              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.


06-3043                                     2
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.




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