                 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
                                      2006-3152

                                 ANN H. FLOWERS,

                                                      Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                      Respondent.

                           ___________________________

                           DECIDED: September 13, 2006
                           ___________________________

Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit
Judge.

RADER, Circuit Judge.

      The Merit Systems Protection Board (Board) dismissed for lack of jurisdiction the

appeal of Ann H. Flowers against the United States Postal Service for denying her

request for restoration following a compensable injury. Flowers v. U.S. Postal Serv.,

MSPB Docket No. Ch-0353-05-0114-I-1. Finding no reversible error, this court affirms.

                                           I

      On October 7, 1994, the Office of Workers Compensation Programs (OWCP)

accepted Ms. Flowers’ claim that she suffered from major depression. The claim

identified April 6, 1992 as the date of the injury. On September 28, 1995, her physician

advised that she was able to return to work. On May 3, 1996 the Postal Service offered

Ms. Flowers reinstatement subject to her commitment to enroll in an Employee
Assistance Program and other conditions. Ms. Flowers rejected the offer and filed an

equal employment opportunity (EEO) grievance protesting the conditions. The EEO

grievance was rejected. Ms. Flowers, nonetheless, continued to receive compensation

benefits.

       On December 16, 2002, the OWCP discontinued benefits because Ms. Flowers

had “failed to provide medical evidence/argument supporting continued work related

residuals of her April 6, 1992 injury on or after December 16, 1996.” On August 5, 2003

Ms. Flowers’ doctor approved her return to work and in September 2003 Ms. Flowers

requested reinstatement.    After corresponding with the Postal Service regarding its

failure to reinstate her, Ms. Flowers filed another grievance with the EEO on November

10, 2003. The agency denied this claim as well.

                                           II

       Whether the Board has jurisdiction to adjudicate a particular appeal is a question

of law, which this court reviews de novo. Herman v. Dep’t of Justice, 193 F.3d 1375,

1378 (Fed. Cir. 1999); Middleton v. Dep’t of Defense, 185 F.3d 1374, 1379 (Fed. Cir.

1999). Ms. Flowers has the burden of establishing jurisdiction before the Board by a

preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2) (2006); Clark v. United States

Postal Serv., 989 F.2d 1164, 1167 (Fed. Cir. 1993).

       A separated employee’s rights to reinstatement after a compensable injury

depends on the recovery of the injured or disabled employee. An employee who fully

recovers from a compensable injury within one year from the date of eligibility for

compensation is entitled to immediate and unconditional restoration to the former

position or an equivalent. 5 C.F.R. § 353.301(a)(2005). However, an employee who




2006-3152                                  2
separated because of a compensable injury and whose full recovery takes longer than

one year from the date eligibility for compensation receives priority consideration,

agencywide, for restoration to the position he or she left or an equivalent provided he or

she applies for reappointment within thirty days of the cessation of compensation. 5

C.F.R. § 5 CFR 353.301(b)(2005)(emphasis added). An employee is fully recovered

when compensation payments have been terminated on the basis that the employee is

able to perform all the duties of the vacated position. 5 C.F.R. § 353.102(b).

       Ms. Flowers argues § 353.301(a) applies because she indicated she was able to

go back to work on September 28, 1995, within one year of the OWCP accepting her

disability claim.   As noted by the Board, however, § 353.301(a) only applies if the

employee is fully recovered.     That is, “when compensation payments have been

terminated.” § 353.102(b). Ms. Flowers continued to collect compensation benefits

until December 16, 2002, some ten years after the April 6, 1992 compensable injury

date. Therefore, § 301(a) cannot apply.

       Regarding the possibility of reinstatement under § 353.301(b), the critical date to

request reinstatement is January 15, 2003, thirty days after the discontinuation of

OWCP benefits. Ms. Flowers, however, did not request reinstatement until September

of 2003, some ten months after the critical date. Thus, she is not eligible reinstatement

under § 353.301(b).

       As a result, as the Board found, Ms. Flowers is not eligible for reinstatement

under either § 353.301(a) or § 353.301(b). Therefore, this court affirms the Board’s

decision.




2006-3152                                   3
