Change in the SF-50 Does Not Bestow Appeal Rights

By on February 3, 2016 in Court Cases, Current Events with 3 Comments

Neither the MSPB nor the appeals court would find jurisdiction for this reemployed annuitant to be able to appeal her termination simply based on a change in her retirement paperwork. (Luna v Merit Systems Protection Board (CAFC No. 2015-3159 (nonprecedential), 1/7/16)

Ms. Luna voluntarily retired early from the Food and Drug Administration (FDA), and a few years later went back to work with the Veterans Administration (VA), all the while continuing to receive her annuity. Some four years later, VA terminated Luna for cause. She appealed the termination, but MSPB dismissed the appeal since her SF-50 from FDA stated Luna’s was a voluntary early out retirement. Had hers been an “involuntary Discontinued Service Retirement (DSR),” she would have had an appeal right. (Opinion p. 2)

No problem—she simply got a corrected SF-50 from FDA that changed her retirement several years previously to an involuntary DSR. Armed with the corrected form, Luna went back to the MSPB about four years after her termination, and tried again to appeal. The Board again threw the appeal out for lack of jurisdiction. It found that the corrected form did not actually change her retirement status since she had received her annuity the whole time she had been reemployed with VA. (p. 3)

Without going into the court’s tutorial on the differences between the two types of retirement, suffice it to say that the court agreed with MSPB’s ruling that there was no jurisdiction. As the court stated, “…we have held that characterization of an employee’s retirement on her SF-50 is not dispositive…” (p. 5) Since there was no dispute of the facts, Luna was in fact a “reemployed voluntary retiree ‘annuitant’” and therefore cannot appeal the termination to the Board. (pp. 5-6)

Luna v. MSPB (2015-3159)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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