Before Mayer, Chief Judge, Newman and Rader, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Rosanna M. Zdunich petitions from a decision of the Merit Systems Protection Board in Case No. SF0752980326-I-1 dismissing her appeal because the board found that Zdunich had not partially recovered from her injury, that the Postal Service's actions in seeking to restore her to duty were not arbitrary and capricious, and that the board did not have jurisdiction over her claim of constructive discharge. We affirm.
The board's jurisdiction is "strictly defined and confined by statute and regulation." Bolton v. Merit Sys. Protection Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998); see 5 U.S.C. § 7701(a) (1996). Similarly, our ability to review the board's decisions is limited by statute. See 5 U.S.C. § 7703(c) (1996). We set aside board findings only if they are found to be "(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." Id. In contrast, the scope of the board's jurisdiction is a legal question which we review de novo. See Bolton, 154 F.3d at 1316. Thus, although we may review without deference the board's Conclusion that it did not have jurisdiction over Zdunich's appeal, its factual determinations are binding unless they are not supported by substantial evidence.
The board has jurisdiction to adjudicate appeals in which appellants, who are partially recovered from compensable injuries, seek to determine "whether the agency is acting arbitrarily and capriciously in denying restoration." See 5 C.F.R. § 353.304. After a full hearing on the merits, the board found that Zdunich failed to prove either a partial recovery or an arbitrary and capricious denial of restoration and dismissed her appeal for lack of jurisdiction. While the board correctly concluded that it could not grant relief on these facts, it should have dismissed her appeal for failure of proof, not for lack of jurisdiction. See Spruill v. Merit Sys. Protection Board, 978 F.2d 679, 687 (Fed. Cir. 1992). ("To the extent a successful claim against the government requires compliance with all statutory elements of the claim, failure of proof of an element of the cause of action means the petitioner is not entitled to the relief he seeks. To conclude in such a case that the petitioner loses because the forum is `without jurisdiction' is to obscure the nature of the defect. It would be more accurate to conclude that the petitioner has failed to prove the necessary elements of a cause for which relief could be granted.") Because the board properly made its factual findings and properly held that Zdunich failed to prove the elements of her claim, we conclude that the error was harmless.
Zdunich takes issue with the board's findings that she was not partially recovered and that the agency's decision was not arbitrary or capricious. The board based both these findings on its determinations of witness credibility, which are virtually unreviewable on appeal. Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). We find nothing in the record in this case to justify reconsidering those determinations. The government, citing Gonzales v. Defense Logistics Agency, 772 F.2d 887, 890-91 (Fed. Cir. 1985), argues that under Fed. R. App. P. 10(b) we may not review the board's findings because Zdunich has not provided the transcript of the board's hearing. However, because Zdunich is not expressly relying on hearing testimony as part of her appeal, the government's argument is moot.
We conclude that the board's findings were supported by substantial evidence. With regard to Zdunich's constructive discharge claim, the board correctly decided that it lacked jurisdiction because she is not a postal employee with appeal rights under 39 U.S.C. § 1005 (a) (4). Therefore, the board properly dismissed her appeal.