Terrill v. MSPB , 610 F. App'x 982 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEAN TERRILL,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2014-3185
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-13-0486-I-1.
______________________
Decided: April 10, 2015
______________________
JEAN TERRILL, Springfield, VA, pro se.
TREYER AUSTIN MASON-GALE, Office of the General
Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
Before PROST, Chief Judge, CLEVENGER and SCHALL,
Circuit Judges.
2 TERRILL v. MSPB
PER CURIAM.
Ms. Jean Terrill appeals from the decision of the Mer-
it Systems Protection Board (“Board”) dismissing her
appeal of her termination for lack of jurisdiction. Because
Ms. Terrill was a reemployed annuitant and employed at
will, the Board lacked jurisdiction over her appeal. We
therefore affirm.
Ms. Terrill was separated on January 9, 2009, from
her position at the Defense Finance & Accounting Service
due to a reduction in force. The next day, she began
receiving an annuity as a discontinued service retiree
under the Civil Service Retirement System. Ms. Terrill
had previously registered with the Department of De-
fense’s Priority Placement Program and, on February 15,
2009, was appointed to a new position within the Army
National Guard. Throughout her employment with Army
National Guard, Ms. Terrill continued collecting her
annuity. On March 16, 2013, pursuant to an agency
memorandum directing that reemployed annuitants be
terminated due to budget constraints, Ms. Terrill’s posi-
tion with the Army National Guard was terminated.
Ms. Terrill appealed her termination, arguing that the
agency improperly classified her as a reemployed annui-
tant and violated her due process rights in terminating
her. The administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. The admin-
istrative judge explained that because Ms. Terrill had not
elected to stop collecting her annuity upon reemployment
as permitted by 5 U.S.C. § 9902(g), she was a reemployed
annuitant serving at will pursuant to 5 U.S.C.
§ 3323(b)(1) with no right to appeal her termination.
Ms. Terrill then petitioned the Board for review of the
initial decision. The Board concluded that Ms. Terrill did
not establish any basis for reversing the decision by the
administrative judge and thus affirmed dismissal of Ms.
Terrill’s appeal for lack of jurisdiction.
TERRILL v. MSPB 3
On appeal to this court, Ms. Terrill argues that dis-
continued service annuitants who are reemployed via the
Priority Placement Program should not be considered
reemployed annuitants serving at will under § 3323(b)(1).
She also contends that the Board’s application of
§ 3323(b)(1) and § 9902(g) violated her due process rights,
that the agency improperly altered her employment
status, and that the agency should have informed her of
the consequences of continuing to receive her annuity
upon reemployment.
Whether the Board has jurisdiction to adjudicate a
particular appeal is a question of law, which this court
reviews de novo. Vesser v. Office of Pers. Mgmt., 29 F.3d
600, 603 (Fed. Cir. 1994). Under § 3323(b)(1), a
reemployed annuitant serves at the will of the appointing
authority, and has no right to appeal from removal ac-
tions. Id. at 604-05; see also Evans v. Merit Sys. Prot. Bd.,
50 F. App’x 439, 440-41 (Fed. Cir. 2002); Garza v. Dep’t of
the Navy, 119 M.S.P.R. 91, 94 (2012). The jurisdictional
issue in this case thus turns on whether Ms. Terrill is a
reemployed annuitant serving at will within the meaning
of § 3323(b)(1).
Section 3323(b)(1) provides that an individual receiv-
ing an annuity may become reemployed in an appointive
position for which he or she is qualified but, when so
reemployed, serves “at the will of the appointing authori-
ty.” This court has held that whether or not a reemployed
annuitant falls within § 3323(b)(1) turns on whether the
individual continues to receive an annuity upon
reemployment. See Vesser, 29 F.3d at 604 (“It is clear
that in . . . § 3323(b)(1) . . . the actual receipt of the annui-
ty is significant with regard to the status of a reemployed
individual.”). Pursuant to § 9902(g), a discontinued
service annuitant under the Civil Service Retirement
System who is reemployed with the Department of De-
fense, as Ms. Terrill was, continues to receive her annuity
4 TERRILL v. MSPB
unless she elects to cease annuity payments within ninety
days of being informed of such option.
Ms. Terrill does not dispute that she did not exercise
her option to cease annuity payments, and instead con-
tinued to receive her annuity throughout her reemploy-
ment with the Army National Guard. Because she
continued receiving her annuity upon reemployment, Ms.
Terrill was a reemployed annuitant serving at the will of
the appointing authority under § 3323(b)(1), and has no
right to appeal her removal. See Vesser, 29 F.3d at 604-
05; Garza, 119 M.S.P.R. at 94 (finding no jurisdiction
because the discontinued service annuitant continued
receiving annuity upon reemployment, and thus was a
reemployed annuitant serving at will under § 3323(b)(1));
Spiegel v. Dep’t of Defense, 33 M.S.P.R. 165 (1987) (finding
no jurisdiction because the reemployed annuitant contin-
ued receiving his annuity upon reemployment and was
thus serving at will under § 3323(b)(1)); Colbert v. Dep’t of
the Army, 54 M.S.P.R. 492, 495 (1992) (finding that when
a discontinued service annuitant’s annuity is terminated
upon reemployment, he is not a reemployed annuitant
serving at will under § 3323(b)(1)).
In contesting her status as an at will employee under
§ 3323(b)(1), Ms. Terrill argues that discontinued service
annuitants who are reemployed via the Priority Place-
ment Program should be treated differently than other
reemployed annuitants. Her rationale is that placement
of a discontinued service annuitant via the Priority
Placement Program is more akin to a continuation of
previous employment than an appointment under
§ 3323(b)(1). But this assertion is unsupported by statute
or regulation. Further, it misses the point, as an employ-
ee’s status as a reemployed annuitant serving at will does
not turn on the process by which reemployment occurs.
Rather, by the plain words of the statute, Ms. Terrill falls
within § 3323(b)(1) because she continued “receiving
TERRILL v. MSPB 5
annuity” upon her reemployment. § 3323(b)(1); Vesser, 29
F.3d at 604.
Ms. Terrill also argues that the agency improperly re-
vised her employment status. She points out that her
original Standard Form 50 (“SF-50”) designated her as a
permanent employee, and it was not until several years
later that the agency revised her SF-50 to designate her
as an at will employee. She also argues that, although
she was notified of her choice to waive her annuity upon
reemployment, and how that choice would affect her
salary and compensation, she was not told that her choice
could affect her employment status or appeal rights.
An SF-50 alone does not control an employee’s status.
Grigsby v. U.S. Dep’t of Commerce, 729 F.2d 772, 775-77
(Fed. Cir. 1984). Rather, when there is evidence of error
in such a document, it is appropriate to look to the totality
of the circumstances to determine the employee’s correct
status and rights. Id.; see also Scott v. Dep’t of the Air
Force, 113 M.S.P.R. 434, 438 (2010). Here, despite the
error on Ms. Terrill’s SF-50, there is no dispute that she
continued to receive her annuity upon reemployment;
thus, she falls within the plain language of § 3323(b)(1).
Further, when, as here, an individual is reappointed to
new agency, she is responsible for determining the conse-
quences of her change in position. See Park v. Dep’t of
Health & Human Servs., 78 M.S.P.R. 527, 533-36 (1998).
We have considered Ms. Terrill’s other arguments, in-
cluding those relating to the impact of § 9902(g) on her
due process rights, and find them unpersuasive. Because
we find that the plain language of § 3323(b)(1) divests the
Board of jurisdiction over Ms. Terrill’s appeal, we affirm.
AFFIRMED
COSTS
Each party shall bear their own costs.