Thomas S. Barton v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THOMAS S. BARTON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-1669
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-0353-13-0205-I-4.
______________________
Decided: September 8, 2016
______________________
T HOMAS S. BARTON, East Hampton, NY, pro se.
STEPHEN F UNG, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respond-
ent. Also represented by BRYAN G. P OLISUK.
______________________
Before M OORE, CHEN, and HUGHES , Circuit Judges.
P ER CURIAM .

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BARTON v. MSPB 2
Thomas S. Barton appeals the final decision of the
Merit Systems Protection Board (“Board”) dismissing his
appeal for lack of jurisdiction. Because the Board’s dis-
missal is not arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law, we affirm.
BACKGROUND
Mr. Barton was employed for over 23 continuous
years by the United States Postal Service (“the agency”),
including for over 17 years as a carrier at the East Hamp-
ton, New York Post Office. In March 2006, a coworker,
the union representative at the office, accused Mr. Barton
of vandalizing his personal vehicle. Mr. Barton was
arrested on a misdemeanor charge of criminal mischief,
which was later dismissed without a conviction or guilty
plea. He resigned from his position effective April 14,
2006.
On March 20, 2013, the United States Department of
Labor’s Office of Workers’ Compensation Programs
(“OWCP”) approved Mr. Barton’s claim for Post-
Traumatic Stress Disorder stemming from the 2006
incident (“the OWCP Entitlement Decision”). On May 14,
2013, Mr. Barton sent a letter to the agency requesting
reinstatement because he had fully recovered from his
injury. The agency denied the request the next day,
noting that Mr. Barton’s resignation was voluntary (“the
Agency Decision”).
On May 29, 2013, Mr. Barton petitioned the Board for
review, alleging that the agency violated his restoration
rights when it refused to restore him to his former posi-
tion. Approximately two months later, OWCP advised
Mr. Barton that his compensation claim was denied
because he was unable to submit medical evidence sup-
porting disability during the period claimed (“the OWCP
Benefit Decision”). In August 2013, Mr. Barton informed
the Board that he was disputing the OWCP Benefit
Decision and requested the Board dismiss his appeal of

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BARTON v. MSPB 3
the Agency Decision without prejudice because the OWCP
Benefit Decision could affect his appeal. The Board
granted Mr. Barton’s request and dismissed the appeal
without prejudice.
Mr. Barton’s appeal of the Agency Decision was au-
tomatically refiled on October 28, 2014. Again, Mr. Bar-
ton requested that his appeal be dismissed without
prejudice because his dispute of the OWCP Benefit Deci-
sion was still pending. The Board granted Mr. Barton’s
request and dismissed the appeal without prejudice.
On January 22, 2015, Mr. Barton refiled his appeal of
the Agency Decision, noting that he was receiving medical
compensation benefits from OWCP. A hearing was
scheduled for April. However, on March 24, 2015, the
OWCP issued a notice of proposed rescission of the OWCP
Entitlement Decision based on evidence that the 2006
incident occurred outside the workplace and the perfor-
mance of duty. Upon further review of the evidence,
OWCP also determined that Mr. Barton had not notified
the agency of any work-related injury at the time of his
resignation. Mr. Barton then requested that the Board
cancel the hearing and dismiss his appeal without preju-
dice, and the Board granted his request. On April 27,
2015, the OWCP rescinded the OWCP Entitlement Deci-
sion based on error in the original finding.
Mr. Barton’s appeal of the Agency Decision was again
automatically refiled on October 19, 2015. On December
21, 2015, the Board issued an initial decision dismissing
Mr. Barton’s appeal for lack of jurisdiction, holding that
because the OWCP Entitlement Decision was rescinded,
Mr. Barton had not proven by a preponderance of evi-
dence that he suffered a compensable injury. Mr. Barton
did not petition for review of this decision, and the initial
decision became the Board’s final decision on January 26,
2016.

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BARTON v. MSPB 4
Mr. Barton timely petitioned this court for review.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
We must affirm the Board’s decision unless it was “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); Dela Rosa v. Office of Pers. Mgmt.,
583 F.3d 762, 764 (Fed. Cir. 2009). We review a determi-
nation of the Board’s jurisdiction de novo as a question of
law, and review underlying factual findings for substan-
tial evidence. Parrott v. Merit Sys. Prot. Bd., 519 F.3d
1328, 1334 (Fed. Cir. 2008). Substantial evidence “means
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Consol. Edison Co.
v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938).
Mr. Barton held the burden of establishing the Board’s
jurisdiction by a preponderance of the evidence. 5 C.F.R.
§ 1201.56(b)(ii)(2)(A).
An employee who fully recovers from a compensable
injury after one year “is entitled to priority consideration,
agencywide, for restoration to the position he or she left or
an equivalent one,” provided he applies for restoration in
a timely manner. 5 C.F.R. § 353.301(b); 5 U.S.C.
§ 8151(b)(2). An employee who has been denied restora-
tion may appeal to the Board. 5 C.F.R. § 353.304(b).
However, the employee is only entitled to restoration if he
was separated “as a result of a compensable injury.” Id.
§ 353.103(b).
We hold that the Board properly determined it lacked
jurisdiction on the basis that Mr. Barton was unable to
show by a preponderance of evidence that he was separat-
ed as a result of a compensable injury. Mr. Barton failed
to demonstrate that he had a compensable injury under
5 C.F.R. § 353.103. The Board defines “compensable

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BARTON v. MSPB 5
injury” as a condition “that is accepted by the Office of
Workers’ Compensation Programs as job-related, for
which medical monetary benefits are payable from the
Employees’ Compensation Fund.” Norwood v. United
States Postal Serv., 100 M.S.P.R. 494, 496 (M.S.P.B.
2005). While the OWCP Entitlement Decision served as
substantial evidence that Mr. Barton had a compensable
injury, the OWCP subsequently rescinded that determi-
nation. The Board therefore did not commit any error in
concluding, after rescission of the OWCP Entitlement
Decision, that Mr. Barton could no longer make a non-
frivolous allegation that he suffered a compensable injury.
We have considered Mr. Barton’s remaining argu-
ments and find them to be without merit.
CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED
COSTS
No costs.

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