NOTE: This disposition is nonprecedential.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, Merit Systems Protection Board, Washington, DC, for respondent. 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”) challenging 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 refiled with the MSPB, Mr. Thompson submitted additional 

documentation supporting his claim. In light of this 

additional documentation, the OPM rescinded the decision finding Mr.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 rescission. 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 findings 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 jurisdiction. 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 jurisdiction over his appeal. See generally Pet’r’s Br. Therefore, 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. Thompson’s claim to the death benefit has been denied. Mr. 

Thompson presented new evidence requiring reconsideration 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