UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

VICTORINO MONTALVO,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-831M-16-0268-I-1

DATE: August 17, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Victorino Montalvo, Orlando, Florida, pro se.

Tynika Faison Johnson, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his appeal of a reconsideration decision of the Office of Personnel 

Management (OPM) finding that he received an overpayment of disability

retirement annuity benefits. Generally, we grant petitions such as this one only 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 
2

when: the initial decision contains erroneous findings of material fact; the initial 

decision is based on an erroneous interpretation of statute or regulation or the 

erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision were

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, we conclude that the petitioner has not established any basis under

section 1201.115 for granting the petition for review. Therefore, we DENY the 

petition for review and AFFIRM the initial decision, which is now the Board’s 

final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 On April 20, 1999, the appellant retired from the position of Clerk Register 

with the U.S. Postal Service and began receiving disability retirement annuity 

benefits. Initial Appeal File (IAF), Tab 1 at 1, 3, Tab 5 at 8. In a letter dated

January 18, 2006, OPM informed the appellant that he was no longer eligible to 

receive these benefits as of June 2002, and found that, as a result, he had been 

overpaid. IAF, Tab 5 at 19. On February 1, 2006, the appellant requested 

reconsideration of OPM’s initial decision and a waiver of the overpayment. Id.

at 8, 14. On August 28, 2008, the U.S. Bankruptcy Court, Middle District of 

Florida, granted the appellant a discharge of certain debt under 11 U.S.C. § 727. 

Id. at 17.

¶3 In a letter dated September 21, 2015, OPM acknowledged the appellant’s 

request for reconsideration and apologized for the lengthy delay in making a final 

decision. Id. at 14. OPM also stated that it needed information on the appellant’s 

current financial condition and directed him to complete and return an updated 
3

Financial Resources Questionnaire. Id. at 14-15. On October 19, 2015, the 

appellant mailed to OPM a copy of his bankruptcy notice and requested the 

reinstatement of his disability retirement benefits. IAF, Tab 1 at 7-9. He also 

attached an updated Financial Resources Questionnaire. Id. at 12-17. 

On December 17, 2015, OPM issued a reconsideration decision affirming its

initial decision and denying his request for a waiver of the overpayment. IAF,

Tab 5 at 8‐11. 

¶4 The appellant filed an appeal of the reconsideration decision and requested 

a hearing. IAF, Tab 1 at 1-5. OPM filed a motion to dismiss the appeal stating 

that it had rescinded the reconsideration decision and intended to issue a new one

to consider the effect of the appellant’s bankruptcy on the overpayment. IAF,

Tab 8 at 4. Without holding the requested hearing, the administrative judge 

issued an initial decision granting OPM’s motion and dismissing the appeal for 

lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1‐2. 

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has not responded. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden 

of proving the Board’s jurisdiction by a preponderance of the evidence. 2 5 C.F.R. 

§ 1201.56(b)(2)(i)(A). The Board has jurisdiction over OPM determinations 

affecting an appellant’s rights or interests under either the Federal Employees’ 

Retirement System (FERS) or the Civil Service Retirement System (CSRS) only 

after OPM has issued a final decision, also known as a reconsideration decision. 

 2 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 
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5 U.S.C. §§ 8347(d), 8461(e); 5 C.F.R. §§ 831.110, 841.308; see Morin v. Office 

of Personnel Management, 107 M.S.P.R. 534, ¶ 8 (2007) (addressing the Board’s 

jurisdiction over an appeal of OPM’s administration of retirement benefits under 

CSRS), aff’d per curiam, 287 F. App’x 864 (Fed. Cir. 2008). If OPM completely 

rescinds a reconsideration decision, its rescission divests the Board of jurisdiction 

over the appeal in which that reconsideration decision is at issue, and the appeal 

must be dismissed. Smith v. Office of Personnel Management, 113 M.S.P.R. 259, 

¶ 6 (2010) (finding no Board jurisdiction over OPM’s denial of disability 

retirement benefits under FERS when OPM rescinded the reconsideration 

decision); see Morin, 107 M.S.P.R. 534, ¶ 8 (observing that, once OPM 

completely rescinds a CSRS reconsideration decision, the Board no longer retains 

jurisdiction over the appeal). 

¶7 Here, OPM asserted below that it had rescinded the reconsideration decision

and would issue a new final decision after the dismissal of this appeal. IAF,

Tab 8 at 4; cf. Okello v. Office of Personnel Management, 120 M.S.P.R. 498, ¶ 14 

(2014) (stating that the Board will take jurisdiction over an appeal concerning a 

retirement matter in which OPM has refused or improperly failed to issue a final 

decision); Luzi v. Office of Personnel Management, 106 M.S.P.R. 160, ¶ 9 (2007) 

(stating that the Board has jurisdiction over an appeal when it is apparent that 

OPM does not intend to issue a new reconsideration decision after rescinding a

prior reconsideration decision). Although the appellant asserts in his petition for 

review that he has not received a new reconsideration decision, he has not 

challenged the accuracy of OPM’s statement or identified any other basis on 

which to find that the Board retains jurisdiction over this appeal despite the

rescission. PFR File, Tab 1 at 3; see, e.g., Smith, 113 M.S.P.R. 259, ¶ 6. Further, 

his arguments on the merits of the appeal are irrelevant to the jurisdictional issue 

before the Board. PFR File, Tab 1 at 4-5; see, e.g., Sapla v. Department of the

Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (finding that the appellant’s arguments on the 

merits of her appeal were not relevant to the jurisdictional question). Finally, the 
5

appellant has not shown that the administrative judge abused his discretion by not 

imposing sanctions against OPM for not responding to his orders. PFR File,

Tab 1 at 4-5; see Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 11 (2011) 

(stating that the imposition of sanctions is a matter within the administrative 

judge’s sound discretion and, absent a showing that such discretion has been 

abused, the administrative judge’s determination will not be found to constitute 

reversible error), aff’d per curiam, 498 F. App’x 1 (Fed. Cir. 2012). 

¶8 Accordingly, we find that the administrative judge properly dismissed this 

appeal for lack of jurisdiction. 3 If the appellant is dissatisfied with any 

subsequent OPM decision regarding his disability retirement benefits, he may 

request that OPM reconsider the decision and, if he is still dissatisfied, he may 

appeal OPM’s final decision to the Board. See Smith, 113 M.S.P.R. 259, ¶ 8. 

Any future appeal must be filed within the time limits set forth in the Board’s 

regulations. See id.; 5 C.F.R. § 1201.22(b)(1). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

 3 Although the administrative judge found that the appellant was an employee under 

FERS and OPM’s initial decision discussed FERS, ID at 1; IAF, Tab 5 at 19, the 

appellant indicated that he was enrolled in CSRS and the reconsideration decision 

discussed CSRS, IAF, Tab 1 at 3, Tab 5 at 9. However, we need not determine which 

retirement system the appellant is enrolled in because, as explained above, the 

applicable laws and regulations require the issuance of a reconsideration decision for 

the Board to have jurisdiction under either retirement system. 
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The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. 

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court 

has held that normally it does not have the authority to waive this statutory 

deadline and that filings that do not comply with the deadline must be dismissed. 

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the United States Code, 

at our website, http://www.mspb.gov/appeals/uscode.htm. Additional 

information is available at the court’s website, www.cafc.uscourts.gov. Of 

particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” 

which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board