UPDATE: OPM is no longer accepting resignations under the Deferred Resignation Program. Read about recent updates here.

The U.S. Office of Personnel Management (OPM) issued a memorandum on February 4, 2025, addressing the legality and enforceability of its controversial Deferred Resignation Program. This policy, which allows eligible federal employees to resign by February 6, 2025, in exchange for continued pay and benefits through September 30, 2025, has been met with skepticism from employees, legal analysts, and members of Congress. OPM’s latest memorandum seeks to reassure agencies and employees of the program’s legal foundation, yet critical concerns remain.

For a discussion on the initial concerns surrounding this program, see our earlier article here.

OPM’s Justification: A Strengthened Agreement

OPM Acting Director Charles Ezell and General Counsel Andrew Kloster have taken an important step by personally signing the latest memorandum, signaling greater commitment to the program’s enforceability. Notably, the latest version of the agreement includes protections under the Older Workers Benefit Protection Act (OWBPA), giving employees additional rights and time to evaluate their decisions. These improvements offer more confidence in the program’s validity.

Additionally, OPM has granted Voluntary Early Retirement Authority (VERA) to all federal agencies, allowing more employees to opt for early retirement instead of waiting until their mandatory retirement age. Employees interested in early retirement should review the updated FAQs to better understand their options.

How Early Retirement May Sweeten the Deal

With the addition of VERA, the Deferred Resignation Program has become more attractive for some employees, especially those who are near retirement eligibility but not quite there yet. Under VERA:

  • Employees aged 50 or older with at least 20 years of service OR any age with at least 25 years of service can retire early.
  • They will receive full pension benefits under the Federal Employees Retirement System (FERS) or Civil Service Retirement System (CSRS), though with some reductions depending on service years.
  • This may be an appealing option for those who were considering leaving federal service but didn’t yet qualify for full retirement benefits.

What the Memo Does Not Address

While OPM’s memorandum presents a stronger legal foundation than before, several concerns remain:

Potential Enforcement Challenges:

  • The Tucker Act (28 U.S.C. § 1491) may provide employees with a pathway to sue the government if the agreement is violated, as Green v. General Services Administration (2000) suggests. However, courts may be hesitant to enforce employment agreements if they are later deemed outside OPM’s legal authority.

Legality of Extended Paid Leave

  • The use of prolonged paid administrative leave for employees who are not expected to work raises concerns of waste and abuse. Critics argue that it could violate fiscal responsibility principles and be subject to challenge by Congress or oversight bodies.
  • Federal law generally limits administrative leave to 10 workdays per year (5 U.S.C. § 6329a), yet OPM asserts that this rule does not apply to the Deferred Resignation Program. Instead, OPM claims that agencies have discretion to place employees on extended leave under their own workforce management authority. Whether this interpretation withstands legal scrutiny remains an open question.

Ambiguities in the Separation Agreement

  • The template agreement issued by OPM includes broad waivers of employee rights, including a waiver of Merit Systems Protection Board (MSPB) appeals, which may be legally contested.

Potential for a Second Offer

  • Some legal analysts have speculated that it will be much more cumbersome for the Trump administration to reduce head counts through a reductions in force than with the deferred resignation plan. With the February 6, 2025 deadline for opting into the program fast approaching, many may feel they must make a choice quickly, and without adequate information. If these analysts are right, a second offer, potentially more lucrative than the first, may be forthcoming.

What Should Federal Employees Do?

Despite the remaining uncertainties, this version of the Deferred Resignation Program is significantly more structured and protective than its initial rollout. Employees who are curious about the opportunity should:

  • Ask your agency to see and consider the agreement your agency offers. Review that agreement with legal counsel.
  • Monitor potential legal challenges that could impact the enforceability of the agreement.
  • Be aware of the concerns of potential policy reversals in the future.
  • Consider the many benefits of federal employment, especially for those in Northern Virginia who may find stability and career longevity in staying. We explore these benefits further in our earlier article here. 

Closing Thoughts: Skepticism Remains

While the Deferred Resignation Program now includes stronger protections and new options like VERA, many in the legal and employee advocacy communities remain skeptical about its long-term viability. Many lawyers are advising their federal employee clients to approach the deal with caution, warning that unforeseen legal or political shifts could alter the program after employees have already signed away their rights

Moreover, speculation continues that OPM may introduce another voluntary resignation offer after February 6, potentially on better terms, as a cost-saving alternative to a full Reduction-in-Force (RIF). Employees should carefully weigh their options before making an irreversible decision.

Stay tuned to this blog for updates as this program continues to evolve.