NOTE: This disposition is nonprecedential.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, Washington, 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 overpaid for four years. OPM requested Mr. Montalvo repay 

all overpayments. 

Mr. Montalvo responded to OPM’s letter on February 1, 2006, asking OPM to waive its demand for repayment due to financial hardship. OPM did not respond 

until September 15, 2015, requesting additional information regarding Mr. Montalvo’s finances. After receiving 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law, OPM has rescinded its December 17, 2015 final 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 jurisdiction 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 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 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 address 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 jurisdiction 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 appeal for lack of jurisdiction is affirmed. 

AFFIRMED

COSTS

No costs.