In a recent decision, the U.S. Court of Appeals for the Federal Circuit held that reemployed annuitants are "employees" for purposes of the Federal Employees’ Compensation Act (FECA) and are, therefore, entitled to a statutory right to restoration. See Delalat v. Dept. of the Air Force, (Fed. Cir. No. 2008-3038 (February 23, 2009). In 1998, the appellant retired from federal service and began receiving a retirement annuity. Four years after his retirement, the appellant began working for the United States Air Force as a reemployed annuitant, i.e., he continued to receive his annuity after reemployment. Upon returning to work, he suffered an on-the-job injury that qualified him for compensation from the Office of Workers’ Compensation Programs (OWCP). The appellant requested restoration with his job at the Air Force once he was cleared by his physician to return to work, but the Air Force did not respond to his requests. Three months later, the Air Force terminated the appellant.
The appellant appealed to the MSPB, asserting that the Air Force was required to restore him to his prior position pursuant to 5 C.F.R. § 353.301(a). However, the administrative judge dismissed the appeal for lack of jurisdiction, holding that "a reemployed annuitant lacks restoration rights." The MSPB denied the appellant’s petition for review; thus, he appealed to the Federal Circuit.
The court determined that a reemployed annuitant is an "employee" pursuant to the broad statutory definition under FECA, since it defines an "employee" to include "a civil officer or employee in any branch of the Government of the United States." See 5 U.S.C. § 8101(1)(A). Thus, the court held that the appellant was clearly an "employee" because he was already classified as such, under FECA, for purposes of receiving OWCP benefits. See 5 U.S.C. § 8151(b)(1).
The court recognized that a reemployed annuitant does have less employment rights than other federal employees since termination is allowed with or without cause. However, the court explained that this does not mean a reemployed annuitant is wholly without rights because such an employee is statutorily protected from against discriminatory and/or prohibited personnel practices. Also, the court pointed out that there is no specific statutory provision that excludes a reemployed annuitant from restoration. Therefore, allowing reemployed annuitants who are injured on the job to receive OWCP compensation implies that such employees should not be excluded from other FECA protections, including the right to restoration under § 8151. Finally, the court held that "although a reemployed annuitant’s at-will employment status may make the annuitant vulnerable to termination upon restoration, the statutory right to restoration nonetheless protects the reemployed annuitant from termination predicated on a compensable injury." See Roche v. USPS, 828 F.2d 1555, 1557 (Fed. Cir. 1987) (holding that a probationary employee, also non-tenured, can appeal a termination as a denial of restoration rights if "his removal was the result of a compensable injury or was substantially related to a compensable injury.").
* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.
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