NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3280

MICHAEL KOSTISHAK, Petitioner,

v.
MERIT SYSTEMS PROTECTION BOARD, Respondent.

Michael Kostishak , of Burtonsville, Maryland, pro se. Calvin M. Morrow , Attorney, Office of the General Counsel, United States Merit Systems Protection Board, of Washington, DC, for responden t. With him on the brief were B. Chad Bungard , General Counsel; Rosa M. Koppel , Deputy General Counsel; and Thomas Auble , Acting Associate General Counsel.
Appealed from: United States Merit Systems Protection BoardNOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3280 MICHAEL KOSTISHAK, Petitioner,

v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

_______________________ DECIDED: January 12, 2007

_______________________ Before NEWMAN, SCHALL, and MOORE, Circuit Judges

. PER CURIAM. Michael Kostishak appeals the final dec ision of the Merit Systems Protection Board (“Board”), Kostishak v. Office of Personnel Management , DC0831050679-I-1 (Apr. 5, 2006), concluding that it does not have jurisdiction over Mr. Kostishak’s appeal. We affirm

. BACKGROUND In 1992 Mr. Kostishak applied for benef its from the Office of Workers’ Compensation Programs (“OWCP”). While his application was pendi ng, he applied to the Office of Personnel M anagement (“OPM”) for a disabi lity retirement annuity under the Civil Service Retirement System (“CSRS”), Chapter 83 of Title 5. See 5 U.S.C. §8337 (2000). OPM granted the retirement annuity under t he CSRS. In 1997, OWCP approved Mr. Kostishak’s appli cation for worker’s compensation and Mr. Kostishak elected to receive OWCP be nefits retroactive to the date when h i s disab ility retirement annuity under CSRS began. Mr. Kostishak repaid the annuity payments he received from OPM under the CSRS out of his OWC P account. After he paid OPM back for his annuity payments, Mr. Kostishak requested a refund of life insurance premiums that w e re withheld from his di sability retirement payments by OPM. OPM denied Mr. Kosti s hak’s request. OPM explained that he was subject to the mandatory premium deductions for basic life insur ance under the Federal Employees ’ Group Life Insurance Act (“FEGL IA”) and that OPM co rrectly withheld lif e insurance premiums. See 5 U.S.C. § 8707(b)(1) (2000). Mr. Kostishak filed a request for reconsideration of that decision. OPM denied that request as unt imely, but stated in its letter that Mr. Kosti s hak had the right to appeal its decisio n to the Board. When Mr. Kostishak filed his appeal to the Board, O P M withdr ew its dec ision dismissing Mr. Kostishak’s request for rec onsideration and indica ted that it would reconsider the merits of his request. T he Administrative Judge (“AJ”) concluded that OPM’s rescission of its decision left the B oard with no jurisdict i on a nd dismissed the appeal. Mr. Kostishak then filed a petition for review of the AJ’s dismissal. The Board denied the petition for review, reopened the appea l on its own moti on, vacated the initial decision, and dismiss ed the appeal for lack of jurisdiction on a separate basis from that stated by the AJ. Mr. Kostishak filed a time ly appeal of that dismissal to this court.

2006-3280 2DISCUSSI ON Our review of the Board’s dec isio ns is limited by statute. See 5 U.S.C. § 7703(c). We must affirm the Board’s decis ion unless it wa s: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2 ) obtained without procedures required by law, rule, or regulation hav ing been followed; or (3) unsupported by substantial evidenc e.” Id. The Board’s jurisdiction is limit ed to t hose areas specifica lly provided f o r by statute, rule or regulation. Saunders v. Merit Sys. Prot. Bd. , 757 F.2d 1288, 1290 (Fed. Cir. 1985). We review the Board’s ju risdictional conc lus i ons de novo. Hardin g v. Dept. of Veterans Affairs , 448 F.3d 1373, 1375 (Fed. Cir. 2006). We are, however, “bound by the AJ’s factual deter minations unless thos e findings are not suppor ted by substantial evidenc e.” Bolton v. Merit Sys. Prot. Bd. , 154 F.3d 1313, 1316 (F ed. Cir. 1998). The petitioner bears the burden of establishing the Board’s jurisd iction by a preponderanc e of the evidence. See 5 C.F.R. 1201.56(a)(2)(i); Harding , 448 F.3d at 1375. We have held that the Board does not hav e jurisdiction over decis ions related t o life insurance deductions under FEGLIA. See Le wis v. Merit Sys. Prot. Bd. , 301 F.3d 1352, 1353 (Fed. Cir. 2002) (finding no juris d iction with Board for an annuitant’s claim that OPM should permit him to purchase life insurance); Miller v. Office of Pers. Mgmt. , 449 F.3d 1374, 1377 (Fed. Cir. 2006) (finding no jurisdic tion with Board for an annuitant’s claim that she s hould not be r equired to pay retroactive premiums under FEGLIA on an annuity under t he Federal Employees Retirement System (“FERS”)). Jurisdiction for claims arisi ng under FEGLIA, Chapter 87 of Title 5 of the United States Code, is governed by 5 U.S.C. § 8715, whic h grants jurisdiction in the United States

2006-3280 3district courts and t he United States Court of Federal Claims. See 5 U.S.C. § 8715 (2000). Because Mr. Kostishak’s c l aim is that he should be entitled to a refund of insurance premiums withheld fr om his annuity pursuant to FE GLIA, jurisdiction properly lies with the United States dist rict courts or the United St ates Court of Federal Claims and not with the Board. See 5 U.S.C. § 8715; Miller , 449 F.3d at 1381. That Mr. Kostishak received a letter indicating that he had appeal rights to the Board is of no consequence becaus e OPM was not authoriz ed by Congress t o enlarge t he Board’s jurisdiction to cover claims under arising under FEG L IA. See Schwartz v. Dept. of Transp. , 714 F.2d 1581, 1582-83 (Fed. Cir . 1983) (f inding that agency regulation could not create jurisdiction t o the Boar d where C ongress did not authorize agenc y to expand the Board’s jurisdiction). CONCLUS ION Accordingly we affirm the Board’s di smissal of Kostishak’s appeal for lack of jurisdiction. COSTS No costs.

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