Thompson v. Merit Systems Protection Board
682 F. App'x 933
Fed. Cir.2017Background
- Thompson appealed an OPM decision denying him his grandmother’s federal death benefit to the MSPB; an AJ initially dismissed the appeal without prejudice to allow Thompson to gather more documentation.
- Thompson refiled and submitted additional evidence; OPM rescinded its ineligibility determination and asked the AJ to dismiss the MSPB appeal for lack of jurisdiction.
- OPM waived the ex parte prohibition so the AJ could explain the rescission to Thompson; Thompson acknowledged understanding and did not object to dismissal.
- The AJ issued an initial decision dismissing the appeal as the OPM rescission divested the MSPB of jurisdiction; the MSPB denied review and affirmed.
- Thompson appealed to the Federal Circuit challenging the MSPB’s dismissal.
Issues
| Issue | Thompson's Argument | OPM/MSPB's Argument | Held |
|---|---|---|---|
| Whether MSPB erred by dismissing for lack of jurisdiction after OPM rescinded its decision | MSPB should retain jurisdiction to resolve his claim despite OPM rescission | OPM rescission removes the MSPB’s jurisdiction over the appeal and requires dismissal | MSPB dismissal affirmed: rescission divests MSPB of jurisdiction |
Key Cases Cited
- Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097 (Fed. Cir. 2011) (standard of review: jurisdiction reviewed de novo; factual findings for substantial evidence)
- Van Wersch v. Dep’t of Health & Human Servs., 197 F.3d 1144 (Fed. Cir. 1999) (MSPB’s jurisdiction is limited to matters specifically entrusted by statute or regulation)
- Frank v. Office of Pers. Mgmt., 113 M.S.P.R. 164 (2010) (complete rescission of an agency decision divests MSPB jurisdiction and requires dismissal)