Involuntary Resignation? Unpleasant Choices Don’t Equal Involuntary Resignation

A federal attorney did not want to move to Arlington, VA from Texas so she resigned.
She then filed an appeal contending that the resignation was involuntary and was a constructive removal.

An attorney with the Postal Service Office of Inspector General failed to persuade the Merit Systems Protection Board and now the appeals court that her resignation in lieu of geographical reassignment was not voluntary and therefore an adverse action. (Gafford v. Merit Systems Protection Board and United States Postal Service, C.A.F.C. No. 2006-3428 (nonprecedential), 5/14/07)

Gafford was one of three agency field attorneys. She and one other were stationed in Dallas and the third was in San Francisco. The agency decided to reassign all three to the agency’s headquarters in Arlington, Virginia. The agency delayed Gafford’s reassignment some 10 months until her husband returned from active military duty. Then, at Gafford’s request, the agency delayed it another several months until her children could finish out the school year. Before the effective date, Gafford resigned, telling the agency in her letter that her resignation was “involuntary.” (Opinion pp. 1-2)

The Merit Systems Protection Board found it had no jurisdiction over Gafford’s claim that her involuntary resignation was a constructive removal. (p. 3)

Gafford then took her case to the Federal Circuit, where she fared no better.

Citing Staats v. U.S. Postal Serv., 99 F.3d 1120, 1124 (Fed. Cir. 1996), the court found that Gafford had failed to meet the “demanding legal standard” that would rebut the presumption that a resignation is voluntary. The court notes her arguments that the decision to reassign the 3 field attorneys was the result of pressure from the hill (Congress), and that varying inconsistent reasons were given by the agency for ordering up the reassignments. As the court states, “The circumstances she identifies may have been unpleasant for her, but they did not make her resignation any less voluntary. Nor was her resignation less than voluntary because she was faced with the difficult choice of either accepting the reassignment or resigning. The fact remains, she did have a choice.” (pp. 6-7)

In short, the court finds Gafford’s arguments unpersuasive, and affirms the Board’s finding that it had no jurisdiction over her appeal.

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.