               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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