Retirement & Financial Planning Report

A federal court decision has reaffirmed that federal retirees who are rehired by the government are considered “at will” employees without the standard appeal rights applying to other federal employees—and to themselves before they retired.

The case before the Federal Circuit appeals court involved a man who retired from the Postal Service and then returned to work, first at the Department of Homeland Security and then with the Defense Department, as a rehired annuitant. The notification of Personnel Action for his move included remarks stating that he was serving “at the will of the appointing officer.”


After several months the DoD separated him during a RIF, notifying him he had “no reply or appeal rights.” He filed an appeal with the MSPB anyway, and a hearing officer scheduled a hearing, but before that was to take place, a settlement agreement was reached in which he continued working, again designated as a reemployed annuitant.

Later the department moved again to separate him, again saying he had no appeal rights but he appealed again to the MSPB anyway. That time the hearing officer, and later the full board, dismissed the appeal for lack of jurisdiction.

In agreeing with the MSPB, the court wrote that “there is nothing precluding retired annuitants from then seeking further employment with the federal government, but should they continue to receive annuity payments, such reemployed annuitants serve at will. As such, they generally have no right to appeal an adverse employment action to the MSPB.”

It said that the first hearing officer’s willingness to hold a hearing made no difference, adding that no precedent in favor of MSPB jurisdiction was set because the hearing never took place.