Thompson v. MSPB , 682 F. App'x 933 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SCOTT ANTHONY THOMPSON,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1038
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0831-15-0076-I-2.
______________________
Decided: April 5, 2017
______________________
SCOTT ANTHONY THOMPSON, Smyrna, DE, pro se.
SARA B. REARDEN, Office of the General Counsel, Mer-
it Systems Protection Board, Washington, DC, for re-
spondent. Also represented by BRYAN G. POLISUK,
KATHERINE M. SMITH.
______________________
Before WALLACH, TARANTO, and STOLL, Circuit Judges.
2 THOMPSON v. MSPB
PER CURIAM.
Petitioner Scott Anthony Thompson filed an appeal
with the Merit Systems Protection Board (“MSPB”) chal-
lenging the U.S. Office of Personnel Management’s (“the
OPM”) decision finding him ineligible to receive his
grandmother’s death benefit. An MSPB administrative
judge (“AJ”) dismissed Mr. Thompson’s appeal without
prejudice to allow Mr. Thompson additional time to collect
the requisite documentation to support his claim. See
Thompson v. Office of Pers. Mgmt., No. PH-0831-15-0076-
I-1 (M.S.P.B. May 26, 2015) (Resp’t’s App. 10–11).
After Mr. Thompson’s appeal was automatically re-
filed with the MSPB, Mr. Thompson submitted additional
documentation supporting his claim. In light of this
additional documentation, the OPM rescinded the deci-
sion finding Mr. Thompson ineligible for the benefit and
requested that the AJ dismiss Mr. Thompson’s appeal for
lack of jurisdiction. The OPM also waived the prohibition
against ex parte communication and allowed the AJ to
explain to Mr. Thompson the effect of the OPM’s rescis-
sion. Mr. Thompson stated that he understood and did
not object to the MSPB’s dismissal of his appeal.
The AJ then issued an initial decision finding that the
OPM’s rescission of its decision divested the MSPB of
jurisdiction over Mr. Thompson’s appeal and dismissing
the appeal. See Thompson v. Office of Pers. Mgmt., No.
PH-0831-15-0076-I-2 (M.S.P.B. Apr. 14, 2016) (Resp’t’s
App. 7–9). Mr. Thompson petitioned for MSPB review of
the Initial Decision, and the MSPB issued a final order
denying Mr. Thompson’s petition for review and affirming
the Initial Decision. See Thompson v. Office of Pers.
Mgmt., No. PH-0831-15-0076-I-2, 2016 WL 5389595
(M.S.P.B. Sept. 26, 2016).
Mr. Thompson appeals the MSPB’s Final Order. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9)
(2012). We affirm.
THOMPSON v. MSPB 3
DISCUSSION
I. Standard of Review and Legal Standard
We review determinations of the MSPB’s jurisdiction
de novo as questions of law and underlying factual find-
ings for substantial evidence. Bledsoe v. Merit Sys. Prot.
Bd., 659 F.3d 1097, 1101 (Fed. Cir. 2011). The MSPB’s
jurisdiction “is not plenary”; it is “limited to those matters
specifically entrusted to it by statute, rule, or regulation.”
Van Wersch v. Dep’t of Health & Human Servs., 197 F.3d
1144, 1147 (Fed. Cir. 1999); 5 C.F.R. § 1201.3(a) (2016).
The appellant bears the burden of establishing the
MSPB’s jurisdiction by a preponderance of the evidence.
5 C.F.R. § 1201.56(b)(2)(i)(A).
II. The MSPB Properly Dismissed Mr. Thompson’s Appeal
The sole issue on appeal is whether the MSPB erred
by dismissing Mr. Thompson’s appeal for lack of jurisdic-
tion. See generally Pet’r’s Br. It did not.
“If [the] OPM completely rescinds a . . . decision, its
rescission divests the [MSPB] of jurisdiction over the
appeal in which that . . . decision is at issue, and the
appeal must be dismissed.” Frank v. Office of Pers.
Mgmt., 113 M.S.P.R. 164, 166 (2010) (citation omitted).
Because the OPM rescinded its decision finding Mr.
Thompson ineligible for the death benefit, the MSPB did
not have jurisdiction to adjudicate Mr. Thompson’s appeal
and was required to dismiss it. Id. Mr. Thompson has
not identified erroneous factual findings by the MSPB,
nor has he demonstrated that the MSPB retained juris-
diction over his appeal. See generally Pet’r’s Br. There-
fore, Mr. Thompson has not satisfied his burden pursuant
to 5 C.F.R. § 1201.56(b)(2)(i)(A), and we find that the
MSPB did not err by dismissing Mr. Thompson’s appeal.
4 THOMPSON v. MSPB
CONCLUSION
Our opinion today does not mean that Mr. Thomp-
son’s claim to the death benefit has been denied. Mr.
Thompson presented new evidence requiring reconsidera-
tion by the OPM of his death benefit claim. Resp’t’s App.
8–9, 20. Because the OPM must consider Mr. Thompson’s
new evidence first, the MSPB was required to dismiss Mr.
Thompson’s appeal to allow the OPM to consider that new
evidence. If Mr. Thompson does not like the OPM’s
decision upon consideration of this new evidence, he may
file a new appeal at the MSPB. Id. at 9. Accordingly, the
MSPB correctly dismissed Mr. Thompson’s appeal, and
the Final Order of the Merit Systems Protection Board is
AFFIRMED