How to Win a Furlough Appeal

Sebastian Duda/

Last summer, hundreds of thousands of federal employees were forced to take unpaid leave as agencies rushed to meet reduced spending caps imposed by the 2011 Budget Control Act.

Labor groups felt the mandatory furloughs were unfair and unnecessary, and they advised their members to appeal the decisions with the Merit Systems Protection Board. The small, quasi-judicial agency tasked with adjudicating personnel actions was quickly flooded with appeals from furloughed employees.

MSPB ultimately received 33,000 appeals. Most of those came from the Defense Department, which furloughed about 650,000 civilian workers. As a result, the board collected in a few months more than five times the number it typically receives in a year. 

The unprecedented flood of appeals initially caused MSPB to delay any rulings indefinitely, but it has since begun to make its way through the employee challenges. The agency has adjudicated about 6,000 appeals to date, MSPB Chairman Susan Tsui Grundmann recently told Government Executive, and some employees have been successful.

Appeals first go to a regional administrative judge, who issues an initial ruling. If employees so choose, they may then issue a second appeal to the three-member, presidentially appointed and Senate-confirmed central panel.

In May, the MSPB panel overturned an initial decision in which an Army Corps of Engineers employee argued he should not have been subject to furloughs. Roger Dye maintained his position was misclassified, and that all his labor costs came from Civil Works or Intelligence Community sources of funding.

In order for MSPB to uphold a furlough, an agency must prove the temporary unpaid leave “promoted the efficiency of the service.” The Defense Department determined in 2013 that any employees not paid by accounts included in the Defense-Military budget would be exempt from furloughs, because forcing them to not work “would not reduce the expenditure of the DoD budgetary resources and so would not assist in meeting reductions.”

In its ruling, MSPB said Dye’s position should have been classified as exempt from furloughs.

Grundmann said the cased was determined to be precedential, meaning all employees who can prove their job was classified under the wrong code will henceforth have their appeal upheld. MSPB has so far reversed 12 furlough decisions.

In Dye’s case, he hasn’t yet received back pay for his six days of furlough. The three-member panel remanded the case back to the regional administrative judge for further proceedings. The administrative judge, or the panel upon further appeal, will make a final determination on retroactive pay. The government could also appeal any such determination to the federal circuit. 

(Image via Sebastian Duda/

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