MSPB rights of federal employees who retire in lieu of removal

Federal employees can only appeal to the Merit Systems Protection Board (MSPB) in certain situations. Federal employees who are removed from their jobs generally may seek reinstatement and back pay at the MSPB. However, we occasionally encounter people who decide to retire rather than challenge a proposed removal and are asked what impact retirement will have on them. The answer is that federal employees who elect to retire may still pursue their case at MSPB but their decision to retire before removal will cause MSPB to issue a show cause order requiring them to establish jurisdiction. Because MSPB jurisdiction extends only to removal cases where the removal was involuntary, federal employees who retire in lieu of removal will need to establish that they were constructively discharged — forced to quit — in order to continue with their case. This is not an easy burden to uphold.

If you are facing removal or considering retirement, contact Alan Lescht and Associates today. Ask for advice and counsel before making critical decisions about your employment.