Feds Appeal Furloughs in Droves

Hundreds of federal employees are appealing their furlough decisions every day, according to the agency charged with adjudicating the petitions.

The Merit Systems Protection Board -- an independent, quasi-judicial agency -- had received 2,100 appeals as of Thursday morning, and about 1,000 more are still being processed. The vast majority of those, said MSPB Chairwoman Susan Tsui Grundmann, have come in the weeks since furloughs began for about 650,000 employees at the Defense Department.

To deal with this influx -- MSPB has received about half the appeals it typically receives per year in the last two weeks alone -- regional offices have begun to consolidate cases. Not every case will be lumped together, however; when employees claim they were personally discriminated against, for example, their cases will remain separate.

“The more similarities, the more consolidation makes sense,” Grundmann said in an interview with Government Executive.

At least one union has expressed concern with this method of decision making, writing a letter to Grundmann to ask that every individual be afforded due process.

“Each individual worker is entitled to a thoughtful and thorough decision by the board instead of the assembly line justice approach,” the International Federation of Professional and Technical Engineers wrote.

The fate of furloughed feds is an unknown, Grundmann said, as the employees are heading for uncharted territory.  MSPB has heard virtually no cases on furlough appeals in its 34-year history, and there is no precedent for “what argument is going to prevail,” she said.  Once MSPB receives an appeal, the burden shifts to the agency to prove the furlough “will promote the efficiency of the service,” Grundmann said. This is the same treatment as in any case in which an employee is claiming an adverse action.  

To date, only one, highly specific case among roughly 3,000 furlough-related appeals has been decided, and it set no precedent. All appeals currently sit at MSPB’s regional offices and have thus been consolidated strictly at the regional level. If an appellant is unhappy with the regional adjudicator’s decision, he can then take the case to the national board.

Grundmann said MSPB has only faced a comparable wave of appeals once in its history: in 1981, when President Reagan summarily fired 11,000 striking air traffic controllers. In that instance, however, all employees were a member of one agency: the Federal Aviation Administration.

The fact that appeals are “government wide is unprecedented,” Grundmann said.

She added in 1981, MSPB had about 400 employees. Today, the agency has roughly half that. Still, Grundmann said she remains confident MSPB will get the job done.

“It’s what we do,” she said.  MSPB was itself subject to furloughs, but found other means by which to reach sequestration-induced cuts and will avoid unpaid leave.

With less than two weeks since the first Defense workers were furloughed, Grudmann recognizes the number of appeals is likely to grow. Already, MSPB’s administrative staff is working full time just on processing the petitions.

“We think it’s going to go up before it goes down,” she said. “We’re at the front end of the wave. These are interesting times. The board is typically good at martialing our own resources and getting through this type of crisis together.”