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/

Stay up-to-date with federal news alerts and analysis — Sign up for GovExec's email newsletters.
Close [ x ] More from GovExec

Thank you for subscribing to newsletters from
We think these reports might interest you:

  • Going Agile:Revolutionizing Federal Digital Services Delivery

    Here’s one indication that times have changed: Harriet Tubman is going to be the next face of the twenty dollar bill. Another sign of change? The way in which the federal government arrived at that decision.

  • Cyber Risk Report: Cybercrime Trends from 2016

    In our first half 2016 cyber trends report, SurfWatch Labs threat intelligence analysts noted one key theme – the interconnected nature of cybercrime – and the second half of the year saw organizations continuing to struggle with that reality. The number of potential cyber threats, the pool of already compromised information, and the ease of finding increasingly sophisticated cybercriminal tools continued to snowball throughout the year.

  • Featured Content from RSA Conference: Dissed by NIST

    Learn more about the latest draft of the U.S. National Institute of Standards and Technology guidance document on authentication and lifecycle management.

  • GBC Issue Brief: The Future of 9-1-1

    A Look Into the Next Generation of Emergency Services

  • GBC Survey Report: Securing the Perimeters

    A candid survey on cybersecurity in state and local governments

  • The New IP: Moving Government Agencies Toward the Network of The Future

    Federal IT managers are looking to modernize legacy network infrastructures that are taxed by growing demands from mobile devices, video, vast amounts of data, and more. This issue brief discusses the federal government network landscape, as well as market, financial force drivers for network modernization.

  • eBook: State & Local Cybersecurity

    CenturyLink is committed to helping state and local governments meet their cybersecurity challenges. Towards that end, CenturyLink commissioned a study from the Government Business Council that looked at the perceptions, attitudes and experiences of state and local leaders around the cybersecurity issue. The results were surprising in a number of ways. Learn more about their findings and the ways in which state and local governments can combat cybersecurity threats with this eBook.


When you download a report, your information may be shared with the underwriters of that document.