                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                       2009-3271


                                   MARTA FABISIAK,

                                                            Petitioner,

                                            v.

                        UNITED STATES POSTAL SERVICE,

                                                            Respondent.


      Marta Fabisiak, of Simi Valley, California, pro se.

       Daniel Rabinowitz, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Deborah A. Bynum, Assistant Director.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit



                                         2009-3271




                                    MARTA FABISIAK,

                                                         Petitioner,

                                              v.

                          UNITED STATES POSTAL SERVICE,

                                                         Respondent.




Petition for review of the Merit Systems Protection Board in SF0353090224-I-1.
                            ___________________________

                              DECIDED: January 14, 2010
                            ___________________________

Before MICHEL, Chief Judge, NEWMAN and RADER, Circuit Judges.


NEWMAN, Circuit Judge.

       Ms. Marta Fabisiak appeals the decision of the Merit Systems Protection Board,

Docket No. SF-0353-09-0224-I-1, dismissing her appeal for lack of jurisdiction. We affirm

the dismissal, not on jurisdictional grounds, but for failure to establish the premises of her

claim that she was wrongfully denied restoration to light duty employment.
                                         BACKGROUND

       Ms. Fabisiak was employed as a city letter carrier with the United States Postal

Service (“agency”). On January 17, 2001 she sustained a work-related injury that the

Office of Worker’s Compensation Programs (“OWCP”) determined to be compensable.

Although the date is not stated in the record, at some time before September 18, 2008 Ms.

Fabisiak advised the agency that she had partially recovered and was able to return to light

duty work, and requested that the agency reinstate her to a position within her physical

capabilities. The manager of the Post Office where Ms. Fabisiak had worked completed a

document entitled “Job Offer – Priority for Assignment Compliance Verification,” dated

September 18, 2008, and wrote that Ms. Fabisiak’s medical restrictions were too severe for

any type of work at her former facility or any other postal facility. The record shows that on

October 30 an email was sent to the agency’s surrounding facilities inquiring whether a

position was available within Ms. Fabisiak’s medical restrictions. Each of the responses

received was negative. On November 24, 2008 the agency advised the OWCP vocational

rehabilitation counselor that it would not be able to offer Ms. Fabisiak a position at her

former facility or any agency facility within her commuting distance. The OWCP notified

Ms. Fabisiak of the agency’s decision on December 16, 2008.

       On January 10, 2009 Ms. Fabisiak filed an appeal with the MSPB, challenging the

agency’s denial of her request for reinstatement. On February 25, 2009 she filed a motion

to dismiss her appeal without prejudice, stating that she was “medical Temporary Totally

disab[led],” and “not able to resume any job.” She also requested a six-month delay of the

Board’s proceedings, apparently as an alternative to dismissal. The agency then moved to

dismiss the appeal for lack of jurisdiction. The agency argued that in order for the Board to




2009-3271                                     2
have jurisdiction of her restoration appeal, Ms. Fabisiak was required to make a non-

frivolous allegation that she was sufficiently recovered to return to duty on a part-time basis,

or to return to work in a position with less demanding physical requirements than those of

her previous position. Ms. Fabisiak opposed the motion, stating that she was able to

resume such activity at the time she requested restoration, and that the agency was

required to provide such restoration at that time.

       On March 2, 2009, the administrative judge (AJ) held a telephonic conference,

during which Ms. Fabisiak again stated that she was currently temporarily totally disabled

and unable to work. After another telephonic conference, the AJ provided Ms. Fabisiak

with a summary of the applicable law, including the Board’s requirement that a partially

recovered employee must allege facts which if proven would show: (1) the appellant was

absent from his position due to a compensable injury; (2) sufficient recovery to qualify for

either part-time work or less demanding work; (3) the appellant's request for restoration

was denied; and (4) the denial was arbitrary and capricious. These criteria are set forth in

Chen v. United States Postal Service, 97 M.S.P.R. 527, 533 (2004). The record shows no

response by Ms. Fabisiak, and on May 13, 2009 the AJ dismissed the appeal for lack of

jurisdiction, on the ground that Ms. Fabisiak admitted that she was unable to resume part-

time work, light duty work, or work in another position with the agency. The full Board

denied review.

      Ms. Fabisiak appeals to this court, stating that she was subject to retaliation and

discrimination, requests “corrective action to make me whole and compensate me for any

damages incurred,” and refers to various costs, benefits, and losses for the period during

which she states she should have been returned to limited duty.




2009-3271                                      3
                                           DISCUSSION

       Review of decisions of the Board is established by 5 U.S.C. §7703(c), which

provides that the “court shall review the record and hold unlawful and set aside any agency

action, findings, or conclusions found 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.”

Jurisdiction is a matter of law, which this court reviews de novo. Forest v. Merit Sys. Prot.

Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).

       Federal employees who have partially recovered from injuries sustained at the

workplace and are able to return to limited duty have certain restoration rights. The

regulation, 5 C.F.R. §§353.301(d), provides that “[a]gencies must make every effort to

restore in the local commuting area, according to the circumstances in each case, an

individual who has partially recovered from a compensable injury and who is able to return

to limited duty.” The appeal rights of such an employee are set forth in 5 C.F.R. §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.

In implementation of its restoration obligations for a partially recovered employee, “[a]t a

minimum, this would mean treating these employees substantially the same as other

handicapped individuals under the Rehabilitation Act of 1973, as amended.” 5 C.F.R.

§353.301(d).

       The agency argued, and the Board held, that since Ms. Fabisiak did not meet all of

the Chen criteria at the time of her appeal, the Board did not have jurisdiction to review the

agency’s earlier denial of restoration. The agency states that since Ms. Fabisiak was not




2009-3271                                     4
able to assume part time or light duty work at the time of her appeal, the Board properly

dismissed the appeal on jurisdictional grounds. The agency also argues that the medical

records relied on by Ms. Fabisiak to show that she was partially recovered at the time she

requested reinstatement are inconclusive, and points out that a doctor found her to be

totally disabled on December 18, 2008, which was before Ms. Fabisiak’s appeal to the

Board on January 10, 2009. The agency states that the recurrence of her total disability,

and the equivocal nature of the records on which she relies, support the agency’s decision.

       We agree that the record does not show, even prima facie, that Ms. Fabisiak had

recovered sufficiently to return to part time or light duty. On this basis, the Board correctly

affirmed the agency’s ruling. However, this Board decision was on the merits of the appeal,

not as a matter of jurisdiction. The Board did not lose jurisdiction to review the agency

action on the premise that the employee did not meet the Chen criteria at the time of

appeal. The Chen criteria apply to the time of the agency action, not the time of appeal.

The Board has jurisdiction to determine whether reinstatement was wrongfully denied, at

the time that reinstatement was requested.

       Board precedent is in accord with this principle, for the Board has held that wrongful

denial of restoration can incur recovery of lost remuneration, although the employee later

cannot return to work. In Estate of Kravitz v. Dep’t of the Navy, 110 M.S.P.R. 97 (2008),

the employee died during the Board appeal, and the Board held that the appeal could

proceed and that “if the appellant's estate prevails, it will be entitled to remuneration for

back pay, interest and benefits representing the appellant's retroactive placement pursuant

to his restoration request.” Id. at 99, n.1. The right to compensation did not depend on the

ability of the employee to return to work at the time of the appeal.




2009-3271                                     5
      As discussed ante, the agency also argues that Ms. Fabisiak’s request for

reinstatement was fully considered in light of her medical limitations, including review of

possible placement at other postal facilities within her commuting area. Ms. Fabisiak does

not dispute these arguments and the conclusions of the agency’s administrators, or provide

any support for her general statement of “discrimination.” We discern no support in the

record for her argument that the agency action was arbitrary or capricious, in concluding

that it did not have a position to accommodate her medical and physical requirements at

the time she sought restoration. On this ground, which is supported by uncontradicted

evidence of reasonable attempts of accommodation, the Board’s decision is affirmed.

      No costs.




2009-3271                                   6
