Rodriguez v. MSPB , 683 F. App'x 932 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RIGOBERTO RODRIGUEZ,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-2682
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-16-0065-I-1.
______________________
Decided: April 6, 2017
______________________
RIGOBERTO RODRIGUEZ, Orlando, FL, pro se.
SARA B. REARDEN, Office of the General Counsel, Mer-
it Systems Protection Board, Washington, DC, for re-
spondent. Also represented by BRYAN G. POLISUK,
KATHERINE M. SMITH.
______________________
Before MOORE, CLEVENGER, and CHEN, Circuit Judges.
2 RODRIGUEZ v. MSPB
PER CURIAM.
Rigoberto Rodriguez seeks review of the decision of
the Merit Systems Protection Board (“MSPB” or “Board”),
which dismissed his appeal for lack of jurisdiction. Mr.
Rodriguez was a reemployed annuitant during the events
in question and, therefore, does not have a right to appeal
to the MSPB. We affirm.
BACKGROUND
Mr. Rodriguez retired from the U.S. Postal Service on
January 1, 2009, under the agency’s Voluntary Early
Retirement Program. Pursuant to the program, Mr.
Rodriguez began receiving monthly annuity payments at
this time and continued to receive payments.
After his retirement from the U.S. Postal Service, Mr.
Rodriguez joined the Department of Homeland Security
(“DHS”) as a term-appointed Accounting Technician. In
December 2012, Mr. Rodriguez transferred from DHS to
the Defense Contract Audit Agency (“DCAA”). The Notifi-
cation of Personnel Action for his move to the DCAA
included remarks stating that Mr. Rodriguez was a
“reemployed annuitant” serving “at the will of the ap-
pointing officer.” SAppx74.
In February 2013, the DCAA terminated Mr. Rodri-
guez’s employment, effective March 2013, under reduc-
tion-in-force regulations, citing an effort to reduce
operating costs. In its notice to Mr. Rodriguez, the DCAA
stated: “As a reemployed annuitant, your appointment is
at the discretion of the appointing officer and affords you
no reply or appeal rights.” SAppx56.
Mr. Rodriguez appealed his 2013 termination to the
MSPB. An administrative judge scheduled a jurisdiction-
al hearing, but before the hearing took place Mr. Rodri-
guez and the DCAA reached a settlement agreement
restoring Mr. Rodriguez’s scheduled work hours. The
RODRIGUEZ v. MSPB 3
settlement agreement referred to Mr. Rodriguez as a
reemployed annuitant.
In October 2015, the DCAA again terminated Mr. Ro-
driguez’s employment, citing poor performance. The
termination letter stated that Mr. Rodriguez was a
reemployed annuitant serving “at the will of the appoint-
ing authority” and that “[t]his action is not appealable to
the Merit Systems Protection Board.” SAppx72.
Mr. Rodriguez nevertheless filed an appeal with the
MSPB shortly after termination. In his appeal, Mr.
Rodriguez conceded he was a reemployed annuitant but
noted that he was successfully sent “back to work” after
his previous MSPB appeal. SAppx71.
The MSPB administrative judge issued an order to
show cause why the appeal should not be dismissed for
lack for jurisdiction, in light of Mr. Rodriguez’s apparent
reemployed annuitant status. Following responses from
Mr. Rodriguez and the DCAA, the administrative judge
dismissed the appeal for lack of jurisdiction. Mr. Rodri-
guez petitioned the MSPB to review the administrative
judge’s dismissal. The MSPB affirmed the administrative
judge’s initial decision.
The appeal to this court followed.
DISCUSSION
The MSPB’s jurisdiction is “not plenary; rather it 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)). Whether the MSPB has
jurisdiction to adjudicate a case is a question of law,
which we review de novo. Vesser v. Office of Pers. Mgmt.,
29 F.3d 600, 603 (Fed. Cir. 1994).
An annuitant is defined as “a former employee or
Member who, on the basis of his service, meets all re-
4 RODRIGUEZ v. MSPB
quirements of this subchapter for title to annuity and files
claim therefor.” 5 U.S.C. § 8331(9). By statute:
an annuitant, as defined by section 8331 or 8401,
receiving annuity . . . is not barred by reason of
his retired status from employment in an appoin-
tive position for which the annuitant is qualified.
An annuitant so reemployed . . . serves at the will
of the appointing authority.
5 U.S.C. § 3323 (emphasis added). In other words, there
is nothing precluding retired annuitants from then seek-
ing further employment with the federal government, but
should they continue to receive annuity payments, such
“reemployed annuitants” serve at will. See Vesser, 29
F.3d at 604. As such, they generally have no right to
appeal an adverse employment action to the MSPB. See 5
C.F.R. §§ 752.401(d)(4), 432.102(f)(11); see also Luna v.
M.S.P.B., 636 F. App’x 564, 566 (Fed. Cir. 2016) (“The
consequence of being an at will employee is that the
employee has no right of appeal to the Board.”).
The facts already recited leave little doubt that Mr.
Rodriguez was a reemployed annuitant when the DCAA
terminated his employment in October 2015. Mr. Rodri-
guez does not contend otherwise; indeed, he acknowledged
his reemployed annuitant status in his MSPB appeal. See
SAppx71 (“In the letter they say that I am [a reemployed]
annuitant. Yes I am . . . .”). Therefore, his employment
with the DCAA was at will, and Mr. Rodriguez had no
appeal rights to the MSPB. See 5 U.S.C. § 3323; Luna,
636 F. App’x at 566; Evans v. Merit Sys. Prot. Bd., 50 F.
App’x 439, 440 (Fed. Cir. 2002) (affirming the MSPB’s
dismissal for lack of jurisdiction where appellant was a
reemployed annuitant).
Mr. Rodriguez’s primary argument for why the MSPB
possesses jurisdiction to hear his appeal is that, in his
previous 2013 appeal, the administrative judge agreed to
hold a jurisdictional hearing, notwithstanding the fact
RODRIGUEZ v. MSPB 5
that he was a reemployed annuitant at that time as well.
Based on the record available, we cannot say the reason
for the administrative judge’s decision to hold a jurisdic-
tional hearing. See Waldau v. Merit Sys. Prot. Bd., 19
F.3d 1395, 1402 (Fed. Cir. 1994) (“There is no statutory
authority requiring the MSPB to hold a hearing on the
threshold issue of jurisdiction. . . . [The MSPB should hold
a jurisdictional hearing] when a petitioner raises nonfriv-
olous allegations of controverted jurisdictional facts on
which the MSPB’s jurisdiction is clearly established if
these facts are proven.”). Regardless of the rationale for
the administrative judge’s decision to hold a hearing,
jurisdiction itself was never established because the
hearing never took place. The DCAA and Mr. Rodriguez
agreed to a settlement whereby Mr. Rodriguez returned to
work. Given that the jurisdictional issue was never
actually decided and that Mr. Rodriguez’s prior appeal
raised different legal issues involving reduction-in-force
regulations, we agree with the MSPB that there is no
basis on which to find jurisdiction in this case, merely
from the administrative judge’s willingness to hold a
jurisdictional hearing in a previous case.
We have considered the remainder of Mr. Rodriguez’s
arguments and find them unpersuasive. Mr. Rodriguez’s
cited case law raises factually and legally distinct issues
from those presented here. And his merits-based argu-
ments—i.e., why his termination was improper—do not
address the threshold question before us, which is wheth-
er the MSPB was correct in dismissing Mr. Rodriguez’s
appeal for lack of jurisdiction. It was. We affirm.
AFFIRMED
COSTS
No Costs.