NOTE: Pursuant to Fed . Cir. R. 47.6, this dispo s ition is not citable as precede nt. It is a pu blic record. 

## United States Court of Appeals for the Federal Circuit

04-3410

THOMAS F. CRUISE, Petitioner,

v. SOCIAL SECURITY ADMINISTRATION, Respondent.

______ ____________________ DECIDED: March 9, 2005

______ ____________________ Before LOURIE, CLEVENGER, and PROST, Circuit Judges

. PER CURIAM

Thomas F. Cruise ("Cruise") seeks re view of the final decision of the Merit Systems Protection Board ("Board") dismissi ng for lack of jurisdiction his challenge to the agency determination that he was paid in error while he was suspended. Cruise v. Soc. Sec. Admin. , No. BN0752030142-I-1 (M.S.P.B. June 15, 2004). Because the Board correctly held it did not have jurisdiction to hear the appeal, we affirm

. I Cruise was employed as a Criminal Investigator, GS-1811-13, Office of the Inspector General for the Social Security Administration (the "agency"). He was indefinitely suspended from duty without pay from July 19 to Au gust 9 in 2002. During this period, however, the agency continued to pay Cruise and did not provide Cruisewith an "Official Notification of Personnel Action" concerning the pay suspension. Cruise challenged his suspension befor e the Board but withdr ew his appeal. See Cruise v. Soc. Sec. Admin. , No. BN0752020159-I-1 (M.S.P.B Oc t. 2, 2002). He d i d not appeal the initial decision of the Board dis m issing the ca se and it became final on November 6, 2002. The agenc y attempted to recoup the ov erpayment it determi ned to be $6,253.87, notifying Cruise of the over pay ment in a letter dated S eptember 19, 2002. Cruise appealed the determination of the agency to the Department of Health and Human Service's Departmental A ppeals Board ("DAB") whic h upheld the ov erpayment determination but reduced the amount to $4,806.21 upon stipulation by the agency. Soc. Sec. Admin. v. Cruise , No. C-03-180 (HHS DAB May 20, 2003). C r uise then appealed to the Board. Before the Board, Cruise request ed revi ew of the DAB decis ion which sustained the agency ' s determination that Cruise had been over paid. Cruise characterized the decision of the DAB as a retroactive suspens ion without pay. The Bo ard foun d it lack ed jurisdiction to hear the appeal because t he agency action was not a retroactive suspension but only a determination that Crui se had rec e ived an overpayment of salary in error. C r uise could not challenge the propr iety of the suspension itself because that issue had already been adjudic ated. Ther efor e the Board dismiss ed the appeal for lack of jurisdiction becaus e it found Cruise had fail ed to s h ow that he was depr ived of duties or pay by the agency decision that he must repay the overpaid salary. Cruise no w seeks review of the dismissa l by the Board. We have ju risdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(9) (2000).

04-3410 2II This court reviews questions of law and determinations of jurisdiction without deference to the Board. Diefenderfer v

. Merit Sys. Pro t. Bd. , 194 F.3d 1275, 1277 (Fed. Cir. 1999). The Board has jurisdiction ov er only those actions which are made appealable to it by law, rule, or regulati on. 5 U.S.C. §§ 1204(a )(1), 7701(a) (2000). A petitioner bears the burden of showing that the Board has jurisdiction by a preponderance of evidence. 5 C. F.R. § 1201.56(a)(2)(i ) (2004).
III Cruise's appeal arises from the DAB determination that the agency had overpaid him in the amount of $4,806.21. Cruise attempts to re characterize the action by the agency to recover the overpayment as a "retroactive suspension" in order to establish jurisdiction of the Boar d. Cr uise has not shown that he was "retroactively s u spended" by the decision that he must repay t he overpayment becaus e he was previous ly deemed properly suspended by the Board. The DAB only decided if Cruise had re ceived a salary overpayment and whether the agency ' s calculation of that overpayment was correct. Before the DAB, Cruise did not deny he was suspended wit hout pay, or that he received his salary during the suspension period, he argued in stead that his suspension wa s unjustified. The DAB correctly recogniz e d that it was without aut hority to review the propriety of the suspension; that issue is foreclos ed by the previous appeal to the Board. Cruise has already had his opportunity to challenge th e suspension decis ion and cannot now rene w his argum ents by characterizing the agency demand for repayment as a "retroactive

04-3410 3suspension." His challenge to the su spension has been adjudi cated and the Board lacks jurisdiction to review anew the underlying suspens ion. Cruise als o argues that the Board should have reviewed whether the agency should hav e waived the overpayment, but t hat issue was not bef ore the Board and Cruise cannot raise the argument for the first time b e fore this court. Boggs v. West , 188 F.3d 1335 (Fed. Cir. 1999). The decis ion of the Board that it lack ed jurisdiction to hear Cruis e 's appeal must be affirmed

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