Montalvo v. MSPB , 683 F. App'x 951 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VICTORINO MONTALVO, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-1081
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-831M-16-0268-I-1.
______________________
Decided: April 7, 2017
______________________
VICTORINO MONTALVO, JR., Orlando, FL, pro se.
CALVIN M. MORROW, Office of the General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by BRYAN G.
POLISUK, KATHERINE M. SMITH.
______________________
Before LOURIE, MOORE, and HUGHES, Circuit Judges.
PER CURIAM.
2 MONTALVO v. MSPB
Victorino Montalvo, Jr. appeals from a final decision
of the Merit Systems Protection Board (the “Board”)
dismissing his appeal for lack of jurisdiction. Because the
Board lacked jurisdiction to hear Mr. Montalvo’s appeal,
we affirm.
BACKGROUND
Mr. Montalvo retired from the U.S. Postal Service in
April 1999 and immediately began receiving disability
retirement benefits. On January 18, 2006, the U.S. Office
of Personnel Management (“OPM”) informed
Mr. Montalvo that as of June 2002, he was no longer
eligible to receive disability benefits and had been over-
paid for four years. OPM requested Mr. Montalvo repay
all overpayments.
Mr. Montalvo responded to OPM’s letter on Febru-
ary 1, 2006, asking OPM to waive its demand for repay-
ment due to financial hardship. OPM did not respond
until September 15, 2015, requesting additional infor-
mation regarding Mr. Montalvo’s finances. After receiv-
ing the additional materials, OPM denied his request for
reconsideration on December 17, 2015.
Mr. Montalvo appealed OPM’s decision to the Board.
One month later, OPM sent a letter to the presiding
administrative judge stating that “[b]ased on existing case
law, OPM has rescinded its December 17, 2015 final
decision.” The letter also indicated OPM would issue a
new final decision regarding Mr. Montalvo’s case after his
appeal to the Board was dismissed. Based on OPM’s
representations in its letter, the administrative judge
dismissed the appeal for lack of jurisdiction.
Mr. Montalvo appealed to the Board, which affirmed the
dismissal.
Mr. Montalvo appeals to our court. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
MONTALVO v. MSPB 3
DISCUSSION
We must affirm a Board decision unless it is:
(1) arbitrary, capricious, an abuse of discretion, or other-
wise 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). Whether the Board has jurisdiction to
adjudicate a case is a question of law, which we review de
novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410
(Fed. Cir. 1995). We review the Board’s factual findings
supporting its jurisdictional determination for substantial
evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998).
OPM rescinded its December 17, 2015 final decision
before the administrative judge or the Board could ad-
dress the merits of Mr. Montalvo’s appeal. As both the
administrative judge and the Board found, once OPM
rescinded its final judgment, the Board was divested of
jurisdiction over Mr. Montalvo’s appeal. See Snyder v.
Office of Pers. Mgmt., 136 F.3d 1474, 1476 (Fed. Cir.
1998). OPM stated it will issue a new decision once
Mr. Montalvo’s current appeal is dismissed. After OPM
issues that new final decision, the Board will have juris-
diction to review the merits of Mr. Montalvo’s case should
he challenge OPM’s substantive decision.
CONCLUSION
The Board’s decision dismissing Mr. Montalvo’s ap-
peal for lack of jurisdiction is affirmed.
AFFIRMED
COSTS
No costs.