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 

06-3043 

NANCY L. FISHER 

Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

__________________________ 

DECIDED: June 8, 2006 

__________________________ 

Before RADER, GAJARSA, and DYK, Circuit Judge, 

PER CURIAM. 

DECISION 

Nancy L. Fisher (“Fisher”) petitions this court for review of the September 1, 2005 

final decision of the Merit Systems Protection Board (“Board”), dismissing, for lack of 

jurisdiction, her appeals of the United States Postal Service’s (“Postal Service”)’s failure 

to restore her to service after partial recovery from a compensable injury. We have 

jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(9). For the reasons stated 

below, we affirm the decision of the Board. 
BACKGROUND 

Fisher was a Rural Carrier for the Postal Service, who suffered an on-the-job 

injury in 1989 and received workers compensation benefits until 1998, when the Office 

of Workers’ Compensation Programs (“OWCP”) determined that there was no objective 

evidence of Fisher’s continuing disability. Consequently, the Postal Service sent Fisher 

a return-to-work packet, which included a request for updated medical information. 

Fisher responded with letters from her doctor that spoke principally to her ability to 

return to work not as a letter carrier, but as a Postmaster, the position in which she 

sought to be “restored.”1

 In fact, the letters made clear that Fisher could not perform the 

regular duties of her original position as a rural carrier. The Postal Service requested 

additional medical information regarding her ability to return to duty as a rural carrier, 

and Fisher subsequently withdrew from the reasonable accommodation process. In 

May 2003, the Post Office removed Fisher from her position because she could not 

perform the duties of letter carrier. Fisher appealed that decision, but subsequently 

withdrew her appeal, and we have elsewhere sustained the MSPB’s subsequent 

dismissal. Fisher v. MSPB, 120 Fed. Appx. 812, 813 (Fed. Cir. 2004) (“Fisher III”). 

This petition for review stems from a series of appeals that Fisher had filed prior 

to her removal from the agency, in which she had contested what she characterized as 

the Postal Service’s failure to properly restore her to duty as a partially recovered 

 1 This sought-after “restoration” would happen to involve quite a promotion, 

apparently from PS-5 or -6 to EAS-15. 

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employee. The Administrative Judge (“AJ”) joined these appeals, and on June 29, 2004 

issued an initial decision, dismissing her claims for failure to state a cause of action 

upon which relief could be granted. See Fisher v. United States Postal Service, 100 

M.S.P.R. 94, Nos. DE-0353-02-0393-I-3, DE-0353-03-0072-I-3, DE-0353-03-0231-I-3 

2005 MSPB LEXIS 5105 (MSPB, September 1, 2005) (“Fisher II”) (describing 

proceedings before the AJ in “Fisher I”). The AJ noted the limited standard of review 

available pursuant to 5 C.F.R. § 353.401(c), now found at § 353.304(c). (“An individual 

who is partially recovered from a compensable injury may appeal to MSPB for a 

determination of whether the agency is acting arbitrarily and capriciously in denying 

restoration.”) (emphasis added). 

He concluded that the Postal Service had not acted arbitrarily and capriciously in 

view of Fisher’s general failure to adequately assist it in restoring her to an appropriate 

position. The AJ also noted that under § 353.301(d) Fisher was only “entitled to be 

considered for the position held at the time of injury, or an equivalent one” and was not 

entitled to be considered for Postmaster. Pursuant to 5 U.S.C. § 8151(b), Fisher must 

be considered for promotion-reinstatement only if “the injury or disability has been 

overcome within one year after the date of commencement of compensation . . . ,” 

which was not the case here. Finally, the AJ found that Fisher had withdrawn her 

disability discrimination claim, and that such a claim, even if not withdrawn, was mooted 

in light of his findings regarding her restoration-based appeals. 

On September 1, 1995, the Board reviewed the initial decision and held on 

appeal that as a result of OWCP’s 1998 determination, Fisher no longer suffered a 

compensable injury. The Board observed that such a determination lay “within the 

06-3043 3
exclusive purview of the OWCP.” Absent a compensable injury, moreover, Fisher could 

not raise a nonfrivolous allegation that the Postal Services had violated her restoration 

rights, and the Board held that this compelled its dismissal of her claims on jurisdictional 

grounds. After reopening Fisher’s claims for restoration prior to the 1998 OWCP benefit 

cut-off, the Board likewise dismissed, finding their filing to have been inexcusably 

untimely. 

DISCUSSION 

We must affirm an MSPB decision unless it is “(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)(1)-(3) (1994). A decision is supported by 

substantial evidence when “a reasonable mind might accept [it] as adequate to support 

a conclusion.” Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. 

Cir. 1984) (internal quotations omitted). 

We can discern no error in the Board’s judgment. Pursuant to 5 C.F.R. 

§ 353.304(c) the Board has jurisdiction only over an appeal from “an individual who is 

partially recovered from a compensable injury . . . for a determination of whether the 

agency is acting arbitrarily and capriciously in denying restoration.” The Board has 

interpreted this regulation, establishing that it requires, as a jurisdictional requisite, a 

partially recovered employee to allege facts which if proven would show: (1) the 

appellant was absent from his position due to a compensable injury and continues to 

receive compensation from OWCP; (2) sufficient recovery to qualify for either part-time 

work or less demanding work; (3) the appellant's request for restoration was denied; 

06-3043 4
and (4) the denial was arbitrary and capricious. Chen v. U.S. Postal Serv., 97 M.S.P.R. 

527, 533 (2004). Because OWCP determined, unreviewably, that Fisher’s injury 

became non-“compensable” as of December 5, 1998, Fisher is unable as a matter of 

law to establish that after December 5, 1998 she was “an individual who is partially 

recovered from a compensable injury.” Therefore, the Board had no jurisdiction to hear 

her claims for restoration as a partially recovered employee submitted after December 

5, 1998, and properly dismissed those claims. We find no merit to Fisher’s arguments 

that the Board erred in finding that she failed to satisfy the Chen test. At the very least, 

there can be no dispute that she was clearly and unmistakably not entitled to 

compensation, under the first prong of Chen. 

Fisher argues that she never withdrew her claims for discrimination or 

accommodation and that the Board therefore erred in premising its dismissal of her 

discrimination claims in part on these findings. Even assuming arguendo that Fisher 

could establish a lack of substantial evidence for the Board’s finding regarding 

withdrawal, the outcome would be unchanged. The Board’s dismissal of Fisher’s 

appeals on jurisdictional and timeliness grounds present a legal bar to the Board’s 

consideration of the discrimination claims. See Cruz v. Department of the Navy, 934 

F.2d 1240, 1243-44 (Fed. Cir. 1991) (en banc) (holding that where there is no 

appealable action over which the Board has jurisdiction, the Board may not adjudicate 

the related discrimination claim). 

Fisher’s argument that she was improperly denied an opportunity for a hearing is 

likewise unpersuasive, especially in view of the AJ’s notation in the initial decision that 

he had personally attempted to persuade Fisher to have a hearing, and she refused. 

06-3043 5
The record also supports the Board’s dismissal of her pre-1998 restoration claims as 

untimely because they were filed on July 31, 2002, more than 30 days after the alleged 

requests, and Fisher has failed to persuade us of her alleged unawareness of her 

appeal rights, let alone that such an awareness could, under the facts of this case, 

excuse her untimely filings. Indeed, in the Petitioner’s Brief at Exh. 13, Fisher admits 

that she “discovered” these rights in 1998, albeit “accidentally.” In conclusion, the 

Board did not err in dismissing her pre-1998 claims based on untimeliness. 

Having reviewed all of Fisher’s alleged allegations of error, including those 

discussed above, we conclude that the Board did not err in its dismissal of Fisher’s 

claims. Accordingly, the decision of the Board is affirmed. 

06-3043 6