Facing removal: retiring first
If you’re eligible, you can retire and still appeal. Resigning gives up both.
Get advice before the effective date. This is fact-specific, the timing matters, and an attorney who handles federal employment cases can tell you what your record supports.
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1. You can retire and still appeal
Before 1990, an employee facing removal often had to choose: retire and give up the appeal, or appeal and risk losing everything. The Civil Service Due Process Amendments of 1990 ended that. Under 5 U.S.C. 7701(j), your retirement status doesn't affect whether you can appeal a removal.
The Federal Circuit confirmed in Mays v. Department of Transportation (1994) that this applies whether you retire before or on the removal's effective date. And if the removal is later overturned, the Merit Systems Protection Board has held you're entitled to the same relief as if you hadn't retired.
This protection applies only if you were eligible to retire when you separated. If you weren't eligible and you resign instead, the protection doesn't apply, and the Board generally won't hear the appeal unless you show the resignation was involuntary — coerced, or based on misinformation from the agency.
2. Your annuity isn’t forfeited
A common fear is that a removal wipes out the pension. It doesn't. An annuity you've earned is not forfeited because you're removed for cause. If you're eligible, you can still receive an immediate or deferred annuity after a removal.
Forfeiture exists only in narrow cases involving specific serious offenses, largely national security crimes. For the overwhelming majority of removals — performance, conduct, attendance — the earned annuity stays yours.
3. Retiring versus resigning
| Retire (if eligible) | Resign | |
|---|---|---|
| Appeal protection under 7701(j) | Kept | Not available |
| Immediate annuity | Yes | No |
| FEHB into retirement | Yes, with the five-year rule | Generally no |
| What the record shows | Retirement | Resignation |
The paperwork matters. Make sure the personnel action says retirement, not resignation. There are Board cases where an employee meant to retire, the action was processed as a resignation, and FEHB was lost as a result. The same retire-versus-resign trap is covered in administrative leave before separation.
4. What you’re eligible for
| Your age and service | What’s available |
|---|---|
| MRA with 30 years, 60 with 20, or 62 with 5 | Immediate, unreduced retirement |
| MRA with 10 years | MRA+10, reduced unless postponed — see MRA+10 |
| 5+ years, not yet eligible | A deferred annuity later — see the deferred annuity |
| Removed for cause | No discontinued service retirement |
Discontinued service retirement requires an involuntary separation that is not for misconduct or delinquency, so a removal for cause doesn't qualify. That option is for reductions in force and similar actions; see discontinued service retirement.
Never take a refund of your contributions to get cash in a crisis. It ends your annuity rights permanently. See taking the FERS refund.
5. Before the effective date
- Confirm your retirement eligibility in writing, computed to your separation date.
- Confirm your FEHB five-year status so you know whether you'd keep coverage.
- File the retirement application before the effective date if you decide to retire.
- Check the personnel action says retirement, not resignation.
- Note your appeal deadline. The time to file runs from the decision, and retiring doesn't pause it.
- Talk to an attorney who handles federal employment cases before you sign anything.
6. Frequently asked questions
Can I retire if my agency is trying to remove me?
If you are eligible for an annuity, yes. A pending or proposed removal does not stop you from retiring. Whether retiring is the right move depends on your eligibility, your appeal prospects, and whether you would keep FEHB, so it is worth getting advice before the effective date.
If I retire, do I lose my right to appeal the removal?
Not if you were eligible to retire. Under 5 U.S.C. 7701(j), added by the Civil Service Due Process Amendments of 1990, your retirement status does not affect whether you can appeal a removal. Courts have applied this whether you retire before or on the removal’s effective date. If the removal is later overturned, you are entitled to the same relief as if you had not retired.
Does a removal take away my pension?
Generally no. An annuity you have earned is not forfeited because you are removed for cause. Forfeiture applies only in narrow cases involving specific national security offenses. If you are eligible, you can still receive an immediate or deferred annuity after a removal.
What is the difference between retiring and resigning in this situation?
Retiring on an immediate annuity keeps your FEHB for life if you meet the five-year rule, and preserves your appeal rights under 7701(j). Resigning generally gives up both: you lose the appeal protection, and you cannot carry FEHB into retirement unless you separate on an immediate annuity. The paperwork should say retirement, not resignation.
Can I get discontinued service retirement if I’m removed?
Generally no. Discontinued service retirement requires an involuntary separation that is not for misconduct or delinquency. A removal for cause does not qualify. You may still be eligible for an immediate retirement, an MRA+10 annuity, or a deferred annuity, depending on your age and service.
General information, not legal advice. Removal and appeal decisions turn on specific facts and deadlines. Consult an attorney experienced in federal employment law before retiring or resigning in the face of a proposed or final removal.