Are you a federal employee facing an investigation? Are you considering retiring in lieu of opposing a proposed disciplinary action? If so, you need to know that your voluntary retirement will likely prevent you from being able to challenge the disciplinary action at the MSPB.
What is the difference between a voluntary and involuntary retirement?
Normally, there is a presumption that an employee retired voluntarily; that is, we assume that the retirement was voluntary unless the employee can show that their agency acted improperly. A retirement is considered “voluntary” when the employee willingly makes a decision to retire.
On the other hand, a retirement is considered “involuntary” when a federal agency tells an employee they need to retire. An employee can show that their agency acted improperly, and thus that their retirement was involuntary by establishing: (1) they retired because the agency gave them misinformation or deceived them, or (2) the agency coerced the employee to retire.
If you retired involuntarily, your retirement would be considered a disciplinary action and you can challenge your involuntary retirement before the Merit Systems Protection Board (MSPB). But if you retire voluntarily, you waive your right to challenge the disciplinary action.
Who investigates whether a retirement is involuntary?
If you have already retired, and are trying to make a claim that your retirement was involuntary, you can file an appeal with the MSPB. The MSPB will determine whether your retirement was voluntary or involuntary.
When does an “involuntary retirement” claim arise?
Federal employees who are facing disciplinary action and instead decide to retire may claim that their retirement was “involuntary.” In a recent MSPB decision, the Board held that if the agency rescinds the removal action before you retire, your retirement is not considered “involuntary” and cannot be challenged before the MSPB. Thus, if your agency tells you they will cancel the removal action if you retire, your retirement will be considered “voluntary” and cannot be challenged at the MSPB.
The Reality: The difficulty of proving involuntary action
The MSPB’s most recent decision means that it will be nearly impossible for a federal employee who retires in the face of a removal action to prove that their retirement was involuntary. This means that you will not be able to challenge the agency’s disciplinary action at the MSPB, and would not be able to be reinstated to your former position.
If you have questions about a proposed disciplinary action and are considering leaving your agency, we can help! Call Alan Lescht & Associations, P.C. at (202) 463-6036 or visit our website at https://www.dcemploymentattorney.com for more information.