                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2008-3101



                               ROSE CARACCIOLO,

                                                           Petitioner,

                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                           Respondent.


      Rose Caracciolo, of Lindenhurst, New York, pro se.

       Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director, and Deborah A. Bynum, Assistant Director.

Appealed from: Merit Systems Protection Board
                           NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                         2008-3101


                                    ROSE CARACCIOLO,

                                                               Petitioner,

                                              v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                               Respondent.

              Petition for review of the Merit Systems Protection Board in
              NY831M980048-C-1.
                            ____________________________

                               DECIDED: February 3, 2009
                             ____________________________


Before LOURIE, RADER, and PROST, Circuit Judges.

PER CURIAM.

       Rose Caracciolo appeals from the final decision of the Merit Systems Protection

Board (the “Board”) dismissing her petition for enforcement for lack of jurisdiction.

Caracciolo v. Office of Personnel Mgmt., NY-831M-98-0048-C-1 (M.S.P.B. Final Order

Sept. 7, 2007; Initial Decision Mar. 5, 2007). Because Caracciolo has not demonstrated

that the Board had jurisdiction to hear her appeal or otherwise committed legal error in

its decision, we affirm.

                                       BACKGROUND

       Caracciolo has been litigating this case for over eleven years, at the Office of

Personnel Management (“OPM”), in various courts, and in this court.           She was
employed by the Internal Revenue Service from 1973 until she was separated for

disability retirement on January 4, 1997. As a result of that retirement, she began

receiving regular disability payments. On April 30, 1997, the OPM sent Caracciolo a

letter stating that she had been overpaid annuity benefits in the amount of $2,640.00.

Caracciolo requested reconsideration, and OPM affirmed its decision.        Caracciolo

appealed OPM’s decision several times, and, on October 30, 2000, while an appeal was

pending at the Board, Caracciolo and an OPM representative participated in a

conference in which OPM rescinded its reconsideration decision in order to recompute

the annuity in light of new evidence. At that conference, the OPM representative stated

that OPM would compute her annuity based on both Caracciolo’s October 27, 1994

“pay cease” date and her January 4, 1997 separation date, such that Caracciolo would

be able to compare the two computations. Caracciolo did not object, and the appeal

was dismissed by the Board as moot in view of the rescinding of the reconsideration

decision by OPM. Caracciolo then received a letter from OPM on December 6, 2000,

computing her annuity based on the two different dates and allowing her to elect the

date on which she wanted the annuity to begin.       Caracciolo, however, despite the

rescission of OPM’s reconsideration decision, petitioned the Board for further review,

which was denied.

      On September 10, 2004, OPM issued a second reconsideration decision finding

that Caracciolo’s correct “pay cease” date was October 27, 1994, and, based on the

corrected pay cease date, Caracciolo had not received an overpayment at all.

Caracciolo appealed the second reconsideration decision to the Board, which affirmed,

and then to this court, which also affirmed. Caracciolo v. Office of Personnel Mgmt.,



2008-3101
                                      -2-
259 Fed. Appx. 324 (Fed. Cir. Dec. 21, 2007). On November 14, 2006, although OPM’s

first reconsideration decision had been rescinded and superseded by OPM’s second

reconsideration decision, Caracciolo also filed a petition for enforcement of a supposed

settlement agreement that occurred during the October 30, 2000 conference regarding

the amount of her annuity.

      In an initial decision issued on March 5, 2007, the administrative judge (“AJ”)

dismissed the petition for lack of jurisdiction. The AJ held that the Board’s dismissal of

Caracciolo’s appeal of the first reconsideration decision as moot was not an enforceable

decision on the merits. The Board thus lacked jurisdiction over the appeal. Caracciolo

then petitioned for review of the AJ’s decision. In a decision issued on September 7,

2007, the Board denied the petition, concluding that there was no new, previously

unavailable, evidence and that the AJ made no error in law or regulation that affected

the outcome. Thus, the AJ’s initial decision became final.

       Caracciolo timely appealed to this court. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                     DISCUSSION

      The scope of our review in an appeal from a Board decision is limited. We can

only set aside the Board’s decision if it was “(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) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003). Whether the Board has jurisdiction to adjudicate

an appeal is a question of law, which we review de novo. Forest v. Merit Sys. Prot. Bd.,



2008-3101
                                        -3-
47 F.3d 409, 410 (Fed. Cir. 1995). We are, however, bound by the AJ’s factual findings

on which a jurisdictional determination is based “unless those findings are not supported

by substantial evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir.

1998). Further, the appellant has the burden to establish the Board’s jurisdiction by a

preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2) (2008).

      Caracciolo argues that the AJ failed to consider an oral agreement, recorded on

tape, between herself and OPM, that gave her an annuity benefit beginning on January

4, 1997, not October 27, 1994, as OPM’s second reconsideration decision holds. Thus,

she requests enforcement of that agreement. Caracciolo argues that she did not have

the transcript of the agreement available until February 2008, after the AJ’s decision.

Caracciolo also argues that, when OPM fully rescinded its reconsideration decision, the

appeal should not have been dismissed because the underlying issue still required

adjudication.

      The government responds that nothing in the record indicates that there was a

settlement agreement, as the hearing transcript is not in the administrative record, and,

moreover, the transcript indicates only that OPM had agreed to rescind its

reconsideration decision and recompute Caracciolo’s annuity, which it did.           The

government also argues that, even if the Board had jurisdiction to consider Caracciolo’s

petition for enforcement, her claim would be barred by res judicata because, the

government asserts, this court has already decided Caracciolo’s claims in Caracciolo,

259 Fed. Appx. 324.

      We agree with the government that the Board lacked jurisdiction to hear

Caracciolo’s petition. When OPM voluntarily rescinded its first reconsideration decision,



2008-3101
                                       -4-
Caracciolo’s claims regarding the first reconsideration decision became moot.

Moreover, we agree with the government that, to the extent that Caracciolo seeks

review of OPM’s second reconsideration decision based on the alleged existence of an

agreement, that review is barred by res judicata, as this court has already addressed

the question of when her annuity benefits would accrue, which was the subject of the

purported agreement. Caracciolo, 259 Fed. Appx. at 326 (holding that OPM correctly

calculated Caracciolo’s annuity based on her final separation date of January 4, 1997,

instead of the October 27, 1994 pay-cease date).

      Caracciolo argues that she did not have access to the transcript of the oral

agreement before her appeal and that it therefore constitutes new evidence that we

should consider.   We disagree.     First, we do not consider evidence that was not

presented to the Board.       Moreover, the transcript that, according to Caracciolo,

constitutes new evidence of the agreement, is duplicative of evidence that Caracciolo

already had at her disposal.     In the transcript from October 30, 2000, the OPM

representative stated that OPM would compute her annuity based on both the October

1994 date and the January 1997 date, such that Caracciolo would be able to compare

the two computations. Similarly, Caracciolo received a letter from OPM on December 6,

2000, computing her annuity based on the two different dates and allowing Caracciolo

to elect the date on which she wanted the annuity to begin. Thus, any agreement that

may have occurred between Caracciolo and OPM was memorialized in the letter from

December 6, 2000, which Caracciolo had available before her appeal and which was

therefore not new evidence.




2008-3101
                                       -5-
      Because we conclude that the Board lacked jurisdiction to hear the appeal, all

remaining issues are moot.

      Accordingly, we affirm the Board’s decision.




2008-3101
                                      -6-
