Delalat v. Department of Air Force
| Decision Date | 23 February 2009 |
| Docket Number | No. 2008-3038.,2008-3038. |
| Citation | 557 F.3d 1342 |
| Parties | Khosrow DELALAT, Petitioner, v. DEPARTMENT OF the AIR FORCE, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
Robert E. Chandler, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Michael F. Hertz, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director.
Before BRYSON, GAJARSA, and MOORE, Circuit Judges.
Khosrow Delalat appeals from the final decision of the Merit Systems Protection Board (MSPB) dismissing Mr. Delalat's appeal for lack of jurisdiction. Specifically, the MSPB held that, as a reemployed annuitant, Mr. Delalat did not have a right to restoration to his previous position after he recovered from a compensable injury and, therefore, did not have any statutory right to appeal to the MSPB the Air Force's failure to restore him. Because we find that reemployed annuitants are "employees" for purposes of the Federal Employees' Compensation Act (FECA) and are, therefore, entitled to a statutory right to restoration, we vacate and remand for proceedings in accordance with this opinion.
Mr. Delalat retired from federal service in 1998 and began receiving a retirement annuity. Four years after his retirement, Mr. Delalat was hired by the Air Force as a reemployed annuitant—i.e., he continued to receive his annuity after reemployment. Shortly thereafter, Mr. Delalat suffered an on-the-job back injury for which he was deemed eligible for compensation by the Office of Workers' Compensation Programs (OWCP).
Upon recovering from his injury and being cleared by his physician to return to work, Mr. Delalat requested restoration to his former position with the Air Force. The Air Force did not respond to his requests for restoration. Three months later, the Air Force terminated Mr. Delalat.
Mr. Delalat appealed to the MSPB, contending that the Air Force was required to restore him to his prior position pursuant to 5 U.S.C. § 8151, as implemented by 5 C.F.R. § 353.301(a). The Administrative Judge dismissed his appeal for lack of jurisdiction, holding that "a reemployed annuitant lacks restoration rights" and that Mr. Delalat had thus failed to allege facts that would have established his right to file an appeal with the MSPB.
The MSPB denied Mr. Delalat's petition for review, rendering the Administrative Judge's initial decision final. Mr. Delalat timely appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
Our review of MSPB decisions is limited under 5 U.S.C. § 7703(c). A final decision of the MSPB may be reversed only if that decision is found to be: (1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (2) obtained without procedures required by law; or (3) unsupported by substantial evidence. Id.; Farrell v. Dep't of Interior, 314 F.3d 584, 589 (Fed.Cir.2002). Whether the MSPB has jurisdiction to adjudicate a particular appeal is a question of law, which this court reviews de novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.Cir.1995).
The MSPB's jurisdiction is limited to that expressly granted by statute, rule, or regulation. See 5 U.S.C. § 7701(a); Hartman v. Merit Sys. Prot. Bd., 77 F.3d 1378, 1380 (Fed.Cir.1996). The burden is on the petitioner to establish the MSPB's jurisdiction over his appeal by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed.Cir.1998).
Section 8151 of the FECA provides in part:
[T]he department or agency which was the last employer [of an employee who was receiving compensation for work injuries] shall immediately and unconditionally accord the employee, if the injury or disability has been overcome within one year after the date of commencement of compensation ..., the right to resume his former or an equivalent position, as well as all other attendant rights which the employee would have had, or acquired, in his former position had he not been injured or disabled, including the rights to tenure, promotion, and safeguards in reductions-in-force procedures....
5 U.S.C. § 8151(b)(1).1 The FECA defines the term "employee" to include, inter alia, "a civil officer or employee in any branch of the Government of the United States." 5 U.S.C. § 8101(1)(A). The definition further recites four enumerated exclusions:
(i) a commissioned officer of the Regular Corps of the Public Health Service;
(ii) a commissioned officer of the Reserve Corps of the Public Health Service on active duty;
(iii) a commissioned officer of the Environmental Science Services Administration; or
(iv) a member of the Metropolitan Police or the Fire Department of the District of Columbia who is pensioned or pensionable under sections 521-535 of title 4, District of Columbia Code.
5 U.S.C. § 8101(1)(i)-(iv). The Office of Personnel Management's implementing regulations simply mirror this definition and its exclusions. 5 C.F.R. § 353.103(b).
Mr. Delalat clearly fits within the broad statutory and regulatory definitions of "employee;" he has already been classified as an employee under the FECA for purposes of receiving OWCP benefits; and neither the FECA generally nor the FECA's restoration provision in particular expressly excludes reemployed annuitants. Cf. TRW Inc. v. Andrews, 534 U.S. 19, 28, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) ; King v. Briggs, 83 F.3d 1384, 1388 (Fed.Cir.1996) (); Acting Special Counsel v. U.S. Customs Serv., 31 M.S.P.R. 342, 347 (1986) (). Nonetheless, the Air Force argues that, as a reemployed annuitant, Mr. Delalat is not eligible for restoration rights pursuant to § 8151. We disagree.
Section 3323 of Title V establishes the status of reemployed annuitants as follows:
Notwithstanding other statutes, an annuitant, as defined by section 8331 or 8401, receiving annuity from the Civil Service Retirement and Disability Fund 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, other than an annuitant reappointed under paragraph (2) of this subsection, serves at the will of the appointing authority.
5 U.S.C. § 3323(b)(1).2 By the express language of § 3323, a reemployed annuitant is an at-will employee—that is, the reemployed annuitant may be terminated with or without cause. This does not mean, however, that reemployed annuitants are wholly without rights. Reemployed annuitants are, for example, not excluded from the statutory protections against discriminatory and/or prohibited personnel practices afforded by 5 U.S.C. § 2302 and 42 U.S.C. § 2000e et seq. ("Title VII"). See, e.g., Acting Special Counsel, 31 M.S.P.R. at 344-48. Similarly, the decision not to carve out a statutory exclusion for reemployed annuitants in the FECA reflects congressional intent that reemployed annuitants who are injured on the job and receive OWCP compensation are not excluded from other FECA protections, including the right to restoration under § 8151.
We are unpersuaded by the Air Force's policy argument that it would make little sense to accord restoration rights to an at-will employee, because he would be subject to termination immediately upon restoration. Although a reemployed annuitant's at-will employment status may make the annuitant...
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