MSPB Braces for Possible Flood of Furlough Appeals
The small federal agency that handles appeals from government workers who have been furloughed could be inundated with complaints if sequestration happens.
If Congress doesn’t reverse the dreaded automatic spending cuts scheduled to begin taking effect March 1, hundreds of thousands of federal employees could be furloughed on and off for the rest of the fiscal year. Furloughed employees can appeal those personnel decisions to the Merit Systems Protection Board, an independent, quasi-judicial agency in the executive branch with just 203 employees in Washington and in eight regional offices across the country.
“We don’t know if it’s going to be a whole dam breaking down, or just a trickle,” said MSPB Executive Director Jim Eisenmann, of the number of complaints employees could file appealing their furloughs. “We just don’t know.”
Eisenmann, who became executive director of the agency in January, is worried though. Not only could MSPB’s workload dramatically spike during a sequester, but the agency also has to consider the possibility of furloughing its own employees to find the required budget cuts. MSPB is not exempt from sequestration.
“It’s sort of like a double whammy for us,” Eisenmann said. He recently emailed employees about what could happen during sequestration, and he expects to provide another update before the March 1 deadline, now just one week away.
MSPB Chairman Susan Tsui Grundmann sent a letter on Thursday to Sen. Tom Carper, D-Del., the new chairman of the Homeland Security and Governmental Affairs Committee, requesting a meeting to discuss the issue.
“It has been reported that sequestration could result in the furlough of ‘hundreds of thousands’ of federal employees,” the letter stated. “If this report is accurate and even a fraction of federal employees who are furloughed as a result of sequestration exercise their right to file an appeal, it would not only dramatically increase MSPB’s caseload but create a ‘domino effect’ that could seriously affect the operations of federal agencies, as they divert resources from fulfilling mission-critical work to litigating furloughed employees appeals. Moreover, MSPB itself could be required to furlough its workforce as a result of sequestration, leaving the agency with less staff and fewer resources to process and decide furlough appeals.”
The concerns are warranted. In the 1980s, MSPB had to process 12,000 personnel-related appeals during the air traffic controller strike, Eisenmann said. “It took about two years to process all that.” The agency also had to hire temporary staff during that time to take on the extra work -- something that might not be possible under sequestration.
Among other responsibilities, MSPB adjudicates appeals of “adverse personnel actions” from federal employees who’ve been fired, suspended for more than 14 days, furloughed for 30 days or less, demoted or had their pay cut. Agencies must give furloughed employees 30 days’ advance notice; once on furlough, employees have 30 days to file an appeal with MSPB. In fiscal 2012, MSPB issued 7,585 decisions including 6,523 initial decisions from the regional and field offices, and 1,050 decisions issued at headquarters.
The appeals process can be lengthy, although Eisenmann says MSPB is more expeditious than other agencies and the court system. The average processing time in fiscal 2012 was 93 days for an initial decision from the agency. The “losing” party can then file a petition of review with the agency’s three-member board in Washington. It took an average of 245 days to process those petitions in fiscal 2012.
Employees can further appeal to the federal circuit court. Agencies do not have an automatic appeal to the federal circuit; the Office of Personnel Management would have to file to the court on behalf of the agency, essentially disagreeing with MSPB’s decision. “That doesn’t happen often,” Eisenmann said.
In any event, MSPB appeals and furlough-related discrimination claims, which are handled by the Equal Employment Opportunity Commission, could end up costing the government millions in legal fees, back pay and other expenses, said John Mahoney, partner and chair of the labor and employment law practice group at Tully Rinckey PLLC. “If the furloughs are implemented discriminatorily, the government may rack up huge legal and damages bills, so the administration and Congress should ask themselves if this is the best way to try to save budget dollars,” Mahoney said.