                     NOTE: This disposition is nonprecedential.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                        NOTE: This disposition is nonprecedential.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
                                        -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 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
                                       -3-
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
                                        -4-
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.




2008-3193
                                       -5-
