Want to appeal a furlough with the MSPB? Get in line

Thursday - 7/18/2013, 5:16pm EDT

MSPB Chairwoman Susan Tsui Grundmann on the "Federal Drive" with Tom Temin and Emily Kopp

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The Merit Systems Protection Board is being inundated with appeals from furloughed federal employees.

As of Thursday morning, the MSPB has received approximately 2,100 appeals from furloughed employees, MSPB Chairwoman Susan Tsui Grundmann said in an interview on the Federal Drive with Tom Temin and Emily Kopp.

"We literally, on a daily basis, have hundreds and hundreds of furlough cases filed, with people dropping off stacks of paper in each office or using our electronic filing system," Grundmann said. And there could be many more appeals in the pipeline; as many as another 1,000 cases haven't been docketed yet, she added.

Chairwoman Susan Tsui Grundmann, MSPB

To put those numbers into perspective, MSPB processes 6,000-7,000 cases annually, covering a variety of issues.

"Here, we have probably 3,000 cases in the pipeline on one particular issue, which is half of what they process every year," Grundmann said. "And all 3,000 of those cases have been filed within the last 10 days or so."

Because furloughs can be considered an adverse action, such as a suspension or a removal, furloughed employees can file a complaint with MSPB.

Out of that mass of cases being filed, MSPB staff is beginning to see a pattern emerge of who are filing the appeals.

"A vast majority of cases are coming from the Department of Defense, and, as we all know, DoD is not just one agency, but it's components and agencies within agencies, so that's a huge number," Grundmann said. In addition, employees of the Internal Revenue Service, the Federal Aviation Administration and the Department of Housing and Urban Development are also filing appeals in large numbers.

One way for MSPB support staff to tackle such a large influx of cases is to consolidate them, which is how the board handled air traffic control strike cases in the early 1980s.

"We processed about 10,000 cases within a two-year period," Grundmann said. "Consolidation can work by facility. It can work by deciding official and certainly by the types of claims raised by appellants. Right now, the regions are seeking to consolidate within each region just to keep up with the influx of appeals coming in. Having said that, consolidation may not be appropriate in every case and, so far, as of this date, no nationwide consolidation has started yet."

In general, an employee can appeal to the MSPB if he or she has been furloughed for 30 consecutive calendar days or less, or 22 non-consecutive days, provided they occur within a year.

"Once filed, the employee is essentially entitled to a hearing, and the burden at that point shifts to the agency to prove that this action, this furlough, promoted the efficiency of the service," Grundmann said. "In other words, it's not any different than any other standard where we evaluate an adverse action. Once the employee is entitled to a hearing, gets the hearing, gets a decision, he or she can decide to petition for review before the whole board."

Grundmann said that because of the volume of cases being filed, she wasn't sure how long it would take to process them all.

"Our processing times, at least last year, in the regional and field offices was about 94 days per case," she said. "Now, it could still be 94 days with these cases or, depending on the facts, depending on the parties, it could be much longer. We don't know yet."

MSPB support staff is already working overtime to keep up with the influx of appeals.

The MSPB recently posted a FAQ on its website to answer questions federal employees may have about the furlough appeals process.

With the possibility of sequestration and budget cuts continuing into the next fiscal year, furloughs and large numbers of employees filing appeals could be an ongoing challenge for MSPB support staff.

"What if agencies have to face sequester again next year? Will there be more furloughs? Are we going to have the same type of facts? We don't know yet. It could be the new normal," Grundmann said.

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