How Come FBI’s McCabe Gets to Take Leave Before Retiring?

In reading news reports about the abrupt departure of FBI Deputy Director Andrew McCabe yesterday, I was struck by one aspect of the story.

As the Washington Post reported, “McCabe had planned to retire in March and use accrued vacation time to reach the date he becomes eligible for full pension benefits. On Monday, people close to the matter confirmed that McCabe’s plan is unchanged. Technically, he will remain an FBI employee for the next several weeks, but he has left the deputy director position and is not expected to return to work, these people said.”

Using up vacation time immediately before retirement is what’s known as “terminal leave,” and ordinarily it’s a no-no for civilian federal employees. In 1945, the Comptroller General of the United States ruled that “terminal annual or vacation leave may not be granted immediately prior to separation from service in any case where it is known in advance that an employee is to be separated from service.”

It’s pretty clear to everybody at this stage that McCabe is not coming back to the FBI. So how is this happening?

Well, as is so often the case in government, there are loopholes in the rules. There are certain circumstances under which terminal leave is allowed. (They’re spelled out in this Commerce Department guidance.)  For example, an employee can take leave before retirement, but come into the office on his or her last day before officially departing. And then there’s this exception: When “the exigencies of the service require such action.”

Under the circumstances, I guess I wouldn’t be surprised if someone has decided that “exigencies” are at stake here.