NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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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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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