Luna v. MSPB , 636 F. App'x 564 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
M. CARMEN LUNA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3159
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-14-0378-I-1.
______________________
Decided: January 7, 2016
______________________
M. CARMEN LUNA, San Antonio, TX, pro se.
KATHERINE MICHELLE SMITH, Office of the General
Counsel, Merits Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
2 LUNA v. MSPB
Before PROST, Chief Judge, DYK, and REYNA, Circuit
Judges.
PER CURIAM
M. Carmen Luna petitions for review of a decision of
the Merit Systems Protection Board (“MSPB” or “Board”)
dismissing her appeal for lack of jurisdiction. Because
Ms. Luna was a reemployed voluntary early retirement
annuitant during her time at the Department of Veterans
Affairs (“VA”), she does not have a right to appeal to the
MSPB. We affirm.
BACKGROUND
The basic facts of this case are simple. On June 30,
2003, Ms. Luna retired early from the Food and Drug
Administration (“FDA”). Ms. Luna, a participant in the
Civil Service Retirement System, began receiving an
annuity from the Office of Personnel Management
(“OPM”). Her retirement was apparently treated by the
FDA as a voluntary “early out” retirement, and the
Standard Form 50 (“SF-50”) classified her as such. On
February 2, 2006, Ms. Luna was hired by the VA, and she
continued to receive an annuity from OPM while em-
ployed there. On February 23, 2010, the VA terminated
Ms. Luna for cause. As discussed below, Ms. Luna would
have had a right to appeal to the Board if her early re-
tirement was an involuntary Discontinued Service Re-
tirement (“DSR”) but would not have had a right to appeal
if her retirement was a voluntary early out retirement.
Ms. Luna initially appealed her termination by the
VA to the MSPB on March 8, 2010. The MSPB dismissed
for lack of jurisdiction on the ground that she was a
reemployed voluntary early retirement annuitant, relying
on her SF-50, which characterized her as a voluntary
early out retiree. Luna v. Dep’t of Veterans Affairs, DA-
0752-10-0294-I-1, 2010 WL 10840184 (M.S.P.B. Final
LUNA v. MSPB 3
Order, Nov. 10, 2010). Ms. Luna later requested and
received a corrected SF-50 reclassifying her 2003 retire-
ment as an involuntary DSR rather than a voluntary
early out. In light of the corrected SF-50, Ms. Luna again
appealed her 2010 termination to the MSPB on March 17,
2014. After initial dismissal of this second appeal by an
administrative judge, Ms. Luna petitioned for review by
the full Board. The Board again dismissed for lack of
jurisdiction, finding that the corrected SF-50 did not
affect Ms. Luna’s status as a voluntary early out retiree
since she had continued to receive an annuity while she
was reemployed. Luna v. Dep’t of Veterans Affairs, No.
DA-0752-14-0378-I-1, 2015 WL 1927478 (M.S.P.B. Apr.
29, 2015). We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
Subject matter jurisdiction of the MSPB is a question
of law, which we review de novo. Vesser v. Office of Pers.
Mgmt., 29 F.3d 600, 603 (Fed. Cir. 1994); Waldau v. Merit
Sys. Prot. Bd., 19 F.3d 1395, 1398 (Fed. Cir. 1994). The
subject matter jurisdiction of the MSPB is “limited to
actions designated as appealable to the Board ‘under any
law, rule, or regulation.’” Prewitt v. Merit Sys. Prot. Bd.,
133 F.3d 885, 886 (Fed. Cir. 1998) (quoting 5 U.S.C.
§ 7701(a)).
Under 5 U.S.C. § 8336(d), federal employees partici-
pating in the Civil Service Retirement System can retire
early via a DSR, pursuant to 5 C.F.R. § 831.503, or via an
“early out” Voluntary Early Retirement Authority retire-
ment, pursuant to 5 C.F.R. § 831.114. While DSR is
involuntary and early out retirement is voluntary, both
plans make the retiree eligible for an ongoing annuity,
and the annuity computation formula is the same under
both. See, e.g., U.S. Office of Pers. Mgmt., Guide to Volun-
tary Early Retirement Regulations (2006). If a DSR
4 LUNA v. MSPB
retiree returns to work for the federal government, her
annuity ends and she collects a new salary in full; by
contrast, a rehired early out retiree becomes a reemployed
annuitant who continues to collect her annuity and sepa-
rately collects a reduced salary, with the amount of the
annuity offset from that salary. 5 U.S.C. § 8344; see also
Wolthuis v. Office of Pers. Mgmt., No. 94-3596, 1995 WL
19381, at *6 (Fed. Cir. Jan. 19, 1995) (unpublished).
The distinction between full employee and reemployed
annuitant status affects an individual’s right to appeal an
adverse personnel action. While most federal employees
subjected to such actions have a right to appeal the agen-
cy decision to the MSPB, see Kloeckner v. Solis, 133 S. Ct.
596, 600 (2012), reemployed voluntary early out retirees
do not enjoy an appeal right. Section 3323(b)(1) of title 5
specifies,
Notwithstanding other statutes, an annuitant, as
defined by section 8331 or 8401, receiving annuity
from the Civil Service Retirement and Disability
Fund [e.g., an early out retiree] is not barred by
reason of his retired status from employment in
an appointive position for which the annuitant is
qualified. An annuitant so reemployed . . . serves
at the will of the appointing authority.
Section 3323(b)(1) thus makes clear that any retired and
later reemployed individual receiving an annuity from the
Civil Service Retirement and Disability Fund serves at
the will of the agency that has reemployed her. 1 See
Vesser, 29 F.3d at 604. The consequence of being an at
will employee is that the employee has no right of appeal
1 An exception exists for retired administrative law
judges, who are covered by a special provision in 28
U.S.C. § 3323(b)(2).
LUNA v. MSPB 5
to the Board. 5 C.F.R. §§ 752.401(d)(4), 432.102(f)(11); see
also Evans v. Merit Sys. Prot. Bd., 50 F. App’x 439, 440
(Fed. Cir. 2002).
Ms. Luna argues that the corrected SF-50 classifying
her retirement as a DSR should be determinative of her
right to appeal to the MSPB. But we have held that
characterization of an employee’s retirement on her SF-50
is not dispositive in Grigsby v. Dep’t of Commerce, 729
F.2d 772, 775 (Fed. Cir. 1984). There we stated, “Grigsby
interprets [prior] cases as holding that the characteriza-
tion of a personnel action on the face of the SF-50 is
determinative of the appointment. We disagree with
Grigsby's interpretation.” Id. Rather, our court has held
that “actual receipt of the annuity is significant with
regard to the status of a reemployed individual.” Vesser,
29 F.3d at 605. That is, an individual’s receipt of an
annuity while reemployed, rather than the formal classifi-
cation of the retirement, makes her a reemployed annui-
tant for purposes of § 3323(b)(1). Id.; see also Terrill v.
Merit Sys. Prot. Bd., 610 F. App’x 982, 983 (Fed. Cir.
2015) (“[W]hether or not a reemployed annuitant falls
within § 3323(b)(1) turns on whether the individual
continues to receive an annuity upon reemployment.”).
There is no dispute that Ms. Luna qualified for and
received an annuity at the time of her retirement from the
FDA in 2003, and there is likewise no dispute that she
continued to receive an annuity while employed by the VA
between 2006 and 2010. Because Ms. Luna met the
requirements to receive an annuity on her separation
from the FDA and continued to receive an annuity during
her time at the VA, she was a reemployed voluntary
retiree “annuitant” as defined in 5 U.S.C. § 8331(9). As
6 LUNA v. MSPB
such, she served at will and cannot appeal her termina-
tion to the MSPB. 2
We have considered Ms. Luna’s other arguments, in-
cluding those relating to the Board’s refusal to accept
additional filings from Ms. Luna and other alleged due
process violations. We find them to be without merit. For
the foregoing reasons, we affirm the MSPB’s dismissal of
her suit for lack of jurisdiction.
AFFIRMED
COSTS
No costs.
2 The parties appear to dispute whether the salary
paid by the VA was properly offset by the amount of Ms.
Luna’s annuity. In addition, at one point OPM sought to
recover an alleged overpayment of annuity to Ms. Luna,
but the MSPB found that OPM had not substantiated the
overpayment. Luna v. Office of Pers. Mgmt., No. DA-
831M-14-0569-C-1, 2015 WL 3990796, at ¶¶ 2, 4
(M.S.P.B. Jun. 30, 2015). If Ms. Luna seeks to have her
annuity reinstated (as it seems she has, see id. at ¶¶ 3, 8),
any overpayment established by OPM would have to be
deducted before the annuity could be reinstated.