NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

CECIL ALLEN SANDERS, JR.,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-0845-22-0081-A-1.

-------------------------------------------------

CECIL ALLEN SANDERS, JR.,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent

______________________ 

2023-2243

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT-0845-22-0081-I-1. 

______________________ 

Case: 23-2243 Document: 43 Page: 1 Filed: 09/10/2024
2 SANDERS v. MSPB

Decided: September 10, 2024 

______________________ 

CECIL ALLEN SANDERS, JR., Palm Beach Gardens, FL, 

pro se. 

 ANNE DELMARE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent Office of Personnel Management. 

Also represented by BRIAN M. BOYNTON, DEBORAH ANN 

BYNUM, PATRICIA M. MCCARTHY. 

 KATHERINE MICHELLE SMITH, Office of General Counsel, United States Merit Systems Protection Board, for respondent Merit Systems Protection Board. Also 

represented by ALLISON JANE BOYLE. 

 ______________________ 

Before PROST, TARANTO, and HUGHES, Circuit Judges.

PER CURIAM. 

Cecil Allen Sanders, Jr., petitions for review of two 

Merit Systems Protection Board (“Board”) decisions. In the 

I-1 case,1 the Board dismissed Mr. Sanders’s appeal for 

lack of jurisdiction. In the A-1 case,2 the Board denied 

Mr. Sanders’s petition for attorney fees that he allegedly 

incurred in the I-1 case. We affirm both Board decisions.

BACKGROUND

On October 26, 2021, the Office of Personnel Management (“OPM”) issued a reconsideration decision affirming

its initial decision that Mr. Sanders was overpaid 

$71,937.61 due to his concurrent entitlement to both (1) a 

disability retirement annuity under the Federal 

1 Board docket no. AT-0845-22-0081-I-1.

2 Board docket no. AT-0845-22-0081-A-1.

Case: 23-2243 Document: 43 Page: 2 Filed: 09/10/2024
SANDERS v. MSPB 3

Employees’ Retirement System (“FERS”) and (2) disability

insurance benefits through the Social Security Administration. See App’x 18–21.3 OPM’s reconsideration decision 

also determined that Mr. Sanders was not entitled to a 

waiver of the overpayment. App’x 20.

Mr. Sanders appealed OPM’s reconsideration decision 

to the Board, thus beginning the I-1 case. OPM then moved 

to dismiss the appeal for lack of jurisdiction because it had 

rescinded the reconsideration decision and would be “remanding the case file to the appropriate office for further 

development and review.” App’x 49. On February 7, 2022, 

the administrative judge (“AJ”) issued an initial decision 

dismissing the appeal for lack of jurisdiction, reasoning 

that, “[w]hen OPM completely rescinds a reconsideration 

decision, its rescission divests the Board of jurisdiction over 

the appeal.” App’x 2. The AJ’s initial decision became the 

Board’s final decision on March 14, 2022. See 5 C.F.R. 

§ 1201.113.

Mr. Sanders later petitioned the Board for attorney 

fees that he allegedly incurred in the I-1 case, thus beginning the A-1 case. On July 18, 2023, the AJ issued an initial decision denying the petition because, among other 

reasons, Mr. Sanders was not a “prevailing party” in the 

I-1 case for purposes of an attorney-fee award. See

SApp’x 2–3 (citing 5 U.S.C. § 7701(g)(1)).4 The AJ’s initial 

decision became the Board’s final decision on August 22, 

2023. See 5 C.F.R. § 1201.113. 

On July 24, 2023, Mr. Sanders petitioned this court for 

review of both the dismissal in the I-1 case and the attorney-fee denial in the A-1 case. See 5 U.S.C. § 7703(b)(1)(A). 

3 “App’x” refers to the appendix included with the 

Board’s informal brief (ECF No. 29). 

4 “SApp’x” refers to the supplemental appendix included with OPM’s informal brief (ECF No. 30). 

Case: 23-2243 Document: 43 Page: 3 Filed: 09/10/2024
4 SANDERS v. MSPB

The Board is the respondent for the I-1 case, and OPM is 

the respondent for the A-1 case. See Order at 3 (Sept. 19, 

2023), ECF No. 14. We have jurisdiction under 28 U.S.C. 

§ 1295(a)(9).

DISCUSSION

We review a Board decision for whether 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). Whether the Board had jurisdiction to adjudicate a case is a question of law, which we review de novo. 

Forest v. MSPB, 47 F.3d 409, 410 (Fed. Cir. 1995). 

Mr. Sanders, as the petitioner, bears the burden of establishing reversible error in the Board’s decisions. Sistek v. 

Dep’t of Veterans Affs., 955 F.3d 948, 953 (Fed. Cir. 2020).

I 

We begin with the Board’s dismissal for lack of jurisdiction in the I-1 case. Before turning to the merits of that 

decision, however, we briefly address the Board’s arguments concerning the untimeliness of Mr. Sanders’s petition for review. The Board initially argued that, because 

Mr. Sanders filed his petition for review beyond the 60-day 

deadline set forth in 5 U.S.C. § 7703(b)(1)(A), we lack jurisdiction to review the dismissal in the I-1 case. See, e.g., 

Board’s Informal Br. 5–6.5 But, as the Board later 

acknowledged, the Supreme Court has since held that this 

60-day deadline is not jurisdictional. See Board’s Fed. R. 

5 Specifically, the Board observed that (1) the AJ’s 

dismissal in the I-1 case became the Board’s final decision 

on March 14, 2022; (2) 60 days from that date would have 

been May 13, 2022; and (3) Mr. Sanders’s petition for review was not filed until July 24, 2023. See Board’s Informal 

Br. 5–6. 

Case: 23-2243 Document: 43 Page: 4 Filed: 09/10/2024
SANDERS v. MSPB 5

App. P. 28(j) Citation of Suppl. Authority at 1 (May 16, 

2024) (citing Harrow v. Dep’t of Def., 601 U.S. 480 (2024)), 

ECF No. 31. Nonetheless, the Board maintains that we 

should still dismiss Mr. Sanders’s petition for review (as to 

the I-1 case) as untimely because he “has not shown cause 

to excuse his late filing.” Board’s Informal Br. 7. We need 

not consider any remaining Board argument concerning 

the petition’s untimeliness, however, because we conclude 

that the Board did not err on the merits when dismissing 

Mr. Sanders’s appeal in the I-1 case. See Long v. Dep’t of 

Veterans Affs., No. 23-2406, 2024 WL 3770715, at *1 

(Fed. Cir. Aug. 13, 2024) (declining to reach issues of untimeliness post-Harrow and instead affirming on the merits).

Turning now to the merits of the Board’s dismissal in 

the I-1 case, the Board reasoned that it had to dismiss because OPM’s rescission of its reconsideration decision deprived the Board of jurisdiction to review that decision. See

App’x 2. Mr. Sanders has not shown, nor do we see, any 

error in the Board’s reasoning or disposition. See, e.g.,

Hyde v. MSPB, 621 F. App’x 653, 654 (Fed. Cir. 2015) (nonprecedential) (concluding that “the Board correctly determined that it lacked jurisdiction over [petitioner’s] appeal” 

because “OPM’s rescission of its reconsideration decision 

divested the Board of jurisdiction” over the appeal). We 

therefore affirm, on the merits, the Board’s dismissal of 

Mr. Sanders’s appeal in the I-1 case.

II

We next address the Board’s denial (in the A-1 case) of 

attorney fees that Mr. Sanders allegedly incurred in the I-1 

case. Again, the Board denied the requested attorney fees 

because, among other reasons, Mr. Sanders was not a “prevailing party” in the I-1 case for purposes of an attorneyfee award. See SApp’x 2–3 (citing 5 U.S.C. § 7701(g)(1) (authorizing “reasonable attorney fees incurred by an employee” if, among other things, the employee “is the 

Case: 23-2243 Document: 43 Page: 5 Filed: 09/10/2024
6 SANDERS v. MSPB

prevailing party”)). The Board reasoned that when, as in 

the I-1 case, “an appeal is dismissed after an agency unilaterally rescinds an appealed action, the appellant is not 

a prevailing party and is not entitled to an award of attorney fees.” SApp’x 2 (citing Sacco v. DOJ, 90 M.S.P.R. 225, 

227 (2001) (concluding, in light of Buckhannon Board & 

Care Home, Inc. v. West Virginia Department of Health & 

Human Resources, 532 U.S. 598 (2001), that “[t]he agency’s 

unilateral rescission of the alleged adverse action” did not 

render the appellant a “prevailing party” for purposes of an 

attorney-fee award under 5 U.S.C. § 7701(g)), aff’d, 317 

F.3d 1384 (Fed. Cir. 2003)). Mr. Sanders has not shown, 

nor do we see, any error in the Board’s reasoning or disposition.

III

We conclude with a few observations. First, Mr. Sanders’s arguments in this proceeding appear mostly related

to a different Board case—namely, Board docket no. AT0843-17-0575-I-1, which concerned his claim for a survivor 

annuity under FERS based on his deceased spouse’s service as a federal employee. That case was the subject of a 

decision by this court in May 2024, in which we affirmed 

the Board’s dismissal of Mr. Sanders’s appeal for lack of 

jurisdiction. See Sanders v. MSPB, No. 23-2058, 2024 WL 

2239018 (Fed. Cir. May 17, 2024). 

Second, although Mr. Sanders does make some arguments that appear related to the I-1 case, see Appellant’s 

Informal Br. 9 (citing Gordon v. MSPB, No. CH-0845-16-

0204-I-1, 2016 MSPB LEXIS 2622 (May 2, 2016)), such arguments seem to concern the merits of OPM’s determination that Mr. Sanders was overpaid and that he was not 

entitled to a waiver of that overpayment. The merits of 

those determinations, however, are not before us in this 

proceeding, because the Board—instead of considering the 

merits—dismissed Mr. Sanders’s appeal for lack of 

Case: 23-2243 Document: 43 Page: 6 Filed: 09/10/2024
SANDERS v. MSPB 7

jurisdiction, and we are reviewing (and affirming) only that 

dismissal in the I-1 case. 

Third, the Board’s informal brief here (1) references 

“what appears to be a March 16, 2023 initial decision from 

OPM” that recomputed the amount of Mr. Sanders’s overpayment; (2) notes that Mr. Sanders checked the box indicating that he sought reconsideration of that decision from 

OPM; and (3) observes that it appears unclear “whether or 

when Mr. Sanders communicated his choice [to seek reconsideration] to OPM” or “whether OPM has since issued a 

reconsideration decision.” Board’s Informal Br. 9 (referencing App’x 57–58).6 The Board further states that, if OPM

has since issued a reconsideration decision, “Mr. Sanders 

may have been able to file a new appeal with the [Board], 

according to any rights provided to him by OPM.” Id.

at 9–10. 

CONCLUSION

We have considered Mr. Sanders’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm.

AFFIRMED

COSTS

No costs.

6 The pages at App’x 57–58 bear an electronic file 

stamp header of pages 72–73.

Case: 23-2243 Document: 43 Page: 7 Filed: 09/10/2024