“In Lieu Of” Removal

Federal employees faced with removal possess the ability to resign prior to the effective date of the removal action.  Employees otherwise eligible for retirement maintain the ability to retire prior to and after the effective date of removal.  While these options can be tricky to execute, they nevertheless provide options for the employee, when there seem to be no options.  However, there are certain implications to be considered.

We often advise clients that resignation or retirement in lieu of a removal action can mitigate the effects of an otherwise disastrous situation. Notice we said “mitigate” and not “eliminate.”  Seasoned Employee and Labor Relations experts often refer to this situation as “controlling your own exit.”  Certain implications and considerations exist however.  For example, an employee resigning (or even retiring) prior to the effective date of a removal action will normally be required to answer “yes” to any question asking whether they resigned after being told they would be fired (specifically, Question 12 on form OF-306, Declaration for Federal Employment).  There are many disagreements over the context of this question and application of certain variables in answering these questions.  For example, whether the affected employee resigned after receiving the notice of proposed removal but before learning of the final decision can technically affect a response to this question. To avoid confusion and later, charges of material falsification in application for employment, we always recommend answering truthfully, using a plain read and interpretation of the question, whether on form OF-306 or a private sector equivalent form.  If you require more specific guidance due to a unique situation, you should probably contact a consultant to review your specific circumstances. It is equally important to consider that material falsification of an application for federal employment is not time barred in that twenty years later, you could be removed for the falsification, regardless of how minor, despite an illustrious career.

Another implication an employee must consider in resigning or retiring to preempt a removal action is the tacit waiver of any appeal rights concerning the removal.  Simply put, an employee’s voluntary action, such as a resignation or application for retirement, generally cannot be appealed to the Merit Systems Protection Board (MSPB); resignations and retirements are presumed to be voluntary, and the affected employee bears the burden of proving otherwise to establish jurisdiction with the Board.  Simply stated, the fact an employee is faced with an unpleasant choice of either resigning or defending against a potential removal action does not rebut the presumed voluntariness of his or her ultimate choice in resigning.  See, Adams v. U.S. Postal Service, 108 LRP 13598 , 108 MSPR 250(MSPB 2008), citing Schultz v. Department of the Navy, 87 FMSR 7005 , 810 F.2d 1133 (Fed. Cir. 1987). The “presumption of voluntariness” is typically a very difficult burden to overcome.  For example, an argument asserting jurisdiction before the Board would require the employee to establish the resignation was the result of the agency’s misinformation or deception or that it was otherwise coerced by the agency. See, Hosozawa v. Department of Veterans Affairs, 110 LRP 2590 , 113 MSPR 110 (MSPB 2010), citing Vitale v. Department of Veterans Affairs, 107 LRP 70948 , 107 MSPR 501 (MSPB 2007).  Other challenges to the “voluntariness” of the action may include coercion or deception, discrimination, mental capacity, or an agency’s refusal to allow the affected employee to withdraw the resignation or retirement prior to the effective date of the action (once the effective date passes, there is no ability to withdraw).  It is also important the affected employee understand that these situations move fast and they may have very little time to make a decision.  The fact an employee has a relatively short period of time to decide whether to resign in lieu of receiving a notice of proposed removal (or a decision letter) does not mean the resignation is involuntary. See, Parrott v. Merit Systems Protection Board and Department of Homeland Security, 108 LRP 14602 , 519 F.3d 1328 (Fed. Cir. 2008).

In any circumstance involving the decision of an employee to resign or retire in lieu of being removed from federal service, it is important for the employee to understand and accept that the agency typically maintains all the leverage in the situation.  In some circumstances it may be possible for the employee to negotiate a settlement (not necessarily a “Last Chance Agreement”) that incorporates “exit terms.”  However, the agency is under no obligation to engage in a settlement discussion in this regard.

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