NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

GARY P. THOMPSON,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2021-2036

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0752-21-0019-I-1.

______________________ 

Decided: January 18, 2022

______________________ 

GARY P. THOMPSON, Gig Harbor, WA, pro se. 

 ELIZABETH WARD FLETCHER, Office of General Counsel, 

United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by TRISTAN L.

LEAVITT, KATHERINE MICHELLE SMITH. 

 ______________________ 

Before PROST, CHEN, and HUGHES, Circuit Judges. 

PER CURIAM. 

Case: 21-2036 Document: 18 Page: 1 Filed: 01/18/2022
2 THOMPSON v. MSPB

Gary Paul Thompson appeals a decision of the Merit 

Systems Protection Board dismissing his case for lack of 

jurisdiction. We affirm.

I 

Mr. Thompson worked for the Department of the Navy 

as a Sheet Metal Work Leader. He applied for disability 

retirement with the Office of Personnel Management, 

which approved his application on August 27, 2018. OPM 

awarded Mr. Thompson a 60% disability computation that 

is only available to applicants aged 62 or under, even 

though Mr. Thompson was 69 years old at the time of his 

application. OPM started sending payments to Mr. Thompson in September 2018. Mr. Thompson, seemingly aware of 

this mistake, called OPM several times in the first week of 

September 2018 to verify he could accept the payments. 

OPM assured Mr. Thompson that there would be no problems and told him to “relax and enjoy retirement.” S.A. 2.1

On February 19, 2019, OPM notified Mr. Thompson 

that the payments he had received were erroneous and that 

OPM had overpaid him $5,432.48. Mr. Thompson first filed 

a claim against OPM in Gary P. Thompson v. OPM, No. SF0845-19-0702-I-1 (M.S.P.B. July 20, 2019), challenging 

OPM’s assessment of an overpayment. Mr. Thompson and 

OPM subsequently settled, terminating the appeal. 

S.A. 22–23.

Mr. Thompson then filed a claim against his employing 

agency, the Navy, on October 8, 2020, alleging that his disability retirement was involuntary because OPM had misrepresented his retirement benefits. In response, the Navy

pointed out that Mr. Thompson “placed responsibility for 

his involuntary retirement on misinformation, not from his 

employing agency, [the Navy,] but from the OPM.” S.A. 9. 

1 S.A. refers to the supplemental appendix attached 

to the Respondent’s brief.

Case: 21-2036 Document: 18 Page: 2 Filed: 01/18/2022
THOMPSON v. MSPB 3

The Board dismissed Mr. Thompson’s appeal, determining 

that the record was devoid of any evidence that the retirement was the product of (1) misinformation or deception by

the Navy or (2) coercion by the Navy. S.A. 9–10 (citing 

Terban v. Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 

2000)). The Board concluded that “without a nonfrivolous 

allegation that a Navy agency official gave [Mr. Thompson] 

misinformation, [Mr. Thompson] cannot . . . show that his 

retirement was involuntary.” S.A. 10. 

Mr. Thompson appeals. We have jurisdiction under 5 

U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).

II

We set aside a Board decision only if it is “(1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or 

(3) unsupported by substantial evidence.” 5 U.S.C. 

§ 7703(c). We review de novo the Board’s conclusion that it 

lacks jurisdiction. Bryant v. MSPB, 878 F.3d 1320, 1325 

(Fed. Cir. 2017). 

III

While the Board has jurisdiction over involuntary removals, 5 U.S.C. §§ 7512(1), 7513(d), an employee’s decision to retire is “presumed voluntary” unless the employee 

“comes forward with sufficient evidence to establish that

the . . . [retirement] was involuntarily extracted.” RosarioFabregas v. MSPB, 833 F.3d 1342, 1346 (Fed. Cir. 2016)

(alteration in original) (quoting Garcia v. Dep’t of Homeland Sec., 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc)). 

To establish that retirement was involuntary, the employee must show that the retirement “was the product of 

(1) misinformation or deception by the agency or (2) coercion by the agency.” Id.

Mr. Thompson has not produced evidence that the 

Navy misinformed, deceived, or coerced Mr. Thompson into 

Case: 21-2036 Document: 18 Page: 3 Filed: 01/18/2022
4 THOMPSON v. MSPB

retiring. In fact, Mr. Thompson stated he has “no issues” 

with the Navy but has “a lot of issues” with OPM. S.A. 8–

9. Because this appeal is against the Navy, not OPM, 

Mr. Thompson has not overcome the presumption that his 

retirement was voluntary, and the Board does not have jurisdiction.

IV

Because Mr. Thompson did not allege facts supporting 

the Board’s jurisdiction, we affirm.

AFFIRMED

COSTS

No costs.

Case: 21-2036 Document: 18 Page: 4 Filed: 01/18/2022