Lester E. Gilbert v. Merit Systems Protection Board

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
05-3260
LESTER E. GILBERT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: July 14, 2006
__________________________
Before NEWMAN, MAYER, and LINN, Circuit Judges.
PER CURIAM.
Lester E. Gilbert appeals the final decision of the Merit Systems Protection
Board, which dismissed his appeal for lack of jurisdiction. Gilbert v. Dept. of Justice,
SF0353040250-I-1 (MSPB Apr. 27, 2005). We affirm.
We review the board's decision regarding its jurisdiction de novo. King v. Briggs,
83 F.3d 1384, 1387 (Fed. Cir. 1996). The petitioner bears the burden of establishing
the board's jurisdiction by a preponderance of the evidence. Clark v. United States
Postal Serv., 989 F.2d 1164, 1167 (Fed. Cir. 1993); 5 C.F.R. § 1201.56(a)(2). Our
review is limited to setting aside decisions that are arbitrary, capricious, an abuse of
discretion, or unlawful; procedurally deficient; or unsupported by substantial evidence.
See 5 U.S.C. § 7703(c) (2000).
In order to establish jurisdiction for a restoration claim before the board, Gilbert
was required to demonstrate that he was separated from service because of a
compensable injury. See 5 U.S.C. § 8151(b); 5 C.F.R. § 353.301. This requires
showing that his separation was solely attributable to a compensable injury. See Walley
v. Dep’t of Veterans Affairs, 279 F.3d 1010, 1016 (Fed. Cir. 2002); see also New v.
Dep’t of Veterans Affairs, 142 F.3d 1259, 1264-65 (Fed. Cir. 1998) (observing that
removal on grounds unrelated to a compensable injury forecloses a claim for restoration
rights). Here, substantial evidence supports the finding that Gilbert resigned from his
position “in lieu of facing a removal for his admitted misconduct in detonating a bomb in
the workplace.” In particular, Gilbert admitted to his misconduct and resigned the
following day. Although Gilbert’s alleged injury may have contributed to his resignation,
it was not the sole cause. Cf. Minor v. Merit Sys. Prot. Bd., 819 F.2d 280, 282 (Fed. Cir.
1987) (“An employee who has been removed for cause rather than a compensable
injury is not entitled to restoration and cannot appeal to the Board.” (citing Cox v. Merit
Sys. Prot. Bd., 817 F.2d 100, 101 (Fed. Cir. 1987); Miller v. United States Postal Serv.,
3 M.S.P.B. 418, 3 M.S.P.R. 336 (1980)). Although Gilbert argues that his receipt of
benefits from the Office of Workers Compensation Programs (“OWCP”) establishes that
his resignation was due to a compensable injury, OWCP decisions do not bind the
board and, standing alone, are insufficient to establish jurisdiction. See Cox v. Merit
Sys. Prot. Bd., 817 F.2d 100, 101 (Fed. Cir. 1987). Because Gilbert failed to establish
that his separation from service was solely attributable to a compensable injury, the
board properly dismissed his petition.
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