Kostishak v. Merit Systems Protection Board , 211 F. App'x 964 ( 2007 )

NOTE: This disposition is nonprecedential.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 respondent. 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 Board
NOTE: This disposition is nonprecedential.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.
_______________________
DECIDED: January 12, 2007
_______________________
Before NEWMAN, SCHALL, and MOORE, Circuit Judges.
PER CURIAM.
Michael Kostishak appeals the final decision 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 benefits from the Office of Workers’
Compensation Programs (“OWCP”). While his application was pending, he applied to
the Office of Personnel Management (“OPM”) for a disability 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 the CSRS. In 1997, OWCP
approved Mr. Kostishak’s application for worker’s compensation and Mr. Kostishak
elected to receive OWCP benefits retroactive to the date when his disability retirement
annuity under CSRS began. Mr. Kostishak repaid the annuity payments he received
from OPM under the CSRS out of his OWCP account.
After he paid OPM back for his annuity payments, Mr. Kostishak requested a
refund of life insurance premiums that were withheld from his disability retirement
payments by OPM. OPM denied Mr. Kostishak’s request. OPM explained that he was
subject to the mandatory premium deductions for basic life insurance under the Federal
Employees’ Group Life Insurance Act (“FEGLIA”) and that OPM correctly withheld life
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 untimely, but stated in
its letter that Mr. Kostishak had the right to appeal its decision to the Board.
When Mr. Kostishak filed his appeal to the Board, OPM withdrew its decision
dismissing Mr. Kostishak’s request for reconsideration and indicated that it would
reconsider the merits of his request. The Administrative Judge (“AJ”) concluded that
OPM’s rescission of its decision left the Board with no jurisdiction and 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 appeal on its own motion, vacated the initial
decision, and dismissed the appeal for lack of jurisdiction on a separate basis from that
stated by the AJ. Mr. Kostishak filed a timely appeal of that dismissal to this court.
2006-3280 2
DISCUSSION
Our review of the Board’s decisions is limited by statute. See 5 U.S.C. § 7703(c).
We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” Id.The Board’s jurisdiction is limited to those areas specifically provided for by
statute, rule or regulation. Saunders v. Merit Sys. Prot. Bd., 757 F.2d 1288, 1290 (Fed.
Cir. 1985). We review the Board’s jurisdictional conclusions de novo. Harding v. Dept.
of Veterans Affairs, 448 F.3d 1373, 1375 (Fed. Cir. 2006). We are, however, “bound by
the AJ’s factual determinations unless those findings are not supported by substantial
evidence.” Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). The
petitioner bears the burden of establishing the Board’s jurisdiction by a preponderance
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 have jurisdiction over decisions related to
life insurance deductions under FEGLIA. See Lewis v. Merit Sys. Prot. Bd., 301 F.3d
1352, 1353 (Fed. Cir. 2002) (finding no jurisdiction 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 jurisdiction with Board for an
annuitant’s claim that she should not be required to pay retroactive premiums under
FEGLIA on an annuity under the Federal Employees Retirement System (“FERS”)).
Jurisdiction for claims arising under FEGLIA, Chapter 87 of Title 5 of the United States
Code, is governed by 5 U.S.C. § 8715, which grants jurisdiction in the United States
2006-3280 3
district courts and the United States Court of Federal Claims. See 5 U.S.C. § 8715(2000).
Because Mr. Kostishak’s claim is that he should be entitled to a refund of
insurance premiums withheld from his annuity pursuant to FEGLIA, jurisdiction properly
lies with the United States district courts or the United States 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 because OPM was not authorized by Congress to enlarge the Board’s
jurisdiction to cover claims under arising under FEGLIA. See Schwartz v. Dept. of
Transp., 714 F.2d 1581, 1582-83 (Fed. Cir. 1983) (finding that agency regulation could
not create jurisdiction to the Board where Congress did not authorize agency to expand
the Board’s jurisdiction).
CONCLUSION
Accordingly we affirm the Board’s dismissal of Kostishak’s appeal for lack of
jurisdiction.
COSTS
No costs.
2006-3280 4