service employees. 
SHU v. MSPB 5

Subchapter II of Chapter 75 of Title 5, and thus the 

Board’s jurisdiction, extends: 

(i) to any preference eligible in the Postal Service 

who is an employee within the meaning of section 

7511(a)(1)(B) of such title; and

(ii) to any other individual who— 

(I) is in the position of a supervisor or a 

management employee in the Postal Service, or is an employee of the Postal Service engaged in personnel work in other 

than a purely nonconfidential clerical capacity; and

(II) has completed 1 year of current continuous service in the same or similar positions.

39 U.S.C. § 1005(a)(4)(A). 

Mr. Shu does not allege, and there is nothing in the 

record to suggest, that he is a preference eligible, a management or supervisory employee, or an employee engaged in personnel work in other than a purely 

nonconfidential clerical capacity. Thus, the Board properly found that Mr. Shu did not have the right to challenge 

his removal before the Board as an adverse action appeal 

under Chapter 75 of Title 5. 

II.

Mr. Shu contends, however, that the 2013 removal 

action was an attempt to deprive him of his restoration 

rights stemming from his 2003 compensable injury. 

However, “separation for cause that is substantially 

unrelated to the injury . . . negates restoration rights.” 

5 C.F.R. § 353.108. Thus, “[a]n employee who has been 

removed for cause rather than a compensable injury is not 

entitled to restoration and cannot appeal to the 
6 SHU v. MSPB

Board.” Minor v. Merit Sys. Prot. Bd., 819 F.2d 280, 282 

(Fed. Cir. 1987).

As the Board correctly found, there is no evidence 

demonstrating that Mr. Shu suffered a compensable 

injury following his return to work in 2010 or that his

2013 removal was not substantially unrelated to his 2003 

compensable injury. Rather, the evidence demonstrates 

that his removal was based on an unreported motor 

vehicle accident in September 2013, a matter substantially unrelated to any compensable injury. Thus, Mr. Shu 

has not met his burden of establishing the Board’s jurisdiction over this appeal based on restoration rights.

Finally, Mr. Shu argues that the Postal Service has 

failed to comply with the Board’s decision in Shu B-2. As 

explained above, however, Mr. Shu filed a petition for 

enforcement challenging the Postal Service’s compliance 

with the Shu B-2 decision, which as of December 21, 2016, 

is still pending before the Board. As this issue is pending 

in a separate appeal before the Board, it is not properly 

before us in this appeal. Accordingly, we find that the 

Board properly dismissed Mr. Shu’s appeal in this case for 

lack of jurisdiction.

CONCLUSION

We have carefully considered Mr. Shu’s remaining arguments and determined that they lack merit. For the 

reasons stated above, we affirm.

AFFIRMED

COSTS

No costs.