                        NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                        2008-3092

                                  DELBERT A. HAMIEL,

                                                             Petitioner,

                                             v.

                          UNITED STATES POSTAL SERVICE,

                                                             Respondent.

      Delbert A. Hamiel, of Marietta, Georgia, pro se.

       Teresa A. Gonsalves, Attorney, Appellate Division, United States Postal Service, of
Washington, DC, for respondent. On the brief were Jeffrey S. Bucholtz, Acting Assistant
Attorney General, Commercial Litigation Branch, Civil Division, United States Department
of Justice, of Washington DC; and Lori J. Dym, Chief Counsel, and David G. Karro, Trial
Attorney, Appellate Division, United States Postal Service, of Washington, DC. Of counsel
was Leslie Cayer. Ohta, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC.

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                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                     2008-3092

                               DELBERT A. HAMIEL,

                                                           Petitioner,

                                          v.

                        UNITED STATES POSTAL SERVICE,

                                                           Respondent.



Petition for review of the Merit Systems Protection Board in AT0752060252-B-1.

                           __________________________

                             DECIDED: June 17, 2008
                           __________________________


Before NEWMAN, Circuit Judge, PLAGER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.

PER CURIAM.

      Delbert A. Hamiel, a letter carrier with the United States Postal Service

(“agency”), filed an appeal with the Merit Systems Protection Board (“Board”).     He

alleged that he was constructively suspended from May 23, 2005, until August 18, 2005,

the day he was permitted to return to work following treatment for various medical

conditions. The administrative judge found that Mr. Hamiel’s absence from work was

not a constructive suspension and accordingly dismissed the appeal for lack of
jurisdiction. 1 The administrative judge’s initial decision became the final decision of the

Board when the Board denied Mr. Hamiel’s petition for review. 2 We affirm.

         In certain situations, an employee’s absence from work without pay may be

considered a constructive suspension that is appealable to the Board under 5 U.S.C.

§ 7512, which provides that suspensions of more than fourteen days are adverse

actions within the Board’s jurisdiction.    Under Board precedent, one such situation

arises when an employee who is absent from work for medical reasons requests to

return to work with altered duties based on medical restrictions. If the agency is bound

by agency policy, regulation, or contractual provision to offer available light-duty work,

its failure to do so may constitute an appealable constructive suspension. Baker v. U.S.

Postal Serv., 71 M.S.P.R. 680, 691-92 (1996).

         It is undisputed that Mr. Hamiel had shoulder surgery on April 13, 2005, and was

medically cleared to return to work as of May 23, 2005, with a lifting restriction. At the

time, he was also restricted from driving Postal Service vehicles based on an October

2004 diagnosis of narcolepsy.       The administrative judge credited the testimony of

agency personnel, who stated there was no available work that Mr. Hamiel could safely

perform given his medical restrictions. On August 18, 2005, Mr. Hamiel submitted a

Work Capability Certificate signed by Dr. W. James that indicated Mr. Hamiel could

return to work and identified the duties he could perform. Mr. Hamiel returned to work

on that day.

         1
               Hamiel v. U.S. Postal Serv., No. AT-0752-06-0252-B-1 (M.S.P.B. May 23,
2007).
         2
               Hamiel v. U.S. Postal Serv., No. AT-0752-06-0252-B-1 (M.S.P.B. Sept.
10, 2007).
2008-3092                                    2
       Because there was no available light-duty work that Mr. Hamiel could perform

during the period in question, the administrative judge found that the agency did not

impermissibly prevent Mr. Hamiel’s return to work within his medical restrictions.

Therefore, the administrative judge concluded, there had been no constructive

suspension and thus no adverse action within the Board’s jurisdiction.

       Mr. Hamiel argues on appeal that, because the United States Department of

Labor accepted his Office of Workers’ Compensation Programs (“OWCP”) claim, he

should have been allowed to return to work on limited duty. The acceptance of Mr.

Hamiel’s OWCP claim in October 2006, however, does not bear in any way on whether

the agency had light duty work available between May 23, 2005, and August 18, 2005.

Mr. Hamiel also notes that he is a preference eligible employee and a union member

subject to a collective bargaining agreement, but those facts are not relevant to the

issue on appeal.

       Because Mr. Hamiel has not shown that the administrative judge’s decision was

unsupported by substantial evidence or was arbitrary, capricious, or an abuse of

discretion, see 5 U.S.C. § 7703(c), we affirm the Board’s dismissal of his appeal for lack

of jurisdiction.

                                         COSTS

       Each party shall bear its own costs.




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