Legal Insight: Why Failure to Respond to the OPM Email Is NOT a Resignation for Federal Employees
Feb 23, 2025Introduction: A Legal Trap for Federal Employees?
Federal employees across the country recently received an email from the U.S. Office of Personnel Management (OPM) with the subject line “What did you do last week?”. Elon Musk then posted on X (formerly Twitter) that failure to respond would be treated as a resignation.
As a federal employment attorney with extensive experience in Merit Systems Protection Board (MSPB) litigation, civil service protections, and wrongful terminations, let me be clear:
🔹 This claim is legally baseless for career federal employees.
🔹 Failure to respond to this email does NOT constitute a voluntary resignation.
🔹 Any removal based on this premise would be highly challengeable under federal employment law.
Let’s break down the legal protections that prevent this kind of forced resignation.
1️⃣ The Legal Standard for a "Voluntary" Resignation
The golden rule in federal employment law is that resignations must be voluntary to be legally valid. The Merit Systems Protection Board (MSPB) and federal courts have repeatedly held that:
✅ A resignation obtained through coercion, misinformation, or undue pressure is involuntary and can be challenged.
If an employee fails to respond to an unsolicited OPM email, that is not an act of resignation. There is no signed resignation letter, no voluntary communication of intent to leave, and no due process.
2️⃣ Due Process Rights Under Federal Law
Under 5 U.S.C. § 7513, federal employees with civil service protections cannot be removed from their positions without:
🔹 Notice of the proposed action
🔹 An opportunity to respond
🔹 A reason supported by evidence
A failure to respond to a vague email does not meet these requirements. If an agency attempted to remove an employee on this basis, it would likely be overturned on appeal to the MSPB.
What About Constructive Removal?
If an agency forces an employee to leave by falsely treating them as having resigned, this could be considered a constructive removal. Employees could challenge this under:
✔️ An MSPB appeal for wrongful termination (most should choose this one and get an attorney--you would likely win)
✔️ A complaint to the Office of Special Counsel (OSC) if political coercion is involved
✔️ A union grievance if covered by a collective bargaining agreement
3️⃣ No Clear Legal Authority from OPM
The OPM email is highly unusual in that:
❌ It does not cite any law, regulation, or policy requiring a response.
❌ It does not come from an agency chain of command directing employees to respond.
❌ It fails to explain the purpose of the request or how the data will be used.
Agencies direct the work of their employees—not OPM in this manner.
➡️ The best course of action? Forward the email to your supervisor and ask for guidance. That way, you comply with agency policies without taking unnecessary risks. You do not want to risk being insubordinate or failing to follow directions so ask your supervisor if and how to respond.
4️⃣ The Political Context & Intimidation Tactics
This email is not just an administrative request—it’s an intimidation tactic. The vast majority of federal employees work hard and deliver critical services every day. This is not about accountability—it’s about political gamesmanship.
- The timing (over a weekend with a short deadline) suggests an attempt to create confusion.
- The lack of explanation raises red flags about its legitimacy.
- Musk’s social media threats have no legal force, but they create an atmosphere of fear.
Federal employees should not let political pressure push them into avoidable mistakes. Instead, stay calm, follow proper procedures, and seek legal or union guidance if necessary.
5️⃣ What Should Federal Employees Do?
Here’s the best legal strategy moving forward:
🔹 Step 1: Forward the email to your supervisor. Ask if you are required to respond and if so how.
🔹 Step 2: If required, submit 5 concise bullet points focused on your job duties and impact.
🔹 Step 3: If you are in a union, coordinate with them for additional guidance.
🚨 Do NOT ignore it outright—that could be twisted into an insubordination charge. But also do NOT panic—your civil service protections remain strong.
Final Takeaway: Stand Firm, Know Your Rights
This situation is a classic example of political interference in the civil service. But the law is on the side of federal employees who follow proper procedures.
💡 If you face retaliation or wrongful termination based on this email, you have legal options. Reach out to a federal employment attorney or your union to protect your rights.
👉 Stay informed. Stay strategic. Stay protected.
Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While I am a federal employment attorney, this post does not create an attorney-client relationship. Every situation is unique, and legal outcomes depend on specific facts and circumstances.