                       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

                                           04-3286

                                       ALAN DANIELS,

                                                                       Petitioner,

                                              v.

                          UNITED STATES POSTAL SERVICE,

                                                                       Respondent.

                           ___________________________

                           DECIDED: January 6, 2005
                           ___________________________


Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.

PER CURIAM.

      Petitioner Alan Daniels (“Daniels”) petitions for review of the final decision of the

Merit Systems Protection Board (the “Board”), upholding his removal by respondent, the

United States Postal Service (“USPS”).       Daniels v. USPS, No. CH-0752020701-I-1

(M.S.P.B. Mar. 18, 2004). We affirm.

                                    BACKGROUND

      Daniels was employed by the USPS as a letter carrier. In 1997, he injured his

right knee at work and received benefits from the Office of Workers Compensation

Programs (“OWCP”). He returned to USPS employment in May 1999, in a limited duty

position with carrier duties and clerk craft duties.     In August 2000, he accepted a

schedule award and thereafter, in June 2001, Daniels ceased receiving compensation

from OWCP.
        In November 2001, the USPS sought to reassign Daniels to a modified position

consisting of only clerk craft duties. The agency offered Daniels this new position in a

letter dated November 13, 2001.        Daniels refused to even read this letter.        He

complained that the modified position had not been certified by the OWCP as within his

physical limitations.    USPS then sought an OWCP ruling on the suitability of the

modified position.      OWCP refused to make any ruling on suitability, stating that,

because Daniels was no longer in receipt of compensation, it was OWCP policy not to

make suitability determinations in such circumstances. (Resp’t App. at 41.)

        After OWCP’s refusal to rule on the suitability of the modified position, the USPS

again offered Daniels the modified position on December 5, 2001. The USPS advised

Daniels that, if he did not accept the modified position, he could either take annual leave

or leave without pay, but he could no longer continue his prior assignment. Daniels

elected to take leave without pay.

        In the meantime, Daniels filed a notice of recurrence with the OWCP on

November 16, 2001, claiming that he had to seek treatment for his left knee. OWCP

denied his claim for compensation, finding that there was no evidence either of a

recurrent disability or of any causal relationship between Daniels’ claimed disability and

the prior injury to his right knee. This OWCP determination was made on March 18,

2002.

        The USPS then issued a letter on March 26, 2002, instructing Daniels “to

immediately report to work, accepting the job offer that was presented . . . in November

2001, or provide . . . acceptable medical documentation” to substantiate his absence.

(Resp’t App. at 34 (emphasis omitted).) The USPS further warned that failure to comply




04-3286                                  2
would result in Daniels being charged as being absent without official leave (“AWOL”)

and action would be taken to remove him from the USPS. Daniels failed to respond to

this letter.

        The agency thereafter, on May 28, 2002, proposed Daniels’ removal on a charge

of being AWOL. Daniels did not make any written reply to the proposed removal but

met with the deciding official, where he stated his continued refusal to accept the

modified position until his claims had been adjudicated by the OWCP. The deciding

official found that Daniels had no pending claims before OWCP, that he was AWOL,

and that his removal promoted the efficiency of the service. The removal therefore

became effective on July 12, 2002.

        Daniels appealed his removal to the Board. The administrative judge found that

Daniels had been AWOL; that his removal promoted the efficiency of the service; and

that the penalty was reasonable.     The administrative judge also dismissed Daniels’

claim that he was not obliged to accept the modified position until a OWCP suitability

determination had been made, finding that the agency had no obligation to clear the

assignment of new duties with OWCP after Daniels accepted the schedule award.

(Resp’t App. at 9.) The administrative judge therefore upheld the removal. The full

Board affirmed.

        Daniels petitions for review in this court. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                     DISCUSSION

        The Board’s decision must be affirmed unless it is found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained




04-3286                                 3
without procedures required by law, rule or regulation; or unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2000); Carreon v. Office of Pers. Mgmt., 321 F.3d 1128,

1130 (Fed. Cir. 2003).

                                            I

      The core of Daniels’ argument is that the agency never secured an OWCP ruling

on the suitability of the modified position, and that he could not be compelled to accept

the modified position without such a ruling. In effect, Daniels is arguing that he was

separated because of compensable injury and that he is being deprived of his

restoration rights under 5 U.S.C. § 8151.

      We held in New v. Dep’t of Veterans Affairs, 142 F.3d 1259, 1265 (Fed. Cir.

1998), that “when an agency removes an employee who has a compensable injury

solely for refusal to return to work in the absence of a suitability determination by the

OWCP, a sufficient nexus exists between the compensable injury” to give the employee

restoration rights. However, “[s]uch nexus . . . depends upon the employee’s continuing

compensable injury at the time of . . . removal.”     Id.   Once the employee ceases

receiving compensation, OWCP no longer has any role to play.          Thereafter, for an

employee to prove that he was discharged because of compensable injury, the

employee must establish the unsuitability of the offered position through medical

evidence. See Walley v. Dep’t of Veterans Affairs, 279 F.3d 1010, 1018-20 (Fed. Cir.

2002) (employee bears burden of proving that absence was due to compensable injury).

Daniels has not presented any evidence that the position was unsuitable.




04-3286                                 4
                                             II

       Daniels argues that there were a number of procedural defects in his removal.

We conclude that none of his contentions has merit.

       Daniels contends that the decision on proposed removal erroneously stated that:

“According to the Office of Workers Compensation the job offer presented to you was

within your restrictions.” (Resp’t App. at 22.) Any error by the agency in making the

quoted statement is irrelevant. As explained above, because Daniels was no longer

receiving compensation, there was no need for any OWCP suitability determination to

effect his removal. Rather, as the Board found, the agency needed only show that

Daniels was absent as charged and that the decision to deny leave was appropriate.

(Resp’t App. at 8.) The Board found both elements proved, and its finding is supported

by substantial evidence.    There is no basis to disturb the Board’s decision in this

respect.

       Daniels also contends that the Board found two different dates for his alleged

absence.    He points out that the administrative judge found “the agency charged

[Daniels] with AWOL for each day he was absent from April 7, 2002 to the date of the

proposal notice, May 28, 2002,” but then concluded that “the agency appropriately

charged him with AWOL from April 7 to June 28, 2002.” (Resp’t App. at 8-9.) Though

the seeming confusion in the Board’s findings is regrettable, it is also irrelevant. Daniels

cannot point to a different result whether his AWOL period ended on May 28 or June 28.

The Board found that the removal was reasonable compared to other employees who

were removed for being AWOL for two weeks, nineteen days, or twenty days. The

Board’s findings are supported by substantial evidence.




04-3286                                  5
      Lastly, Daniels argues that the agency’s refusal to allow him to continue his old

assignment after December 5, 2001, constituted a constructive suspension that would

have permitted him to appeal to the Board. This argument has no significance since no

such appeal was taken.

                                    CONCLUSION

      For the foregoing reasons, the decision of the Board is affirmed.

                                        COSTS

      No costs.




04-3286                                6
