MSPB Rules in Favor of Retired Employees

February 20, 2013

MSPB recently affirmed that retired employees are protected under the Civil Service Due Process Amendments of 1990, 5 USC 7701(j), which provide that an employee's retirement has no impact on the "appealability ... of any case involving a removal from the service." Paula v. SSA, 2013 MSPB 6 (1/23/13).

The agency claimed that it did not have to restore Paula to duty or pay him back pay, interest or benefits after the Board reversed the removal, finding a violation of the appellant's constitutional due process rights. SSA argued that Paula's retirement was voluntary and was only willing to cancel the removal action and issue a new SF-50 indicating that he had retired voluntarily.

The Board disagreed with SSA, noting that cases following the enactment of the Due Process Amendments "consistently have recognized that an appellant who retires in the face of a final removal decision, and whose removal is reversed, is entitled to all the relief he could have received if he had appealed the removal but had not retired," citing Mays v. Dep't of Transportation, 27 F.3d 1577, 1579-81 (Fed. Cir. 1994); Scalese v. Dept. of the Air Force, 68 MSPR 247, 248-49 (1995). The Board stated that it has jurisdiction over and adjudicates cases where the employee retires in the face of a final removal decision as it would a pure removal action; therefore, the appellants should receive the same relief. It explicitly affirmed that "pursuant to 5 U.S.C. § 7701(j), an appellant who retires in the face of a final removal decision, and whose removal subsequently is invalidated, is entitled to the same relief as if he did not retire."

The purpose of the Due Process Amendments was "to end the situation which forced federal employees to choose between appealing a removal action and accepting retirement benefits." Mays v. Dept. of Transportation, 27 F.3d at 1580 (quoting 101 H. Rpt. 328, at 6 (1989)). Thus the Board ordered SSA to cancel the removal action and to restore Paula to active duty status with back pay, interest and benefits within 20 days after the date of the decision. Edward H. Passman, a founding principal of Passman & Kaplan, P.C., testified before Congress in support of the Due Process Amendments.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. . For more information on Passman& Kaplan, P.C., go to https://www.passmanandkaplan.com.