NOTE: This disposition is nonprecedential.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, Fl orida, pro se. Sara B. Rearden , Attorney, Office of the Gener al Counsel, United States Merit Systems Protection Board, of Washington, DC, for responden t. 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 Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 Meri t 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 fi nal 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 employ ed as a patrol officer for the U.S. Capitol Police, cancelled her enr ollment 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 reti ree. In a letter dat ed April 7, 2005, the Office of Personnel Management (“OPM”) deni ed Wonsock’s request because she did not meet the statutory requirem ents for reenrollment, nor was she eligible for a waiver of those requirements. The letter informed Wons ock 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 fili ng an appeal was due to t he 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 t hat 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 wa s 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-pet ition. On February 20, 2008, the Board vacated the initial decision of the AJ, granted OPM’s cr oss-petition, and dismissed Wonsock’s appeal for lack of jurisdiction. The Board found that OPM’s decision not to

2008-3193 -2-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 adj udicate a particular appeal is a question of law that we review de novo . Conyers v. Meri t 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 ju risdiction 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 l ed to her retirement. She again requests to be allowed to enroll in FEHBP. She does not address the ju risdictional 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 unreviewabl e by the Board. The gover nment urges this court to uphold the Board’s decision finding lack of ju risdiction 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 -3-is unreviewable by the Board. In s upport of its argument that OPM’s waiver determination is not reviewable by the B oard, the government points to 5 U.S.C. § 8905(b) and 5 C.F.R. § 890.306(a)(1). T hus, the government argues, the Board lacks jurisdiction to review OPM’s reconsiderat ion decision dismissing Wonsock’s appeal as untimely. We agree with the government. Although t he 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 F ederal Regulations details the eligibility requirements for FEHBP benefits. 5 C.F.R. § 890.306 is entitled, “When can annuitants . . . reenroll.” That section lists three si tuations 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 a ll service since his or her first opportunity to enroll,” or if “OPM waives the r equirement 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 e ligibility. Thus, she relies only on the third manner of reenrollmen t, namely, OPM waiving the eligibility requirements pursuant to § 890.108. 5 C.F.R. § 890.108(a) det ails the process by which OPM can waive an annuitant’s FEHBP elig ibility requirements: . . . OPM may waive the eligibility require ments for health benefits coverage as an annuitant for an individual when, in its sole discretion , it determines that due to exceptional circumstances it woul d be against equity and good conscience not to allow a person to be enrolled in the FEHB Program as an annuitant.

2008-3193 -4-2008-3193 -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

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