                     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


                                          06-3034

                                    JAMES B. HICKOK,

                                                                         Petitioner,

                                              v.

                          UNITED STATES POSTAL SERVICE,

                                                                         Respondent.

                             __________________________

                             DECIDED: May 8, 2006
                             __________________________


Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and PROST,
Circuit Judge.

PER CURIAM.


          James B. Hickok seeks review of the final decision of the Merit Systems

Protection Board (Board) dismissing his appeal from the refusal of the United States

Postal Service (agency) to restore him to his previous EAS-21 level position. Hickok v.

U.S. Postal Serv., No. DE035304225-I-1 (Merit Sys. Prot. Bd. Sept. 12, 2005). We

affirm.

                                               I

          As of October 29, 1999, Mr. Hickok held the position of Manager of Customer

Service at the Sandy, Utah, Post Office. The position carried a pay grade of EAS-21.

On that date, Mr. Hickok suffered a panic attack which resulted in his absence from
work for medical reasons. He remained absent until December of 2000 when he was

provided a temporary assignment. Information supplied to the agency by Mr. Hickok

made it clear that he was unable to return to the Sandy, Utah, location and to perform

the duties of his level EAS-21 position. Mr. Hickok unsuccessfully sought to establish

that his October 29, 1999, panic attack was a compensable injury.

       On April 23, 2001, the agency issued Mr. Hickok a Notice of Proposed

Downgrade and Reassignment, to an EAS-16 position as a Supervisor of Distribution

Operations in the agency's Salt Lake City facility. The stated reason for the agency's

action was Mr. Hickok's inability to perform his Sandy, Utah, position. The proposed

downgrade and reassignment would take effect on June 2, 2001.

       On June 1, 2001, however, Mr. Hickok suffered another panic attack. He filed a

worker's compensation claim based on the June 1 panic attack, which was initially

denied by the Office of Workers' Compensation Programs in the Department of Labor

(OWCP). In further proceedings, however, OWCP on November 24, 2003, accepted

the June 1, 2001 incident as a compensable injury.

       Mr. Hickok thereafter requested the agency to restore him to a limited duty

assignment. When that effort failed, Mr. Hickok filed his appeal with the Board.

                                             II

       The law provides that an agency must make “every effort to restore in the local

commuting area . . . an individual who has partially recovered from a compensable

injury and who is able to return to limited duty . . . ." 5 C.F.R. § 353.301(d) (2005).

Mr. Hickok falls within the definition of a partially recovered person, as he has partially




06-3034                                  2
recovered from his compensable injury, the June 1 panic attack, but he is “not ready to

resume the full range of his . . . regular duties . . . ." 5 C.F.R. § 353.102 (2005).

       The appeal rights to the Board of an employee claiming violation of restoration

rights as a partially recovered individual are set forth in 5 C.F.R. § 353.304(c):

       An individual who is partially recovered from a compensable injury may
       appeal to [the Board] for a determination of whether the agency is acting
       arbitrarily and capriciously in denying restoration.

       The Board has interpreted this regulation, specifying the precise showing an

employee must make to invoke the Board's jurisdiction under section 353.304(c). In

particular, to establish jurisdiction over a restoration claim as a partially recovered

employee, the appellant 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. Chen v. U.S.

Postal Serv., 97 M.S.P.R. 527, 533 (2004).

                                              III

       The administrative judge assigned to Mr. Hickok's appeal held that Mr. Hickok

failed to make a nonfrivolous allegation that he was absent from his EAS-21 position in

Sandy, Utah, due to a compensable injury. Mr. Hickok had sought to establish with

OWCP that his first panic attack was a compensable injury, but he failed in that effort.

The administrative judge found that after Mr. Hickok's first panic attack, he was not

capable of ever returning to the EAS-21 position and that the agency properly put him in

the Salt Lake City position. Further, the administrative judge found that the agency was

unaware of any compensable injury at the time it proposed and sustained Mr. Hickok's




06-3034                                   3
demotion and reassignment. In short, Mr. Hickok was not absent from his position due

to a compensable injury. Consequently, the administrative judge held that Mr. Hickok's

asserted violation of restoration rights must fail. His appeal thus was dismissed.

       Mr. Hickok unsuccessfully sought review by the Board of the initial decision by

the administrative judge, thereby making the decision of the administrative judge the

final decision of the Board for purposes of appeal to this court. Mr. Hickok timely sought

review in this court.

                                             IV

       We must affirm the final decision of the Board unless we determine that it is

arbitrary, capricious, and abuse of discretion or otherwise not in accordance with law.

Where the Board's final decision rests on findings of fact, those findings must be

supported by substantial evidence. 5 U.S.C. § 7703(c) (2000).

       In order for Mr. Hickok to establish jurisdiction of the Board over his restoration

claim, he must allege facts, which if proven, would show that he was absent from his

position due to a compensable injury.         The facts found by the Board are that

Mr. Hickok's only compensable injury occurred on June 1, 2001, after the agency had

proposed and finalized its action that demoted and transferred Mr. Hickok.            The

agency's action resulted from the failure of Mr. Hickok to be able to perform his EAS-21

position. That failure may well have been due to the cause and effect of the first panic

attack, but the first panic attack has not been credited by OWCP as a compensable

injury. The administrative judge expressly found that Mr. Hickok did not show that his

absence from the EAS-21 position was due to the June 1 panic attack. It is clear that

Mr. Hickok's absence resulted from the earlier panic attack. Without a compensable




06-3034                                  4
injury as the cause for absence, a claim by a partially recovered employee for

restoration must fail as a matter of law.

       Mr. Hickok argues that OWCP's determination that the June 1 incident produced

a compensable injury must mean that as of June 1 he qualified for restoration as a

person who could not work due to a compensable injury. This argument overlooks the

fact that Mr. Hickok was unable to perform the EAS-21 position because of the first

panic attack, which was not a compensable injury. Even though Mr. Hickok sustained a

compensable injury on June 1, while he was absent from the EAS-21 position, he has

not made a nonfrivolous allegation that his continued absence after June 1 was a result

of the June 1 panic attack and not a result of the first panic attack. Thus, because

Mr. Hickok has not made a nonfrivolous allegation that he was absent from his position

as a result of a compensable injury, the Board correctly determined that it does not have

jurisdiction over this case.

       We discern no error in the law applied by the Board to the facts of this case, and

we conclude that the facts underlying the Board's decision are supported by substantial

evidence.     Mr. Hickok's arguments to the contrary, which we have considered, are

unavailing.

       The final decision of the Board is therefore affirmed.




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