NOTE: This disposition is nonprecedential.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 Merit 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 Defense’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 position with the Army National Guard was terminated. 

Ms. Terrill appealed her termination, arguing that the 

agency improperly classified her as a reemployed annuitant and violated her due process rights in terminating 

her. The administrative judge issued an initial decision 

dismissing the appeal for lack of jurisdiction. The administrative 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 discontinued 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 actions. 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 receiving 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 authority.” 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 annuity 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 Defense, 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 continued to receive her annuity throughout her reemployment 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 continued 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 Placement 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 employee’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 revised 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 consequences 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, including 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.