There are several types of appeals that can be made to the MSPB which are “constructive” in nature. A constructive action occurs when the Agency didn’t actually take an action but can still be held liable as if they took the action. One example of constructive action is constructive suspension.
Another type of constructive action is coerced retirement. Typically, the MSPB does not have jurisdiction over an employee’s retirement. Why? Because in most cases, the decision to retire is the choice of the employee not the Agency. There are situations, however, when the circumstances surrounding a retirement could be described as “coercive”. In those situations, the MSPB might have jurisdiction over a claim of “involuntary or coerced retirement”.
Here are the common situations when a retirement could be alleged as coerced:
The Agency was about to take personnel action (suspension, removal, etc) which had no legitimate basis and which motivated the employee to retire.
The employee was medically or mentally incapacitated from making the decision to retire
The employee relied on erroneous advice from the Agency that influenced the decision to retire
The totality of the circumstances was such that a reasonable person in the employee’s situation would have felt compelled to resign.
[There may be other scenarios where retirement is considered to be coerced, so you should talk to an MSPB attorney to discuss the facts of your case.] The above scenarios are not easy to prove – you generally have to have some pretty good evidence to prevail on your claim. Moreover, since the Board may not have jurisdiction over your claim until you prove one of the above types of coercion, the issue of whether or not to hold a hearing can often get quite tricky.
Last Rites Meeting
A common example is that in most cases when an Agency is about to fire a senior employee who is retirement eligible, they will often give the employee an opportunity to retire in lieu of the termination. Some of the Agency attorneys I used to work with called this a “Last Rites” meeting, which always seemed rather crass to me. Nonetheless, the MSPB has often found that just because an employee had a tough decision – choosing to retire or challenge being fired – does not mean that they were coerced to retire.
I’ve provided an example of a case (through the link below) where the full MSPB has recently reversed the decision made at the regional level; this decision shows a scenario where an Agency may have coerced an employee’s retirement – it is important to note that the Agency has not been found (yet) to have coerced this employee into retirement. This decision is noteworthy because the full MSPB decision actually discusses the factual circumstances which surrounded the retirement at issue in the case.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, some power. This information is not widely or easily accessible to Federal Employees.
It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case. If you think that your Agency may have coerced you into retiring, contact Pines Federal to schedule a telephone consultation.