Cecil Allen Sanders, Jr. v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CECIL ALLEN SANDERS, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0845-22-0081-A-1.
-------------------------------------------------
CECIL ALLEN SANDERS, JR.,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-2243
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0845-22-0081-I-1.
______________________
Case: 23-2243 Document: 43 Page: 1 Filed: 09/10/2024

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SANDERS v. MSPB 2
Decided: September 10, 2024
______________________
CECIL ALLEN S ANDERS , J R., Palm Beach Gardens, FL,
pro se.
ANNE D ELMARE , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent Office of Personnel Management.
Also represented by BRIAN M. B OYNTON, D EBORAH A NN
BYNUM , P ATRICIA M. MCCARTHY .
K ATHERINE MICHELLE SMITH , Office of General Coun-
sel, United States Merit Systems Protection Board, for re-
spondent Merit Systems Protection Board. Also
represented by ALLISON J ANE BOYLE.
______________________
Before P ROST , T ARANTO, and HUGHES , Circuit Judges.
P ER CURIAM .
Cecil Allen Sanders, Jr., petitions for review of two
Merit Systems Protection Board (“Board”) decisions. In the
I-1 case,1 the Board dismissed Mr. Sanders’s appeal for
lack of jurisdiction. In the A-1 case,2 the Board denied
Mr. Sanders’s petition for attorney fees that he allegedly
incurred in the I-1 case. We affirm both Board decisions.
BACKGROUND
On October 26, 2021, the Office of Personnel Manage-
ment (“OPM”) issued a reconsideration decision affirming
its initial decision that Mr. Sanders was overpaid
$71,937.61 due to his concurrent entitlement to both (1) a
disability retirement annuity under the Federal
1 Board docket no. AT-0845-22-0081-I-1.
2 Board docket no. AT-0845-22-0081-A-1.
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SANDERS v. MSPB 3
Employees’ Retirement System (“FERS”) and (2) disability
insurance benefits through the Social Security Administra-
tion. See App’x 18–21.3 OPM’s reconsideration decision
also determined that Mr. Sanders was not entitled to a
waiver of the overpayment. App’x 20.
Mr. Sanders appealed OPM’s reconsideration decision
to the Board, thus beginning the I-1 case. OPM then moved
to dismiss the appeal for lack of jurisdiction because it had
rescinded the reconsideration decision and would be “re-
manding the case file to the appropriate office for further
development and review.” App’x 49. On February 7, 2022,
the administrative judge (“AJ”) issued an initial decision
dismissing the appeal for lack of jurisdiction, reasoning
that, “[w]hen OPM completely rescinds a reconsideration
decision, its rescission divests the Board of jurisdiction over
the appeal.” App’x 2. The AJ’s initial decision became the
Board’s final decision on March 14, 2022. See 5 C.F.R.
§ 1201.113.
Mr. Sanders later petitioned the Board for attorney
fees that he allegedly incurred in the I-1 case, thus begin-
ning the A-1 case. On July 18, 2023, the AJ issued an ini-
tial decision denying the petition because, among other
reasons, Mr. Sanders was not a “prevailing party” in the
I-1 case for purposes of an attorney-fee award. See
SApp’x 2–3 (citing 5 U.S.C. § 7701(g)(1)).4 The AJ’s initial
decision became the Board’s final decision on August 22,
2023. See 5 C.F.R. § 1201.113.
On July 24, 2023, Mr. Sanders petitioned this court for
review of both the dismissal in the I-1 case and the attor-
ney-fee denial in the A-1 case. See 5 U.S.C. § 7703(b)(1)(A).
3 “App’x” refers to the appendix included with the
Board’s informal brief (ECF No. 29).
4 “SApp’x” refers to the supplemental appendix in-
cluded with OPM’s informal brief (ECF No. 30).
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SANDERS v. MSPB 4
The Board is the respondent for the I-1 case, and OPM is
the respondent for the A-1 case. See Order at 3 (Sept. 19,
2023), ECF No. 14. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
We review a Board decision for whether it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Whether the Board had jurisdiction to adjudi-
cate a case is a question of law, which we review de novo.
Forest v. MSPB, 47 F.3d 409, 410 (Fed. Cir. 1995).
Mr. Sanders, as the petitioner, bears the burden of estab-
lishing reversible error in the Board’s decisions. Sistek v.
Dep’t of Veterans Affs., 955 F.3d 948, 953 (Fed. Cir. 2020).
I
We begin with the Board’s dismissal for lack of juris-
diction in the I-1 case. Before turning to the merits of that
decision, however, we briefly address the Board’s argu-
ments concerning the untimeliness of Mr. Sanders’s peti-
tion for review. The Board initially argued that, because
Mr. Sanders filed his petition for review beyond the 60-day
deadline set forth in 5 U.S.C. § 7703(b)(1)(A), we lack juris-
diction to review the dismissal in the I-1 case. See, e.g.,
Board’s Informal Br. 5–6.5 But, as the Board later
acknowledged, the Supreme Court has since held that this
60-day deadline is not jurisdictional. See Board’s Fed. R.
5 Specifically, the Board observed that (1) the AJ’s
dismissal in the I-1 case became the Board’s final decision
on March 14, 2022; (2) 60 days from that date would have
been May 13, 2022; and (3) Mr. Sanders’s petition for re-
view was not filed until July 24, 2023. See Board’s Informal
Br. 5–6.
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SANDERS v. MSPB 5
App. P. 28(j) Citation of Suppl. Authority at 1 (May 16,
2024) (citing Harrow v. Dep’t of Def., 601 U.S. 480 (2024)),
ECF No. 31. Nonetheless, the Board maintains that we
should still dismiss Mr. Sanders’s petition for review (as to
the I-1 case) as untimely because he “has not shown cause
to excuse his late filing.” Board’s Informal Br. 7. We need
not consider any remaining Board argument concerning
the petition’s untimeliness, however, because we conclude
that the Board did not err on the merits when dismissing
Mr. Sanders’s appeal in the I-1 case. See Long v. Dep’t of
Veterans Affs., No. 23-2406, 2024 WL 3770715, at *1
(Fed. Cir. Aug. 13, 2024) (declining to reach issues of un-
timeliness post-Harrow and instead affirming on the mer-
its).
Turning now to the merits of the Board’s dismissal in
the I-1 case, the Board reasoned that it had to dismiss be-
cause OPM’s rescission of its reconsideration decision de-
prived the Board of jurisdiction to review that decision. See
App’x 2. Mr. Sanders has not shown, nor do we see, any
error in the Board’s reasoning or disposition. See, e.g.,
Hyde v. MSPB, 621 F. App’x 653, 654 (Fed. Cir. 2015) (non-
precedential) (concluding that “the Board correctly deter-
mined that it lacked jurisdiction over [petitioner’s] appeal”
because “OPM’s rescission of its reconsideration decision
divested the Board of jurisdiction” over the appeal). We
therefore affirm, on the merits, the Board’s dismissal of
Mr. Sanders’s appeal in the I-1 case.
II
We next address the Board’s denial (in the A-1 case) of
attorney fees that Mr. Sanders allegedly incurred in the I-1
case. Again, the Board denied the requested attorney fees
because, among other reasons, Mr. Sanders was not a “pre-
vailing party” in the I-1 case for purposes of an attorney-
fee award. See SApp’x 2–3 (citing 5 U.S.C. § 7701(g)(1) (au-
thorizing “reasonable attorney fees incurred by an em-
ployee” if, among other things, the employee “is the
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SANDERS v. MSPB 6
prevailing party”)). The Board reasoned that when, as in
the I-1 case, “an appeal is dismissed after an agency uni-
laterally rescinds an appealed action, the appellant is not
a prevailing party and is not entitled to an award of attor-
ney fees.” SApp’x 2 (citing Sacco v. DOJ, 90 M.S.P.R. 225,
227 (2001) (concluding, in light of Buckhannon Board &
Care Home, Inc. v. West Virginia Department of Health &
Human Resources, 532 U.S. 598 (2001), that “[t]he agency’s
unilateral rescission of the alleged adverse action” did not
render the appellant a “prevailing party” for purposes of an
attorney-fee award under 5 U.S.C. § 7701(g)), aff’d, 317
F.3d 1384 (Fed. Cir. 2003)). Mr. Sanders has not shown,
nor do we see, any error in the Board’s reasoning or dispo-
sition.
III
We conclude with a few observations. First, Mr. Sand-
ers’s arguments in this proceeding appear mostly related
to a different Board case—namely, Board docket no. AT-
0843-17-0575-I-1, which concerned his claim for a survivor
annuity under FERS based on his deceased spouse’s ser-
vice as a federal employee. That case was the subject of a
decision by this court in May 2024, in which we affirmed
the Board’s dismissal of Mr. Sanders’s appeal for lack of
jurisdiction. See Sanders v. MSPB, No. 23-2058, 2024 WL
2239018 (Fed. Cir. May 17, 2024).
Second, although Mr. Sanders does make some argu-
ments that appear related to the I-1 case, see Appellant’s
Informal Br. 9 (citing Gordon v. MSPB, No. CH-0845-16-
0204-I-1, 2016 MSPB LEXIS 2622 (May 2, 2016)), such ar-
guments seem to concern the merits of OPM’s determina-
tion that Mr. Sanders was overpaid and that he was not
entitled to a waiver of that overpayment. The merits of
those determinations, however, are not before us in this
proceeding, because the Board—instead of considering the
merits—dismissed Mr. Sanders’s appeal for lack of
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SANDERS v. MSPB 7
jurisdiction, and we are reviewing (and affirming) only that
dismissal in the I-1 case.
Third, the Board’s informal brief here (1) references
“what appears to be a March 16, 2023 initial decision from
OPM” that recomputed the amount of Mr. Sanders’s over-
payment; (2) notes that Mr. Sanders checked the box indi-
cating that he sought reconsideration of that decision from
OPM; and (3) observes that it appears unclear “whether or
when Mr. Sanders communicated his choice [to seek recon-
sideration] to OPM” or “whether OPM has since issued a
reconsideration decision.” Board’s Informal Br. 9 (referenc-
ing App’x 57–58).6 The Board further states that, if OPM
has since issued a reconsideration decision, “Mr. Sanders
may have been able to file a new appeal with the [Board],
according to any rights provided to him by OPM.” Id.
at 9–10.
CONCLUSION
We have considered Mr. Sanders’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm.
AFFIRMED
COSTS
No costs.
6 The pages at App’x 57–58 bear an electronic file
stamp header of pages 72–73.
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