                    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.




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