N OTE : This disposition is nonprecedential.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

______________________

V ICTORINO M ONTALVO
, J R

. , Orlando, FL, pro se.

C ALVIN M. M ORROW , Office of the General Counsel, United States Merit Systems Protection Board, Washin gton, DC, for respondent. Also represented by B RYAN G. P OLISUK
, K ATHERINE M. S MITH

.

______________________

Before L OURIE
, M OORE
, and H UGHES
, Circuit Judges.

P ER C URIAM

.MONTALVO v. MSPB 2

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

. B ACKGROUND

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 ove rpaid for four years. OPM requested Mr. Montalvo repay all overpayments.

Mr. Montalvo responded to OPM’s letter on Febr uary 1, 2006, asking OPM to wa ive its demand for repa yment due to financial hardship. OPM did not respond until September 15, 2015, requesting additional info rmation regarding Mr. Montalvo’s finances. After recei ving the additional materi als, OPM denied his request for reconsideratio n 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later, OPM sent a letter to the presiding administrative judge stating that “[b]ased on existing case law, OPM has rescinded its December 17, 2015 final decision.”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 jurisdi ction pursuant to 28 U.S.C. § 1295(a)(9).MONTALVO v. MSPB 3

D ISCUSSION

We must affirm a Board decision unless it is: (1) arbitrary, capricious, an abuse of discretion, or othe rwise 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 ha s jurisdiction t o 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 a ddress 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 curren t appeal is dismissed. After OPM issues that new final decision, the Board will have juri sdiction to review the merits of Mr. Montalvo ’s case should he challenge OPM’s substantive decision.

C ONCLUSION
The Board’s decision dismissing Mr. Montalvo’s a ppeal for lack of jurisdiction is affirmed

. AFFIRMED

C OSTS

No costs.