All the adjudicated appeals from federal employees who were furloughed because of sequestration and are seeking back pay so far have been denied, according to a new report.
The Merit Systems Protection Board, tasked with processing 32,400 initial furlough appeals filed in fiscal 2013, has processed about 2,000 of those cases so far; of the 1,200 cases “adjudicated on the merits,” the judges in each instance upheld the agency’s decision to furlough the employee, or employees, to comply with sequestration’s budget constraints. MSPB defines “processed” cases as “dismissed,” “settled,” or “adjudicated on the merits.” Forty percent, or about 800, of the 2,000 cases processed so far were dismissed for various reasons including “lack of jurisdiction or timeliness, withdrawn, cancelled, or dismissed without prejudice,” the report said. Of the appeals not dismissed, 99 percent were adjudicated on the merits, and 1 percent of them were settled.
To expedite the appeals process, MSPB by March 2014 had consolidated roughly 64 percent of individual appeals into 724 cases. The agency has to docket the appeals, or organize them, before the adjudication process takes place. Ninety-nine percent of the furlough appeals MSPB received in fiscal 2013 were from Defense Department workers forced to take up to six days of unpaid leave last summer because of the mandatory, automatic budget cuts. MSPB can consolidate appeals that share similar characteristics, such as the type of issues raised, or location of the employee, to expedite processing, as long as it doesn’t adversely affect the parties involved.
MSPB judges decide each case on its individual facts, but the decisions in the cases processed so far would indicate that winning back pay remains a long shot for the thousands of employees who have filed furlough appeals. Typically, an agency must demonstrate that the adverse actions taken — in these cases, furloughs — were reasonable under the circumstances and promoted “efficiency of service.”
The board’s decision last year in Chandler v. Department of the Treasury likely will have a significant effect on the decisions of future furlough-related appeals. In that furlough appeal, filed by an Internal Revenue Service employee, the majority opinion defined the efficiency of service standard as whether an agency applied the furlough “uniformly and consistently,” denying the employee’s requests for information on how and why the IRS chose specific days for its agency-wide furloughs. “The board’s efficiency of the service determination does not encompass agency spending decisions per se, including spending on personnel matters, or an agency’s decision to allocate furlough days in a certain manner among employees who are not similarly situated,” the report stated. “Such matters belong to the judgment of agency managers, who are in the best position to decide what allocation of funding will best allow the agency to accomplish its mission.”
MSPB, a small federal agency with about 200 employees in Washington and across eight regional offices, adjudicates appeals of “adverse personnel actions” from federal employees who have 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. The average appeal 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 in fiscal 2012 to process those petitions, which are rare.
The unprecedented wave of sequestration-related furlough appeals exponentially increased the small federal agency’s workload during the past year – the number of appeals filed was five times that typically filed with the agency. MSPB on average receives about 6,200 initial appeals total each year. The volume of furlough appeals related to sequestration is “the most significant external factor currently affecting MSPB’s ability to carry out its mission,” the agency stated in its annual report released on May 30. MSPB’s goal is to issue initial decisions in all the furlough appeals by the end of fiscal 2015, “while maintaining the processing of non-furlough appeals as effectively as possible,” the report stated.
The agency is investing in improvements and enhancements to its electronic case processing in anticipation of another flood of sequestration-related furlough appeals after fiscal 2015, when sequestration goes back into full effect. There are 30,400 sequestration-related furlough appeals still in the pipeline.
The only other time something like this happened, according to MSPB officials, was in the 1980s when the agency had to process 12,000 personnel-related appeals during the air traffic controller strike. That took two years, and at the time, MSPB had about double the number of employees it has now.
The 16-day government shutdown in October 2013 at a time when the agency was struggling to get a handle on the flood of furlough appeals didn’t help either. It had to furlough most of its workforce, save for a few excepted employees and the three board members who are political appointees. “This government shutdown, on the heels of receiving tens of thousands of furlough appeals, will further delay the final resolution of cases filed with MSPB,” the report stated, adding, “It is worthwhile to note that during the government shutdown, MSPB board members continued to work and processed 55 cases.”
The report noted that MSPB “will continue to struggle” to tackle its increasing workload amid dwindling resources, including growing numbers of retirement-eligible workers and a “persistent number of vacancies.”
Overall, the agency issued 7,459 decisions, including 6,340 initial decisions, in fiscal 2013. In addition to processing thousands of the furlough appeals, MSPB also had to incorporate major changes in the reporting and adjudication of whistleblower cases as a result of the 2012 Whistleblower Protection Enhancement Act, which took effect in December 2012.