N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ DAVID SHU, Petitioner

v.

MERIT SYSTEMS PROTEC TION 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

______________________

D AVID S HU , Las Vegas, NV, pro se.

S ARA B. R EARDEN , Office of the General Counsel, Me rit Systems Protection Board, Washington, DC, for r espondent. Also represented by B RYAN G. P OLISUK , K

ATHERINE M. S MITH

.

______________________

Before P ROST , Chief Judge, L OURIE , and S TOLL , Ci rcuit Judges

.SHU v. MSPB 2

P ER C URIAM

. David Shu appeals a final decision of the Merit Sy stems Protection Board. Because the Board properly dismissed Mr. Sh u ’s claims for lack of jurisdiction, we affirm.

B ACKGROUND 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 lea ve for irregular attendance/absence. Mr. Shu requested reinstatement in March 2009 and ultimately returned to duty as a Full

Time Letter Carrier in November 2010. After multiple appeals and remands, the Administrative Judge (“AJ”) in Mr. Shu’s case order ed, 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

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- 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 a s of Decem ber 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

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- 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 appea l, fi nding that Mr. Shu had failed to nonfriv o-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 “re cord reflect[ed] that the emergency placement was based on an unrepor ted September 21, 2013 motor vehicle accident in a go vernment 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 appeal ed his removal to th e 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 substa ntially unrelated to his injury and/or the agency had i mproperl y rescinded its prior restoration.” Shu v. U .S. Postal Serv. , SF

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- 0515 -I- 1, slip op. (M.S.P.B. June 21, 2016)

. The AJ issued an order to show cause, explai ning that the Board did not appear to have jurisdiction over his removal on any basis and or dered 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 nonfri volously al lege Board jurisdiction over his remo val as an adverse action under C hapter 75 of Title 5. The AJ additionally found that the Board did not have jurisdi ction 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 N ovember 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 forSHU v. MSPB 4

review, but in December 2016 the Board denied the petition and affirmed the initial decision. Shu v. U .S. Postal Serv. , SF

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- 0515 -I- 1, 2016 WL 7335242, at *1 (M.S.P.B. Dec. 2, 2016).

Mr. Sh u appealed the Board’s Decembe r 2016 dec ision to this court, an d we have jurisdiction under 28 U.S.C. § 1295(a)(9).

D ISCUSSION

We review decisions of the Board on a limited basis,
set ting aside Board actions, findings, or conclusions only if we find them to be “(1) arbitrary, capricio us, 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 evi dence.” 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. K ahn 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 juri sdiction 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 C hapter 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 a ny other individual who — (I) is in the position of a supervisor or a management employee in the Postal Se rvice, or is an employee of the Postal Se rvice engaged in personnel work in other than a purely nonconfidential clerical c apacity; and
(II) has complet ed 1 year of current co ntinuous service in the same or similar p ositions.
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 ma nagement or supervisory employee, or an empl oyee e ngaged in personnel work in other than a purely nonconfidential clerical capacity. Thus, the Board prope rly 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 rest oration 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 theSHU v. MSPB 6

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 substantia lly unrelated to any compensable injury. Thus, Mr. Shu has not met his burden of establishing the Board’s juri sdiction 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

ex plained above, however, Mr. Shu filed a petition for enforcement challenging the Postal Service’s compliance with the Shu B- 2 decision, which a s of Decem ber 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 M r. Shu ’s appeal in this case for lack of jurisdiction.

C ONCLUSION We have carefully considered Mr. Shu’s remaining a rgu ments and determined that they lack merit. For the reasons stated above, we affirm.

AFFIRMED

C OSTS

No costs.