Petitioner in this case seeks review of the final decision of the Merit Systems Protection Board (board) in which the board held that it was without jurisdiction to grant relief based on petitioner's religious objections to certain coverage of the Federal Employees Health Benefits (FEHB) program. We affirm.I.

In 1979 petitioner sought and received a career conditional appointment as a civilian employee of the United States Navy. Like most federal employees, upon appointment he planned to choose a group health insurance plan from among those selected by the Office of Personnel Management (OPM) for the FEHB program, for which the Government contributes slightly more than half the cost. However, due to religious convictions petitioner desired a plan that did not provide coverage for abortions or contraception. No such plan was then available, so he requested the reduction of his premiums by that portion which could be allocated to abortions and contraception. He was informed, however, that FEHB simply had no provision for such a reduction. He finally chose a plan and paid the full employee contribution under protest.

In appealing to the board the refusals to reduce his premiums or to provide a plan acceptable to him, petitioner claimed that he was being forced, in violation of his rights under the first amendment to the Constitution, financially to support medical procedures to which he was religiously opposed. Petitioner was terminated after less than 7 months of service (during his probationary period) for performance-based reasons. He also appealed the termination.

The board, consolidating the first amendment claim and the termination claim, upheld the termination without addressing the constitutional issue.1 Petitioner appealed that decision to the United States Court of Claims which upheld the termination decision but remanded for consideration of the constitutional issue.2 On remand, the board held that it was without jurisdiction of petitioner's constitutional claim because no statute or regulation provided for board review of the discretionary authority of OPM to contract with qualified carriers for group health insurance plans.3 Petitioner then took this appeal to us,4 urging reversal of the board on the jurisdictional issue and a decision in his favor on the merits.

In briefing the jurisdictional issue which is the center of this case, the Government contends that this court does not have jurisdiction over the petitioner's appeal. Since petitioner's appeal does not come within the subject matter which the board is permitted to review, respondent argues, the court as reviewer of the board does not have subject matter jurisdiction over petitioner's appeal from the board.

The effect of the Government's position is to create an additional question--the court's jurisdiction--to be resolved in all appeals from the Merit Systems Protection Board,5 and that question must be resolved by reference to the statutory and case law governing the Federal Circuit. We consider respondent's approach an unhelpful and confusing way to present the jurisdiction question in appeals from the board, because it is not the court's jurisdiction to review a decision of the board, but the board's jurisdiction to consider the question raised by petitioner, that is at issue.

Cases which are brought to the board pursuant to its general jurisdiction to review agency employment actions are procedurally governed by the Civil Service Reform Act of 1978,6 as amended by the Federal Courts Improvement Act of 1982,7 the relevant parts of which are codified at 5 U.S.C. Secs. 7701, 7703. Section 7701 specifies (albeit by referring to other parts of the Civil Service Reform Act and by authorizing regulations) those actions over which the board has subject matter jurisdiction.8 Section 7703 specifies no subject matter but simply provides that the Federal Circuit has exclusive jurisdiction of all appeals from the board of cases, like this one, brought to the board under section 7701.9

For the Government to place this court's jurisdiction in issue on appeal, therefore, it must refer to section 7703 which governs jurisdiction of the Federal Circuit. Section 7703, however, offers no clue to the actual subject matters of the cases within the court's jurisdiction, but rather specifies only the source of the cases. In directing attention to the court's jurisdiction, the Government refers us to a provision which is of no help in determining subject matter jurisdiction.10

Directing attention to the court's jurisdiction is also analytically wrong. The court's jurisdiction to review section 7701 board decisions is plenary; we find no exceptions which might be raised in the proposed additional jurisdictional inquiry.

The Government's insistence on questioning this court's jurisdiction may be a holdover from its practice before the Court of Claims, one of our predecessor courts. Prior to the Federal Courts Improvement Act, the Court of Claims had held in Dunn v. United States Department of Agriculture that it was limited by the Tucker Act11 to review of cases "where, if the petitioner prevails, he would be entitled to back pay or some other form of monetary relief."12 The non-monetary cases were to be heard in the courts of appeals which at that time had concurrent jurisdiction with the Court of Claims over board appeals.

In making its argument, the Government relies heavily upon Dunn and the pre-Federal Courts Improvement Act version of section 7703.13 However, the Federal Courts Improvement Act removed from section 7703 the reference to the Tucker Act, which was the basis of the Dunn holding.14 The legislative history confirms the obvious implication that Congress intended to remove the Dunn limitation. The House report states explicitly:15

[T]he court has jurisdiction * * * over all appeals from the Merit Systems Protection Board (including cases over which the Court of Claims did not have jurisdiction5). * * *

In other words, the Federal Courts Improvement Act constitutes a net gain in the scope of jurisdiction over that of our predecessor court in section 7701 board cases: all such appeals must go to this court.16

We hold that, with respect to cases brought under section 7701,17 the scope of the subject matter jurisdiction of this court is identical to the scope of the jurisdiction of the board. Resolution of this case turns on the correctness of the board's determination that the board did not have jurisdiction of the case. It is to that question we now turn, for, however the board or the court resolves it, this court has the power and duty to make that determination.

Section 7701 gives the board jurisdiction over "any action which is appealable to the Board under any law, rule, or regulation."18 The board's substantive jurisdiction is set out in OPM and board regulations, and petitioner points out two areas in particular under which he believes that his claim fits.

The first, 5 C.F.R. Sec. 1201.3(a)(6), authorizes review by the board of "[d]eterminations relating to disability retirement, health insurance and annuities."19 "Determinations" is the limiting language in this provision, and petitioner's claim hangs on what "determination" means. The list of reviewable actions in section 1201.3(a) originally included solely the kind of actions, like removal or suspension, that can be taken only on an individual basis by the employing agency.20 Only in the final revision of the regulation was the provision for determinations concerning health insurance in paragraph (6) added.21 The complete absence of agency comment on this change strongly suggests that the "determinations" referred to in the present version are simply another area of individual decisions taken by the employer agency.22 This is the only reading of paragraph (6) that brings it into harmony with the rest of the regulation in providing for jurisdiction of the kind of individual actions which the board is designed to hear.

Petitioner's real objection is to the overall health insurance policy of OPM which did not provide any abortion- and contraception-free plans. This policy is not, in the sense of the regulation, a determination by petitioner's employing agency relating to health insurance. The Navy made no individual decision with respect to petitioner's insurance benefits; it simply informed him of FEHB options, determined by OPM, which the Navy had no power to change.23 There is no question that the Navy performed its obligation to give petitioner full opportunity to choose any existing plan for which he was eligible.

The second possibility is the general provision for review of "certain decisions of the Office of Personnel Management relating to retirement and insurance benefits" in the introductory paragraph of section 1201.3(a).24 Petitioner is attacking a decision of OPM, but is it one of the certain decisions reviewable by the board? To decide this we must look beyond the general regulation to the regulations governing the FEHB program.25 The FEHB regulations do not provide for review either of the kind of decision to which petitioner objects or indeed, by the board, of any insurance decision.26 They cover only decisions "refusing to permit registration for or change of enrollment or refusing to permit enrollment of an individual as a family member"27 and "individual claims for payment or service under health benefits plans."28 Again, the Navy has in no way obstructed petitioner's access to any benefits available to other employees under the FEHB program.

Petitioner, by contrast, is challenging the overall OPM decision to approve or not to approve health plans submitted to it by insurance carriers. The standards for that decision are set out by statute29 and regulation30 and neither provides for review by the board.31 We therefore conclude that the board correctly held that it did not have jurisdiction over petitioner's claim.

Finally, the Government urges us not to remand the case to the Claims Court because the Claims Court has no jurisdiction of this case under the Tucker Act.32 We grant the request but for different reasons.

It would be premature for us to make a determination of the jurisdiction of the Claims Court under the Tucker Act on the basis of a case prepared for the board under the Civil Service Reform Act. In making its argument on this point, the Government again seems to confuse the relationship of the Federal Circuit to the Claims Court with the relationship of the Court of Claims to its trial division. The Court of Claims could remand to its trial division for preliminary review anything over which that court had jurisdiction. Since such a remand was all within the same court, no new pleadings were necessary or desirable. That is no longer the case. The Claims Court is an entirely separate body from the Federal Circuit; it has its own independently appointed judges and its own rules. We cannot simply ignore the Claims Court's original filing requirements and jurisdictional determination.33 It will be time enough to consider whether the Claims Court has jurisdiction over the case if and when petitioner files a new suit in that court.

This case having been appealed to us from the board, we hold that the board correctly determined that it had no jurisdiction. If petitioner cares to pursue the matter, and he is not time barred, he may file in the Claims Court or in a district court, whichever (if either) he believes has jurisdiction of his case. In view of our disposition of the case, we have no occasion to address petitioner's claims for attorney's fees.

AFFIRMED.