N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________
SCOTT ANTHONY THOMPS ON, 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

______________________
S COTT A NTHONY T HOMPSON , Smyrna, DE, pro se.

S ARA B. R EARDEN , Office of the General Counsel, Me rit Systems Protection Board, Washington, DC , for r espondent

. Also represented by B RYAN G. P OLISUK , K

ATHERINE M. S MITH

.

______________________
Before W ALLACH , T ARANTO , and S TOLL , Circuit Judges.THOMPSON v. MSPB 2

P ER C URIAM

. Petitioner Scott Anthony Thompson filed an appeal with the Merit Systems Protection Board (“MSPB”) cha llenging 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 P ers. 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 r efiled with the MSPB , Mr. Thompson submitted additional documentation supporting his claim. In light of this additional documentation, the OPM rescinded the dec ision finding Mr.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 allow ed the AJ to explain to Mr. Thompson the effect of the OPM’s resci ssion

. 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 decisi on 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 peti tioned 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. O ffice of P ers. M gmt. , 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

D ISCUSSION
I. Standard of Review and Legal Standard

We review determinations of the MSPB ’s juris diction de novo as questions of law an d underlying factual fin dings 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 reg ulation.” 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 jurisdi ction. See generally Pet’r’s Br. It did not. “If [the] OPM completely rescinds a . . . decision, its

re s cission 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 juri sdic tion over his appeal

. S ee generally Pet’r’ s Br. Ther efore

, 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 dismis sing Mr. Thompson’s appeal

.THOMPSON v. MSPB 4

C ONCLUSION Our opinion today does not mean that Mr. Thom pson’s claim to the death benefit has been denied. Mr. Thompson presented new evidence requiring reconsider ation 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