Not Eligible to Retire? What Happens if You Create New Data for Your Retirement Application?

By on September 15, 2008 in Court Cases, Current Events with 0 Comments

A Department of Energy engineer in Aiken, South Carolina, tried unsuccessfully to persuade the appeals court to overturn a settlement agreement that required him to leave the agency. (Salazar v. Department of Energy, C.A.F.C. No. 2008-3186 (nonprecedential), 9/5/08) The Merit Systems Protection Board wouldn’t hear the case, and the appeals court now sides with the Board. The facts are taken from the court’s decision.

DOE initiated removal against Salazar when it learned he had given false personal information to the agency regarding his qualifications and country of birth. Salazar proposed that the agency let him retire instead of removing him, and the agency agreed. The settlement let Salazar stay on until he became eligible for early retirement. He followed through with a retirement application that listed his birth date as January 30, 1954. It was approved and he retired. (Opinion, p. 2)

Several months later, Salazar was indicted for false statements, including listing this birth date on his retirement application when in fact he was born in 1958, which was 4 years after his proclaimed birth date. He was convicted and OPM terminated his retirement annuity since he did not meet the age requirement. (pp. 2-3)

Salazar appealed to the MSPB arguing that the agency had breached the settlement agreement since it violated a provision to keep the matter confidential by blowing the whistle on him to government prosecutors. The Board concluded that he did not show breach and the appeals court now agrees. Here’s the court’s take: As the Board correctly concluded, any confidentiality provision in the settlement agreement could not prohibit the agency, as a matter of public policy, from reporting Salazar’s misconduct to the appropriate authority for prosecution." (p. 4) Further, since he was not really eligible to retire in the first place, he is in no position to complain about any breach by the agency. (p. 4)
 

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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