Getting fired right before you collect your full retirement benefit would be a nightmare for most people. For former FBI Deputy Director Andrew McCabe, it’s inching closer to reality.
McCabe, who is still a Federal Bureau of Investigation employee, stepped down from his post in January amid accusations that he misled Justice Department officials. The decision to fire him now rests with Attorney General Jeff Sessions, who would have to make the decision quickly before McCabe’s expected retirement this weekend. McCabe also has faced criticism from President Donald Trump and other Republicans for his involvement in the FBI investigation into Democratic presidential nominee Hillary Clinton’s emails.
The issue of whether McCabe would get his retirement benefits was raised by a Dec. 23 tweet from Trump: “FBI Deputy Director Andrew McCabe is racing the clock to retire with full benefits. 90 days to go?!!!”
The chances that McCabe is fired are “very unlikely” because the FBI’s internal process could take longer than a couple of days if done properly, Cheri Cannon, a federal employment lawyer with Tully Rinckey PLLC in Washington, told Bloomberg Law. “He is entitled to due process, and due process takes time,” said Cannon, who has represented FBI employees.
Even if he loses his job in the next few days, she said, he wouldn’t be losing his entire retirement benefit. What he would lose is an enhanced retirement benefit for law enforcement officers, not his full federal pension.
“He may lose that supplement because he won’t be a law enforcement officer on the day of his retirement,” Cannon said.
As a federal employee, McCabe’s retirement benefit under the Thrift Savings Plan—a federal defined contribution retirement plan—is not in jeopardy, L. Stephen Bowers, an employee benefits lawyer at Cozen O’Connor in Philadelphia, told Bloomberg Law. McCabe also has a retirement benefit under the Federal Employees Retirement System, another federal retirement system set up like a traditional pension, Bowers said. That’s what’s in question.
Law enforcement officers must be 50 years old or have 20 years of service to collect that full benefit, which is why the weekend deadline is important, Bowers said. If McCabe is fired before then, he won’t meet the requirement. The amount of that benefit “is probably substantial” because the multiplier for law enforcement officers is higher than other federal employees.
The U.S. Office of Personnel Management, which manages the federal civilian workforce, referred inquiries to the FBI. The FBI didn’t respond to a Bloomberg Law request for comment.
McCabe isn’t covered by the Employee Retirement Income Security Act like those in the private sector, but if he was, he might have some additional protections. Specifically, under Section 510 of ERISA, an employer can’t fire someone with the intention of interfering with their benefits, employment lawyers told Bloomberg Law.
“If the circumstances arose that they were to do this to intentionally deprive him of benefits, then he might have a claim,” James Bailey, an employment lawyer at Bailey & Ehrenberg PLLC in Washington, told Bloomberg Law. “But I don’t think that’s the case here.”
An employer could still fire an employee for misconduct, and that’s distinct from benefits, Bailey said. McCabe could still be fired in either sector if the employer proved misconduct, Bowers and Bailey said.
However, in the hypothetical situation where a CEO of a company tweeted about the alleged misconduct, suggesting the employee’s benefits were on the line, the plaintiff might have an interesting case, Bowers said.