Gary P. Thompson v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.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
______________________
G ARY P. T HOMPSON, Gig Harbor, WA, pro se.
ELIZABETH WARD F LETCHER , Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by T RISTAN L.
L EAVITT , K ATHERINE MICHELLE SMITH .
______________________
Before P ROST , CHEN, and HUGHES , Circuit Judges.
P ER CURIAM .
Case: 21-2036 Document: 18 Page: 1 Filed: 01/18/2022

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THOMPSON v. MSPB 2
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. Thomp-
son 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 prob-
lems 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. SF-
0845-19-0702-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 dis-
ability retirement was involuntary because OPM had mis-
represented 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.
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THOMPSON v. MSPB 3
The Board dismissed Mr. Thompson’s appeal, determining
that the record was devoid of any evidence that the retire-
ment 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 ac-
cordance with law; (2) obtained without procedures re-
quired 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 re-
movals, 5 U.S.C. §§ 7512(1), 7513(d), an employee’s deci-
sion to retire is “presumed voluntary” unless the employee
“comes forward with sufficient evidence to establish that
the . . . [retirement] was involuntarily extracted.” Rosario-
Fabregas v. MSPB, 833 F.3d 1342, 1346 (Fed. Cir. 2016)
(alteration in original) (quoting Garcia v. Dep’t of Home-
land Sec., 437 F.3d 1322, 1329 (Fed. Cir. 2006) (en banc)).
To establish that retirement was involuntary, the em-
ployee must show that the retirement “was the product of
(1) misinformation or deception by the agency or (2) coer-
cion 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

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THOMPSON v. MSPB 4
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 ju-
risdiction.
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

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