NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3193 

CHRISTINE M. WONSOCK, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

 Respondent, 

and 

OFFICE OF PERSONNEL MANAGEMENT, 

Intervenor. 

 Christine M. Wonsock, of Vero Beach, Florida, pro se. 

 Sara B. Rearden, Attorney, Office of the General Counsel, United States Merit 

Systems Protection Board, of Washington, DC, for respondent. With her on the brief 

were B. Chad Bungard, General Counsel, and Stephanie M. Conley, Acting Assistant 

General Counsel. 

 J. Reid Prouty, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for intervenor. With him on 

the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Todd M. Hughes, Deputy Director. 

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 NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 

2008-3193

CHRISTINE M. WONSOCK, 

 Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

 Respondent, 

and 

OFFICE OF PERSONNEL MANAGEMENT, 

 Intervenor. 

Petition for review of the Merit Systems Protection Board in 

AT0831070802-I-1. 

____________________________ 

DECIDED: October 10, 2008 

____________________________ 

 

Before NEWMAN, MAYER, and LOURIE, Circuit Judges. 

PER CURIAM. 

DECISION 

 Christine Wonsock appeals from the final decision of the Merit Systems 

Protection Board (“Board”) vacating the Board’s initial decision and dismissing 

Wonsock’s appeal for lack of jurisdiction. Wonsock v. Office of Pers. Mgmt., AT-0831-

07-0802-I-1 (M.S.P.B. Feb. 20, 2008). Because the Board did not abuse its discretion 

or otherwise commit legal error in its decision, we affirm. 
BACKGROUND 

 On July 1, 1982, Wonsock, who at that time was employed as a patrol officer for 

the U.S. Capitol Police, cancelled her enrollment in the Federal Employees Health 

Benefits Program (“FEHBP”). At some point after retiring from her job in 1998, 

Wonsock sought to enroll in FEHBP as a retiree. In a letter dated April 7, 2005, the 

Office of Personnel Management (“OPM”) denied Wonsock’s request because she did 

not meet the statutory requirements for reenrollment, nor was she eligible for a waiver of 

those requirements. The letter informed Wonsock that she had thirty days in which to 

appeal OPM’s decision. She did not do so for nearly two years. 

 On March 16, 2007, Wonsock appealed OPM’s denial to the Board. In her 

appeal, she claimed that her delay in filing an appeal was due to the fact that she had 

been “more or less forced” to opt out of FEHBP by her husband and that she had found 

her paperwork only after being subjected to “one of the Florida hurricanes.” The 

administrative judge assigned to the case found that the Board had jurisdiction over the 

appeal pursuant to 5 U.S.C. § 8347(d) and 5 C.F.R. § 831.110. Wonsock v. Office of

Pers. Mgmt., AT-0831-07-0802-I-1 (M.S.P.B. Oct. 22, 2007). The AJ then affirmed 

OPM’s denial of Wonsock’s appeal, finding that OPM’s decision was not unreasonable 

or an abuse of its discretion. Id. Wonsock timely appealed the AJ’s decision. 

 While Wonsock’s appeal to the Board was pending, OPM filed a cross-petition, 

arguing for the first time that the Board lacked jurisdiction to hear the appeal. Wonsock 

did not file a response to OPM’s cross-petition. On February 20, 2008, the Board 

vacated the initial decision of the AJ, granted OPM’s cross-petition, and dismissed 

Wonsock’s appeal for lack of jurisdiction. The Board found that OPM’s decision not to 

2008-3193 

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grant Wonsock a waiver was unreviewable by the Board pursuant to 5 U.S.C. § 8905(b) 

and 5 C.F.R. § 890.306(a)(1). 

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

U.S.C. § 1295(a)(9). 

DISCUSSION 

Whether the Board has jurisdiction to adjudicate a particular appeal is a question 

of law that we review de novo. Conyers v. Merit Sys. Prot. Bd., 388 F.3d 1380, 1381 

(Fed. Cir. 2004) (citing Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 

1998)). The Board’s jurisdiction is limited to actions specifically made appealable by 

law, rule, or regulation. 5 U.S.C. § 7701(a); see Todd v. Merit Sys. Prot. Bd., 55 F.3d 

1574, 1576 (Fed. Cir. 1995). Wonsock, as the appellant, must show by a 

preponderance of evidence that the Board had jurisdiction over her claim. 5 C.F.R. 

§ 1201.56(a)(2)(i). 

On appeal Wonsock resumes her claim that she was injured on duty as a police 

officer and that her injury led to her retirement. She again requests to be allowed to 

enroll in FEHBP. She does not address the jurisdictional issues underlying the Board’s 

decision. 

In response, the government contends that whether or not Wonsock was injured 

on duty is irrelevant because OPM’s decision not to waive the statutory requirements for 

FEHBP eligibility is unreviewable by the Board. The government urges this court to 

uphold the Board’s decision finding lack of jurisdiction over Wonsock’s case. It is 

undisputed that Wonsock was not statutorily eligible for FEHBP and, according to the 

government, OPM’s decision not to waive the statutory requirements in Wonsock’s case 

2008-3193 

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is unreviewable by the Board. In support of its argument that OPM’s waiver 

determination is not reviewable by the Board, the government points to 5 U.S.C. 

§ 8905(b) and 5 C.F.R. § 890.306(a)(1). Thus, the government argues, the Board lacks 

jurisdiction to review OPM’s reconsideration decision dismissing Wonsock’s appeal as 

untimely. 

We agree with the government. Although the Board’s decision might preferably 

be affirmed on the ground that Wonsock’s appeal was untimely, we affirm on the ground 

that the Board ultimately adopted. Wonsock has not argued that the Board’s analysis 

was incorrect. Title 5 of the Code of Federal Regulations details the eligibility 

requirements for FEHBP benefits. 5 C.F.R. § 890.306 is entitled, “When can annuitants 

. . . reenroll.” That section lists three situations in which an annuitant can reenroll in 

FEHBP: “having been covered by a plan under this part for the 5 years of service 

immediately before retirement,” or having been covered “for all service since his or her 

first opportunity to enroll,” or if “OPM waives the requirement under § 890.108.” 5 

C.F.R. § 890.306(a)(1) (2008); see also 5 U.S.C. § 8905(b) (2004). Wonsock does not 

contend that she was covered for the 5 years immediately preceding her retirement in 

1998, nor that she was covered during her entire period of eligibility. Thus, she relies 

only on the third manner of reenrollment, namely, OPM waiving the eligibility 

requirements pursuant to § 890.108. 

5 C.F.R. § 890.108(a) details the process by which OPM can waive an 

annuitant’s FEHBP eligibility requirements: 

. . . OPM may waive the eligibility requirements for health benefits coverage as 

an annuitant for an individual when, in its sole discretion, it determines that due 

to exceptional circumstances it would be against equity and good conscience not 

to allow a person to be enrolled in the FEHB Program as an annuitant. 

2008-3193 

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2008-3193 

 -5- 

5 C.F.R. § 890.108(a) (emphasis added). 

The Board has consistently held that the phrase “in its sole discretion” in 

§ 890.108(a) places OPM waiver determinations beyond the Board’s jurisdiction. See, 

e.g., Lee v. Office of Pers. Mgmt., 32 M.S.P.R. 149 (Jan. 20, 1987). In this case the 

Board was compelled by its own precedent to dismiss Wonsock’s appeal, absent a 

preponderance of evidence demonstrating that the Board did indeed possess 

jurisdiction. Wonsock has not disputed this long-standing precedent, nor otherwise 

attempted to convince this court that the Board was incorrect in finding that it lacked 

jurisdiction. Therefore, Wonsock has not demonstrated that the Board abused its 

discretion or otherwise committed legal error. Because the Board lacks jurisdiction to 

review OPM’s decision in this case, we need not and cannot address the untimeliness 

of Wonsock’s appeal, or the merits of her case. Accordingly, we affirm the Board’s 

decision. 

COSTS 

No costs.