       NOTE: This disposition is nonprecedential.


United States Court of Appeals for
       the Federal Circuit
                ______________________

              NATHANIEL MCDANIEL,
                    Petitioner,

                           v.

      MERIT SYSTEMS PROTECTION BOARD,
                  Respondent,

                         AND

        UNITED STATES POSTAL SERVICE,
                    Intervenor.
              ______________________

                      2012-3183
                ______________________

   Petition for Review of the Merit Systems Protection
Board in No. SF0353110075-I-2.
                 ______________________

                Decided: March 8, 2013
                ______________________

       NATHANIEL MCDANIEL, of Los Angeles, California,
pro se.
     CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
2                                NATHANIEL MCDANIEL   v. MSPB
DC, for respondent. With him on the brief was KEISHA
DAWN BELL, Acting General Counsel.
       BARBARA E. THOMAS, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for intervenor. With her on
the brief were STUART F. DELERY, Principal Deputy Assis-
tant Attorney General, JEANNE E. DAVIDSON, Director, and
STEVEN J. GILLINGHAM, Assistant Director.
                  ______________________

     Before LOURIE, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
     Nathaniel McDaniel (“McDaniel”) appeals from the
final order of the Merit Systems Protection Board (“the
Board”) dismissing both of his petitions for review for lack
of jurisdiction. See McDaniel v. United States Postal Serv.,
No. SF-0353-11-0075-I-2 (M.S.P.B. Sept. 2, 2011) (“075
Initial Decision”); McDaniel v. United States Postal Serv.,
No. SF-353-11-0167-I-2 (M.S.P.B. Sept. 2, 2011) (“167
Initial Decision”); (M.S.P.B. June 28, 2012) (“Final Order”).
Because the Board did not err in dismissing McDaniel’s
petitions for lack of jurisdiction, we affirm.
                        BACKGROUND
    McDaniel was employed as a part-time flexible distri-
bution clerk at a United States Postal Service (“USPS”)
facility in Altadena, California. On December 28, 2004,
USPS terminated McDaniel based on a charge of Failure to
Follow Instructions/Failure to Report as Scheduled/Absence
Without Leave. In August 2003, prior to his removal by the
Postal Service, McDaniel filed a claim for disability benefits
with the Department of Labor’s Office of Worker’s Compen-
sation Program (“OWCP”). On March 17, 2006, OWCP
accepted McDaniel’s claim with a May 19, 2003 date of
injury.
 NATHANIEL MCDANIEL   v. MSPB                           3
     On May 29, 2009, OWCP informed USPS that McDan-
iel’s treating physician had indicated he could work with
restrictions, and it invited USPS to offer McDaniel light
duty if such employment was available. USPS did not offer
such a position to McDaniel. On August 10, 2010, McDan-
iel sent a letter to USPS requesting restoration and citing
OWCP’s May 29, 2009 letter. On August 11, 2010, McDan-
iel’s psychiatrist, Dr. Goldsmith, prepared and submitted a
written report to OWCP stating that McDaniel’s “work-
related adjustment disorder ha[d] resolved” and that
McDaniel was able to return to work so long as it was in
one of three locations: Los Angeles, CA; Manhattan Beach,
CA; or El Segundo, CA. USPS searched for an available
position in those three locations but, on September 16,
2010, notified McDaniel that no positions were available.
Further, on August 20, 2010, in response to Dr. Goldsmith’s
report, OWCP proposed to terminate McDaniel’s disability
benefits because of Dr. Goldsmith’s conclusion that he had
recovered from his adjustment disorder.
    On October 25, 2010, McDaniel appealed to the Board,
asserting that the Postal Service impermissibly refused to
restore him to employment in response to his August 10,
2010 letter, and that his removal constituted unlawful
discrimination. The administrative judge (“AJ”) issued an
Order to Show Cause on December 2, 2010, notifying the
petitioner that the Board may lack jurisdiction over his
appeal and informing him of the applicable law. In re-
sponse, McDaniel asserted that OWCP’s May 29, 2009
letter inviting USPS to provide him with light duty consti-
tuted a request for restoration and that USPS had arbitrar-
ily and capriciously denied that request. Because OWCP’s
letter included restrictions according to which McDaniel
could return to light duty work and encouraged USPS to
offer him such work, the AJ treated that letter as a sepa-
rate request for restoration and docketed a second appeal.
4                                NATHANIEL MCDANIEL   v. MSPB
    The AJ subsequently dismissed both appeals for lack of
jurisdiction. With respect to the first appeal, the AJ, apply-
ing the standard to establish jurisdiction for fully recovered
former employees, determined that McDaniel had failed to
make a non-frivolous allegation that he had been denied
restoration due to the employment of another person over
himself. 075 Initial Decision at 8. With respect to the
second appeal, the AJ determined that because OWCP’s
May 29, 2009 letter to USPS, which formed the basis of the
second appeal, was a request by OWCP and was not a
request by McDaniel, he had failed to make non-frivolous
allegations that he, himself, had requested restoration prior
to his August 10, 2010 letter. 167 Initial Decision at 6–7.
Because the AJ determined that the Board lacked jurisdic-
tion over both appeals, the AJ also dismissed McDaniel’s
pendent claims alleging that his removal had constituted
unlawful discrimination on the ground that the Board
lacked independent jurisdiction over those affirmative
defenses. 075 Initial Decision at 10; 167 Initial Decision at
6.
     McDaniel petitioned for review by the full Board. After
consolidating both appeals, the Board affirmed both dis-
missals for lack of jurisdiction. Final Order at 9, 11. With
respect to the first appeal, however, the Board added that
the proper legal standard governing McDaniel’s claim was
that which is applicable to partially recovered—not fully
recovered—former employees. Final Order at 7. Neverthe-
less, the Board concluded that the appeal was properly
dismissed for lack of jurisdiction because McDaniel had
failed to make a non-frivolous allegation (sufficient to
entitle him to a jurisdictional hearing) that USPS’s denial
of his August 10, 2010 request for restoration was arbitrary
and capricious. Final Order at 8–9. The initial decisions of
the AJ, as modified by the Board’s partially recovered
former employee analysis, thus became the decision of the
Board.
 NATHANIEL MCDANIEL   v. MSPB                              5
   McDaniel appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
                        DISCUSSION
       The scope of our review in an appeal from a Board
decision is limited. We can only set aside the Board’s
decision if 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); see Briggs v.
Merit. Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Whether the Board has jurisdiction to adjudicate a particu-
lar appeal is a question of law, which we review without
deference. Kelley v. Merit Sys. Prot. Bd., 241 F.3d 1368,
1369 (Fed. Cir. 2001). The Board’s jurisdiction is not
plenary, but is limited to those matters over which it has
been given jurisdiction by law, rule, or regulation. John-
ston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir.
2008). An appellant has the burden to establish the
Board’s jurisdiction by a preponderance of the evidence.
Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1344 (Fed.
Cir. 2006) (en banc); 5 C.F.R. § 1201.56(a)(2)(i). A prepon-
derance of the evidence is that “degree of relevant evidence
that a reasonable person, considering the record as a whole,
would accept as sufficient to find that a contested fact is
more likely to be true than untrue.”            5 C.F.R. §
1201.56(c)(2).
    On appeal, McDaniel argues that the Board applied the
wrong law and failed to take into account relevant facts.
Although he states that the Board identified the AJ’s
application of the wrong legal standard in the first appeal,
that of a fully recovered individual, he does not point to any
error in the Board’s subsequent analysis under the partial-
ly recovered individual standard. McDaniel further con-
tends that, in the second appeal, the Board failed to take
6                               NATHANIEL MCDANIEL   v. MSPB
into account the fact that he made a request for restoration
in his August 10, 2010 letter.
    The government responds that the Board correctly dis-
missed McDaniel’s petitions. The government contends
that, although the Board acknowledged the AJ’s use of the
wrong standard, the Board remedied that by applying the
partially recovered individual standard. The government
further notes that McDaniel appears to be conflating the
appeals. The government contends that the August 10,
2010 letter formed the basis for the first appeal so the
Board utilized it in that appeal. The second appeal, howev-
er, dealt with the May 29, 2009 letter from OWCP that was
treated as a separate request for restoration. Thus, the
government states, the Board correctly limited the August
10, 2010 letter to the first appeal.
    We agree with the government that the Board properly
denied McDaniel’s petitions for review for lack of jurisdic-
tion. First, although McDaniel argues that the Board
applied the wrong law, the Board corrected that error by
analyzing McDaniel’s allegations under the partially recov-
ered standard. Second, in order to establish jurisdiction
over a restoration claim as a partially recovered individual,
the appellant must prove by preponderant evidence that,
among other things, the denial was arbitrary and capri-
cious because of USPS’s failure to perform its obligations
under 5 C.F.R. § 353.301(d), requiring USPS to “make
every effort to restore [the employee] in the local commut-
ing area[.]” Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097,
1104 (Fed. Cir. 2011). The Board found that USPS had
received McDaniel’s August 10, 2010 letter stating that he
could return to partial work and, immediately thereafter,
received Dr. Goldsmith’s August 11, 2010 report indicating
that McDaniel could assume full work duties. The Board
held that USPS did not act arbitrarily and capriciously
when denying McDaniel’s request because they were deal-
ing with conflicting information regarding the petitioner’s
 NATHANIEL MCDANIEL   v. MSPB                             7
ability to work. Final Order at 8 (citing Hardy v. U.S.P.S.,
104 M.S.P.R. 387, ¶21, aff’d, 250 F. App’x 332 (Fed. Cir.
2007); Bynum v. U.S.P.S., 112 M.S.P.R. 403, ¶22 (2009),
aff’d, 382 F. App’x 934 (Fed. Cir. 2010)).
     Further, 5 C.F.R. § 353.30(d) requires USPS to “make
every effort to restore [the employee] in the local commut-
ing area[.]” However, as the Board noted, no positions were
available in the relevant area at the time of McDaniel’s
request. See Final Order at 10 (citing a sworn declaration
by USPS stating “that [USPS] has not hired in any relevant
positions at the three relevant facilities since August
2007”). We see no reason to disturb the Board’s determina-
tion that McDaniel failed to make a non-frivolous allegation
of jurisdiction.
    McDaniel further argues that the Board failed to take
into account his August 10, 2010 letter requesting restora-
tion when dismissing the second appeal. The Board dis-
missed the second appeal because the May 29, 2009 letter
from OWCP, the basis of the second appeal, “did not consti-
tute a request for restoration because it was not a letter
from [McDaniel].” Final Order at 11 (citing Wright v. U.S.
Postal. Serv., 62 M.S.P.R. 122, 126, aff’d, 42 F.3d 1410
(Fed. Cir. 1994)). The August 10, 2010 letter from McDan-
iel was separately dealt with in the first appeal. The Board
specifically noted the differences in these letters when
stating, in response to McDaniel’s similar allegations to the
Board, that “the appellant’s August 10, 2010 letter request-
ing restoration is the subject of the [first] appeal and is
irrelevant to the [second] appeal.” Final Order at 10. The
Board thus properly dealt with the August 10, 2010 letter
and we see no reason to disturb the Board’s determination.
8                             NATHANIEL MCDANIEL   v. MSPB
    We have considered McDaniel’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the decision of the Board is
                        AFFIRMED
                           COSTS
    No costs.
