NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition 

is not citable as precedent. It is a public 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 review of the final decision of the Merit 

Systems Protection Board ("Board") dismissing 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 August 9 in 2002. During 

this period, however, the agency continued to pay Cruise and did not provide Cruise 
with an "Official Notification of Personnel Action" concerning the pay suspension.

Cruise challenged his suspension before the Board but withdrew his appeal. See

Cruise v. Soc. Sec. Admin., No. BN0752020159-I-1 (M.S.P.B Oct. 2, 2002). He did not

appeal the initial decision of the Board dismissing the case and it became final on 

November 6, 2002. 

The agency attempted to recoup the overpayment it determined to be $6,253.87,

notifying Cruise of the overpayment in a letter dated September 19, 2002. Cruise 

appealed the determination of the agency to the Department of Health and Human 

Service's Departmental Appeals Board ("DAB") which upheld the overpayment

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). Cruise then 

appealed to the Board. 

Before the Board, Cruise requested review of the DAB decision which sustained 

the agency's determination that Cruise had been overpaid. Cruise characterized the 

decision of the DAB as a retroactive suspension without pay. The Board found it lacked 

jurisdiction to hear the appeal because the agency action was not a retroactive 

suspension but only a determination that Cruise had received an overpayment of salary 

in error. Cruise could not challenge the propriety of the suspension itself because that 

issue had already been adjudicated. Therefore the Board dismissed the appeal for lack 

of jurisdiction because it found Cruise had failed to show that he was deprived of duties 

or pay by the agency decision that he must repay the overpaid salary. Cruise now 

seeks review of the dismissal by the Board. We have jurisdiction over this appeal 

pursuant to 28 U.S.C. § 1295(a)(9) (2000). 

04-3410 2 
II 

This court reviews questions of law and determinations of jurisdiction without 

deference to the Board. Diefenderfer v. Merit Sys. Prot. Bd., 194 F.3d 1275, 1277 (Fed. 

Cir. 1999). The Board has jurisdiction over only those actions which are made 

appealable to it by law, rule, or regulation. 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 recharacterize the action by the 

agency to recover the overpayment as a "retroactive suspension" in order to establish 

jurisdiction of the Board. Cruise has not shown that he was "retroactively suspended"

by the decision that he must repay the overpayment because he was previously

deemed properly suspended by the Board. 

The DAB only decided if Cruise had received a salary overpayment and whether 

the agency's calculation of that overpayment was correct. Before the DAB, Cruise did 

not deny he was suspended without pay, or that he received his salary during the 

suspension period, he argued instead that his suspension was unjustified. The DAB 

correctly recognized that it was without authority to review the propriety of the 

suspension; that issue is foreclosed by the previous appeal to the Board. Cruise has 

already had his opportunity to challenge the suspension decision and cannot now renew 

his arguments by characterizing the agency demand for repayment as a "retroactive 

04-3410 3 
suspension." His challenge to the suspension has been adjudicated and the Board 

lacks jurisdiction to review anew the underlying suspension. 

Cruise also argues that the Board should have reviewed whether the agency

should have waived the overpayment, but that issue was not before the Board and 

Cruise cannot raise the argument for the first time before this court. Boggs v. West, 

188 F.3d 1335 (Fed. Cir. 1999). 

The decision of the Board that it lacked jurisdiction to hear Cruise's appeal must 

be affirmed. 

04-3410 4