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Agency facing ‘tidal wave’ of furlough appeals

Mar. 7, 2013 - 10:21AM   |  
By STEPHEN LOSEY   |   Comments

The tiny Merit Systems Protection Board fears it is about to be swamped.

Agency officials expect to be flooded in the coming weeks by thousands of appeals from federal employees looking to evade furloughs. MSPB handles appeals of adverse actions such as furloughs.

MSPB Chairman Susan Tsui Grundmann said that if even 1 percent of federal employees facing furloughs appeal, that would more than double the board’s annual workload of 8,000 cases.

But the agency has bigger problems than that: MSPB is also facing sequestration and may be forced to furlough some of its 204 employees while trying to weather an unprecedented increase in its caseload. Those MSPB employees also have their own rights to appeal their furloughs — to an outside administrative law judge — and MSPB will have to foot the bill for those appeals as well, while already trying to absorb sequestration budget cuts.

“It’s a tidal wave,” Grundmann said. “Everything hitting at the same time. Like other agencies, we don’t really know what’s coming.”

MSPB’s options

MSPB doesn’t have very many options, she said. The agency won’t have the money to bring on temporary employees or rehire retirees. And even if MSPB brought on new temporary employees to take up the slack, Grundmann said, it would take two years to get them fully trained.

The last time MSPB handled a situation even remotely similar to this was after President Reagan fired the striking air traffic controllers in 1981, Grundmann said. About 12,000 fired controllers appealed their firings, and MSPB was able to lump all their appeals together and process them at once.

But those 12,000 appeals came from one agency and dealt with a single personnel action, Grundmann said. The sequestration furloughs will affect hundreds of thousands of employees across dozens of agencies differently, and grouping them together will be nearly impossible, she said.

The government shutdowns in 1995 or 1996 also provide no guidance to MSPB. Because Congress restored back pay to federal employees furloughed during that shutdown, they had nothing to appeal to MSPB.

Grundmann said MSPB took 93 days on average to process a case last year. If its workload is more than doubled, that time could also potentially double, she said.

“I can’t even fathom what that would do to our backlog,” she said. “Some things, I don’t want to think about.”

John Mahoney, a partner at the law firm Tully Rinckey, which represents federal employees before MSPB, said it will be hard to predict how many feds might appeal their furloughs.

“We’ve never had anything like this,” Mahoney said.

Winning the case

If a fed can prove that he was targeted for a furlough because he was a whistleblower, or that furloughs disproportionately fell on members of a particular minority group, Mahoney said that federal employee may have a case for appealing his furlough.

But if virtually everybody in a particular office or agency gets furloughed, an employee’s case would get weaker, he said.

“If everybody gets furloughed, that hurts your appeal,” Mahoney said. “If there’s no prohibited personnel practice, it’s going to be very difficult to win.”

Some employees might try to appeal their furlough anyway, to see if they can negotiate a settlement with the agency and shorten their furloughs, Mahoney said. Some feds may have access to an attorney through their union, and some may sign on to a potential class-action lawsuit, he said. Others may file appeals on their own.

“If I’m a federal employee about to lose 20 percent of my pay between now and September, is there a prospect for an alternative dispute resolution settlement negotiation to come up with a more favorable resolution?” Mahoney said. “We’re talking about years, and hundreds of thousands of dollars [possibly spent on fighting furlough appeals]. This is just an administrative nightmare, frankly, for the United States.”

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