Can the Trump Administration Treat Government Employees’ Non-Response to Musk’s 5-Point Plan as a Resignation?

Over the weekend, Elon Musk posted on X that federal government employees "will shortly receive an email requesting them to understand what they got done last week." According to the post, "[f]ailure to respond will be taken as a resignation."

A couple hours later, the Office of Personnel Management sent an e-mail to federal government employees instructing them to reply to the e-mail with "appx. 5 bullets of what you accomplished last week" by midnight Monday. OPM's e-mail did not threaten to treat a non-response as a resignation. Musk sent a follow-up on X saying, "To be clear, the bar is very low here."

It's not clear what all this means. Still, Musk's posts and OPM's e-mail have created mass confusion in Executive Branch agencies (and a few instructions by agency heads not to comply).

But if we take the posts and the e-mail at face value, we might ask: Can Musk and OPM do this?

Probably not, at least under current law. Federal law and OPM regulations (5 U.S.C. Sec. 4302; 5 C.F.R. Sec. 430.201 et seq.) say that agencies must create and enforce performance appraisal programs; the regs also set standards for those programs. It's not at all clear that OPM can unilaterally impose an additional requirement (reporting five bullets) on employees covered by these plans on such short notice.

Moreover, federal regulations say that employees, not the government, request a resignation. 5 C.F.R. Secs. 715.201 and 715.202.

Finally, Musk's posts and OPM's e-mail, taken together (giving employees just one working day to respond, with such high stakes, and such indeterminacy), look like a forced resignation, which an employee could appeal through the Merit Systems Protection Board (or similar process, depending on the agency).

So if current law doesn't allow this, why are Musk and OPM doing it?

Musk and OPM might have designed the posts and e-mail simply to create mass confusion, or to create further uncertainty and frustration in the federal workforce, without ever intending to enforce the consequence of not responding. Alternatively, they might have designed the posts and e-mail to result in actual resignations, and resulting litigation, as yet another way to press a view of the unitary executive theory that would give the President plenary control over all executive employees (and not just officers), regardless of civil-service laws and regulations.

We don't know the end game yet; stay tuned.