Retiring When Facing Unpleasant Options No Basis for Appeal

The federal appeals court has decided the case of a Bureau of Land Management field office manager, charged by Kane County Utah authorities with kidnapping, sexual assault, and attempted rape of a child, who opted to retire when the agency notified him he would be indefinitely suspended without pay until the criminal charges were resolved. (Smart v. Merit Systems Protection Board, C.A.F.C. No. 2009-3040 (nonprecedential), 7/9/09) The facts are taken from the court’s opinion.

 
When he was told by the agency that it would indefinitely suspend him, Mr. Smart professed he was innocent and asked the agency to place him on paid leave until the criminal charges against him were resolved or until he opted to retire. The agency politely declined to do so and issued its final decision with an effective date for his indefinite suspension. Smart opted to retire the day before the indefinite suspension was to take place. (Opinion p. 2)
 
You guessed it. Smart immediately filed an appeal with the Merit Systems Protection Board challenging the agency’s indefinite suspension action. He argued the agency did not have just cause and there was no nexus between the criminal charges and his job. He also argued that his retirement was coerced. (p. 2)
 
Since Smart could not convince the Board that it had jurisdiction over a suspension action that never took effect due to his intervening retirement, it dismissed his appeal. (p. 2)
 
Undaunted, Smart took his case to court.
 
Smart argued that his retirement was coerced because an indefinite suspension without pay would have left him with no income or benefits. The court points out its long-standing line of cases holding that resignation or retirement is not involuntary just because the employee was put in “an inherently unpleasant situation….with two unpleasant alternatives.” (p. 3)
 
Since Smart retired before the suspension ever took effect, he simply has no standing to file an appeal challenging the agency’s disciplinary action. As for the alleged coercion, the court noted that it “was not coercive in any sense” to offer Smart an option affording him some resources (retirement) that it had no obligation whatsoever to provide him. (pp. 3-4)
 
Although not required, the court did address Smart’s argument that there was no nexus between the criminal charges and his position, pointing first to the Interior Department’s established policy that any employee charged with a serious crime will be indefinitely suspended. (p. 5) The court further noted the “intense” media coverage of Smart’s arrest, his bosses’ loss of trust and confidence in him, and the potential for undermining public confidence in the agency should Smart have been retained in a paid status. (pp. 5-6)
 
The upshot is that Mr. Smart can continue drawing his retirement annuity, but he won’t be reinstated to his job.

© 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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